Okke v. Okke (In re Okke)

513 B.R. 896
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedJuly 17, 2014
DocketBankruptcy No. DG 12-04035; Adversary No. 13-80061
StatusPublished

This text of 513 B.R. 896 (Okke v. Okke (In re Okke)) 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
Okke v. Okke (In re Okke), 513 B.R. 896 (Mich. 2014).

Opinion

OPINION AND ORDER AFTER TRIAL

SCOTT W. DALES, Chief Judge.

I. INTRODUCTION

Steven W. Okke and Ñola J. Okke were divorced on October 27, 2011, shortly before Mr. Okke (the “Plaintiff’ or “Mr. Okke”) filed a voluntary petition for relief under chapter 13. The ex-spouses continue to spar over the distribution of specified items of personal property that the divorce court awarded to Mr. Okke but which were in the possession of Ms. Okke on the petition date. On February 22, 2013, the [899]*899court confirmed Mr. Okke’s chapter 13 plan, premised to some extent on a settlement that the ex-spouses put on the record, resolving many of the controversies between the two. Nevertheless, the parties agreed to reserve decision on their competing rights in the personal property, the possession of which Ms. Okke retained throughout most of this chapter 13 proceeding despite Mr. Okke’s persistent demands. Eventually, Mr. Okke filed a complaint against his ex-wife seeking turnover under § 542 and damages for violation of the automatic stay as contemplated in § 362(k). On motions for summary judgment, the court directed Ms. Okke to surrender the enumerated items, and from the parties’ report at trial it appears she now has done so, except for a fish tank and fish which she sold post-petition. In directing turnover, however, the court expressly preserved Ms. Okke’s security interest and perfection, if any, in the retained personal property notwithstanding her relinquishment of possession. The court set the remaining issues for trial to determine whether Ms. Okke’s retention and sale of the property violated the automatic stay.

The court held the trial on the remaining automatic stay issues on June 5, 2014 in Grand Rapids, Michigan. At the trial, the court heard testimony from three witnesses including Mr. Okke, Ms. Okke, and Mr. Okke’s divorce lawyer, Mr. Finegood. The court admitted 16 exhibits offered by the Plaintiff, and 8 documents from Ms. Okke, entirely on stipulation.

The court has considered the demeanor of the witnesses, their testimony, and the exhibits, and makes the following findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52, applicable in this adversary proceeding under Fed. R. Bankr.P. 7052. For the following reasons, the court finds that Ms. Okke willfully violated the automatic stay and must respond in damages, including attorney fees, for her actions.

II. JURISDICTION

The court has jurisdiction over the Plaintiffs chapter 13 bankruptcy case pursuant to 28 U.S.C. § 1334(a). The United States District Court has referred the bankruptcy case and related proceedings to the United States Bankruptcy Court pursuant to 28 U.S.C. § 157(a) and LCivR. 83.2(a) (W.D.Mich.). Mr. Okke has consented to the court’s entry of a final judgment although Ms. Okke has not. The court finds, however, that the dispute is a “core” proceeding within the meaning of 28 U.S.C. § 157(b)(2)(A), (E) and (K), rendering consent immaterial. Given the court’s conclusions about the nature of the proceeding, the Supreme Court’s recent decision regarding “Stem claims” does not affect the court’s authority. See Executive Benefits Ins. Agency v. Arkison, — U.S. -, 134 S.Ct. 2165, 2173, 189 L.Ed.2d 83 (2014).

III. ANALYSIS

A. Background

During the divorce proceedings and at the time the Plaintiff commenced his bankruptcy proceeding, the parties owned stock and membership interests in two entities which together owned the real estate and other assets necessary to operate a convenience store in Morley, Michigan. For reasons not relevant to today’s ruling, the store fell on hard times as the relationship between the spouses deteriorated. Because of their joint operation of the store, both parties evidently shared not only personal debt but also business debt which they attempted to allocate among themselves pursuant to a certain Confidential Property Settlement Agreement (the “CPSA”) which the court admitted as Ex[900]*900hibits 2 and A, and the judgment of divorce dated October 27, 2011 (the “JOD”), admitted as Exhibits 1 and B.

At the time of the divorce proceedings, Mr. Okke intended that the companies (Okke’s, Inc., and Sono’s, LLC) would obtain sufficient refinancing to pay not only the business debts but the share of the joint personal debts he agreed to shoulder. Unfortunately, the financing for the businesses fell through and Mr. Okke was unable to satisfy the debts he agreed to assume in the divorce proceedings.

On April 26, 2012, he filed a voluntary petition for relief under chapter 13. As noted above, the court confirmed his chapter 13 plan on February 22, 2013, reserving the issues involving the personal property for separate trial.

The court finds without difficulty and without contradiction that Ms. Okke was aware of the bankruptcy proceedings and the automatic stay at all relevant times. Indeed, the correspondence to her counsel highlights the automatic stay and the consequences of ignoring it. Even after Mr. Okke filed his complaint in this matter, Ms. Okke retained possession of various tools, a certain fish tank, and exotic fish evidentially as leverage to induce Mr. Okke to honor his obligations to her under the JOD, even though that personal property was awarded to him. In fact, Ms. Okke did not relinquish possession of the tools until after this court entered an order partially granting Mr. Okke’s summary judgment motion.

At trial Ms. Okke explained that she retained possession to secure her ex-husband’s performance, and she did so in spite of the bankruptcy. In addition, she testified that rather than return the fish tank and fish as Mr. Okke demanded through counsel, she sold the tank and fish, post-petition, to her boyfriend’s brother for $500.00.

Her anxiety about her ex-husband’s ability to honor his obligations under the JOD and the CPSA is perfectly understandable, given her experience following the divorce. For example, evidently as a result of his inability to pay the parties’ home mortgage as agreed, the bank foreclosed, requiring Ms. Okke to move out of her residence. Similarly, although he agreed to pay a debt secured by a lakefront lot across the street from the house, that property, too, is at risk of foreclosure.

As legal justification for her continued possession, Ms. Okke insists that the CPSA creates a security interest under Article 9 of the Uniform Commercial Code. She argues that she retained possession of the tools, tank, and fish to maintain perfection of that security interest pursuant to M.C.L. § 440.9313(1) which states that a secured party may perfect a security interest in goods by possession.1 Therefore, § 362(b)(3), she contends, authorizes her to take steps to continue her perfection (i.e., by remaining in possession) without violating the automatic stay.

B. Motion at Close of Plaintiffs Proofs

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Taylor v. Freeland & Kronz
503 U.S. 638 (Supreme Court, 1992)
Salyersville National Bank v. Jackie Bailey
664 F.3d 1026 (Sixth Circuit, 2011)
Klapp v. United Insurance Group Agency, Inc
663 N.W.2d 447 (Michigan Supreme Court, 2003)
In Re Grice
319 B.R. 141 (E.D. Michigan, 2004)
In Re Thompson
426 B.R. 759 (N.D. Illinois, 2010)
Prime Financial Services LLC v. Vinton
761 N.W.2d 694 (Michigan Court of Appeals, 2008)
Executive Benefits Insurance Agency v. Arkison
134 S. Ct. 2165 (Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okke-v-okke-in-re-okke-miwb-2014.