SAGINA
W
TY BAR
AS
UN
S
ON
IATI
OC
CO
JOSEPH LEE SCORSONE, JR.
2/23/1944 - 7/18/2015
Volume 32
No. 8
November, 2015
MEETING DATES FOR 2015-2016
(Go to www.saginawbar.org for meeting updates)
Board Meeting
SCBA Membership Meetings
(Meetings will be held at Saginaw Country
Club, 1st Wednesday of every month at
12:00 PM)
Thursday, November 19, 2015 12:00 noon
Bench and Bar Meetings
Thursday, November 12, 2015 8:00-9:00 AM
TOPIC: Report from Representative Assembly
Law Day
Law Day Committee Meetings
(All Law Day Committee Meetings will be held
at Saginaw County Courthouse at 12:00 PM
the 2nd Tuesday of the month)
Law Day Celebrations
Law Day May 1, 2016
Mock Trials Thursday, April 28, 2016
Award Ceremony - TBD
Pro Bono Committee Meeting
(All PBC Meetings will be held at Court
Street Café, 3rd Tuesday of every month
at 12:00 PM)
Holiday Party
Thursday, December 3, 2015
Saginaw Country Club, 5:30 PM
(If you want your committee meeting dates listed here, send them to Kelli Scorsone, Executive Director)
THE SUMMONS
SAGINAW COUNTY BAR ASSOCIATION
President
Nathan J. Collison
IN THIS ISSUE
Immediate Past President
Andrea J. LaBean
President’s Message.................................. 2
Vice President
Katheryn A. Houck
Treasurer
Elian Fichtner
In Memoriam............................................. 3
Portrait of a Lawyer
Joseph Lee Scorsone, Jr........................... 4
Secretary
Christopher J. Radke
Saginaw County Lawyers’ Auxiliary............ 6
Directors
One Year Term
Hon. M. Randall Jurrens
Steven J. Fenner
Drug Court Update.................................... 9
Two Year Term
Jonathon M. Huffman
Eldor Herrmann
SCBA Executive Director’s Report............. 8
2015 Pro Bono Honor Roll....................... 10
2015 Pro Bono Awards........................... 11
Holiday Party........................................... 12
2015 Wreath and Poinsettia Sale............. 13
Three Year Term
Katherine Marie Baluha
Gary D. Patterson
NLRB Continues Assault On
Long-Standing Precedent........................ 14
Representative Assembly
Thomas H. Fancher
John P. Lozano
SCBA Bench and Bar.............................. 19
Editor
Thomas R. Luplow
Bankruptcy Case Notes........................... 16
Beer ‘N’ Wine Tasting.............................. 20
Blind Spots ........................................... IBC
Assistant Editor
Ann R. Van Hautte
Executive Director
Kelli Scorsone
790-8488
Email: scba@saginawcounty.com
SCBA Website
www.saginawbar.org
Lawyer Referral Service
1-800-968-0738
NOVEMBER 2015
The articles in THE SUMMONS, unless
clearly designated otherwise, are those
of the author. They do not necessarily
represent the opinion of the Saginaw County
Bar Association or its members. Please
direct your comments on THE SUMMONS,
to its Assistant Editor, Ann R. Van Hautte,
4301 Fashion Square Boulevard, Saginaw,
Michigan 48603 • (989) 498-2100.
1
PRESIDENT’S MESSAGE
By: Nathan J. Collison
Alas, the natural splendor of autumn
in Michigan is fading as the last vestiges of fall drift to the ground like
leaves of crimson and gold. Soon the
wind will begin to briskly blow from
the north as winter descends on Saginaw County. If you are like me, your
weekends have devolved from outdoor dining, recreation, and relaxation
to fall clean up, winterizing machines,
and raking leaves. Some of you have
stored your boats and said goodbye to
your cabins for the winter, while others
find themselves in the thick of hunting
season.
For connoisseurs of winter, or weather in general, the gusts that often become gales in November have crisp
undertones of frost and notes of frigidity. For those such as myself, this
shift of meteorological condition is
welcomed and anticipated. To us it
heralds the comfort of snowy nights
by the fire, the beauty of ice encrusted
twigs and branches, and the nostalgia
of bygone days spent sledding and ice
skating at Hoyt Park.
