John W. McGraw Bruce E. Otto - Saginaw County Bar Association

SAGINA
W
TY BAR
AS
UN
S
ON
IATI
OC
CO
John W. McGraw
9/16/1929 to 5/29/2015
Volume 32
No. 6
Bruce E. Otto
1/25/1924 to 6/22/2015
September, 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
Memorials
John McGraw - Thursday, September 10, 2015
Probate Court 11:00 AM
Joseph Lee Scorsone Jr. - Friday, September 25, 2015
11:00 AM
Bench and Bar Meetings
Wednesday, September 16, 2015 8:00-9:00 AM
Saginaw Courthouse - basement LEPC Center
TOPIC: People v Lockridge
Thursday, November 12, 2015 8:00-9:00 AM
TOPIC: Report from Representative Assembly
Law Day
Law Day Committee Meetings
(Meetings will be held at Saginaw County
Courthouse at 12:00 PM the second 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
(Meetings will be held at Court Street
Café, 3rd Tuesday of every month at
12:00 PM)
Talent Night
(If you have talent to provide contact us at
scba@saginawcounty.com)
Thursday, September 17, 2015
Timbers 5:30 PM
Red Mass
Thursday, October 15, 2015
National Celebration of Pro
Bono Week
October 25 - October 31, 2015
Pro Bono Luncheon, October 26, 2015
12:00 noon
Guest Speaker - Justice Bernstein
Holiday Party
Thursday, December 3, 2015
Saginaw County 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
John W. McGraw....................................... 4
Secretary
Christopher J. Radke
Portrait of a Lawyer
Bruce E. Otto............................................ 6
Directors
One Year Term
Hon. M. Randall Jurrens
Steven J. Fenner
Saginaw County Lawyers’ Auxiliary............ 7
Two Year Term
Jonathon M. Huffman
Eldor Herrmann
Update From Probate Court.................... 12
Three Year Term
Katherine Marie Baluha
Gary D. Patterson
Representative Assembly
Thomas H. Fancher
John P. Lozano
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
SEPTEMBER 2015
SCBA Executive Director’s Report............. 8
District Court Update............................... 10
U.S. Supreme Court Weighs
in on Pregnancy Discrimination................ 14
Bankruptcy Case Notes........................... 16
70th District Court Administrator
Paula J. McGlown................................... 19
Pro Bono Week 2015.............................. 20
The State Bar of Michigan’s Domestic
Violence Committee to Offer Free
Pro Bono Training.................................. IBC
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
Welcome to the September issue
of The Summons!
In June we held our annual dinner meeting and golf outing. We welcomed 96 diners and 16 foursomes for
what turned out to be a beautiful day
for golf. As always, the Saginaw Country Club offered a delicious meal, and
prompt courteous service. The Club
was overflowing with jovial conversation and laughter shared between
colleagues. We welcomed new board
members Gary Patterson and Katie
Marie Baluha, as well as our new Vice
President Kathy Houck. However, we
also said goodbye to past president
Alex Bommarito and congratulated
Andrea LaBean on a fantastic year of
leadership.
Since the meeting, several things
have transpired. The Saginaw County
Bar Association has acquired a new
lawyer’s lounge. As of July, we have
obtained space in the basement of
the Courthouse formerly occupied
by the Medical Examiner. We are in
the process of developing a usage
plan for the space that will both serve
your needs and keep the area secure.
Please contact us with any suggestions or recommendations regarding
functionality, access, and what would
2
best serve your needs.
We are also working on furnishing
and outfitting the new lounge, and are
looking for tables, chairs, and research
texts. We also hope to expand your research opportunities by installing two
new Westlaw terminals. Don’t worry
though; we will be keeping our space
on the 4th floor for your convenience.
The County has recently installed an
electronic lock activated by magnetic ID badges on the door of the new
space. We are currently waiting for the
County to acquire more blank badges,
inasmuch as they have run out. When
that happens, we will send around a
signup sheet so that you, our members, will be able to go get a Bar Association Badge with your name and
picture on it. The badges are issued
by the Sheriff’s Department. These
are the same badges that are issued
to County employees. While it has not
been finalized, the badge may cost up
to $5.00 – with a replacement cost of
$20.00 if it gets lost.
