Perkins v. Auto-Owners Insurance

301 Mich. App. 658
CourtMichigan Court of Appeals
DecidedJuly 18, 2013
DocketDocket Nos. 310473 and 312674
StatusPublished
Cited by8 cases

This text of 301 Mich. App. 658 (Perkins v. Auto-Owners Insurance) 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
Perkins v. Auto-Owners Insurance, 301 Mich. App. 658 (Mich. Ct. App. 2013).

Opinion

PER CURIAM.

Plaintiff, System Soft Technologies, L.L.C., appeals by leave granted the trial court’s order granting intervenor, Summit Community Bank’s (Summit’s), motion to intervene, quashing plaintiff’s writs of garnishment, and enjoining plaintiff from taking any other collection action against defendant, Artemis Technologies, Inc. Because Summit was a perfected, secured creditor of defendant with higher priority than plaintiff and had declared its loans to defendant in default, accelerated the balances owed, and entered into a forbearance agreement with defendant, and because plaintiff’s argument pertaining to the doctrine of marshaling is not ripe for this Court’s review, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The basic facts of this case are not in dispute. Plaintiff is a limited liability company with its principal place of business in Florida, and defendant is a Michigan corporation. On December 1, 2008, plaintiff and defendant entered into a contract pursuant to which plaintiff provided employees to defendant to perform information technology services. When defendant failed to make the required payments under the contract, plaintiff obtained a default judgment against defendant in Florida in the amount of $147,398.63.

[645]*645On July 26, 2011, plaintiff filed a notice of entry of foreign judgment in the Ingham Circuit Court. Defendant filed an objection to the notice, arguing that the Florida court lacked personal jurisdiction over it, rendering the default judgment unenforceable. Plaintiff disputed defendant’s claim that the Florida court lacked personal jurisdiction over defendant. The trial court temporarily stayed enforcement of the Florida judgment and ordered defendant to petition the Florida court to determine whether that court had personal jurisdiction over defendant to issue the default judgment. The trial court also ordered defendant to post a surety bond in the amount of $147,398.63. The court further ordered that if defendant failed to timely post the bond, “the Florida Judgment will be entered as a Judgment of this Court without further notice or hearing, and Plaintiff may execute the Florida Judgment in accordance with Michigan law.” It is undisputed that defendant failed to timely post the bond.

On February 7, 2012, the trial court signed subpoenas requiring John W Gilkey, II, and Olubbunmi Ak-inyemiju, corporate representatives of defendant, to appear for creditor’s examinations. The subpoenas contained a restraining order prohibiting defendant from transferring its assets. On February 16, 2012, defendant filed an emergency motion to quash the subpoena issued to Akinyemiju and to allow defendant to pay its regular employee-related expenses and expenses incurred in the ordinary course of business that were necessary to continue operations. On February 24, 2012, the trial court entered an order quashing the subpoena issued to Akinyemiju and modifying the subpoena issued to Gilkey to allow defendant to make payments and transfer assets “in the ordinary course of business[.]”

[646]*646On April 4, 2012, plaintiff issued writs of garnishment against several of defendant’s customers, i.e., defendant’s accounts receivable, following which Summit filed a motion to intervene and a motion for a temporary restraining order quashing execution on the writs. Summit argued that it is a perfected, secured creditor of defendant pursuant to loan agreements, promissory notes, and security agreements for both a term loan and a line of credit. Summit asserted that defendant owed it approximately $422,000 and that it had declared defendant in default, provided a notice of default, and preserved its rights to accelerate the maturity of the loans and to give notice to account debtors to direct future payments to Summit. Summit argued that the trial court should quash plaintiffs writs of garnishment because Summit had a perfected security interest in all of defendant’s assets, including its accounts receivable, and, accordingly, Summit had priority over unsecured creditors such as plaintiff. Summit rejected the notion that it had to enforce its security interest in order to have priority over plaintiff. The trial court entered a temporary restraining order enjoining plaintiff from serving the writs of garnishment or attempting to execute on the writs for a period of 14 days.

In response to Summit’s motion, plaintiff argued that it had discovered during Gilkey’s creditor’s examination that defendant is making its full monthly loan payments to Summit and that defendant has approximately $700,000 in total assets. Plaintiff asserted that Summit had repeatedly threatened to execute its security interest if plaintiff did not accept defendant’s settlement offer. Plaintiff contended that on numerous occasions it requested Summit to state in specific detail the actions that it had taken to enforce its security interest against defendant, but that Summit had failed [647]*647to respond. Plaintiff argued that defendant and Summit colluded to prevent plaintiff from collecting on its default judgment. Plaintiff requested that the trial court order Summit to marshal defendant’s other assets before seeking to execute its security interest on the accounts receivable that are the subject of plaintiffs writs of garnishment.

Defendant filed a brief in support of Summit’s motion to intervene. Defendant maintained that Gilkey’s testimony during the creditor’s examination made clear that liquidation of defendant’s assets would likely result in only $60,000 to $80,000. Defendant asserted that it owed Summit approximately $422,000 and that it owed state and federal taxes totaling approximately $295,000. Defendant contended that Summit held a perfected first-priority lien on defendant’s assets and that the state and federal taxing authorities held a perfected second-priority lien on those assets. Defendant argued that absent an order enjoining plaintiff from executing on the writs of garnishment directed to defendant’s customers, plaintiff’s collection activities would result in defendant’s loss of future revenue. Defendant maintained that the only way that its unsecured creditors, such as plaintiff, would get paid is if it is able to stay in business, continue to work with its customers, and generate new revenue. Finally, defendant contended that if it was forced to close and liquidate its assets, Summit would likely recover only 20 percent of what it was owed, and plaintiff and the state and federal taxing authorities would recover nothing.

Following a hearing on Summit’s motion, the trial court entered an order granting Summit’s motion to intervene, quashing plaintiffs writs of garnishment, [648]*648and enjoining plaintiff from taking further collection action against defendant. The trial court stated, in relevant part:

We now turn to the question of what are we going to do with the existing writs? The Court would conclude that it doesn’t believe that marshaling applies here because prior to the issuance of the writs, [plaintiff] was not a lienholder. They [sic] were a general unsecured creditor.
[Counsel for plaintiff] would argue that upon filing the writs, he would become a lienholder to those limited funds that are subject to the writ, but at the time the writ was issued, they [sic] were not [a] lienholder. And I don’t really know if in this instance whether marshaling applies.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
301 Mich. App. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-auto-owners-insurance-michctapp-2013.