SAGINA
W
TY BAR
AS
UN
S
ON
IATI
OC
CO
PRO BONO ATTORNEY OF THE YEAR
WILLIAM E. JUNGERHELD
Volume 32
No. 9
December, 2015
MEETING DATES FOR 2015-2016
(Go to www.saginawbar.org for meeting updates)
Board Meeting
Pro Bono Committee Meeting
(Meetings will be held at Saginaw Country
Club, 1st Wednesday of every month at
12:00 PM)
(All PBC Meetings will be held at Court
Street Café, 3rd Tuesday of every month
at 12:00 PM)
Law Day
Holiday Party
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
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
Immediate Past President
Andrea J. LaBean
Vice President
Katheryn A. Houck
Treasurer
Elian Fichtner
Secretary
Christopher J. Radke
Directors
One Year Term
Hon. M. Randall Jurrens
Steven J. Fenner
IN THIS ISSUE
President’s Message.................................. 2
Portrait of a Lawyer
William E. Jungerheld................................ 4
In Memoriam............................................. 9
Saginaw County Lawyers’ Auxiliary.......... 10
SCBA Executive Director’s Report........... 11
Saginaw County Susan Kaltenbach......... 12
Michigan Supreme Court
Finds State Workers Covered
By “Right To Work” Law........................... 14
Two Year Term
Jonathon M. Huffman
Eldor Herrmann
Bankruptcy Case Notes........................... 16
Three Year Term
Katherine Marie Baluha
Gary D. Patterson
Holiday Party........................................... 19
Representative Assembly
Thomas H. Fancher
John P. Lozano
Notice of ADR/Case Evaluation
Committee Meeting................................. 20
Seeking Process Servers/
Court Officers.......................................... 19
Congratulations....................................... 20
Editor
Thomas R. Luplow
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
DECEMBER 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
Fellow Members,
Merry Christmas and Happy New
Year! I hope that December finds you all
well and prepared for another Michigan
winter. It seems like just the other day
we were raking leaves and enjoying an
unseasonably warm October and November. Time feels like it goes by so
quickly during the fall and early winter.
Thanksgiving comes only a few short
weeks after Halloween, and then only
a few weeks later is Christmas. Maybe
it’s just me, but Christmas comes earlier and earlier every year. This October
I saw Christmas items next to Halloween candy in many area stores. But,
one thing has remained constant – after
the annual thanksgiving feast and the
emotional roller-coaster that is the traditional Detroit Lions Thanksgiving day
game, winter descends upon us like a
celestial blanket and remains until its
nearly Easter.
Over the years many people have written and sung about the onset of winter
and the year’s end. From contemporary
traditions and customs, to ancient rituals based on the movement of the sun
and moon in the sky, cultures around the
world have celebrated this time of year
for millennia. In fact, the world’s main
three monotheistic religions all cele2
brate major holidays during the months
of November, December, and January.
On Christmas, Christian’s celebrate the
birth of Jesus. During Hanukkah, followers of the Jewish faith celebrate the
restoration or rededication of the Holy
Temple. For Muslims, Mawlid is the day
that they celebrate the birth of the profit
Mohamad. While these various observances have inspired various celebratory interpretations and are based on
different events, they all have the same
thematic basis: life, birth, rebirth, and
hope for a new beginning.
A number of years ago I came across
a poem that originates from the Celtic
oral tradition. It first manifested in a
written format in the 13th century in
Middle English. Entitled “The Olde Year
Now Away is Fled,” scholars suggest
that it was spoken in many dialects but
originated in a Celtic settlement that is
now geographically part of the modern
United Kingdom. As early as the late
16th century it would have been sung
in homes, pubs, and halls through the
British Isles during the Christmas season to the tune of “Greensleeves.” I revisit “The Olde Year Now Away is Fled”
every Christmas, often in the evening
in front of the fireplace, and contemplate its relevance in today’s society:
DECEMBER 2015
The old year now away is fled,
The new year it is entered;
Then let us all our sins down tread,
And joyfully all appear.
