BULKY
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`DOCUMENT
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`(FILED ON PAPER — ENTIRE DOCUMENT EXCEEDS 100 PAGES)
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`fi’r0ceedin3 No.
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`J92056538
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`Filin Date
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`\01/30/2014
`
`T
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`T
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`Part 6 of 6
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`92056538
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. 92056538
`Registration No. 3257604
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`This exhibit is offered by Cook Collection Attorneys, P.L.C., Respondent in the above-
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`10
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`entitled matter and bears on the lower left hand comer the following number based upon the Index
`
`11
`
`of Authorities:
`
`12
`
`91.
`
`In re James Winslow Graves, Jeflrey A. Weinman v. James Winslow Graves and Kathryn
`
`Patricia Graves, 396 B.R. 70, page 3.
`
`This appeal exemplifies the concept that “you cannot get blood out of a turnip.”
`
`The Trustee seeks to obtain from the Debtors that which they simply do not have: .
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`13
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`15
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`1 8
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`28 Number:
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`91
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`2 3
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`9
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`SCOTT R. SMITH, an individual,
`
`Petitioner,
`
`VS.
`
`6 COOK COLLECTION ATTORNEYS,
`P.L.C., a California corporation,
`
`Respondent.
`
`

`
`We"istllav\/,
`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762, Bankr. L. Rep. P 81,344
`(Cite as: 396 B.R. 70)
`
`Page 1
`
`P
`
`v.
`
`
`
`raves and Kathryn Patri-
`-v
`Jam ’ -
`cia Graves, Appellees.
`
`BAP No. CO—08—O38.
`
`Bankruptcy No. O7—20569—ABC.
`Oct. 22, 2008.
`
`Background: Chapter 7 trustee filed mo-
`tion to compel debtors to turn over the
`value of a prepetition tax refund that, prior
`to filing for bankruptcy relief, they had ap-
`plied to pre-payment of their taxes for the
`next
`tax year. The United States Bank-
`ruptcy Court for the District of Colorado
`denied the motion, and trustee appealed.
`
`Holding: The Bankruptcy Appellate Panel
`(BAP), Thurman, I, held that even assum-
`ing, without deciding,
`that debtors’ pre-
`payment constituted estate property as a
`contingent revisionary interest, the prepeti-
`tion tax refund that the debtors elected to
`apply in pre—payrnent of the subsequent
`year's tax liability was not properly subject
`to turnover
`
`Affirmed.
`
`West Headnotes
`
`{1} Internal Revenue 220 €~“»>4030
`
`220 Internal Revenue
`
`220V Income T e
`
`220\/(U) Estates, Trusts. and Benefi-
`
`ciaries
`
`220k4030 k. Receivers, Trustees
`in Bankruptcy or Assignees. Most Cited
`Cases
`Provision of the Internal Revenue Code
`
`allows debtors in Chapter 7 and 11 cases to
`treat
`their
`taxable year as
`two taxable
`years, one ending on the day prior to filing
`of their petition, and the other beginning on
`the petition date. 26 U.S.C.A. § l398(d)(2).
`
`[2] Internal Revenue 220 034030
`
`220 Internal Revenue
`ZZOV Income Taxes
`
`220V(U) Estates, Trusts, and Benefi-
`
`ciaries
`
`Z20k4030 k. Receivers, Trustees
`in Bankruptcy or Assignees. Most Cited
`Cases
`Any election by Chapter 7 or Chapter
`11 debtors to treat their taxable year as two
`taxable years, one ending on the day prior
`to filing of their petition and the other be-
`ginning on the petition date, must be made
`on or prior to the date on which the bank-
`ruptcy case is commenced. 26 U.S.C.A. §
`1398(d)(2).
`
`[3] Bankruptcy 51 %3063.1
`
`51 Bankruptcy
`51lX Administration
`
`51IX(B) Possession, Use, Sale, or
`Lease of Assets
`
`51k3063 Collection and Recovery
`for Estate; Turnover
`51k3063.1 k. In General. Most
`
`Cited Cases
`Bankruptcy Code authorizes a bank-
`ruptcy trustee to compel turnover of estate
`property from anyone who has it in their
`
`A.