At the annual meeting we unveiled
the new website. You can find it at
www.saginawbar.org. Please take a
few minutes to check out the site and
e-mail us your comments, suggestions, and observations so that we
can tailor it you your needs and prefSEPTEMBER 2015
erences. Also, we would like to personalize the site’s content so that it reflects your interests and the best parts
of our community. So, please send us
pictures of your offices, buildings, or
places in Michigan that are significant
to you and we will put them on the
website for everyone to enjoy. While
you’re getting your pictures together,
don’t forget to make sure that we have
your current address, phone number,
email address, and web address.
As always, we are looking for members who want to get involved with our
Association. We have many committees that do a wide variety of things, so
there is something for everyone. If you
would like to serve on one of our committees, now is your chance to make
your mark. Just contact Kelli Scorsone
or I, and we will put you in touch with
the chairperson or board liaison of the
committee you are interested in.
Finally, our Executive Director Kelli
Scorsone is selling Bar Association
polo shirts for $20.00. They are embroidered with our logo, and are of
high quality. They look sharp, and will
surely show your pride in our association. Contact Kelli with your orders, or
suggestions for other merchandise
that you would like to see. Check your
e-mail for special offers and upcoming
events.
IN MEMORIAM
Bruce E. Otto—P18563, died Monday, June 22, 2015. He was
born January 25, 1924 and passed the bar January 8, 1953.
Howard Reitz—P19349, died Sunday, June 14, 2015. He was
born December 6, 1922 and passed the bar December 20, 1948.
Joseph Lee Scorsone—P23406, died Saturday, July 18, 2015. He
was born February 23, 1944 and passed the bar December 12, 1973.
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.
SEPTEMBER 2015
3
PORTRAIT OF A LAWYER
JOHN W. McGRAW
By: Hon. Patrick McGraw
John W. McGraw was born on September 16, 1929, to Ruth A. and Thomas Andrew McGraw in Detroit, Michigan.
He grew up in northwest Detroit and was
a member of Jesu Parish. He lived with
his parents and only brother, Tom, who
retired from General Motors Technical
Center in Warren. John’s father was a
supervisor at General Electric.
John attended Cass Technical High
School, earning both a high school diploma and a degree in engineering.
His employment career began at 19
years of age when he went to work as
an investigator for Employers Group Insurance Company. His career was interrupted in 1951 when he was drafted
into the Korean War and sent overseas.
His overseas duty was cut short when
his father passed away in January of
1952. He returned to the states where
he remained until he was honorably discharged. John’s father was also honorably discharged from the U.S. Army in
1918.
During this time, while home on leave
on St. Patrick’s Day 1951, Elizabeth (Liz)
Foley came into his life. They were married on August 27, 1953.
John resumed his employment at
Employers Group Insurance Company
where he remained until 1956. He then
went to work for American Automobile
4
Insurance Company, which later became Fireman’s Fund. He worked for
this firm, investigating for insurance carriers as well as a number of Detroit law
firms.
In September of 1953, John decided to
enroll in the evening sessions at the University of Detroit Law School while continuing his insurance and legal investigations. He graduated in January of 1958,
cum laude, with a juris doctorate.
In 1958 John joined a firm headed
by H. Monroe Stanton located in the
Bearinger Building. In 1966, the firm
of Egloff, Mainolfi, Taylor, McGraw and
Collison was organized. In 1972, John
and Joseph Mainolfi formed their own
firm. In 1974, now Circuit Court Judge
Fred L. Borchard, son of former Circuit
Court Judge Fred J. Borchard, became
a member of the firm. John’s eldest
son, Probate Judge Patrick J. McGraw,
joined the firm in 1981, and subsequently so did a daughter Kathleen McGraw
and H. William Martin, when the firm
was then known as McGraw, Borchard
and Martin. Many other excellent lawyers worked with John at his firm, including John and Pat Learman, Stephan
Gaus, Mike Weiss, Dan Pollard, Joseph
Harrison and Mike Korn.