For others, however, winter is not
such a welcomed guest. To those it
signifies poor driving conditions, longer commutes, endless nights and
mornings of cold snow removal, and
2
months of longing for spring. Have no
fear fellow members, spring will come
and with it warmth and rejuvenation –
it always does.
But, we need not wait until spring to
experience rejuvenation and rebirth. It
is happening right now at the SCBA.
As many of you know, we have a new
SCBA office/lounge. And, as many of
you have seen in your inboxes, your
SCBA identification cards are now
available for issuance at the Sheriff’s
Department. Some of your colleagues
have been issued theirs already. They
look just like the county employee
badges but they have our logo and will
have your picture on them, plus they
are working great. Considering that
we are all officers of the Court, I have
been in contact with the county and
the Sheriff’s Department regarding expediting access to the courthouse for
members with the new ID. So contact
Kelli Scorsone and schedule a time to
go into the Sheriff’s Department and
get your ID badge. We are planning
to add additional member benefits
for members with cards, such as discounts at local merchants. Those will
be coming soon.
The new office/lounge is taking shape
nicely. We have acquired a coffee maNOVEMBER 2015
chine, some tables, and some chairs
so far - thank you Kelli Scorsone, Joe
Sam Scorsone, and Joe L. Scorsone
for your generosity. Also, Humphreys,
Campbell, Dust, & Humphreys, P.C.
donated their large, gently used conference table and eight nice office chairs
to the SCBA. On behalf of the Association, I offer my thanks and appreciation.
But, we would not have been able to
get the table and chairs into the basement without the help of Sheriff Federspiel, one of your Saginaw County
Deputies, several intake trustees from
None
the Saginaw County jail, and members
of the county maintenance department.
Thank you to all of you.
Now that we have a conference table and dedicated meeting space, the
SCBA is now able to offer an area for
meeting with clients, other attorneys,
depositions, and even facilitations.
Please contact Kelli or I for availability and reservation requirements. As always, watch your e-mail for upcoming
educational opportunities, social events,
and volunteer activities. I hope you have
a productive and prosperous month.
IN MEMORIAM
Please help the Memorial Committee make sure no member is forgotten.
Contact SCBA office at 790-8488 regarding the passing of any Saginaw
County Attorney.
NOVEMBER 2015
3
PORTRAIT OF A LAWYER
JOSEPH LEE SCORSONE, JR.
By: Joseph Samuel Scorsone
Joe was born on February 23, 1944
and suddenly passed on July 18, 2015.
He was 71 years young.
Joe was born in Cuyahoga County,
Ohio where his father was stationed
after WWII. His father, the Honorable
Joseph Lee Scorsone, Sr., his mother
Betty, and Joe Jr. moved back to Saginaw, his dad’s hometown, so his father
could continue his law practice.
Joe graduated from Arthur Hill High
School in 1962 and went on to graduate from the Virginia Military Institute in
Lexington in 1966. When Joe entered
VMI, he knew that another world, different from any he had ever perceived,
awaited him. His classmates knew
he had a mind of his own and even
though several tried to change his
principals, he remained consistent in
his ideals. Of the many friends made
at the “BIG I” few would forget the one
person who could always be trusted to
get a job accomplished.
He served in Alaska with the US Army
during the Vietnam War. And returned
to Michigan to attend the University of
Detroit Law School graduating in 1973.
Joe returned to Saginaw where he
practiced law until his death. He loved
his profession and fought until the end
for each and every client. Although
4
Joe put hours and hours into preparing for his clients cases, he always
found time to set aside for the game
he LOVED, Golf.
It was my desire for the game that
drew Joe and me closer as a family,
and a friend. Weekends on the course,
daily lunch at Zorbas, cousins dinner
nights, all contributing to the special
bond we shared. Golf is not quite the
same without him.
He often spoke proudly of his son
Jeffery who lives and works in the
Chicago area as a computer genius.
If only Jeff lived closer, then, maybe
then, some of his talent would rub off
on Joe and enable him to master the
art of knowing how to reply to an email!
I miss him! And his friends miss him!