`-.~. "‘:.:.. El‘:
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`
`

`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762, Bankr. L. Rep. P 81,344
`(Cite as: 396 B.R. 79}
`
`Page 2
`
`possession, custody, or control, during the
`case. 11 U.S.C.A. § 542(a).
`
`[4] Bankruptcy 51 €7»>3063.l
`
`51 Bankruptcy
`5lIX Administration
`
`51IX(B) Possession, Use, Sale, or
`Lease of Assets
`
`5lk3063 Collection and Recovery
`for Estate; Turnover
`5lk3063.1 k. In General. Most
`
`Cited Cases
`
`Where, prior to filing for bankruptcy
`relief, Chapter 7 debtor—taxpayers applied
`their prepetition tax refund to their taxes
`for the next year, the prepetition tax refund
`was not properly subject to turnover, even
`assuming, without deciding,
`that
`the pre-
`payment constituted estate property as a
`contingent revisionary interest; a contin-
`gent revisionary interest in funds held by
`another was simply not something that was
`in debtors‘ possession that could be turned
`over to the trustee. ll U.S.C.A. § 542(a).
`
`[5] Bankruptcy 51 €>:=>3063.1
`
`51 Bankruptcy
`5lIX Administration
`
`51IX(B) Possession, Use, Sale, or
`Lease of Assets
`
`5lk3063 Collection and Recovery
`for Estate; Turnover
`5lk3063.1 k. In General. Most
`
`Cited Cases
`
`Turnover is a remedy that is specific-
`ally limited to property that the trustee may
`use, sell, or lease, and. is in the turnover
`target's possession or control during the
`bankruptcy case. 11 U.S.C.A. § 542(a).
`
`[6] Bankruptcy 51 ©:>3063.l
`
`51 Bankruptcy
`5 1 IX Administration
`
`51IX(B) Possession, Use, Sale, or
`Lease of Assets
`
`5lk3063 Collection and Recovery
`for Estate: Turnover
`5lk3063.l k. In General. Most
`
`Cited Cases
`
`Trustee in bankruptcy can no more
`compel a debtor to turn over funds that he
`does not have than he can squeeze blood
`out ofa turnip. ll U.S.C.A. § 542(a).
`
`[7] Bankruptcy 51 €fi>2532
`
`51 Bankruptcy
`51V The Estate
`
`-
`
`5lV(C) Property of Estate in Gener-
`
`al
`
`51V(C)l In General
`5lk2532 k. Interest of Debtor
`in General. Most Cited Cases
`
`Bankruptcy Code does not expand the
`debtor's interests against others, and,
`if
`those interests were limited when the peti-
`tion was filed, the trustee's rights to posses-
`sion are similarly limited.
`
`*72 Submitted on the briefs: FN*
`A. Weinman, Trustee, pro se.
`
`Jeffrey
`
`FN* The parties did not request oral
`argument, and after examining the
`briefs
`and appellate
`record,
`the
`Court has determined unanimously
`that oral argument would not mater-
`ially assist in the determination of
`this appeal. See Fed. R. Bankr.P.
`8012. The case is therefore ordered
`
`submitted without oral argument.
`
`Before BOHANON, MICHAEL,
`THURMAN, Bankruptcy Judges.
`
`and
`
`THURMAN, Bankruptcy Judge.
`The Chapter 7 bankruptcy trustee ap-
`
`_
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`

`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762, Bankr. L. Rep. P 81,344
`(Cite as: 396 BR. 2'0)
`
`Page 3
`
`in Chapter 7 and 11 cases to treat
`their taxable year as two taxable
`years; one ending on the day prior
`to filing of their petition, and the
`other beginning on the petition date.
`However, any such election must be
`made on or prior to the date on
`which the bankruptcy case is com-
`menced.
`
`II. APPELLATE JURISDICTION
`This Court has jurisdiction to hear
`timely—filed appeals from final judgments
`and orders of bankruptcy courts within the
`Tenth Circuit, unless one of the parties
`electfitpshave the district court hear the ap-
`peal.
`Because this Court has already
`determined that the order sought to be ap-
`pealed is final,
`the notice of appeal was
`timely filed, and no party to this appeal has
`elected to have the appeal heard by the dis-
`trict court, this Court has appellate jurisdic-
`tion.
`
`FN3. 28 U.S.C. § 158(a)(l), (b)(1),
`and (c)(1); Fed. R. Bankr.P. 8002.
