Macatawa Bank v. Wipperfurth

• Decision Date: 08 November 2011
• Docket Number: Docket No. 300451.
• Citation: 294 Mich.App. 617,822 N.W.2d 237
• Parties: MACATAWA BANK v. WIPPERFURTH.
• Court: Court of Appeal of Michigan — District of US

294 Mich.App. 617

822 N.W.2d 237

MACATAWA BANK

v.WIPPERFURTH.

Docket No. 300451.

Court of Appeals of Michigan.

Submitted Nov. 1, 2011, at Grand Rapids.

Decided Nov. 8, 2011, at 9:10 a.m.

Steven E. Bratschie & Associates, P.C., Kentwood (by Scott Mancinelli and Julianna Hyatt–Wierzbicki), for Macatawa Bank.

Law, Weathers & Richardson, P.C., Grand Rapids (by Michael J. Roth), for Kurt and Janice Wipperfurth.

Before: JANSEN, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

Defendants in this appeal argue that plaintiff may not garnish their individual retirement accounts (IRAs) in Michigan. We agree and reverse the order of the circuit court.

The facts in this case are undisputed. Defendants reside in Florida and have not maintained a home in Michigan for many years. On February 19, 2010, plaintiff obtained a judgment against defendants in the Kent Circuit Court for $42,622.13. Plaintiff then filed a request for garnishment with the circuit court, naming TD Ameritrade as garnishee.¹ Defendants have three IRAs with TD Ameritrade, two of which are individually sufficient to satisfy the judgment against defendants.

Defendants objected to the writ of garnishment, arguing that the IRAs are exempt from garnishment under Michigan law.² The parties agree that TD Ameritradeis subject to jurisdiction in Michigan. The circuit court rejected defendants' objection without explanation,and defendants appealed. We review de novo questions of law. Cooper v. Auto Club Ins. Ass'n, 481 Mich. 399, 406, 751 N.W.2d 443 (2008).

Defendants, who are domiciled in Florida, argue, inter alia, that their IRAs may not be garnished in Michigan because the IRA accounts constitute intangible personal property the situs of which, under Michigan law, is the state in which the owner is domiciled. This specific argument was not raised below. Nonetheless, we may review an unpreserved issue if it presents a question of law and all the facts necessary for its resolution are before the Court. Westfield Cos. v. Grand Valley Health Plan, 224 Mich.App. 385, 387, 568 N.W.2d 854 (1997). We do so in this case because the facts are not in dispute, the issue has been fully briefed, and the situs of the accounts presents a question that we conclude must be answered before we can reach the other matters considered by the circuit court.

MCL 600.4011(1)(a) describes the conditions under which Michigan courts may garnish personal property:

[T]he court has power by garnishment to apply the following property or obligation, or both, to the satisfaction of a claim evidenced by contract, judgment of this state, or foreign judgment, whether or not the state has jurisdiction over the person against whom the claim is asserted:

(a) Personal property belonging to the person against whom the claim is asserted but which is in the possession or control of a third person if the third person is subject to the judicial jurisdiction of the state and the personal property to be applied is within the boundaries of this state.

The parties in this case agree that the court had jurisdiction over TD Ameritrade, but defendants argue that their IRAs are not legally “within the boundaries of this state.” The parties also agree that an IRA is intangible personal property, similar to a bank account. See in rE rapoport'S estate, 317 mich. 291, 293, 301, 26 N.W.2d 777 (1947).

The longstanding rule in Michigan is that “the situs of intangible assets is the domicile of the owner unless fixed by some positive law.” Rapoport's Estate, 317 Mich. at 301, 26 N.W.2d 777; see also In re Dodge Bros., 241 Mich. 665, 669, 217 N.W. 777 (1928), Mills v. Anderson, 238 Mich. 643, 655–656, 214 N.W. 221 (1927), and 5 Michigan Civil Jurisprudence, Conflict of Laws, § 58, p. 412–413. It is undisputed that defendants' state of domicile is Florida. Therefore, their IRAs are not located “within the boundaries” of Michigan. Because plaintiff cites no “positive law” holding that the situs of an IRA is fixed other than by this general rule and the situs of defendants' IRAs is unquestionably Florida, the IRAs do not fall within the scope of personal property that may be garnished by a Michigan court.

Plaintiff argues that Rapoport's Estate is distinguishable because it dealt with the distribution of property upon death, rather than garnishment. However, the case clearly states that the rule described earlier is the general rule.³

Plaintiff would have us instead follow Acme Contracting, Ltd. v. Toltest, Inc., unpublished opinion of the United States District Court for the Eastern District of Michigan, issued October 3, 2008 (Docket No. 07–10950), 2008 WL 4534175, which held that the funds in a bank account “are ‘located’ wherever they are available for withdrawal.” We are not bound by opinions of lower federal courts, Allen v. Bloomfield Hills Sch. Dist., 281 Mich.App. 49, 59, 760 N.W.2d 811 (2008), and do not agree that this unpublished decision provides relevant guidance. The Toltest court noted that the parties did not provide it...