NOVEMBER 2015
NOVEMBER 2015
5
SAGINAW COUNTY
LAWYERS’ AUXILIARY
By: Kimberly Mair
As the Holiday Season gets underway this November, I look back
and can’t believe summer flew by
once again. Our second meeting
was another success at Marty Triantafillou’s home. A big thank you to
Marty for having everyone over. The
attendance and member participation seems to be increasing this year,
which is great to see. I encourage
those who have not come to a meeting in a while to join us next month
at the Bow Making Party. The meeting schedule is listed in the roster, for
those interested in attending.
The Fall Luncheon took place on
September 24th at the Saginaw
Country Club. We celebrated our
60th Anniversary as the Saginaw
County Lawyers Auxiliary. We were
6
joined by many past presidents and
founding members. Several past
presidents spoke about their time on
the board and contributions to the
Auxiliary.
It was a wonderful occasion with plenty of memories and
photographs over 60 years of events,
meetings and benefits held by the
Auxiliary members. I want to thank
Joan Martin and Ethel O’Neill for
hosting such a fun and memorable
event for everyone.
This November we will be having
our Annual Benefit Wreath and Poinsettia Sale. Order forms will be available in November, with orders due
Friday, November 11th. You will be
able to pick up your order at Case’s
on Hamilton Wednesday, December
2nd. This Benefit is a great way to
NOVEMBER 2015
decorate your home and/or office for
the Holidays, while raising funds for
the Community Research Committee. Remember this money is distributed to great causes within Saginaw
County. The East Side Soup Kitchen, Hidden Harvest, C.A.N Council,
Mustard Seed Shelter, Saginaw Career Complex and several others, all
benefit from this fundraiser and your
support.
We continue to look for current and
new members to join and participate
in activities. If you know of anyone
who would like to join, please take a
moment to invite them to one of our
functions. Have a wonderful Holiday
Season.
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888-800-0876 info@hansonreporting.com
NOVEMBER 2015
7
SCBA EXECUTIVE
DIRECTOR’S REPORT
By: Kelli Scorsone, Executive Director
2016 MEMBERSHIP ENROLLMENT
FORM AND FIELD OF PRACTICE
FORM
Please make sure you retrieved the
above forms included in this issue of
The Summons. This year all members,
to stay current, must return their form(s)
include Emeritus members. As promised, the forms will also be sent over
the listserv and available on the SCBA
website under the Members only section. Prompt payment saves SCBA
time and money so please return by the
due date, which is January 1, 2016.
The SCBA FIELD OF PRACTICE is
still offered at the same low price. It is
posted on the SCBA website, which
gets hundreds of hits; the FOP book
is mailed to people who call the SCBA
looking for an attorney; and, distributed to County libraries.
SENDING EMAILS TO THE LISTSERV
JUST A REMINDER - if you want to
post an inquiry on the SCBA listserv it
is as simple as sending an email. The
address is scba@saginawbar.org the
.org is what gets it to the listserv, so
remember when responding to a listserv member or when you are trying to
send me an email use the SCBA account that does not end in .org.
8
NOVEMBER MEETINGS
We have a Bench and Bar and a
Membership Meeting scheduled for
November, details, hopefully, will be
included in this issue of The Summons
and available on the website, as well
as sent to the listserv, repeatedly!
2016 SCBA COMPOSITE
Details on the composite are being
worked out. I hope to put an order form
with the Enrollment Form in this issue.
SCBA Composite
Coming to 2016 SCBA Members!
Happy
Thanksgiving
NOVEMBER 2015
DRUG COURT UPDATE
By: Judge Janet M. Boes
Referrals wanted,
Rejections explained
Our Drug Court Program is progressing
well with approximately
30 participants divided
between Judges Borchard and Boes.
We have had a number of graduations
and currently have participants at various levels of the program. We continue
to encourage referrals from judges, attorneys, and probation agents!
Some attorneys have recently commented on having made a number
of referrals without success – meaning the defendants they refer have
not been accepted into Drug Court.
Please understand we are not trying to
discourage your referrals, we can only
accept participants who meet the cri-
NOVEMBER 2015
teria established for this program. The
criteria and requirements are based
upon evidence about people who benefit from this particular program. We
must remain in compliance with the
statute creating drug courts, as well
as the “10 Key Components” of the
National Drug Court Model and State
Court Administrator requirements for
treatment court operations. More information about how drug courts operate and succeed can be found at:
allrise.org.