Let’s merry be this holiday,
And let us run with sport and play,
Hang sorrow, let’s cast care away
God send us a merry new year!
And now with New-Year’s gifts each friend
Unto each other they do send;
God grant we may our lives amend,
And that truth may now appear.
Now like the snake cast off your skin
Of evil thoughts and wicked sin,
And to amend this New Year begin:
God send us a merry new year!
And now let all the company
In friendly manner all agree,
For we are here welcome all may see
Unto this jolly good cheer.
I thank my master and my dame,
The which are founders of the same,
To eat, to drink now is no shame:
God send us a happy new year!
Come lads and lasses every one,
Jack, Tom, Dick, Bess, Mary and Joan,
Let’s cut the meat unto the bone,
For welcome you need not fear.
And here for good liquor you shall not lack,
It will whet my brains and strengthen my back;
This jolly good cheer it must go to wrack:
God send us a happy new year!
Come, give’s more liquor when I do call,
I’ll drink to each one in this hall,
I hope that so loud I must not bawl,
So unto me lend an ear.
Good fortune to my master send,
And to our dame which is our friend,
Lord bless us all, and so I end:
God send us a happy new year!
On behalf of the Saginaw County Bar Association Board of Directors, our Executive Director, and the Collison Family: merry Christmas, happy holidays, and have
a healthy, happy, and successful new year.
DECEMBER 2015
3
PORTRAIT OF A LAWYER
WILLIAM E. JUNGERHELD
By: William E. Jungerheld
On June 7, 2015, I celebrated 50
years since I was sworn in to the practice of law in the courtroom of Judge
Huff in Saginaw. I joined a firm that
practiced the defense of civil cases.
It fit well with my prior experience as
an insurance claims adjuster, which
was my employment as I worked my
way through night school at the Detroit
College of Law.
I represented a variety of defendants
in the early days including drivers,
home and business owners, highway
commissions, and manufacturers;
since about 1978, I mainly represented defendants in medical malpractice
cases. The work was fascinating and
exciting. I was able to become a minor
league expert in a variety of subjects. I
often thought that if I had to live those
years over, I’d do exactly the same
thing.
During those years, I was generally
aware, as most of us are, that there
were poor people living in the U.S.
This awareness was theoretical or academic, as I had little actual contact
with low-income citizens, and it was
relatively easy to put that issue in the
back of my mind. After all, we’ve been
told “the poor you will always have
with you.” Indeed, columnist Susan
4
Demas recently reported that 40 percent of Michigan families now live in
poverty or have jobs that don’t cover
their basic living expenses.1 I recently
read elsewhere that 300,000 people in
this state go to bed hungry every night.
Call Us Today at (989) 755-2116
Dornbos Printing Impressions is
one of the oldest printing companies
in the Downtown Saginaw area.
Let us build a relationship with you!
PRINT SERVICES OFFERED
Union Bug Printing • Color Copies • Black & White Copies
Die Cutting • Foil Stamping • In-House Mailing
Graphic Design • Offset Printing • Poster & Banners
and much more, just give us a call!
SAVE YOUR OFFICE TIME AND MONEY HAVE US
DO ALL YOUR HIGH VOLUME COPYING!
www.dpimpressions.com
DECEMBER 2015
During this same period, Legal Services of Eastern Michigan had been
actively seeking volunteers for pro
bono work. The practice of law had
been good to me, and I eventually began to feel that the time had come to
give back. Legal Services seemed like
the way to go.
However, I was concerned because
the nature of my practice differed
from the issues presented to Legal
Services, such as bankruptcy, collections, consumer issues, grandparents’
rights, and many others I’d never had
to deal with in my practice. Nevertheless, I nervously ventured into that arena and volunteered to serve with Legal
Services in its Legal Advice Clinic.
