In re Houston

463 B.R. 452, 2011 Bankr. LEXIS 4985, 2011 WL 6794015
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedDecember 21, 2011
DocketNo. 11-60934
StatusPublished

This text of 463 B.R. 452 (In re Houston) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Houston, 463 B.R. 452, 2011 Bankr. LEXIS 4985, 2011 WL 6794015 (Mich. 2011).

Opinion

OPINION REGARDING LAKE TRUST CREDIT UNION’S MOTION FOR RELIEF FROM AUTOMATIC STAY TO ALLOW SETOFF PURSUANT TO 11 U.S.C. § 553(a)

MARCI B. McIVOR, Bankruptcy Judge.

On September 8, 2011, Lake Trust Credit Union (f/k/a Detroit Edison Credit Union) filed a Motion for Relief from the Automatic Stay to Allow Setoff Pursuant to 11 U.S.C. § 553(a). For the reasons set forth below, this Court denies the Credit Union’s Motion subject to the Credit Union’s right to file an affidavit regarding the parties’ net contributions to the Survivor-ship Account.

I.

FACTUAL BACKGROUND

Kathryn Houston-Nedd opened an account at Lake Trust Credit Union sometime prior to or in June 1993. The form used to open the account is titled “Surviv-orship Account”. Ms. Houston-Nedd states in her Affidavit that she opened the “Survivorship Account” with the intention that her son, Gregory A. Houston, would receive any funds remaining in this account upon her death. The top portion of the form is signed only by Kathryn Houston-Nedd. The bottom portion of the Survivorship Account form is titled “Application — Multiple Name Share Deposit Account With Survivorship”. It is signed by [455]*455Kathryn Houston-Nedd as the “member” and by Gregory Houston as the “joint member.”

Below the signature lines, the Application contains the following statements:

The Aforementioned are hereby made parties to this share-deposit account and on proper withdrawal demand, the Credit Union will pay all sums due on account of payment on share-deposits and any accumulations or benefits added thereof, less any setoff allowed by law to any one or more of said parties. The survivor or survivors from time to time of the parties shall be the only persons who shall be entitled to demand payments of balances in the account. The interest of any of the parties in this account, any requirements of this signature incident to a withdrawal demand, his status as a party to this share-deposit account contract and his right to make withdrawals as aforesaid cease upon his death if one or more of the other parties survives such death.
Furthermore, the master member, referenced to as “Member”, has the right to add, delete or otherwise change, at any time, the names of the persons designated as joint members, without notification or consent of said joint members.

The Survivorship Account application signed by Ms. Houston-Nedd was not dated. However, the back of the document indicates that the information was “Rev. To Change Joint” and verified by the Credit Union on June 24, 1993 and subsequently approved in July of 1993.

In her sworn Affidavit, Kathryn Houston-Nedd states that she is the only person who has ever placed any monies in this account or who has withdrawn monies from this account. She further states that Gregory A. Houston neither deposited nor withdrew any amounts from this account. In addition, Gregory A. Houston’s name never appeared on any of the account statements for the Survivorship Account and all the statements for the Survivorship Account were addressed and mailed to Kathryn Houston-Nedd only.

On November 29, 1999, Gregory Houston applied to become a Member of the Credit Union. He was assigned an account number ending in the digits 5228. Gregory Houston appears to have established both a checking account and a savings account with the Credit Union. On November 19, 2000, Gregory Houston applied for a Visa Classic card, seeking a credit limit of $1,500. Subsequently, Gregory Houston was approved for this Visa card. On September 22, 2005, Gregory Houston applied for a Platinum Preferred Visa through the Credit Union, seeking a credit limit of $50,000. The Credit Union approved Gregory Houston’s Platinum Preferred Visa application on September 30, 2005. The Visa contracts between Gregory Houston and the Credit Union state, in part, “Your account is secured by all shares you have in any individual or joint account with the Credit Union.”

On August 2, 2011, Gregory Houston (“Debtor”) filed a Chapter 7 bankruptcy. At the time of his filing, Debtor had an outstanding obligation to the Credit Union for the two Visa Accounts in the amount of $42,087.67.

On September 8, 2011, the Credit Union filed a Motion for Relief from Stay to Allow Setoff Pursuant to ' 11 U.S.C. § 553(a). The Credit Union seeks to set-off the amount it is owed by Debtor against the funds held in the Survivorship Account established by Kathryn Houston-Nedd. The Credit Union argues that the statutes governing credit unions give it the right to effectuate such a set-off. The Credit Union relies on Mich. Comp. Laws [456]*456490.64 (which provides a right to set-off against multiple party accounts); and Mich. Comp. Laws 490.361 (which provides a lien against accounts held by members of the credit union). Specifically, the Credit Union argues: (1) the Credit Union has a lien on the Survivorship Account and may enforce its lien by setting-off the funds in that account against the debt owed to it by Debtor pursuant to Mich. Comp. Laws § 490.361(4); and (2) the Credit Union is entitled to set-off against the Survivorship Account because (a) the presumptions set forth in Mich. Comp. Laws § 490.52 do not apply when the Credit Union is the creditor seeking payment of a debt and (b) Mich. Comp. Laws § 490.64 exempts the Credit Union from the presumptions regarding ownership.

II.

ANALYSIS

Section 553 of the Bankruptcy Code preserves the right to set-off as a widely recognized common law right that “allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding the absurdity of making A pay B when B owes A.” Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 18, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995). Section 553 provides, in part:

Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debt- or that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of this case[.]

In other words, the right to set-off is preserved where: (1) there are mutual, pre-petition obligations owing between the debtor and the creditor; and (2) a right to set-off the obligations exists under non-bankruptcy law. In re Holder, 182 B.R. 770, 775 (Bankr.M.D.Tenn.1995). “State law governs the substance of a set off claim under § 553.” In re New Haven Foundry, Inc., 285 B.R. 646, 648 (Bankr.E.D.Mich.2002) (citation omitted).

Because the right to set-off is based in state law, this Court must discuss the state statutes relating to set-off and credit unions. Mich. Comp. Laws § 490.51 defines the types of accounts which may be held at a credit union. Mich. Comp. Laws § 490.51 states, in part:

490.51. Definitions

Sec. 1. As used in this act:

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In Re Davis
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Department of Treasury v. Comerica Bank
506 N.W.2d 283 (Michigan Court of Appeals, 1993)
In Re Holder
182 B.R. 770 (M.D. Tennessee, 1995)
In Re New Haven Foundry, Inc.
285 B.R. 646 (E.D. Michigan, 2002)
Victorson v. Department of Treasury
482 N.W.2d 685 (Michigan Supreme Court, 1992)
In Re Hess
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Cite This Page — Counsel Stack

Bluebook (online)
463 B.R. 452, 2011 Bankr. LEXIS 4985, 2011 WL 6794015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-houston-mieb-2011.