R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.
Before the Court is Plaintiff's Ex Parte Motion for Orders Prohibiting Transfer of Assets and Compelling Creditor's Examinations [Doc. #166], which was referred for hearing and determination under 28 U.S.C. § 636(b)(1)(A). For the reasons and
The Defendants are signators and guarantors of loans from Plaintiff Comerica Bank. They defaulted on these obligations; Plaintiff filed breach of contract claims, and on March 23, 2018, the Court entered a stipulated amended judgment against the Defendants as follows [Dkt. #47]:
(a) Defendants James Esshaki, Bernadette Esshaki, the James Esshaki Living Trust dated April 25, 1991, and Essco, Inc., jointly and severally, for the sum of $4,624,655.44 in principal, plus accrued interest in the amount of $382,364.41 as of February 15, 2018, plus $13,727.98 in late fees, plus costs and attorney fees, with interest continuing to accrue.
(b) Defendants James Esshaki, the James Esshaki Living Trust dated April 25, 1991, Essco, Inc., and Essco International Restaurants, LLC, jointly and severally, for the sum of $933,942.24 in principal, plus accrued interest in the amount of $77, 217.76 as of February 15, 2918, plus $2,367.24 in late fees, plus costs and attorney fees, with interest continuing to accrue.
(c) Defendants James Esshaki and the James Esshaki Living Trust dated April 25, 1991, jointly and severally, for the sum of $433,334.87 in principal, plus accrued interest in the amount of $35,827.85 as of February 15, 2918, plus $1,102.56 in late fees, plus costs and attorney fees, with interest continuing to accrue.
(d) Defendants James Esshaki, the James Esshaki Living Trust dated April 25, 1991, and Essco Development-Southgate, LLC, jointly and severally, for the sum of $316,640.36 in principal, plus accrued interest in the amount of $26,179.62 as of February 15, 2018, plus $939.93 in late fees, plus costs and attorney fees, with interest continuing to accrue.
The full amount of the judgment is unsatisfied. James Esshaki appeared for a creditor's exam on December 1, 2017, but Plaintiff terminated that proceeding, claiming that Mr. Esshaki "repeatedly and without merit objected to answering basic questions about his financial situation...." Plaintiff's Motion [Dkt. #166, Pg. ID 1138].
Plaintiff now seeks an order compelling the continuation of a creditor's exam, to be held in the United States Courthouse under judicial supervision, and to prohibit the transfer of non-exempt assets.
Under Fed.R.Civ.P. 69(a)(1), "[a] money judgment is enforced by a writ of execution." Further, "[t]he procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located." Id. Michigan law provides the mechanisms to enforce monetary judgments. See M.C.R. 2.6 21 ("When a party to a civil action obtains a money judgment, that party may, by motion in that action or by a separate civil action ... obtain relief supplementary to judgment under MCL 600.6101-600.6143." "[T]he scope of postjudgment discovery is very broad." United States v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007), quoting F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995). Fed.R.Civ.P. 69(a)(2) provides that a judgment creditor "may obtain discovery from any person-including the judgment debtor-as provided in these rules or by the procedure of the state where the court is located."
The statutory provisions incorporated in M.C.R. 2.621(2) give the court an expansive range of authority. Under M.C.L. § 6104(1), a court may compel discovery of any property of the judgment
Under M.C.L. § 600.6116(1), a court may, as part of an order for a creditor's examination, restrain the judgment debtor from transferring nonexempt property:
In their Objections to Plaintiff's Ex Parte Motion [Doc. #173], Defendant first argue that Michigan law does not permit ex parte motions, and that this case should be consolidated with a separate case assigned to Judge Steeh. As to the latter point, at the time Defendants filed their Objection, this case was assigned to Judge Borman. It has since been transferred to Judge Steeh, so that issue is moot. In addition, Defendants have in fact filed a response (objection) to this motion, so it is not, in effect, an ex parte motion.
Defendants also raise five substantive objections. First, they argue that the relief requested is overly broad, and does not account for payment of the Esshaki's ordinary living expenses. However, as discussed in the preceding section, the Court's powers to enforce a judgment and to fashion discovery are extremely broad. In addition, an order under M.C.L. § 600.6116(1) restraining the transfer of property is limited to nonexempt property. Defendants have made no proffer that their nonexempt property is insufficient to meet their ordinary living expenses. I also note that while Defendants opine that "[t]he common practice in Michigan state courts is to allow such ordinary course exceptions when a transfer restraint order is entered," Defendants' Objection, Pg. ID 1294, they cite no authority for that proposition. This objection is without merit.
Second, Defendants object that the Plaintiff's document requests are "overbroad and unduly burdensome," and includes information from corporate and other entities that are not themselves judgment debtors. However, discovery as to non-parties is appropriate where "the relationship between [the judgment debtor and the non-party] is sufficient to raise a reasonable doubt about the bona fides of any transfer of assets between them." Id., 160 F.3d at 431 (quoting Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D. 559, 562 (S.D.N.Y.1977)). See also Mountain, Dudes, LLC v. Split Rock, Inc. 2013
Third, the Defendants object to the time frame for the production of documents and, presumably, for the creditor's examination, stating that they should be given at least 30 days. It does appear that Plaintiff's document requests are voluminous, and some additional time is required. The Court will order that Defendants produce the documents requested, as set forth in Exhibit 1 of Plaintiff's motion, within 21 days of the date of this Order. The creditor's examination will take place within 21 days of the date required for production, or such later time as the parties may mutually agree upon.
Fourth, Defendants object to Mr. Esshaki's exam as duplicative. It is not; Plaintiff states that Mr. Esshaki's first examination was terminated because of obstructionist conduct. "Sufficient unto the day is the evil thereof."
Finally, Defendants object to the creditor's examinations taking place in the United States Courthouse. I agree. The examinations will instead take place either at Defendants' counsel's office or Plaintiff's counsel's office. Counsel are aware that Defendants will answer all questions that concern non-privileged matters, subject to objections. If a privilege is asserted, the parties can, as an initial matter, telephone the undersigned Magistrate Judge for a ruling, or, if the matter cannot be resolved on the spot, file an appropriate motion.
Accordingly, Plaintiff's Motion for Orders Prohibiting Transfer of Assets and Compelling Creditor's Examinations [Doc. #166] is GRANTED under the terms set forth above.
Plaintiff will submit to the Court a proposed Order Restraining Transfer of Assets
Defendants will produce the documents requested by Plaintiff, and appear for creditor's examinations under the terms discussed above.
IT IS SO ORDERED.