My comfort level quickly increased.
The clinic was well managed and
well equipped to assist attorney volunteers. It provided questionnaires,
checklists, statute summaries and
excerpts, handouts, and other materials that made client encounters much
easier than they otherwise would have
been. Also, to my great happiness, my
recall of what I’d learned in law school
was surprisingly good. I soon felt that,
by golly, I might be able to help the
less fortunate.
One thing that impressed me greatly,
even at the outset, was how truly poor
DECEMBER 2015
many people were. Some clients had
nothing but the clothes on their backs.
They had no home, no car—nothing!
They lived with friends or relatives.
They needed a ride from a friend or
relative just to meet with us at the office in downtown Saginaw. Their income was minimum Social Security.
This was a shocking reality I had never
encountered.
One case I’ve never forgotten involved a kindhearted woman who was
walking near her home one November
and spied a sign in the window of a
used car dealer. The sign offered a free
turkey. Thanking her good fortune, she
entered the office to claim her free turkey, the basis for a Thanksgiving dinner. You guessed it—she had to buy a
car to get the free turkey. She did so,
with the help of a salesman who created a fake job for her on the loan application so she would qualify for a loan.
In reality, her only income was Social
Security.
Of course, she couldn’t pay for the
car. Even with her daughter’s help, the
two of them couldn’t pay for it. By the
time she contacted Legal Services of
Eastern Michigan, the car had been
repossessed and she was facing a
deficiency judgment that she was unable to pay. As is the case with all the
5
clients I’ve seen at Legal Services facing collection actions, she genuinely
wanted to pay the debt. Indeed, she
feared prison if she didn’t pay. She
also feared the judgment creditor
would take her modest home.
I suppressed my initial “What were
you thinking?” reaction. I held my
tongue and quickly asked myself if,
even with a juris doctor degree, I had
ever done something “less than wise.”
Hmm. The answer to that question
was unnerving. My next thought concerned how to help this woman. First,
I assured her she would not go to prison. Second, I advised her that even if a
lien was placed on her home, it could
not be taken from her as long as she
was alive. And finally, I assured her
that her Social Security income could
not be taken by the judgment creditor.
The relief on her face was obvious and
accompanied by expressions of gratitude.
Another likeable woman came to Legal Services with a similar problem.
Her brother was ailing and required
frequent treatments at the University
of Michigan Hospital. The siblings lived
in Saginaw. She did some calculations
and believed she could squeeze out
enough money to buy a used car so
she could drive her brother to Ann Arbor for treatments. It turned out that
her optimistic planning was wrong, the
car was eventually repossessed, and,
by the time she came to Legal Services, she faced a deficiency judgment.
The advice and counsel to her was,
of course, the same as for the woman
mentioned previously.
Recently, a gentleman came in seeking bankruptcy protection. Legal Services has bankruptcy criteria that must
be met for clients to be referred to an
6
attorney who will represent them pro
bono: the client must be employed
and own a car to travel to work; and
the case must involve foreclosure,
garnished paychecks, and outstanding judgments. This gentleman did not
meet the criteria. He had two prior collisions while driving without insurance.
The first led to a $3,000 judgment
against him by an insurance company, and the second resulted in $9,000
damage to the other vehicle, and he
was being dunned by that insurer.
Legal Services gave him an excellent
handout titled “How to Talk to Bill Collectors,” which includes directions for
handling collectors on the phone and a
sample letter to send as well as advice
concerning his rights under both federal and Michigan law. His only income
was supplemental security income,
and he was advised it was protected
and the judgment creditor couldn’t
take it. He was also advised that as a
practical matter, if the insurer with the
large claim was told his only income
was supplemental security income and
he had no assets, the insurer would be
unlikely to sue. He was also counseled
that bankruptcy would be pointless, as
he had nothing to protect.
Another gentleman had an unusual
problem. He had arranged for his bills
to be automatically paid by his bank.
