Rice v. Allard (In re Rice)

478 B.R. 275, 2012 WL 3870587
CourtDistrict Court, E.D. Michigan
DecidedSeptember 6, 2012
DocketNo. 11-cv-14246; Bankruptcy No. 11-46953
StatusPublished
Cited by11 cases

This text of 478 B.R. 275 (Rice v. Allard (In re Rice)) is published on Counsel Stack Legal Research, covering District 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
Rice v. Allard (In re Rice), 478 B.R. 275, 2012 WL 3870587 (E.D. Mich. 2012).

Opinion

ORDER AFFIRMING BANKRUPTCY COURT’S DECISION

GEORGE CARAM STEEH, District Judge.

Debtor-Appellant Cecil Rice appeals from a decision of the U.S. Bankruptcy Court, Eastern District of Michigan, Southern Division, sustaining the trustee’s objection to the debtor’s amended claim of exemptions. On March 15, 2011, Rice filed for chapter 7 protection. On May 5, 2011, Rice filed an amended Schedule C, claiming an exemption for a cashier’s check for retirement funds in the amount of $95,000 and for garnished retirement funds in the amount of $18,807.08 pursuant to § 522(d)(12) of the Bankruptcy Code. The trustee filed an objection to the debtor’s amended claim of exemptions. On August 2, 2011, the Bankruptcy Court issued an opinion and an order sustaining the trustee’s objection based on its findings that: (1) the debtor either intentionally or recklessly concealed the property at issue; and (2) even if the debtor had not acted in bad faith in failing to disclose the property, the Bankruptcy Court would have denied the exemption for failing to meet the exemption requirements. The appeal is fully briefed. The court finds that oral argument is not necessary. See Local Rule 7.1(f). For the reasons stated below, the court AFFIRMS the Bankruptcy Court’s opinion sustaining the trustee’s objection.

BACKGROUND

On October 2,-2009, Flagstar Bank obtained a judgment against Rice and others in the amount of $1,120,194.26. Flagstar began collection proceedings, including garnishing Rice’s accounts at Comerica Bank on July 21, 2010. Rice filed an objection to the garnishment and as a result Flagstar released the garnished funds.

On November 15, 2010, Rice received $107,552.35 in retroactive retirement benefits from the State of Michigan by direct deposit into his checking account at Com-erica Bank. The following day, Rice withdrew $100,000 from the account and purchased a cashier’s check made payable to himself. The cashier’s check was originally held by Rice in a safe deposit box at Comerica Bank.

On January 6, 2011, Flagstar garnished Rice’s accounts at Michigan First Credit Union. Rice filed an objection to the garnishment and the objection was pending when Rice filed his chapter 7 petition on March 15, 2011.

[278]*278On February 15, 2011, Flagstar Bank conducted a creditor’s examination of Rice. Rice testified that his income was comprised of his pension, retirement, and disability benefits, and that these were deposited into his Comerica Bank account. At one point in time, Rice transferred some of that money from Comerica to Michigan First Credit Union. At the exam, Rice disclosed that he had a $100,000 cashier’s check in a safe deposit box at Comerica Bank but that he had removed the cashier’s check from the safe deposit box earlier that day for fear that it might be garnished by Flagstar. Upon removal of the cashier’s check from the safe deposit box, Rice negotiated the $100,000 cashier’s check, depositing approximately $5,000 into his Comerica account in order to pay bills and with the remaining balance purchased the $95,000 cashier’s check payable to himself. The $95,000 cashier’s check was kept someplace in Rice’s home at all times from February 15, 2011, until shortly before the first meeting of creditors held in Rice’s bankruptcy case on April 20, 2011.

The Trustee discovered the existence of the cashier’s check and the garnished funds upon questioning the debtor at the first meeting of creditors on April 20, 2011, and at an adjourned meeting of creditors held on May 4, 2011.

On May 5, 2011, the debtor filed amended Schedules pursuant to which he disclosed and sought to exempt both the $95,000 cashier’s check and the $18,807.08 in garnished funds pursuant to 11 U.S.C. § 522(d)(12). The Trustee objected to the claimed exemptions and the Bankruptcy Court held an evidentiary hearing on July 12, 2011.

The Bankruptcy Court heard testimony from Rice acknowledging numerous omissions and errors in the debtor’s Schedules and State of Financial Affairs as originally filed, including but not limited to the failure by the debtor to schedule as an asset a cashier’s check payable to himself in the amount of $95,000 that was in his possession on the petition date as well as his interest in funds in ■ the amount of $18,807.08 in his credit union account and subject to a garnishment proceeding on the petition date.

At the hearing, Mark Altus, the attorney representing Rice during the time Flags-tar Bank was garnishing funds on the Comerica and Michigan Credit Union accounts, testified. Altus testified that he and Flagstar’s attorney believed the funds to be exempt, and Flagstar’s garnishment of the Comerica account was released based on that belief. He testified that Rice had informed him of the funds withdrawn from the Comerica account.

After considering the evidence, the Bankruptcy Court determined that the debtor’s failure to list the cashier’s check and the garnished funds in his Schedules was intentional, or in reckless disregard of his duty of full disclosure and, as a result, the Bankruptcy Court sustained the Trustee’s objection to the debtor’s amended claims of exemption. The Bankruptcy Court further ruled that even if the debtor had not acted in bad faith in failing to disclose assets, the debtor’s claims of exemption pursuant to § 522(d)(12) would be denied as the funds were not in an account exempt from taxation under one of the sections of the Internal Revenue Code enumerated in § 522(d)(12) on the petition date, as required by § 522(d)(12), and that § 522(b)(4)(C) was inapplicable to the case.

When a bankruptcy court’s decision is appealed to the district court, the district court applies the. standards of review normally applied by a federal appellate court. In re H.J. Scheirich Co., 982 F.2d 945, 949 (6th Cir.1993). “Findings of fact, [279]*279whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Fed. R. Bankr.P. 8013. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citation omitted). The district court reviews the bankruptcy court’s legal conclusions de novo. Investors Credit Corp. v. Batie, 995 F.2d 85, 88 (6th Cir.1993).

ANALYSIS

Federal Rule of Bankruptcy Procedure

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Cite This Page — Counsel Stack

Bluebook (online)
478 B.R. 275, 2012 WL 3870587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-allard-in-re-rice-mied-2012.