John began semi-retirement in 1996,
and in 1999, Judge Patrick McGraw
SEPTEMBER 2015
who was then managing partner was
appointed to the Saginaw County Probate Court. At that time, Judge McGraw
was in negotiations to merge with Braun
Kendrick, and finally that merger continued and John joined Braun Kendrick “of
counsel” until his retirement.
John also had two of his other children become lawyers, Kevin McGraw of
Okemos and Thomas McGraw of Troy.
One of John’s grandsons also became
a lawyer, Brandon McGraw of Lansing,
son of Judge Patrick McGraw.
John was a member of the Saginaw
County Bar Association (past President),
Michigan Bar, admitted to all Federal
Courts, Holy Family Catholic Church and
St. Thomas Aquinas, Knights of Columbus # 42321, Pulaski Club, Board of Directors of Field Neurosciences, NRA and
the YMCA. John and Liz were known
for their dancing prowess and were frequently seen at places where they could
show off the “jitterbug”.
SEPTEMBER 2015
John is survived by six children, Honorable Patrick and Susan McGraw,
Kathleen McGraw, Kevin and Sharon
McGraw, Mary McGraw, Colleen McGraw and Thomas McGraw; 13 grandchildren, Kelly (Johnny) Fontes, Ryan
(Lauren) McGraw, Brandon (Nicole)
McGraw, Kyle McGraw and her fiancé
Thomas Salcido, Megan Heyn and her
fiancé Joe Marcantel, Devin Heyn, Morgan McGraw-Heyn, John (Alex) McGraw, Jacob (Karinna) McGraw, Alicia
Bigelow, Andrew Bigelow and his fiancé
Caylin Newell, Ethan McGraw, Hannah
McGraw; six great-grandchildren, John
Fontes III, Olivia Fontes, Elizabeth “Lily”
Fontes, Landon McGraw, Luke McGraw,
Paisley McGraw and Oliver McGraw;
several nieces and nephews. John was
preceded in death by three infant children, a granddaughter, Brianna Bigelow,
his brother, Thomas B. McGraw and his
loving wife of 61 years Elizabeth “Liz”
McGraw.
5
PORTRAIT OF A LAWYER
BRUCE E. OTTO
By: Kelli Scorsone
Bruce called me a few years ago requesting that when he died we did not
celebrate his life at a Memorial. Of
course, I argued with him on the importance of being recognized as one of
SCBA’s great attorneys but in the end I
agreed to honor his wishes, we will not
have a memorial but we will honor him.
A Resolution has been written and will
be read into the Probate Record and
delivered to his family.
Bruce E. Otto passed away on Monday, June 22, at the age of 91. He was
born in Saginaw on January 25, 1924
to Herbert A. Otto and Mary B. (Gerber)
Otto, being the youngest of eight children. He lived in the Saginaw area all
his life. He married Patricia R. Cowles
in 1947 and later Joan Canfield Galehouse who survives him.
He graduated from Arthur Hill High
School in 1942 and then
enlisted in the U.S. Army.
During World War II, he
served in the South Pacific Theater where he participated in four campaigns
earning five battle stars. He
attended Bay City Jr College and the University of
Michigan where he was a
member of the varsity basketball team. Later he grad6
uated with honors from the University
of Detroit Law School with a juris doctorate degree.
He was a partner in the family law firm
of Otto and Otto, founded by his father.
His two brothers Gilbert, Howard, and
nephew, Warren G. all practiced law at
the family firm. The law firm of Otto and
Otto was one of the most respected in
the county for over 50 years. Gilbert,
Howard and Bruce all graduated from
the University of Detroit Law School.
He was a member of the Saginaw
County Bar Association, Michigan
State Bar Association and the Michigan
Trial Lawyers Association. He served as
president of the Saginaw County Bar
Association in 1975, as did his father in
1936, his brother Howard in 1965 and
his nephew in 1989. That, like Bruce,
should definitely be recognized.