The payments, however, were made
before his income was deposited.
Thus, he incurred overdraft fees and
the bank was after him for the fees. A
friend in the executive level of the bank
had initially protected him, but after the
friend died, the bank again sought the
overdraft fees. The advice was to stop
the automatic payments, sever all relations with the bank, and write checks
to pay his bills after his income was
DECEMBER 2015
deposited. He had no defense to the
fees, but they amounted to only $600
and, again, as a practical matter, the
bank was unlikely to sue him for such
a small amount. He, too, was provided
with the handout concerning bill collectors in case the bank or a collection
agency started to badger him.
Many clients visit Legal Services because they have been sued in district
court and don’t know what to do. We
discuss the facts with them, explain
possible defenses, and provide a
handout titled “How to Fill Out an Answer.” I occasionally offer written responses to clients based on the facts.
I have also advised them how to present themselves in court and advance
their cases.
Probate issues occur regularly. I recall
one gentleman who was concerned
DECEMBER 2015
about a home owned by his mother,
who had died. She had received longterm care services paid by Medicaid,
and Medicaid was seeking reimbursement. Close questioning revealed that
the home was of modest value and
was her estate’s only asset. Her son
had lived with her in the home for more
than two years before she went into a
care facility and cared for her so she
could stay at home as long as possible. We explained the exceptions to
estate recovery to the son and that an
“undue hardship” existed because the
home was of modest value. He was
given directions to get an undue hardship application and told which verification to obtain and what to do with
the materials. He was also advised
that the circumstances of his residing
in the home with the history previously
7
described constituted another exception to recovery by Medicare. He was
visibly relieved that he would not lose
the roof over his head.
Employment issues sometimes arise.
I met with a woman who worked part
time as a home healthcare aide. Her
duties were to clean patients’ homes,
wash dishes, do laundry, take out
trash, and bathe patients if they needed assistance. She had received a call
from her employer asking her to pick
up a weekend shift for a male patient
with whom she was not familiar, and
was given minimal information about
him. During the home visit, the aide
was subjected to repeated displays of
the patient masturbating, sexually related solicitations when assisting the
patient with showering, and attempts
at forced genital contact.
I could go on, but this is a sufficient
sampling of cases seen in pro bono
work for Legal Services of Eastern
Michigan. There is nothing heroic in
this volunteer work. Indeed, it’s almost
embarrassing to report that the time
involved is minor. Four or five volunteer attorneys work only one half day
a month. I spend the evening before
each session reviewing material to
prepare for the next day. This is obviously not an impossible burden for
8
any of us. In view of this limited time
commitment, even attorneys with busy
practices could squeeze in enough
time to volunteer.
Legal Services of Eastern Michigan is
conscientious in verifying that clients
meet the income criteria. Volunteer
attorneys receive a list of clients and
potential adverse parties to determine
if any conflicts exist as well as a record
of issues to be presented. They also
receive a list of other volunteer attorneys’ fields of practice in case a referral is appropriate.
There is no financial compensation
for volunteer attorneys, and although
we don’t volunteer for any reward, we
most certainly receive one: a tremendous sense of satisfaction in helping
people in trouble. Imagine how it would
feel to learn you are not going to prison
for a debt. You and I know there are no
debtor prisons, but many people don’t
know that until we advise them. Imagine fearing the loss of your home because of some unfortunate event and
then learning that’s not going to happen. Imagine living on minimal Social
Security, barely getting by, and fearing
that income would be taken away and
you’d have to panhandle on the street.
Think of the relief you’d feel to learn
that isn’t going to happen.
DECEMBER 2015
The relief on clients’ faces must be
seen to be believed. Smiles replace
fearful expressions. Posture often
changes from depressive to erect
as though the clients suddenly grew
backbones. Even in hopeless cases,
clients receive a certain comfort in
knowing exactly where they stand,
what the likely outcome will be, and
how to prioritize and cope.
