In re Clark

530 B.R. 439, 2015 WL 1915434
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedApril 24, 2015
DocketCase No. 10-18035
StatusPublished

This text of 530 B.R. 439 (In re Clark) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Clark, 530 B.R. 439, 2015 WL 1915434 (Wis. 2015).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, UNITED STATES BANKRUPTCY JUDGE

This 2010 bankruptcy case has returned after the United States Supreme Court affirmed that the debtors’ only significant asset, an “inherited IRA,” is not exempt. To administer that asset, the trustee has objected to a state-created lien claimed by an executing judgment creditor. Avoidance of that lien was asserted by the trustee in 2012, on different grounds, but that adversary proceeding was dismissed by stipulation while the parties awaited a final ruling on the IRA exemption.

Prior to filing bankruptcy, the debtors’ business was adjudged to be in breach of a personally guaranteed commercial lease. Judgment in the amount of $73,620.61 was entered against them in state court. To enforce the judgment, Resul and Zinigie Adili d/b/a Kegonsa Plaza (collectively “KP”) served the debtors with an order to appear before the court commissioner for a supplemental examination. At the time, all parties believed that service of that order created a receiver’s lien in favor of KP pursuant to Wis. Stat. § 816.03 and In re Badger Lines, Inc., 224 Wis.2d 646, 590 N.W.2d 270 (1999). Before the supplemental examination occurred, the debtors filed bankruptcy. KP filed a proof of claim for $85,407.98, asserting the claim was secured by all of the debtors’ nonexempt assets.

While the IRA exemption issue was being pursued, the trustee filed an adversary proceeding against KP alleging that the receiver’s lien constituted an avoidable preferential transfer. He also alleged that KP was not entitled to a secured claim under § 502(d) to the extent he avoided the receiver’s lien. Both parties admitted that a receiver’s lien arose, under the then current state law, on debtors’ non-exempt assets. The contested issues were (1) whether debtors were insolvent; (2) whether debtors’ property was transferred for KP’s benefit; and (3) whether the transfer enabled KP to receive more than it would have received in a chapter 7 distribution. These issues largely turned on whether debtors could exempt their inherited IRA. Prior to the scheduled trial, the parties stipulated to a dismissal with prejudice. Thus, the issue of lien validity was never tried and no court ruled on it.

Very shortly after the U.S. Supreme Court rendered its decision, the •Wisconsin Supreme Court issued an opinion placing a new and substantial doubt on the validity of KP’s lien. Without acknowledging that it was -overruling the case on which the trustee and KP relied, the Wisconsin Supreme Court undercut the foundation of In re Badger in Associated Bank v. Collier, 355 Wis.2d 343, 852 N.W.2d 443 (2014). The trustee now objects to KP’s secured claim pursuant to 11 U.S.C. § 502(a) based on Associated Bank N.A v. Collier.1 Although the claim would [444]*444have been secured under previous interpretations of In re Badger, he argues Collier clarifies that there is no lien and therefore, no collateral securing KP’s claim.2 McFarland State Bank (“MSB”) joins in this objection as the assignee of Evergreen State Bank.

The validity of the lien depends on two determinations: (1) whether Collier applies retroactively and (2) whether this court is precluded from hearing this objection.

I. The court should apply Associated Bank v. Collier retroactively.

Associated Bank v. Collier, 355 Wis.2d 343, 852 N.W.2d 443, appears to change what is required to obtain a receiv- . er’s lien as described in In re Badger Lines, 224 Wis.2d 646, 590 N.W.2d 270. Badger Lines came before the Wisconsin Supreme Court on a certified question from the United States Court of Appeals for the Seventh Circuit. Id. at 648, 590 N.W.2d 270. “The essential question before [the] court [was] whether a creditor who initiates supplementary proceedings under chapter 816 must do more than serve a debtor with notice to appear in order to obtain a superior lien that cannot be overcome by another creditor on a simple contract.” Id. at 648-49, 590 N.W.2d 270.3

Prior to bankruptcy, Badger’s creditor took a number of steps to collect its claim: (1) obtained a default judgment, (2) doek-[445]*445eted it, (3) obtained and served an order directing Badger to appear for a supplementary proceeding and enjoining Badger from transferring its assets, (4) had a supplemental receiver appointed, and (5) issued a turnover order instructing turnover of its assets and enjoining Badger from transferring its assets. Id. at 649, 590 N.W.2d 270. The bankruptcy filing prompted a preference action by the trustee. Id. While the parties were arguing about the perfection date for the purposes of a preference action, the court questioned whether perfection was even necessary. Id. at 653, 590 N.W.2d 270 (“The parties are in agreement that Wisconsin law does not specify whether a receiver’s lien must be perfected and, if so, how that is to be accomplished”).

In Wisconsin, if a receiver’s lien requires perfection, that requirement stems from our case law and not from any provision' within chapter 816. The trustee argues that our cases have presumed that something more than service of a subpoena to appear at a supplementary proceeding is required for an enforceable lien. However, the trustee also admits that to date we have not specifically articulated the contours of that additional requirement.

Id. at 654-55, 590 N.W.2d 270. The court concluded “a creditor’s lien is valid and superior against other creditors at the time the creditor serves the debtor with a summons to appear at the supplementary proceeding under Wis. Stat. § 816.03(l)(b).” Id. at 649, 590 N.W.2d 270. However, this holding must be read in conjunction with the court’s other conclusion that “the appointment of a receiver is [not] the apogee of obtaining a valid lien against a debtor [because it is] nothing more than a ‘formal matter.’ ” Id. at 656, 590 N.W.2d 270. ■ Consequently, when the court held “Wisconsin law does not require a creditor to take additional steps to perfect a receiver’s lien beyond service on the debtor,” the decision was generally interpreted as creating a receiver’s lien at the moment a party was served with an order to appear for a supplemental examination. Id. at 661, 590 N.W.2d 270. Thus, service created a secret lien which required no general notice or perfection to gain priority over subsequent liens.4

In Associated Bank v. Collier, the Wisconsin Supreme Court decided to clarify In re Badger and held “[m]erely serving an order to appear for supplemental proceedings also will not create a common law lien on the debtor’s personal property.” Associated Bank, N.A v. Collier, 355 Wis.2d at 366, 852 N.W.2d 443; see also Attorney’s Title Guar. Fund, Inc. v. Town [446]*446Bank,

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Cite This Page — Counsel Stack

Bluebook (online)
530 B.R. 439, 2015 WL 1915434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-clark-wiwb-2015.