Referral forms for our Felony Drug
Court are available in the Lawyers
Lounge, the Court Administrators
Office-Room 400, and the Prosecutor’s Office. If you have questions
please contact Drug Court Coordinator Sue Smith by email: ssmith@saginawcounty.com
9
SAGINAW COUNTY BAR ASSOCIATION
PRO BONO HONOR ROLL 2015
~Gold~
Exceeded the SBM Standard of 30 hours or $300
Sharon Burgess
William Cowdry
Thomas Fancher
William Jungerheld
Valerie Kutz-Otway
John Lozano
James O’Neil III
Bruce Petrick
Barbara Tomcal
~Silver~
Contributed between 15 and 30 hours or $150 - $300
Danelle Albosta
David Alexander
Richard Alger, Jr.
Thomas Basil, Jr.
Elian Fitchner
Cynthia Fullwood
Katherine Gardner
Donald Gilbert
Eldor Herrmann
B.J. Humphreys
Robert Jarema
Thomas Lawler
Hugh LeFevre
Masud Labor Law Group
Timothy Moore
Jamie Nisidis
Hon. David Opperman
Paul Purcell
Joshua Reinert
Andrew Richards
Anne Schulte
Michael Sovansky
Christopher Swartz
Diane Thompson
Trogan and Trogan
Christopher Webber
~Bronze~
Participation or Financial Contribution
Katherine Baluha
Carolyn Bernstein
Hon. Janet Boes
Otto Brandt
Gary Campbell
Jeffrey Collison
Nathan Collison
Andrew Concannon
Travis Dafoe
Manda Danieleski
Tobin Dust
Alan Ells
Kelly Ellsworth
Kirk Ellsworth
Michael Forster
Debra Freid
Julie Gafkay
Stephan Gaus
Heather Gust
Joseph Harrison
{S1272615.DOC.1
10
100058-705}
Norman Harrison
Daniel Himmelspach
David Hoffman
Katheryn Houck
John D.L. Humphreys
Clayton Johnson
Jack Kerr
Kelli King-Penner
Michael Kitson
Floyd Kloc
Andrea Labean
Greg Mair
Howard Maturen
Errick Miles
Karen McNish
Robert Miller
Elan Nichols
James O’Neill III
David Puskar
Christopher Radke
Amanda Sampson
Stephen Seman
John Shinners
Michael Shovan
Blair Stevenson
Daniel Straka
Phillip A. Sturtz
Carol Thomas
John Swartz, Jr.
Barbara Tomcal
Manvil Trice
Paul Umlauf
Jack Weinstein
Michael Weiss
Karl Weyand, Jr.
Susan Whaley-Brady
W. Kenneth Wright
John Wright
Darrell Zolton
NOVEMBER 2015
2015 PRO BONO AWARDS
By: Marilyn Hackett
The 2015 Holli Wallace Memorial Pro
Bono Attorney of the Year Award was
presented to William E. Jungerheld at
the Pro Bono Appreciation Luncheon
during National Pro Bono Week. Mr.
Jungerheld was recognized for his
outstanding level of service to Legal
Services of Eastern Michigan. For the
past 4 years, he has served at the Legal Advice Clinic 7 months every year
counseling clients on numerous issues
including employment, probate, collections, and an occasional personal
injury matter. When clients required
something more than legal advice, Bill
dispensed a little “life advice” which
was always met by expressions of
gratitude and relief.
In addition to his work at Legal Services, Bill has served every year as a
judge for Saginaw Valley State University Moot Court Competitions. He is
one of the favorite judges for the students because he always comes prepared and knowledgeable about the
case and asks insightful and thoughtful questions. Bill also served recently
at the the East Side Soup Kitchen Legal Clinic.
Bill was honored at the State Bar Annual Meeting in October for 50 years
of membership in the State Bar of
NOVEMBER 2015
Michigan. As
a retired attorney, Bill was
invited to sit
on a panel for
an SBM event
geared to retired attorneys
to share his
insights and
experiences
on volunteer
legal services. In addition, the SBM EJournal will feature the article he wrote
for “A Lawyer Helps” this fall.
Bill is also very active in the Humane
Society of Saginaw County and St.
Dominic Parish in Saginaw. It is clear
that doing pro bono work has made a
deep impression on Bill. He exemplifies the true spirit of pro bono………
using his legal talents to do good.