Helping the less fortunate is a rewarding, satisfying, energizing experience. Do you want to feel good? Then
do good!
Reprinted with permission from the
October 2015 issue of the Michigan
Bar Journal.
ENDNOTE
1.Demas, Michigan Can Improve the Economy by Cutting
Taxes for 95% of People (May 20, 2015) <http://www.mlive.
com/lansing-news/index.ssf/2015/05/graduated_income_
tax_michigan.html> (accessed September 17, 2015).
Videoconferencing Available & Complimentary Conference Rooms:
Detroit
Bloomfield
Mt. Clemens Hills
Ann Arbor
Livonia
Troy
Novi
Southfield
& Throughout Michigan
Contact us for all you Court Reporting and Conference Rooms Needs.
888-800-0876 info@hansonreporting.com
IN MEMORIAM
Robert L. Richardson, Jr. — P19426 (emeritus), died Thursday,
November 5, 2015. He was born April 20, 1926 and passed the
bar January 21, 1951.
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.
DECEMBER 2015
9
SAGINAW COUNTY
LAWYERS’ AUXILIARY
By: Kimberly Mair
With the Holidays in full swing, it is
always nice to stop and take a moment to really enjoy the season. The
Holidays offer everyone a chance to
slow down, make new memories and
spend time with family, friends and
those important to you. Christmas
is by far my favorite time of year for
many reasons. One of my favorite
things to do each year is our trip to
the Christmas tree farm. Each year
our boys get more involved in picking
and cutting down the perfect tree for
our home. They use the tree farm as
a great playground for running and
yelling between the trees, even better when it is snow covered. I hope
everyone has a wonderful Holiday
and Best Wishes for a New Year.
Last month we had our annual Bow
Party and meeting hosted by Clau-
10
dia Wallace. Everyone participated
in making the bows for our annual
Wreath and Poinsettia Sale. A big
thank you to all of those who participated in the sale. It is always a big
success and a great way to raises
funds for some great causes in Saginaw County.
Our next meeting will be on January
5th, for those interested in attending.
We are continuing into the New Year
with meetings being held at a member’s home. We are always looking
for current and new members to join
and participate in the activities. If
you know of anyone who would like
to join, please take a moment to invite them to one of our functions.
If you would like to be added to the
email list, please contact me at mairkim@gmail.com.
DECEMBER 2015
SCBA EXECUTIVE
DIRECTOR’S REPORT
By: Kelli Scorsone, Executive Director
Have a great Holiday Season
SCBA Composite
Coming to 2016 SCBA Members!
PRO BONO/MEMBERSHIP LUNCHEON - Thank you to all those that
attended the Pro Bono/Membership
Luncheon. We were very lucky to get
such a great guest speaker, thank you
Justice Berstein for being there, thank
you to the Pro Bono Committee, especially Marilyn Hackett and Valerie
Kutz-Otway for a great program.
DECEMBER 2015
REMINDER - MEMBERSHIP ENROLLMENT FORM AND FIELD OF
PRACTICE FORM are due January
1st. Reminders will be emailed repeatedly throughout December on the listserv and are available in the Lawyers
Lounge and the SCBA Office at the
Courthouse. Prompt payment saves
SCBA time and money so please return by the due date, which is January
1, 2015.