`
`ISSUE AND STANDARD OF RE-
`III.
`VIEW
`
`The single issue presented by this ap-
`peal
`is whether a pre-petition tax refund
`that
`the Debtors elected to apply in pre-
`payment of a subsequent year's tax liability
`is properly subject t
`ursuant to
`
`
`
`peals the bankruptcy court's order denying
`his motion to compel debtors, James and
`Kathryn Graves (“Debtors") to turnover the
`value of a pre-petition tax refund that Debt-
`ors applied to prepayment of their 2007
`taxes, prior to filing their bankruptcy case.
`We affirm.
`
`I. BACKGROUND
`
`[1][2] In July 2007, Debtors filed their
`2006 tax return. Pursuant
`to that return,
`Debtors were entitled to a refund for over-
`pfiylment of taxes in the amount of $3,000.
`The Debtors filed a voluntary Chapter
`7 bankruptcy petition on September 20,
`2007, and did not elect
`to split their tax
`gm pursuant to 26 U.S.C. § l398(d)(2).
`In January 2008, trustee Jeffrey Wein-
`(“Trustee”),
`filed
`a motion
`for
`man
`turnover of the Debtors‘ 2006 tax refund.
`
`The Debtors responded, and the matter was
`considered at a non—evidentiary hearing on
`March 26, 2008. The bankruptcy court
`ruled orally on the record and, on the same
`date,
`issued a minute entry denying the
`Trustee's motion. The Trustee filed a notice
`
`of appeal on April 4, 2008 and, on June 3,
`2008, this Court issued an order determin-
`
`ing the minute entry to be a final order for
`the purposes of appeal.
`
`FN1. Although the Debtors’ tax re-
`turn directs
`that
`the amount of
`
`$3,820 be applied to their 2007 es-
`timated tax,
`this is because they
`failed to subtract
`the amount of
`
`taxes owed for 2006, $820, from the
`
`11 U.S.C. § 542.T .
`which
`r _ .. ,'
`9 de rzov-5:.
`/FN4. In re Duncan, 329 1-‘.
`taxes paid in 2006,
`amount of
`1198 (10th Cir.2003).
`$3,820. See Debtors’
`[R5 1040
`
`(2006) at 2, in Appellants‘ Amended
`IV. DISCUSSION
`Appendix at 19. Thus, their actua
`[3] This appeal exemplifies the concept
`
`
`refund entitlement was only $3,000
`that “you cannot get blood out of a turnip.”
`
`
`
`and that
`is the amount for which
`*73 The Trustee seeks to obtain from the
`
`
`they received a pre-payment credit.
`
`FN2. This provision allows debtors
`
`
`
`Debtors that which they simply do not
`have: the amount they could have received
`
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`
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`
`

`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762. Bankr. L. Rep. P 81,344
`(Cite as: 396 B.R. 70)
`
`Page 4
`
`from the IRS in 2007, but did not. In most
`lawsuits or contested matters, plaintiffs or
`others obtain judgments or orders for dam-
`ages without consideration of the defend-
`ants’ ability to pay. However, this is not an
`ordinary matter, but a Chapter 7 bank-
`ruptcy case, which is governed by the
`Bankruptcy Code. Thus,
`in this case, a
`trustee has been appointed to, among other
`duties, “collect and redupqwgo money the
`property of the estate."
`In order to
`carry out their duties, bankruptcy trustees
`are given certain powers by the Bankruptcy
`Code. Section 542(a) of the Bankruptcy
`Code authorizes a bankruptcy trustee to
`compel
`turnover of estate property from
`anyone who has it
`in their “possesqipflg
`custody, or control, during the case."
`The Trustee contends that
`the Debtors'
`
`2006 tax refund is both property of the es-
`tate and subject to the turnover power. The
`Debtors respond that, because of their pre-
`payment election,
`they are not now, and
`never have been, in possession, custody, or
`control of that refund during the pendency
`of the bankruptcy case.
`
`FN5. 1lU.S.C.§ 704(a).
`
`FN6. l1U.S.C.§542(a).