We also wish to thank those attorneys who received the SCBA Gold
Award, which recognizes pro bono
participation that exceeds the State
Bar Voluntary Standard of 30 hours or
$300. Congratulations to the following attorneys who received the Gold
Award:
SHARON BURGESS
WILLIAM COWDRY
11
THOMAS FANCHER
WILLIAM JUNGERHELD
VALERIE KUTZ-OTWAY
JOHN LOZANO
JAMES O’NEIL III
BRUCE PETRICK
BARBARA TOMCAL
Thank you to all attorneys on the SCBA
Pro Bono Honor Roll. Your service is
deeply appreciated. If you are not cur-
rently a volunteer, please consider joining the Pro Bono Panel. Any amount of
time you can provide would be greatly
appreciated. Your participation would
help address the huge unmet legal need
in Saginaw County. To sign up for any
type of participation, please contact
Marilyn Hackett, LSEM Pro Bono Coordinator, at 800-322-4512, ext. 145 or
mhackett@lsem-mi.org.
Thursday, December 3, 2015 at 5:30 in the Evening
at the Saginaw Country Club • 4465 Gratiot Rd.
Hosted by: Saginaw County Bar Association &
Saginaw County Lawyers Auxiliary
$15.00 per person
RSVP: by 11-23-2015
790-8488
12
NOVEMBER 2015
SAGINAW COUNTY LAWYERS' AUXILIARY
2015 WREATH AND POINSETTIA SALE
The Saginaw County Lawyers' Auxiliary is proud to present the annual
Wreath and Poinsettia fund-raiser. Profits from this sale are being
used to support community outreach efforts and our scholarship fund.
Preferred order due date: Friday, November 20th with final
orders due Friday, November 27th. (this is the day after Thanksgiving)
*Please complete the order form and place your order by contacting:
Pat Moore at tmoorelaw@msn.com or 989-245-3545
Please indicate your name, phone number and order.
All orders may be picked up at Case's Funeral Home/Garage
(Adams at Hamilton) on
WEDNESDAY, DECEMBER 2, 2015
BETWEEN 4:00 P.M. AND 6:30 P.M.
Orders not picked up by the designated time will be charged a $10.00 storage fee.
Orders exceeding 10 items may be delivered to your
home or business for a $7.50 fee.
POINSETTIA: Pixie: $5.00
WREATHS:
Small
Medium
Large
Small: $13.00
Bow Color Choice:
24" diameter
32" diameter
48" diameter
MIXED WREATHS: Bow Color Choice:
Small
24" diameter
Medium
32" diameter
SWAGS:
Small
Large
Medium: $21.00
Large: $24.00
Red, Gold or Silver
$18.00
$32.00
$55.00
Red, Gold or Silver
$30.00
$42.00
$12.00
$18.00
ROPE GARLAND: 25' made with three mixed greens - $40.00
Thank you for your participation and support!
{S1274814.DOC.1 100058-705}
NOVEMBER 2015
13
NLRB CONTINUES ASSAULT
ON LONG-STANDING
PRECEDENT
By: Gary D. Patterson
Masud Labor Law Group
On May 21, 2015, the National Labor Relations Board, in a 2-1 decision,
found that Ohio Edison Company and
First Energy Generation Corp. violated
the National Labor Relations Act by refusing to bargain with the International
Brotherhood of Electrical Workers.
The refusal to bargain charge arose in
the context of changes that the Company was making to an Employee
Service Recognition Program (ESRP).
The program was not included within
the provisions of a collective bargaining agreement.
Under the National Labor Relations
Act, an employer has a duty to bargain
in good faith over the wages, hours,
and terms and conditions of employment of the employees who are represented by a union. In this case, even
though the ESRP was not included
within the bargaining agreement, it
was considered a term or condition
of employment. As a result, before
the employer could make unilateral
changes to the plan, the employer had
an obligation to bargain with the Union
if the Union requested bargaining or
did not otherwise waive bargaining.
In the underlying case, the employer notified the Union’s representative
that it intended to make the change
to the Employee Service Recognition
14
Program (ESRP). The Union was notified in advance of the anticipated
implementation of the changes. The
employer clearly indicated in its notice
to the Union that if the Union had any
questions or concerns to contact the
Company.
The Union, in a telephone conference
with the employer’s representative,
apparently protested the employer’s
NOVEMBER 2015
proposed change. However, the real
issue was whether this “protest” constituted a “request to bargain.”