See everyone at
the Holiday
Party on
December 3, 2015
11
COUNTY OF SAGINAW
SUSAN KALTENBACH
COUNTY CLERK Governmental Center 111 S. Michigan Avenue Saginaw, Michigan 48602 Phone 989-­‐790-­‐5251 MEMO and NOTICE November 3, 2015 TO: Clients of the Offices of Saginaw County Clerk FROM: Saginaw County Clerk RE: Office Hours Starting December 1, 2015 the Clerk’s Offices: Circuit Court Records, Vital Records and Elections, will be closing at 4:45 Monday-­‐Friday. This earlier closing time was recommended by the State Court Administrator’s Office during a recent audit and it allows the employees to count and certify the monies collected in their cash drawer by the end of the day. Therefore, please be aware of the new office hours starting December 1, 2015: County Clerk Office Hours: 8:00 a.m.-­‐4:45 p.m., Monday-­‐Friday except for holidays This information will be posted at the Saginaw County Governmental Center, on the Saginaw County website and delivered to local members of the Saginaw County Bar Association by e-­‐mail and in the Summons publication. Posted: November 3, 2015 {S1278589.DOCX.1 100058-­‐705} 12
DECEMBER 2015
DECEMBER 2015
13
MICHIGAN SUPREME
COURT FINDS STATE
WORKERS COVERED BY
“RIGHT TO WORK” LAW
By: Gary D. Patterson
Masud Labor Law Group
In December 2012, Governor Snyder
signed legislation making Michigan the
24th state to implement Right to Work
legislation. The law became effective
on March 28, 2013. Collective bargaining agreements in effect prior to
March 28, 2013 were exempt from the
right to work legislation until the contracts expire.
Right to work legislation affects the
rights of employers and unions to enter
into collective bargaining agreements
which require employees to join and
maintain membership in a union (or
pay appropriate “agency fees” to the
union) as a condition of employment.
These provisions, known as union security clauses, are quite common and
almost universally accepted in the area
of labor relations. Michigan, with its
strong history of labor, had a very high
percentage of contracts with union security provisions. With the implementation of the right to work law, employees and unions are prohibited from
entering into agreements that require
membership or payment of fees to a
union in lieu of membership.
Michigan’s right to work legislation
was challenged by a number of labor
organizations. In the case of United
Auto Workers v Nino Green, the UAW
14
and a number of other unions challenged the application of the right to
work legislation to state civil service
employees.
Historically, state civil service employees had enjoyed a different framework of labor relations because state
employees were not covered by the
Public Employment Relations Act
(PERA), the statute that establishes
the framework of collective bargaining
and union representation in the rest of
the public sector. State employees’
terms and conditions of employment
are established by the state Civil Service Commission and the collective
bargaining rights that state employees
enjoy has been established through
the state civil service rules.
With this historical background in
mind, the UAW and other unions challenged the right to work law, claiming
that the right to work law did not apply
to state government workers because
the Civil Service Commission itself had
sole authority over state employee’s
conditions of employment.
On July 29, 2015, the Supreme Court
found that while the state Civil Service
Commission may exercise its constitutional authority to allow collective
bargaining, they “lack the authority to
DECEMBER 2015
tax or appropriate – to wit: the authority to compel civil service employees
to make involuntary financial contributions to subsidize the Commission’s
exercise of its constitutional duties
and responsibilities.”
The court went on to state:
The only potential source of an
authority to permit mandatory
agency shop fees is the Commission’s power to ‘regulate’
the conditions of employment,
which regulation is affected
through public collective bargaining agreements.
But the power to ‘regulate’
does not encompass the specific authority to compel other
entities, including civil servants
DECEMBER 2015
themselves, to subsidize the
Commission’s constitutional operation. This authority is one of
taxation and appropriation and is
fundamentally legislative in character.
By characterizing agency shop fees
required under union security provisions as a “tax” or an “appropriation,”
the Supreme Court effectively found
that the Civil Service Commission
overstepped its constitutional authority by allowing collective bargaining
agreements that require payment of
dues or other agency fees paid by
non-union members for representation
in the collective bargaining process.
Accordingly, the court found the right
to work laws applicable to state civil
service employees.