SEPTEMBER 2015
SAGINAW COUNTY
LAWYERS’ AUXILIARY
By: Kimberly Mair
I am happy to announce this new
term marks the 60th Anniversary of
the Saginaw County Lawyers Auxiliary.
The SCLA was founded in the Spring
of 1955. The first SCLA meeting, at the
Hotel Bancroft, saw 47 in attendance
and the officers were elected at that
time. Those first officers were: President, Mrs. Harvey Walker; Secretary,
Mrs. Hazen Armstrong; and Treasurer,
Mrs. Robert Gilbert. The SCLA has
enjoyed growing and contributing to
many local projects, as well as supporting the interests of the Saginaw
County Bar Association.
In celebration of our 60th Anniversary, our Fall Luncheon will be held on
September 24th at the Saginaw Country Club. Invitations will be sent, and I
am encouraging everyone to attend! A
photograph of all past presidents will
be taken at the luncheon to commemorate our 60th year. The roster will also
be distributed at the Luncheon this
year, so we hope you can make it.
This is a great time for any existing or potentially new members who
are interested, to join us for some fun
and see what we have to offer. This
year promises some great events for
everyone to enjoy and participate in.
If you are interested in volunteering
SEPTEMBER 2015
your time, we would love to hear from
you. A survey was sent out to all the
members with their dues letter. I hope
everyone takes a few minutes to write
down their interests and suggestions
for this coming year.
As a reminder we are kicking off this
Fall with our first meeting on September 1st. If you have any questions or
would like to become a part of the
Saginaw County Lawyers Auxiliary,
please contact me by email at mairkim@gmail.com. We look forward to
meeting you!
The Saginaw County Bar Association
will hold a Memorial Recognition
honoring
John W. McGraw
on Thursday, September 10, 2015
at 11:00 AM
in the Probate Court
Honorable Patrick Meter presiding
Saginaw County Courthouse
7
SCBA EXECUTIVE
DIRECTOR’S REPORT
By: Kelli Scorsone, Executive Director
2016 LAW DAY THEME
ANNOUNCED BY ABA
In 2016, the nation marks the 50th anniversary of perhaps the nation’s bestknown U.S. Supreme Court case, Miranda v. Arizona. The Miranda Warning
has become ingrained in law enforcement and has permeated popular consciousness through countless recitations in films and television shows. Yet
Miranda is only part of the story when
it comes to the procedures for ensur-
8
ing justice. The 2016 Law Day theme
— Miranda: More than Words — will
explore the procedural protections afforded to all of us by the U.S. Constitution, how these rights are safeguarded
by the courts, and why the preservation of these principles is essential to
our liberty.
If you are interested in joining the
SCBA Law Day Committee, we meet
the second Tuesday of every month
in the Lower Level Small Conference
Room at 12:00 noon. Please join us, I
am excited about this topic and think
with enough members we can put on a
great LAW DAY PROGRAM.
CONSTITUTION DAY 2015
Constitution Day is a combined event
that is annually observed in the United
SEPTEMBER 2015
States on September 17. This event
commemorates the formation and
signing of the Constitution of the United States on September 17, 1787. It
also recognizes all who, by coming of
age or by naturalization, have become
US citizens.
It is also the day that SCBA officially
kicks off the Law Day Campaign. With
the help of ABA, SBM and SCBA, every school district in Saginaw County
is emailed important information to
help teachers observe this historical
event, which they are mandated to do.
torneys and their families close their
practice. Please re-familiarize yourself with the recommended procedure
to avoid an issue with closing your
practice. The following link will take
you to the pamphlet entitled Sudden
Death or Disability: Is Your Practice And Your Family - Ready for the Worst
from the Institute of Continuing Legal
Education that will guide you through
information you should keep in mind
-- http://www.michbar.org/file/opinions/ethics/articles/death-disability.
pdf.
INVENTORY ATTORNEY
COMMITTEE
The Inventory Attorney Committee
was formed at the recommendation
of SBM. It is available to help at-
SCBA COMMITTEES
For information about other committees and how to get involved, please
contact me. Every committee is looking for fresh ideas from YOU.
