Opinion
Case No. 02–53971 Adv. Pro. No. 02–5280
04-24-2017
IN RE: Kenneth Graham MCNEIL, Debtor. Agnes Reid, and John Reid, Plaintiffs, v. Kenneth Graham McNeil, Defendant.
Brandy L. Bayman, Bloomfield Hills, MI, for Plaintiff. Bryan D. Marcus, Royal Oak, MI, for Defendant.
Brandy L. Bayman, Bloomfield Hills, MI, for Plaintiff.
Bryan D. Marcus, Royal Oak, MI, for Defendant.
OPINION AND ORDER DENYING PLAINTIFFS' REQUEST FOR ORDER TO SEIZE PROPERTY
Thomas J. Tucker, United States Bankruptcy Judge
On June 12, 2003, the Court entered a default judgment in the amount of $653,498.03 in favor of Plaintiffs and against Defendant in this adversary proceeding (Docket # 28, the "Judgment"). On May 31, 2013, the Plaintiff Agnes Reid filed a motion entitled "Ex Parte Motion for Renewal of Judgment" (Docket # 40, the "Motion"), seeking renewal of the Judgment. The Motion stated, in relevant part that "[a]s of May 30, 2013, Defendant has failed to satisfy the [J]udgment" and that "Defendant has not paid any amount whatsoever toward the [J]udgment" (Id. at ¶¶ 2–3). On June 4, 2013, the Court entered an order renewing the Judgment for an additional 10–year period (Docket # 41).
Recently, Plaintiffs submitted to the Clerk of this Court a document entitled "Request [for] Order to Seize Property," which, in relevant part, requests that the Court enter an order requiring "any sheriff, deputy sheriff or authorized court officer" to "[s]eize and sell, according to law, any of the personal property (as determined by the officer) of [the defendant] ... as will be sufficient to satisfy" the debt arising out of the Judgment, and to take certain other actions. (A copy of the request is attached to this Opinion and Order, for reference purposes.)
The Court must deny Plaintiffs' request, because this Court does not have authority to order a state sheriff or other state court officer to collect a judgment of this Court. In Hauk v. Valdivia (In re Valdivia), 520 B.R. 95, 97 (Bankr. E.D. Mich. 2014) (footnote omitted), Aff'd , No. 14-14429, 2015 WL 1015127 (E.D. Mich. Mar. 3, 2015), this Court stated:
The Court notes that it previously denied a similar request by the Plaintiffs, on November 27, 2013. (See "Order Denying Plaintiff Agnes Reid's Ex Parte Motion for Appointment of Court Officer for Purposes of Serving And Executing Order to Seize Property" (Docket # 44).)
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[T]he Court concludes that only the United States Marshals Service may serve and execute on a writ of execution issued by this Court. No state court officer may do so. See Branch Banking & Trust v. Ramsey, 559 Fed.Appx. 919, 924 (11th Cir.2014) (interpreting 28 U.S.C. § 566(c) to mean that "only a U.S. marshal may execute the federal writ of execution by levying on and selling [a judgment debtor defendant's] property"). This Court has no authority to direct a state officer to serve and execute on a writ of execution. Only an appropriate state court would have such authority.
The Court explained further that:
if [the p]laintiff's counsel wants to use a state court officer to execute on a writ of execution, he can only accomplish that by domesticating this Court's September 3, 2014 default judgment in an appropriate Michigan court, and then have that Michigan court issue its own writ of execution, which a state court officer can then serve. Plaintiff can file an authenticated copy of this Court's judgment in the office of the clerk of a circuit, district, or municipal court in the state of Michigan under the "Uniform Enforcement of Foreign Judgments Act." Mich. Comp. Laws Ann. §§ 691.1171 – 691.1179. That Michigan law provides, in relevant part:
Sec. 3. A copy of a foreign judgment authenticated in accordance with an act of congress or the laws of this state may be filed in the office of the clerk of the circuit court, the district court, or a municipal court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court, the district court, or a municipal court of this state. A judgment filed under this act has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the circuit court, the district court, or a municipal court of this state and may be enforced or satisfied in like manner.
Mich. Comp. Laws Ann. § 691.1173 (bold emphasis added). As used in this statute, "foreign judgment" includes a judgment of the United States Bankruptcy Court—it "means any judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state." Mich. Comp. Laws Ann. § 691.1172.
Valdivia, 520 B.R. at 97–98.
Thus, Plaintiffs may domesticate their Judgment in an appropriate state court, and pursue collection of the Judgment in that court. Or alternatively, Plaintiffs may file a request for this Court to issue a writ of execution directed to the United States Marshal.
Accordingly,
IT IS ORDERED that Plaintiffs' Request [for] Order to Seize Property" is denied, without prejudice to Plaintiffs' right to file a request for a writ of execution directed to the United States Marshal.
Attachment