For decades, the National Labor Relations Board has recognized that a
mere protest of an anticipated change
to a working condition not otherwise
set forth in the collective bargaining
agreement, is insufficient to request
bargaining. The National Labor Relations Board has often found against
unions where the unions did not clearly articulate a request to bargain. In
fact, the United States Supreme Court
has weighed in on the question. The
Supreme Court in discussing the duty
of a labor organization to initiate collective bargaining held “that the statute does not compel…[the employer]
to seek out his employees or request
their participation in negotiations for
the purposes of collective bargaining.
… to put the employer in default here,
the employees must at least have signified to respondent their desire to negotiate.” NLRB v. Columbian Enameling and Stamping, 306 U.S. 292, 297
(1939).
The National Labor Relations Board
followed the rules set forth in its previous decision and by the Supreme
Court until the Ohio Edison decision in
NOVEMBER 2015
May 2015. In this case, the Union only
protested the change during a telephone conference with the employer’s
representative. The Union made no
other request to bargain and, in fact,
the employer followed-up with a written confirmation of the Union’s protest
and again offered to meet with the
Union if they had any questions.
In its 2-to-1 decision, the National
Labor Relations Board overturned its
precedent, not to mention ignored the
decisions of the United States Supreme Court, by indicating that the
Union’s new protest amounted to a request to bargain.
The lesson of this case is that employers must continue to be vigilant
in their dealings with both employees
and unions. The National Labor Relations Board seems more than willing
to continue its attacks without restraint
and without consideration of their own
precedent and prior decisions. Any
unionized employer who desires a
change in conditions of employment
not otherwise covered by the collective bargaining agreement still needs to
carefully approach the matter with the
union to assure that the union is given
every opportunity to request bargaining and discuss proposed changes.
15
BANKRUPTCY CASE
NOTES
By: Jack Weinstein
Can a debtor claim a state law exemption pertaining to realty held as tenants
by the entireties as of the filing date
but post petition during the estate’s
administration the co-tenant dies?
That was the issue before Bankruptcy Judge Walter Shapero in the case
of In Re Nancy J. Hamacher, 072715
MIEBC, 14-59741 Opinion dated July
27, 2015. Debtor’s Chapter 7 Trustee
objected to debtor’s claim that she
was entitled to a state law exemption for tenancy by the entireties realty
when she only looked to the filing date.
In Schedule A, she listed the real property in Livonia, MI and two real properties located in Gladwin, MI then held
as tenants by the entireties with their
non-filing spouse. In her Schedule C,
she claimed state exemptions for the
realty pursuant to MCL §600.5451(1)
(n) which exempts real property held
jointly by a husband and wife as tenants by the entireties unless that claim
is subject to a debt of the husband and
wife.
Debtor filed her Chapter 7 petition on
December 30, 2014, and her husband
passed away on April 24, 2015. Debtor’s trustee filed an objection to her
exemption claim maintaining that she
was no longer entitled to claim that exemption.
16
The trustee argued that debtor could
not claim a state law exemption because her interest was no longer entireties property during the estate’s
administration. Debtor argued that her
entitlement to that exemption must be
determined as of the petition date and
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not during the trustee’s administration
of her case.
Judge Shapero held that it was an
established principle that exemptions
are determined as of the bankruptcy
petition’s filing date. He cited §522(3)
which provides that any interest in
property in which the debtor had, immediately before the commencement
of the case, held an interest as a tenant by the entireties to the extent that
such interest was exempt from process under applicable non-bankruptcy
law. Thus, consistent with that general
principle, the very language of the applicable exemption schedule speaks
to the situation as of the commencement date of the case. Further, bankruptcy §541(a)(1) provides that the
commencement of a case creates an
estate comprised of all legal or equitable interests of the debtor in property as of that date. Therefore, that
language provides that one must look
to the nature of the interest as of the
commencement date. However, that
section does provide that there are
specific kinds and interests in property acquired post-petition that does
become property of the estate, being:
1.Any interest in property that would
have been property of the estate if
such interest had been an interest of
NOVEMBER 2015
the debtor on the date that the petition was filed and that the debtor
acquires or becomes entitled to acquire the property within 180 days
after that date by a bequest, devise
or inheritance; or,
2.As a result of a property settlement
agreement with a debtor’s spouse;
or,
3.An interlocutory or final divorce decree; or,
4.As a beneficiary of a life insurance
policy or of a death benefit plan.