SEPTEMBER 2015
9
DISTRICT
COURT UPDATE
By: Judge M. Randall Jurrens
The obituary for driver responsibility
fees has finally been written (although
their demise is not yet fully complete).
As you know, MCL 257.732a, enacted in 2003, imposes driver responsibility fees for individuals who either -• accumulate 7 or more points ($100
each year) (“Category 1”), or
• are found guilty of a qualifying offense ($1,000 is assessed for each
of 2 successive years for enumerated serious offenses including
manslaughter, negligent homicide,
felony resulting from operating a
vehicle, OWI, failing to stop, and
fleeing and eluding; and $500 is
assessed for each of 2 successive
years for enumerated lesser offenses, including OWVI, DWLS, and
reckless driving) (“Category 2”).
Although driver responsibility fees
have generated millions of dollars in
state revenue, they have been the subject of much criticism.
Now, by legislative amendment (2014
PA 250), the fees will be phased out
over the next four years. Beginning
on the following dates, assessment
of driver responsibility fees will be reduced as seen on the next page:
The Saginaw County Bar Association
will hold a Memorial Recognition honoring
Joseph L. Scorsone, Jr.
on Friday, September 25, 2015 at 11:00 AM
in the Probate Court
Honorable Patrick McGraw presiding
Saginaw County Courthouse
10
SEPTEMBER 2015
Now,
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PA
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{S1250869.DOCX.1 {S1250869.DOCX.1 1 00058-­‐705}
100058-­‐705}
{S1250869.DOCX.1 100058-­‐705} SEPTEMBER 2015
11
UPDATE FROM
PROBATE COURT
By: Judge Patrick McGraw
ATTORNEYS – are you a fiduciary?
The Michigan Court of Appeals recently, in an unpublished decision
dated July 28, 2015, in the case of “In
re St. Thomas Estate”, decided that
an attorney holding funds in his or her
IOLTA account is acting in a fiduciary
capacity in holding these assets. Further, the Court held that the attorney
had an ethical duty under MRPC 1.15
to safeguard these assets, including
the duty to place such assets in an
interest bearing account citing Michigan’s “Prudent Investor Rule”, MCL
700.1501 et seq.
The case arose from the attorney’s
legal representation of Mary Catherine
St. Thomas (decedent) in a personal
injury action that settled three weeks
before her death. The attorney then
represented Doreen Chastain in her
role as personal representive of decedent’s estate. The attorney retained
$140,000.00, which represented decedent’s share of the personal injury
settlement in the attorney’s IOLTA
account. Those funds were subsequently embezzled by the attorney’s
secretary and one of his former clients.
The Wayne County Probate Court
granted the personal representative’s
petition to surcharge the attorney for
12
harm caused to the decedent’s estate
claiming a breach of fiduciary and ethical duties.
The Court surcharged the attorney
for personally violating fiduciary and
ethical duties he owed to his clients
because of the acts of his secretary
and former client in embezzling the
funds from his IOLTA account. The
attorney argued that he could not be
held liable on vicarious liability for the
criminal acts of his employee, but the
Court distinguished this by indicating
that he was surcharged, rather than
being held vicariously liable.
The Court also held that the funds
should have been placed in an “interest bearing account”, rather than his
IOLTA account, referring to Michigan’s
“Prudent Investor Rule”, and cited the
MPRC as the basis for this finding.
Although unpublished, this should
be a very disturbing and eye-opening
case for all practitioners who have
IOLTA accounts and I suggest you
read this case in its entirety to follow
the Court of Appeal’s reasoning on
“investing” funds held in your IOLTA
accounts, and your ability to foresee
future employee wrongdoing.
SEPTEMBER 2015
SEPTEMBER 2015
13
U.S. SUPREME COURT
WEIGHS IN ON
PREGNANCY DISCRIMINATION
By: Katherine S. Gardner, JD, LLM
Masud Labor Law Group
On March 25, 2015, the U.S. Supreme Court issued its long-awaited
decision in Young v United Parcel Service, Inc., 135 S. Ct. 1338, 191 L. Ed.
