In re Lundy Estate

804 N.W.2d 773, 291 Mich. App. 347
CourtMichigan Court of Appeals
DecidedJanuary 20, 2011
DocketDocket No. 292930
StatusPublished
Cited by33 cases

This text of 804 N.W.2d 773 (In re Lundy Estate) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lundy Estate, 804 N.W.2d 773, 291 Mich. App. 347 (Mich. Ct. App. 2011).

Opinion

PER CURIAM.

Respondent, First Federal Bank of the Midwest (the bank),1 appeals as of right the probate court order granting the petition for return of estate funds filed by petitioner, Bridget A. Lundy, as personal representative of the estate of David Gary Lundy. This case arises from a dispute over the funds in a certificate of deposit (CD) account that belonged to the decedent. At issue is the interplay between the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., article 9 of the Uniform Commercial Code (UCC), MCL 440.9101 et seq., and the terms of an “Assignment of Deposit Account” (the assignment agreement) be[349]*349tween the bank and the decedent in determining whether a bank, as the holder of a perfected security interest in a CD account that a decedent pledged as collateral to secure a mortgage, is entitled upon default to retain the funds in the account even though there are insufficient funds in the estate to pay the priority claims and allowances set forth in MCL 700.3805 of EPIC. We reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

On December 22, 2005, the decedent personally guaranteed a mortgage and promissory note between Lundy’s Lane, L.L.C.,2 and the bank. On that date, the decedent and the bank also entered into the assignment agreement, which granted the bank a security interest in the CD account as collateral for the loan.3 According to the terms of the assignment agreement, upon occurrence of an “Event of Default,” the bank had the right to exercise one or more of the rights and remedies enumerated in the assignment agreement. Upon de[350]*350fault, the rights and remedies provided in the assignment agreement allowed the bank to accelerate the indebtedness to make it immediately due and payable without notice. The assignment agreement also provided the bank the right to take all funds in the CD account and to apply the funds to the indebtedness. Any excess funds remaining after application of the CD account proceeds to the indebtedness would be paid to the decedent.

The decedent died testate on February 20, 2008. On April 24, 2008, Bridget A. Lundy applied for informal probate and for appointment of a personal representative. She was appointed personal representative of the estate on that same date.

The decedent defaulted on the loan,4 and the bank exercised its rights under the assignment agreement. The bank liquidated the CD account and applied the funds to reduce the principal amount of the loan secured by the CD account.5

On May 19, 2008, petitioner filed a form selecting the CD account as the “homestead allowance authorized by [351]*351MCL 700.2402” and as the “exempt property authorized by MCL 700.2404.” Fields for a family allowance were also completed on the form, as follows: “A family allowance of $23,000.00 per year has been determined as authorized by MCL 700.2403 and MCL 700.2405.” On August 14, 2008, petition filed an inventory listing only “Claim on Proceeds of CD Held By First Federal Bank” and listing “[$]0.00” as the total value of the property.

Petitioner commenced this action with the filing of a “Petition for Return of Estate Funds” on January 9, 2009. She asserted that under MCL 700.3805 of EPIC, the bank’s security interest in the CD account was of lower priority than the surviving spouse’s claim for reimbursement of reasonable funeral expenses, the homestead allowance, the family allowance, and exempt property. In response, the bank asserted that because the bank had properly perfected its security interest in the CD account, the bank had an interest superior to any and all claims to the same collateral. Thus, the bank contended that it had properly applied the balance of the CD account to the obligation secured by the account pursuant to MCL 440.9607(l)(d) of the UCC.

At a hearing on the petition, the prohate court acknowledged that the bank had a perfected security interest in the CD account. The court opined that the bank had the right to apply the balance of the CD account to the obligation secured by the account “prior to the death of the decedent, or, perhaps even prior to the spouse filing an affidavit for information Probate and being appointed personal representative.” The court concluded, however, that EPIC superseded article 9 of the UCC once a personal representative was appointed. Thus, the court concluded that, under EPIC, “the surviving spouse has the right to claim homestead [352]*352and family allowance prior to a creditor’s claim, and, that is what the bank had.”

II. STANDARD OF REVIEW

This Court reviews de novo issues of statutory interpretation as questions of law. In re Clarence W Temple & Florence A Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). An appeal of a decision of the probate court, however, is on the record; it is not reviewed de novo. Id.; MCL 600.866(1); MCR 5.802(B)(1). This Court reviews the probate court’s factual findings for clear error and its dispositional rulings for an abuse of discretion. Temple, 278 Mich App at 128.

III. THE PURPOSES OF ARTICLE 9 OF THE UCC AND EPIC

Subject to several exceptions, article 9 of the UCC as enacted in Michigan governs, among other things, “[a] transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract.” MCL 440.9109(l)(a). It governs such things as perfection of security interests, MCL 440.9301 to MCL 440.9316, priority of security interests, MCL 440.9317 to MCL 440.9339, and rights of third parties, MCL 440.9401 to MCL 440.9409.

The purposes of EPIC include “[t]o discover and make effective a decedent’s intent in distribution of the decedent’s property” and “[t]o promote a speedy and efficient system for liquidating a decedent’s estate and making distribution to the decedent’s successors.” MCL 700.1201(b) and (c). The provisions relevant to this case are within article III of EPIC, MCL 700.3101 et seq., which governs probate of wills and estate administration.

[353]*353IV ARTICLE 9 OF THE UCC AND THE ASSIGNMENT AGREEMENT

The record reveals that the decedent and the bank voluntarily entered into a transaction and intentionally created a security interest in the CD account. Article 9 of the UCC provides the scheme by which security interests in personal property are regulated. Shurlow v Bonthuis, 456 Mich 730, 735; 576 NW2d 159 (1998). Specifically, MCL 440.9607(1) of the UCC provides:

If so agreed, and in any event after default, a secured party may do 1 or more of the following:
(d) If it holds a security interest in a deposit account perfected by control under [MCL 440.9104(l)(a)],[6] apply the balance of the deposit account to the obligation secured by the deposit account.

Under this section, upon default the bank had a right to apply the balance of the CD account to the obligation secured by the CD account. The bank’s action was permitted under the terms of the assignment agreement, which provided that the death of the borrower or grantor constituted an event of default.

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Cite This Page — Counsel Stack

Bluebook (online)
804 N.W.2d 773, 291 Mich. App. 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lundy-estate-michctapp-2011.