Huntington National Bank v. Bruinsma (In re Kentwood Pharmacy, L.L.C.)

475 B.R. 602, 2012 Bankr. LEXIS 4778
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedJuly 17, 2012
DocketBankruptcy No. 10-13397; Adversary No. 11-80238
StatusPublished
Cited by4 cases

This text of 475 B.R. 602 (Huntington National Bank v. Bruinsma (In re Kentwood Pharmacy, L.L.C.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huntington National Bank v. Bruinsma (In re Kentwood Pharmacy, L.L.C.), 475 B.R. 602, 2012 Bankr. LEXIS 4778 (Mich. 2012).

Opinion

OPINION REGARDING VALIDITY OF ASSERTED LANDLORD’S LIEN

JAMES D. GREGG, Chief Judge.

I. JURISDICTION

This court has jurisdiction over this bankruptcy case. 28 U.S.C. § 1334. This case and all related proceedings have been referred to this court for decision. 28 U.S.C. § 157(a); Local Rule 83.2(a) (W.D.Mich.). This adversary proceeding is a statutory core proceeding because the plaintiff seeks to determine the validity, extent, or priority of a lien. 28 U.S.C. § 157(b)(2)(K).

II.ISSUES

Does a common law landlord’s lien exist in Michigan? Is The Huntington National Bank entitled to a declaratory judgment that its security interest in the debtor’s assets has priority over Tulip Investments, LLC’s asserted common law landlord’s lien? Is Tulip Investments, LLC entitled to a declaratory judgment that its asserted common law landlord’s lien has priority over The Huntington National Bank’s security interest? Should this court impose sanctions on its own initiative?

III.PROCEDURAL HISTORY AND ASSERTED FACTS

On November 10, 2010, Kentwood Pharmacy, L.L.C. (“Debtor”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. Thomas A. Bruinsma [604]*604(“Trustee”) was appointed as trustee of the Debtor’s estate.

For a number of years prior to the petition date, The Huntington National Bank (“Bank”) and the Debtor had a credit relationship. As of the petition date, the Debtor owed the Bank approximately $3,419,072.95 pursuant to numerous loan documents. The Debtor is also the guarantor of a debt owed to the Bank by Mulder Properties, LLC (“Mulder”). As of the petition date, Mulder owed the Bank approximately $621,511.42. These debts are secured by a lien on substantially all of the Debtor’s assets. The Bank properly perfected its security interest in the Debt- or’s assets, the “collateral,” by filing a Uniform Commercial Code (“UCC”) Financing Statement on July 18, 2003, and a timely continuation of that statement on June 26, 2008. On June 2, 2011, the Bank filed a timely proof of claim in the Debtor’s bankruptcy case. (Claim No. 76.) The Trustee does not contest the validity and perfection of the Bank’s lien which has attached to substantially all of the Debtor’s assets.

Tulip Investments, LLC (“Tulip” or the “Landlord”) leased real property to the Debtor pursuant to a lease dated December 4, 2007. The Landlord filed a proof of claim in the Debtor’s bankruptcy case on June 13, 2011, asserting a claim in the amount of $1,492,816.34 for breach of lease. (Claim No. 78.) The proof of claim indicates that $338,758.88 of the Landlord’s claim is secured by virtue of a landlord’s lien. The Landlord asserts that its written lease with the Debtor intentionally omitted a consensual landlord’s lien provision. It alleges, however, that it holds a possessory landlord’s lien on the Debtor’s property located at the leased premises under Michigan common law.

On November 23, 2010, the Trustee moved to sell the Debtor’s assets free and clear of all liens pursuant to 11 U.S.C. § 363.1 At a hearing on November 29, 2010, this court considered the sale motion and authorized the Trustee to sell substantially all of the Debtor’s assets. A court order approving the sale was entered on December 1, 2010. (Dkt. 59.) On April 4, 2011, the Trustee filed a Motion to Authorize Distribution of Sale Proceeds seeking authority to distribute the sale proceeds and postpetition receivables collections, less an agreed upon 8% surcharge, to the Bank. (Dkt. 136.) The Landlord objected to the Trustee’s motion based upon its asserted possessory landlord’s lien. (Dkt. 170.)

A hearing on the Trustee’s motion to distribute the sale proceeds occurred on May 10, 2011. Following argument of the parties, this court ordered the Trustee to distribute all of the sale proceeds and receivables collections, subject to the 8% surcharge, to the Bank with $350,000 of the sale proceeds escrowed until the validity of the landlord’s lien was determined. As a result of the prior court order, and the escrow of the remaining sale proceeds, a determination was required: Does the Bank or Tulip get the remaining proceeds?

On May 18, 2011, the Bank filed this adversary proceeding. The Bank’s complaint seeks a declaratory judgment that no common law landlord’s lien exists under Michigan law. Further, the complaint requests that this court enter a declaratory judgment that the Bank’s lien has priority over any interest in the sale proceeds asserted by the Landlord. Therefore, the Bank contends it is entitled to the remaining sale proceeds, less any unpaid surcharge to be retained by the Trustee.

[605]*605On June 6, 2011, the Trustee filed his Answer and a Cross-Claim against the Landlord. Assuming a landlord’s lien exists, the cross-claim seeks to avoid the Landlord’s asserted lien as a preference under § 547(b), as a statutory lien under § 545, or under the Trustee’s § 544 strong-arm powers. If Tulip does not hold a valid lien, the Trustee’s cross-claim will be unnecessary.

On August 17, 2011, the Bank filed its motion for judgment on the pleadings. The Bank’s position is very simple and straightforward — there is no common law landlord’s lien under Michigan law. Therefore, according to the Bank, the Landlord has no secured claim against the Debtor’s assets, and that alone justifies judgment on the pleadings.

On September 2, 2011, the Landlord surprisingly filed a cross motion for judgment on the pleadings. In contrast to the simple and straightforward position of the Bank, politely stated, the Landlord’s position is opaque. The Landlord asserts that because in Shurlow v. Bonthuis, 456 Mich. 730, 576 N.W.2d 159 (1998), the Michigan Supreme Court declined to determine whether the court had earlier recognized a common law landlord’s lien, see S.S. Kresge Co. v. Twelve Seventy-Five Woodward Ave. Corp., 270 Mich. 218, 258 N.W. 252 (1935), the only “legitimate conclusion” is that a common law landlord’s lien exists.

On December 29, 2011, the Bank responded to the Landlord’s cross motion reiterating its position that no such lien exists. However, assuming for the sake of argument that such a lien exists, the Bank properly questions whether judgment on the pleadings in favor of the Landlord is legally correct because a myriad of factual and legal issues exist. For example: How is a landlord’s lien created? Did the Landlord take the necessary steps to create such a lien? What property is covered? What is the priority of any competing liens? Do the Trustee’s various avoidance cross-claims prevent the Landlord from obtaining the sale proceeds?

On March 6, 2012, argument took place regarding the parties’ cross motions for judgment on the pleadings. At the conclusion of the hearing, the court directed the parties to file supplemental legal memo-randa. The court took the cross motions under advisement.

IV. DISCUSSION

A.

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Cite This Page — Counsel Stack

Bluebook (online)
475 B.R. 602, 2012 Bankr. LEXIS 4778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huntington-national-bank-v-bruinsma-in-re-kentwood-pharmacy-llc-miwb-2012.