`
`This is not the first case involving such
`a dispute. Several of these cases deserve
`our analysis. In 1948, the United States Su-
`preme Court defined the pre—Bankruptcy
`Code turnover power, noting that
`"the
`primary condition of [turnover]
`relief is
`possession of existing chattels or their pro-
`ceeds capable of being surfifidered by the
`person ordered to do so."
`The Court
`also noted that “we do not consider resort
`to this particular proceeding [turnover] ap-
`propriate if, at the time it is instituted, the
`property and its proceeds have already
`been dissipated, no rlnfitéer when that dis-
`sipation occurred."
`These concepts
`
`were subsequently incorporated into the
`statutory turnover provision, § 542(a).
`
`FN7. Maggie V. Zeitz (In re Luma
`Camera 5erv., Inc), 333 US. 56,
`64, 68 S.Ct. 401, 92 L.Ed. 476
`
`(1948).
`
`FN8. Id. at 64, 68 S.Ct. 401.
`
`nt v. United States (In re Sim-
`In
`the debtor elected to have an
`mons),
`overpayment of taxes applied to his next
`year's tax liability. Six days later, he filed
`for Chapter 7 bankruptcy relief. The trustee
`in bankruptcy filed an adversary proceed-
`ing against
`the Internal Revenue Service
`(“IRS/') seeking turnover of the prepaid
`funds. The court denied the relief, finding
`that the prepaid funds were not property of
`the estate, stating:
`
`FN9.
`
`124
`
`B.R.
`
`606
`
`(Bankr.M.D.Fla.l991).
`
`Thus, debtor's overpayment, at his elec-
`tion, became a payment of his 1988 es-
`timated tax rather than an overpayment
`of his 1987 taxes. Once debtor made this
`
`election, as a matter of law, he no longer
`had an overpayment for which he could
`file a claim for refund. Consequently, the
`debtor's prepetition estimated tax pay-
`ment cannot be considered a legal or
`equitable interest of the debtor in prop-
`erty as of the commencement of the case,
`and such payment
`is not
`subject
`to
`turnover.
`
`Id., at 607-08. This outcome was based,
`in part, on the Internal Revenue Code, 26
`U.S.C. § 65l3(d), which provides that,
`where an overpayment of tax is applied
`as a credit on the next year's taxes, “no
`claim for refund of such overpayment
`shall be allowed for the taxable year in
`which the overpayment arises."
`
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`

`
`396 B.R. 70. 102 A.F.T..R.2d. 2008-6762, Bankr. L. Rep. P 81,344
`(Cite as: 396 B.R. 70)
`
`Page 5
`
`ittman V. United
`*74 The trusteeF1'Kp1
`similarly attemp-
`States (In re Weir),
`ted to obtain prepaid taxes from the IRS,
`asserting claims
`for
`turnover, voidable
`preference,
`and fraudulent
`conveyance.
`The court rejected all three claims. With
`respect
`to the turnover claim,
`the court
`noted that, once the prepayment election
`had been made, “debtor retained only the
`right to have the payment credited against
`his 1985 tax liability
`have any ex-
`cess refunded to him."
`However, the
`court did note that, although the estate was
`not entitled to recover the prepayments as
`property of the estate, it “would be entitled
`msgare in any refund due the debtor."
`
`FNIO. N0. 85~40456—7, 1990 WL
`63072 (Bankr.D.Kan. Apr. 3, 1990).
`
`FN11. Id. at *2.
`
`FN12. Id.
`
`In In re M1'ddend0rf,FN13 debtors pre-
`paid $22,250 on their 2005 taxes, eight
`days before filing a Chapter 7 petition. In
`2006, debtors filed their 2005 tax return,
`which entitled them to a refund in excess
`
`of $20,000. The trustee made demand on
`the IRS for the entire pre—payment amount,
`contending that it was a preferential trans-
`fer. Trustee and the IRS entered a settle-
`
`ment, subject to the court's approval, for
`turnover of the entire pre—payment amount.
`Debtors objected. The court found that the
`debtors' pre—payment did not constitute a
`preference, because a preference requires
`proof of payment of an antecedent debt.
`Since debtors' 2005 tax obligation did not
`arise until the end of 2005, and the prepay-
`ment occurred in April 2005,
`the trustee
`could not prove that element of the claim.