2d 279 (2015), which addresses an
employer’s obligation to accommodate pregnant employees with work
restrictions. While the decision answers some questions regarding the
need to accommodate pregnant workers, there are other questions left unanswered by the decision.
In the Young case, the employee,
Peggy Young, worked as a part-time
driver for UPS. Her responsibilities
included package pickup and delivery. After she became pregnant, her
physician placed her on restrictions
of no lifting of more than 20 pounds
during the first 20 weeks of her pregnancy, and not more than 10 pounds
thereafter. Because the company required drivers like Young to be able to
lift parcels weighing up to 70 pounds,
UPS told Young that she could not
work while under a lifting restrictions.
She therefore stayed home without
pay during most of her pregnancy and
eventually lost her employee medical
coverage. Young at 287-288.
Young subsequently filed suit, alleging violation of the Pregnancy Discrimination Act, 42 USC 2000e(k) (“PDA”).
14
She asserted that UPS had intentionally treated her less favorably than
other individuals by failing to provide
her with an accommodation during her
pregnancy. In response, UPS argued
that its policy was to provide accommodations only in limited circumstances, being 1) workers injured on the job;
2) individuals suffering from ADA disabilities; and 3) employees who had
lost their DOT certifications. Young
at 290. The trial court granted summary judgment in Young’s favor stating that the individuals Young sought
to compare herself to as evidence of
disparate treatment were not similarly
situated, a finding which was affirmed
by the Fourth Circuit Court of Appeals.
The U.S. Supreme Court granted certiorari to review the case.
In reviewing the case, the Supreme
Court first rejected Young’s argument
that the PDA granted pregnant workers
“most favored nation” status requiring
employers to provide accommodation
for every pregnant worker. The Supreme
Court based this conclusion on the language of the PDA itself, stating that the
PDA “does not say that the employer
must treat pregnant employees the
‘same’ as ‘any other persons’ (who are
similar in their ability or inability to work),
nor does it otherwise specify which
SEPTEMBER 2015
other persons Congress had in mind.”
Young at 294 (emphasis in original).
Turning to the arguments advanced
by UPS, the Supreme Court also rejected UPS’ rationale. UPS argued
that as long as an employer provided
accommodations to pregnant women
in the same way in which it provided
accommodations to others, in a facially neutral category (i.e., no accommodation for off-the-job injuries), the
employer could not be liable for pregnancy discrimination. The Court feared
that such a conclusion could permit
employers to treat pregnancy less favorably than diseases or disabilities
resulting in a similar inability to work,
which, the Court concluded, was contrary to the intent of the Pregnancy
Discrimination Act. Young at 296-297.
Attempting to strike a balance between these two positions, the Court
concluded that the commonly used
McDonnell-Douglas burden shifting test
should be used to determine whether a
pregnant employee has suffered employment discrimination as a result of
her pregnancy. Under the holding of the
Young case, to establish a prima facie
case, the employee must show that 1)
she belongs to the protected class; 2)
she sought an accommodation; 3) the
employer did not accommodate her;
and 4) the employer accommodated
others similar in their ability or inability
SEPTEMBER 2015
to work. If the employer justifies its refusal to accommodate by providing a
legitimate, non-discriminatory reason
for its refusal – which normally cannot
be simply that it is more expensive or
less convenient to add pregnant to the
category of women which the employer
accommodates – then a plaintiff may
proceed to trial only by demonstrating
that the employer’s reason is a pretext
for discrimination. A plaintiff may do this
by showing that an employer’s policies
impose a significant burden on pregnant workers, and that the justification
for not accommodating pregnant employees is not sufficiently strong, giving
rise to an inference of intentional discrimination. Young at 298-299.
While the Young case provides some
direction with regard to accommodation of pregnancy-based restrictions,
it leaves unanswered the exact parameters of what employer policies
may impose a “significant burden”
on pregnant workers. While this issue will undoubtedly wind through the
court system in the ensuing years, at
present, legal practitioners faced with
pregnancy accommodation questions
should carefully evaluate any light duty
policies and their impact on pregnant
employees, and seriously review all
questions related to pregnancy-related
accommodations to minimize liability
for pregnancy discrimination claims.