15
BANKRUPTCY CASE
NOTES
By: Jack Weinstein
There has been an increase in the
number of adversarial suits brought
against debtors by the Michigan Unemployment Agency (Agency). The
facts in the recent case of Michigan
Unemployment Insurance Agency v
Priscilla Annette Anderson (decided on
October 2, 2015 by Bankruptcy Judge
Mark A. Randon in the Eastern District of Michigan, Southern Division,
case number 15-46058) were that
the Agency claimed that debtor had
been overpaid in the amount of approximately $6,900 in unemployment
benefits because she had intentionally
failed to report her wages from two
jobs. Further, the Agency alleged that
debtor was subject to quadruple damages, statutory penalties plus interest
resulting in the Agency’s determination that debtor now owed it approximately $34,000. The Agency filed an
adversarial complaint challenging the
dischargeability of the overpayment,
penalties and interest.
Debtor had filed a Chapter 13 case
and the court in deciding the issue
determined that among the debts dischargeable under Chapter 13, but not
Chapter 7, are penalties payable to
and for the benefit of a governmental
unit. Debtor argued that the quadruple
16
damage penalty was dischargeable
while the Agency claimed that it was
not pursuant to §523(a)(2)(A), claiming
that the entire debt including penalties
was non-dischargeable if debtor has
committed a fraud upon the Agency.
However, the court found that in Chapter 13 cases, Congress intended to
exclude §523(a)(7) penalties from any
debt obtained by fraud under §523(a)
(2)(A).
Judge Randon in deciding the case
noted that historically penalty debts
were non-dischargeable in Chapter
7 cases pursuant to §523(a). However, by omitting penalty debts from
§1328(a)(2), Congress intended that
they remain dischargeable in a Chapter 13 case being a remaining vestige
of a debtor’s super discharge.
The court cited the case of Pennsylvania Department of Public Welfare v
Davenport, 495 US 552 (1990) which
was instructive. In that case, debtor
plead guilty to welfare fraud and as a
condition of her probation was ordered
to make monthly restitution payments.
However, before completing her payments, debtor filed for Chapter 13 relief and listed the restitution obligation
as an unsecured debt payable to the
Pennsylvania Department of Public
DECEMBER 2015
Welfare. After debtor ceased making
her restitution payments, the probation
department responded by commencing an action against her. In response,
debtor filed an adversarial complaint
seeking to have the Bankruptcy Court
determine whether or not the restitution obligation was dischargeable.
The Bankruptcy Court ruled that the
restitution obligation was dischargeable in a Chapter 13 case. Plaintiff appealed and the District Court reversed.
Thereafter, it was further appealed
to the Third Circuit Court of Appeals
which reversed the District Court.
In the case of Kelly v Robinson,
479 US 36 (1986) the US Supreme
Court held that “restitution obligations imposed as condition of probation in state criminal actions are nondischargeable in proceedings under
Chapter 7 because they fall within the
definition of a fine, penalty or forfeiture
pursuant to §523(a)(7). However, the
DECEMBER 2015
17
Supreme Court noted that this was
a Chapter 13 case and recognized
that Congress chose to omit §523(a)
(7) from non-dischargeable debts in a
Chapter 13 cases. In response, Congress amended the bankruptcy code
and overruled the Supreme Court’s
decision specifically making debts “for
restitution, or a criminal fine, included
in a sentence on the debtor’s conviction of a crime” non-dischargeable
pursuant to §1328(a)(3).
In the Sixth Circuit case of Hardenberg v Commonwealth of Virginia,
Dep’t of Motor Vehicles, (In Re: Hardenberg) 42 F. 3d 986 (6th Cir. 1994),
that court held that state criminal fines
are defined as debts which while they
cannot be discharged in a Chapter 7
proceeding pursuant to §523(a)(7) can
be dischargeable in Chapter 13 proceedings pursuant to §1328(a). Despite that congressional mandate, the
Agency insisted that if a penalty also
arises from a debtor’s fraudulent conduct then §523(a)(2)(A) trumps §523(a)
(7); therefore, the debt is non-dischargeable in a Chapter 13 proceedings.