`Likewise,
`the court held that
`the pre-
`payment was not a fraudulent transfer be-
`
`cause debtors had received reasonably
`equivalent value for the payment, which
`consisted of a dollar for dollar credit and
`
`5 the right to a refund if their next year's tax
`debt was less than the pre—payment. Non-
`etheless, the court held that “the portion of
`Debtors’
`tax refund attributable to pre-
`petition withholdings and payments is Es-
`tate
`property,"
`and
`that
`the
`debtors'
`“contingent
`reversionary interest” vests
`“once the ulti
`ax liability is assessed
`and satisfied."W“
`
`FNl3.
`
`381
`
`B.R.
`
`774
`
`(Bankr.D.Kan.2008).
`
`FNI4. Id. at 778-79.
`
`Finally, the Ninth Circuit Court of Ap-
`peals recently upheld a bankruptcy court's
`determination
`that
`the
`“debtors'
`pre-
`bankruptcy application of their right to tax
`refunds to post-bankruptcy tax obligations
`constitutes an asset
`that must be turned
`over to 1t‘tfi1%nkruptcy trustee,” pursuant to
`§ 542.
`In that case, the debtors ap-
`plied their 2001 overpayment to their 2002
`tax liability, sixteen days prior to filing for
`bankruptcy relief in 2002. Although the
`trustee demanded turnover of that pre-
`payment,
`the debtors did not comply. In
`2003,
`the debtors filed their 2002 tax re—
`
`turn, applying the pre—payment to their tax
`liability. The trustee sought turnover of the
`pre—payment from the debtors, who respon—
`ded that
`their pre—payment election had
`“extinguished their interest” in those funds,
`leaving nothing for the trustee to claim on
`behalf of the estate. The court disagreed,
`stating
`that
`“nothing
`in
`section
`541
`[defining estate property] requires that the
`debtor's interest be immediately capable of
`being liquidated into cash in order1\t?6con—
`stitute property of the estate." I
`As
`such, the court held that the debtors' right
`to a “credit toward future taxes constituted
`
`'f‘r2c=trasozr Reuters.
`
`1-0
`Clairn to CW»-’.
`
`:4
`Wuri~:=.
`
`

`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762, Bankr. L. Rep. P 81,344
`(Cite as: 396 13.12. 70)
`
`Page 6
`
`estate property at the Héltiime the Debtors
`filed for bankruptcy."
`
`FNl5. Nichols V. B1'rdse11, 491 F.3d
`987, 988 (9th Cir.2007).
`
`FNl6. Id. at 990.
`
`FN17. Id.
`
`the Nichols
`Significantly,
`[4][5][6]
`court
`focused entirely on the issue of
`whether or not the pre-payment was prop-
`erty of the estate, rather than the issue of
`whether turnover was an appropriate rem-
`edy, and is therefore distinguishable. In the
`present matter, the propriety of turnover is
`the exclusive issue. Assuming, without de-
`ciding, that the pre—payment constitutes es-
`tate property as a contingent reversionary
`interest, this Court must decide whether the
`Bankruptcy Code empowers trustees to de-
`mand its turnover. We hold that it does not.
`Turnover is a remedy that is specifically
`limited by § 542 to "property that the trust-
`ee may use, sell, or lease," and is in the
`turnover target's possession or control dur»
`ing the bankruptcy case. A contingent re-
`versionary interest in funds held by another
`is simply not something that is in the debt-
`or's possession that can be turned over to
`the trustee. Even if a debtor had an equival-
`ent amount of funds in an accessible ac-
`count, a trustee could not compel
`their
`turnover unless he could prove that those
`funds were
`the proceeds of
`the pre-
`payment. A trustee in bankruptcy can no
`more compel a debtor to turnover funds
`that he does not hav .,
`. he can sqiieeze
`blood out of a turnip.":'{"'aE"
`
`FN18. Nonetheless, we specifically
`decline to make any determination
`here regarding the propriety of a
`turnover request directed at a debtor
`who leaves himself without
`the
`
`ability to comply with a turnover re-
`quest by inappropriately dissipating
`estate property post—petition.
`
`[7] The Bankruptcy Code does not ex-
`pand the debtor's interests against others,
`“and, if those interests were limited [when
`the petition was filed], the trustee's
`to possession are similarly limited."