15
BANKRUPTCY CASE
NOTES
By: Jack Weinstein
Are payments made pursuant to
an Installment Payment Agreement
subject to recapture by a bankruptcy
debtor? That was the issue before US
Bankruptcy Judge, Daniel S. Opperman of the Eastern District of Michigan, Southern Division, in the matter
of Jeffrey and Yolanda Mabry (Jeffrey and Yolanda Mabry v Earl Shaw)
Case # 13-32700, decided on August
28, 2014. In that case, debtors filed
an adversarial complaint seeking to
recover funds that Mrs. Mabry paid
to her brother, Earl Shaw, in the year
preceding their bankruptcy filing. In
their adversarial complaint, plaintiffs
claimed that the payments to defendant Shaw were preferential transfers
subject to avoidance under 11 USC
§547 and §550 and sought the return
of those funds.
Prior to plaintiff’s bankruptcy, Shaw
had secured a judgment against Mrs.
Mabry on September 12, 2011, in the
amount of $16,848.80. On September
16, 2011, Mrs. Mabry filed a motion
seeking an installment payment plan
allowing her to pay Shaw $75 per
month on his judgment. Shaw had
objected to her motion. After the hearing, the Michigan district court judge
granted her motion but increased the
16
amount of her installment payment
and entered an order on October 25,
2011, stating that Mrs. Mabry could
pay the judgment in installments of
$425 per month. Further, the order
stated that no writ of garnishment
was to be issued against her wages
for personal work and labor nor a writ
of execution until further order of the
SEPTEMBER 2015
court.
Thereafter, plaintiffs filed a joint
Chapter 7 Petition on August 15,
2013, and listed the installment payments as exempt assets in their
schedules. The trustee did not seek
to avoid the transfers. Plaintiffs filed
an adversarial complaint on October
23, 2013, seeking to recover $5,100
being the amount that Mrs. Mabry
had paid to Shaw one year preceding
their bankruptcy filing. Shaw filed an
answer to plaintiff’s complaint denying that plaintiffs were entitled to the
relief sought. The court conducted a
final pre-trial and the parties agreed
to file briefs and allow the court to decide the issue without a trial.
Judge Opperman reviewed 11 USC
§547 and §550 which allows a trustee to set aside certain transfers of
a debtor’s property which occurred
prior to the filing of a bankruptcy petition. When the trustee does not seek
to set aside the transfers, the debtor
is allowed to do so and may seek to
exempt and keep the funds or assets
recovered. In this case, the trustee
did not wish to pursue the matter.
There was no dispute that the payments made by Mrs. Mabry to Shaw
were subject to avoidance. However,
Judge Opperman determined the is-
sue was whether plaintiffs had standing to pursue their avoidance action.
11 USC §522(h) addresses instances in which debtor has standing to
pursue avoidance claims in order to
maximize property that a debtor may
exempt. However, in order to do so,
there must have been a transfer made
which the trustee could have avoided
but did not seek to do so; and, debtor
must claim the amount as an exemption under 11 USC §522(g)(1). That
section provides that transfers not
voluntarily made by the debtor who
has not concealed the property are
subject to recapture. The determining
issue is whether the transfers made
by Mrs. Mabry to Shaw were voluntary. She had the burden to prove that
the transfers were not voluntary. In
this case, there was no court order
compelling Mrs. Mabry to pay Shaw.
The payments were not a result of
garnishment or execution upon her
property. She is the one that sought
an order allowing her to pay the judgment in installments to which Shaw
had objected; and, the court entered
an amount that it deemed suitable under the circumstances. However, the
language in the installment payment
order is permissive as it states that
Mrs. Mabry “may pay” the judgment
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SEPTEMBER 2015
17
in installments, even considering that
those monthly payments were higher
than what she originally had sought
to pay. She made regular monthly
installment payments of $425.00 per
month up to her bankruptcy filing.