Judge Randon, in reviewing a number of cases, determined that the
vast majority of cases that address
the interplay between §523(a)(2)(A)
18
and §523(a)(7) further distinguish between actual benefit overpayments
and penalties for overpayments noting
that bankruptcy courts have held that
debts for overpayment of employment
compensation may be excepted from
discharge in a Chapter 7 case pursuant to §523(a)(2)(A), as well as, monetary penalties are excepted under
§523(a)(7). However, the opposite is
true in Chapter 13 cases since a penalty obligation is dischargeable, only
the restitution obligation is non-dischargeable pursuant to §523(a)(2)(A).
Judge Randon conditionally granted
debtor’s motion to dismiss the penalty assessed by the Agency but only
if debtor did not receive a hardship
discharge and complied with all of her
Chapter 13 plan payments.
DECEMBER 2015
SEEKING PROCESS SERVERS /
COURT OFFICERS
The 70th District Court is seeking applicants for appointment as court officer/
process server/independent contractor pursuant to MCR 3.106. The types of
services to be performed are general service of process, orders for seizure,
attachment or garnishment of property at the direction of the Court. Fees for
service shall be charged in accordance with the appropriate statutes and court
rules. A list of official process servers/court officers shall be available to the
public in the Civil Division. The Court reserves the right to remove the process
server/court officer from this list at any time for any reason. Interested applicants may pick up an application from District Court Administrator, Paula J.
McGlown in Room 319, 111 S. Michigan Avenue, Saginaw, Michigan 48602.
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: 790-8488
DECEMBER 2015
19
CONGRATULATIONS!
The 10th Circuit Court swore in the following July 2015 Michigan Bar Examination Certified Passers.
Alexandria Jay Brady
Sponsor: Susan Whaley Brady
Hon. Fred Borchard
SCBA Board: Nathan Collison
Christopher James Gatza
Sponsor: Robert Bruce Currie
Hon. Fred Borchard
SCBA Board: Eldor Herrmann
Adam D. Flory
Sponsor: Hon. James Borchard
Hon. Fred Borchard
SCBA Board: Nathan Collison
Andrew Charles Horne
Sponsor: David Puskar
Hon. Fred Borchard
SCBA Board: Steven Fenner
NOTICE OF ADR/CASE EVALUATION
COMMITTEE MEETING
The Court Administrator’s office and
the ADR Case Evaluation Committee
will be drawing new case evaluation
panels in early-to-mid-December. For
case evaluators who were previously
qualified within the past five years,
there is no need to submit a further application. For anyone who has an interest in serving as a case evaluator that
has not previously been qualified, you
may submit the application and return
it to the address below. The ADR Case
20
Evaluation Committee will then review
it for purposes of determining qualifications and primary area of practice. If
anyone should have questions, please
feel free to contact me directly.
ADR Case Evaluation Committee
c/o Donald Gilbert
715 Court Street
Saginaw, MI 48602
Sincerely,
Don Gilbert
DECEMBER 2015
PRO BONO
APPRECIATION LUNCHEON
OCTOBER 26, 2015
Supreme Court Justice
Richard Bernstein
Marilyn Hackett, Justice Bernstein
and Valerie Kutz-Otway
Special thanks to all of our advertisers.
When you have a need for a service,
please consider one of our local advertisers.
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
Support the 2015-2016 Advertisers of
THE SUMMONS
AKT Peerless.................................... 12
McDonald & Associates, P.C............ 17
Catholic Federal Credit Union........... 20
Prost.................................................. 5
Dornbos Printing Impressions............. 4
Rehmann.......................................... 15
Easy Printing Center......................... 11
Saginaw Bay Underwriters................ 18
EZ Pro Delivery................................. 17
Sand Point Tax Advocates................ 19
FirstMerit Bank................................... 7
Trademark.......................................IFC
Hanson Renaissance.......................... 9
Yeo & Yeo, PC CPAs........................... 8
HomeLand Title Services.................. 13