`When the petition was filed in this case, the
`Debtors had no current right to possession
`of the pre—paid taxes. This is equally true
`as of the time that the Trustee filed the ad-
`versary proceeding from which this appeal
`arose. A contingent right to a refund in the
`event that the Debtors overpaid their 2007
`taxes is not something, in our opinion, that
`is subject to turnover. Simply put, under
`these facts, the Trustee may not take that
`which the Debtors do not have. For this
`Court to hold otherwise could allow trust-
`ees to compel pre-petition tax withholdings
`by debtors‘ employers to be subject
`to
`turnover actions against the debtors, since
`such payments may also be deemed tax
`“credits." However, such is not the purpose
`or the effect of the turnover power.
`
`FNl9. Grant v. United States {In re
`Simmons),
`124 BR.
`606,
`607
`(Bankr.M.D.Fla.199l)
`(citing
`4
`Collier on Bankruptcy 1! 541.01, at
`541-5, 541-7 (15th ed.l979)).
`
`We need not, and do not, decide the
`more difficult issue of the estate's interest
`in the prepaid funds, nor whether the Trust-
`ee has any currently cognizable claim
`against the lplifzfpr return of any of the pre-
`paid funds.
`Our decision is limited to
`the propriety of turnover under the facts of
`the present case.
`
`Fl\lZ0. In fact, the appellate record
`does not indicate the current status
`
`of Debtor's tax liability. By now,
`
`11:)
`
`[‘I;) CID
`
`CA3
`
`H‘;-=.i-*.-'-.‘;’.':-. E‘!
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`

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`396 B.R. 70, 102 A.F.T.R.2d 2008-6762. Bankr. L. Rep. P 81,344
`(Cite as: 396 BR. 70}
`
`Page 7
`
`0 Thurman, Hon. William T.
`United States Bankruptcy Appellate Panel,
`Tenth Circuit
`
`Denver, Colorado 80257
`Litigation History Report
`versal Report | Profiler
`
`| Judicial Re-
`
`Attorneys
`
`Other Attorneys
`0 Weinman, Jeffrey A.
`Jeffrey A Weinman PC
`Denver, Colorado 80202
`Litigation History Report | Profiler
`
`END OF DOCUMENT
`
`likely has filed his
`Debtor most
`2007 tax return, and his 2007 tax li-
`ability
`has
`been
`established.
`Though he may well have received
`a refund from the IRS, that refund
`was not at issue in the case before
`
`this Court, and we do not opine as
`to the parties’ respective entitlement
`to any such funds.
`
`V. CONCLUSION
`
`Since the funds sought by the Trustee
`were not within the Debtors' possession,
`custody, or control during the pendency of
`the bankruptcy case, we hold that the bank-
`ruptcy court properly refused to order*76
`turnover of the pre—paid taxes. The bank-
`ruptcy court's judgment
`is therefore af-
`firmed.
`
`10th Cir.BAP (Colo.),2008.
`In re Graves
`
`396 B.R. 70, 102 A.F.T.R.2d 2008-6762,
`Bankr. L. Rep. P 81,344
`
`Judges and Attorneys(Back to top)
`
`Judges I Attorneys
`
`Judges
`
`- Bohanon, Hon. Richard L.
`United States Bankruptcy Appellate Panel,
`Tenth Circuit
`
`Denver, Colorado 80257
`Litigation History Report
`versal Report I Profiler
`
`I Judicial Re-
`
`0 Michael, Hon. Terrence L.
`United States Bankruptcy Appellate Panel,
`Tenth Circuit
`
`Denver, Colorado 80257
`} Judicial Re—
`Litigation History Report
`versal Report
`| Judicial Expert Challenge
`Report | Profiler
`
`.'
`
`\11-'1.
`r‘tr..;
`
`...'....
`.. TE‘
`1.
`.
`ETC‘ F‘-
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`Eli 1-Ii 111:5. ::.‘: \‘lll‘-’~ vv’(::r..\
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. 92056538
`Registration No. 3257604
`
`) )
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`)
`)
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`) )
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`)
`)
`)
`)
`)
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`This exhibit is offered by Cook Collection Attorneys, P.L.C., Respondent in the above-
`
`entitled matter and bears on the lower left hand corner the following number based upon the Index
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`of Authorities:
`
`12
`
`92.
`
`Clem v. The Estate 0fAnnie Ree Hopkins, 2006 WL 14499, 2005 WL 768732, page 13.