She probably had done so out of fear
that Shaw would pursue other collection methods by garnishing her wages. The fact that Mrs. Mabry feared
that Shaw might have taken other collection remedies does not make her
payments involuntary. There were no
allegations or evidence showing that
Mrs. Mabry made her monthly payments as a product of fraud, material
misrepresentation, coercion, duress,
or similar circumstances. Therefore,
Mrs. Mabry failed to meet her burden
of establishing that the transfers were
involuntary.
Finally, Judge Opperman cited the
6th Circuit Court’s decision of Dickson
v Countrywide Home Loans (In Re:
Dickson), 655 F. 3d 585 (6th Cir 2011)
as further support for his decision
concluding that the 6th Circuit Court
required more than a mere fear that
a creditor might seek to execute on a
judgment or might garnish her income
or make her voluntary payments into
involuntary payments and subject to
recapture. Therefore, plaintiffs did not
have standing to pursue an action to
recover the voluntary payments that
Mrs. Mabry made to Shaw.
SCBA TALENT NIGHT
Thursday, September 17, 2015 - 5:30 pm
at Timber’s - Trillium Banquet Center, 6415 State Street
SCBA MEMBERS AND GUEST WELCOME!!!
18
SEPTEMBER 2015
70TH DISTRICT COURT
ADMINISTRATOR
PAULA J. McGLOWN
By: Judge Terry L. Clark, Presiding Judge
The 70th District Court, Saginaw
County is pleased to announce the appointment of Mrs. Paula J. McGlown,
as the new District Court Administrator. She comes to us from the 68th District Court, City of Flint. Mrs. McGlown
replaces former Administrator, Cheryl
B. Jarzabkowski, who retired on May
29, 2015. Mrs. McGlown’s first day on
the job was July 27, 2015.
Mrs. McGlown began her career with
the 68th District Court as a certified
electronic court recorder. As a recorder, her primary duty was to record and
type all courtroom testimony. She later became an Administrative Assistant
with the Court. And, as the Administrative Assistant, she served as the liaison between the Court and other governmental agencies, the media, and
the public. Always looking for a new
challenge, Mrs. McGlown took the position of Administrative Services Manager for the Court. In this position, she
was required to supervise employees,
coordinate docket control, records,
jury services and security. Still looking
to grow professionally, Mrs. McGlown
became the Court’s Deputy Court Administrator. And, in July of 2009, she
was appointed Court Administrator.
Overall, she had 19 years of service
with the 68th District Court, with the
SEPTEMBER 2015
last 6 years as Administrator.
She has a Bachelor of Business Administration from Northwood University and a Master of Science in Administration from Central Michigan
University.
She and her husband, Michael, love
to travel and seek out unique art fairs.
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19
PRO BONO WEEK 2015
By: Valerie Kutz-Otway
Pro-Bono Committee Chair
The Pro Bono Appreciation Luncheon
takes place each year during National
Pro Bono Week. The SCBA Pro Bono
Committee is currently making plans
for this year’s celebration, which is set
for Monday, October 26, 2015. Please
mark your calendars to attend this
event where the honored speaker will
be Michigan Supreme Court Justice
Richard H. Bernstein.
Pro Bono awards being presented
at the luncheon include the 2015 Pro
Bono Attorney of the Year Award.
Nomination forms will be available
in the Listserv soon and must be returned to Kelli Scorsone no later than
October 1, 2015.
In addition to the luncheon, the Pro
Bono Committee is also planning another “Ask the Lawyer” Night at Hoyt
Library on October 29, 2015. This
20
event is free and open to the public.
Panelists are needed. SCBA members
interested in participating as a panelist are encouraged to contact Marilyn
Hackett, LSEM Pro Bono Coordinator,
at mhackett@lsem-mi.org.
Watch for more news of National Pro
Bono Week events in the October issue of The Summons.
SCBA BENCH AND BAR
Wednesday, September 16, 2015
Time: 8:00 - 9:00AM
Location: Saginaw Courthouse basement LEPC Center
Topic: People v Lockridge
Donuts and juice will be available
Door Prize - $25.00 gift card
(must be a SCBA member to win)
SEPTEMBER 2015
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or email: annvan@braunkendrick.com.
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