However, none of those specified exemptions were involved in this case.
In a factual analysis case, Judge
Shapero pointed to the decision in the
case of In Re: Alderton, 179 B.R. 63
(Bankr. E.D. Mich. 1995), wherein the
debtor and his wife held property as
tenants by the entireties as of the filing
date; and, the non-filing spouse died
post-petition. That court considered
the affect of the wife’s death on the
debtor’s claim of an exemption pursuant to §522(b)(2)(B) which was analogous to the present §522(3)(B). Despite creditor’s argument that §541(a)
(5)(A) brought the property back into
the debtor’s estate. In the Alderton
decision the court determined that the
debtor did not acquire his wife’s interest in the property by way of inheri-
17
tance, devise or descent. Therefore,
§541(a)(5)(A) does not apply to bring
the property back into debtor’s estate.
The debtor’s exemption was proper at
the time he claimed it and no provision
of the bankruptcy code acts to bring
that property back into the estate.
Therefore, debtor’s exemption remains
valid. Finally, the court noted that the
exceptions did not apply and as a
matter of statutory construction, such
exceptions should not be expanded
to include other unenumerated exceptions. Therefore, a tenancy by entireties exemption is to be determined as
of the filing date and not during the estate’s administration.
Debtor also claimed an exemption of
approximately $1,935 being held in a
bank account and claimed an exemption pursuant to MCL §38.40 regarding
18
the State Employee’s Retirement Act.
The parties stipulated that the funds
originated in and were traceable to Mr.
Hamacher’s State of Michigan pension
that was subsequently reduced to cash
and deposited into a pre-petition account. There was no dispute between
the parties that Mr. Hamacher’s was
covered by the Michigan Statute. The
Trustee argued that once the pension
monies were reduced and deposited
into debtor’s bank account that they
lost their pension exemption. However,
MCL §38.1683 provides that a retirant
from a retirement system who receives
a payment from the retirement system
then those monies are not subject to
execution, garnishment, attachment,
the operation of bankruptcy or insolvency laws or other process of law.
Therefore, Judge Shapero determined
NOVEMBER 2015
that the language was sufficiently
broad enough for debtor to exempt
the funds even though they had been
reduced to cash in a bank account,
citing In Re: Mihal, #13-54435, 2015
WL 2265790 (Brankr. E.D. Mich. May
6th, 2015). In that case Judge Shapero
determined that a debtor who commits social security income to a Chapter 13 Plan subjects those funds to the
operation of any bankruptcy or insolvency law; otherwise, Judge Shapero
concluded that the funds were exempt
under the claimed statute and the
Trustee’s objection to debtor’s exemption was overruled.
Further on point, regarding a traceability issue, is the case of In Re: Stanley, 494 B.R. 287, (Brankr. E.D. Mich.
2013), which held that a Michigan
Worker’s Compensation exemption
using the language “money or other
benefit paid, provided, allowed to be
paid or provided, or allowed…” allows
for the exemption of a bank account
funds sourced from and traceable to a
Workman’s Comp award. In the case
of In Re: Leboudrais, #13-50222-WSL
2014, WL 11-65803 (Bankr. E.D. Mich.
2014), the court held that §522(d)(11)
exemption which pertains to a debtors right to receive or property that is
traceable to a payment in compensation of a loss of future earnings of the
debtor allows for the exemption of a
bank account funds sourced from and
traceable to a worker’s compensation
award.
SCBA BENCH AND BAR
Thursday, November 12, 2015
Time: 8:00 - 9:00AM
Location: Saginaw Courthouse - basement EOC Room
Updates on the Representative Assembly
By John Lozano & Thomas Fancher
Donuts and juice will be available
NOVEMBER 2015
19
BEER ‘N’ WINE TASTING
OCTOBER 22, 2015
20
NOVEMBER 2015
Change Service Requested
PRSRT STD
U.S. POSTAGE
PAID
Permit No. 335
SAGINAW, MI
Saginaw County Bar Association
Saginaw County Bar Association
Executive Director Kelli Scorsone
111 S. Michigan Ave.
Saginaw, MI 48602
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