`
`“I think the Court has already ruled on this matter, and we are ready to set up an
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`evidentiary trial to hear this matter. Once these assets have been distributed, we
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`can make all the claims we want, but we can’t squeeze blood from a turnip. Once
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`the assets are gone, they are just gone.”
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28 Number:
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`92
`
`SCOTT R. SMITH, an individual,
`
`Petitioner,
`
`vs.
`
`6 COOK COLLECTION ATTORNEYS,
`P.L.C., a California corporation,
`
`Respondent.
`
`1
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`3
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`4
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`5
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`7
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`8
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`9
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`10
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`11
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`

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`Wéstlaw.
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`2005 WL 3709413 (Ark.App.)
`
`Page 1
`
`For Opinion See 2006 W1. 14499 , 2005 V‘-11,. ?r38732
`
`Briefs and Other Related Documents
`
`Court of Appeals of Arkansas.
`Rebecca CLEM, Appellant,
`v.
`
`The Estate of Annie Ree HOPKINS, Appellee.
`No. CA04-1302.
`
`June 9, 2005.
`
`On. Appeal from tlie_‘(/‘,.ir,Cuit Court. of»M~il1er»County._th.e_Honorable, Charles A Yeargan, Circuit Judge
`
`“\.\R_eb‘e_oca Clem's Abstract, Appellant's Brief and Addendum \
`
`
`Lisa B. Shoalmire, Arkansas Bar No. 2000066, Marshall Wood, Arkansas Bar No. 97007, Norton &
`Wood, L.L.P., 315 Main St., P. O. Box 1808, Texarkana, Texas 75504 1808, (903) 823-1321, (903)
`823-1325, lisa@nortonlaw.com.
`
`*ii TABLE OF CONTENTS
`
`I. INFORMATIONAL STATEMENT
`
`v
`
`II. JURISDICTIONAL STATEMENT
`
`viii
`
`III. POINT ON APPEAL AND PRINCIPAL AUTHORITIES
`
`x
`
`IV. TABLE OF AUTHORITIES
`
`xi
`
`V. ABSTRACT Ab 1
`
`A. Hearing on Petition for Authority to Make Final Distribution of Estate Assets (April 16, 2004)
`Ab 1
`
`Colloquies between the Court and counsel for Guardian of the Estate, counsel for Appellant, Counsel
`for probate estate, and Ad litem.
`
`B. Hearing on Proposed Order on Petition for Authority to Make Final Distribution of Estate Assets
`(July 14,2004)
`Ab 12
`
`Colloquies between the Court and counsel for Guardian of the Estate, counsel for Appellant, Counsel
`for probate estate, and Ad litem.
`
`1 VI. THE STATEMENT OF THE CASE
`
`SoC 1
`
`

`
`2005 WL 3709413 (Ark.App.)
`
`Page 2
`
`VII. ARGUMENT Arg 1
`
`A. A Summary Of Rebecca Clem's Argument Arg 1
`
`B. Arkansas Law dictates that assets held}-eirifiy with right of survivorship or with a payable on death
`designation pass directly to the remaining owners upon death of one owner
`Arg 1
`
`*iii C. Rebecca Clem has been deprived of property without Due Process
`
`Arg 9
`
`VIII. CONCLUSION Arg 13
`
`IX. CERTIFICATE OF SERVICE
`
`xii
`
`X. ADDENDUM xiii
`
`A. Pleadings
`
`1. Petition for Appointment of Guardian of The Person and Estate, Record ('”‘R‘ ’) 1
`
`Add 1
`
`2. Order Appointing Guardian of the Person Of Annie Ree Hopkins, Supplemental Record ("“SR") 1
`Add 3
`
`3 4 5 6
`
`. Order Appointing Guardian of the Estate of Annie Ree Hopkins, SR 3 Add 5
`
`. Accounting by Personal Representative, R 5 Add 7
`
`. Objection to Accounting, R 25
`
`Add 27
`
`. Amended Accounting by Personal Representative R 27 Add 29
`
`7. Petition for Authority to Make Final Distributions of Estate Assets, R 50 Add 52
`
`8 . Objection to Proposed Order Approving Final Accounting And Authorizing Distribution of Assets
`of Guardianship Estate, R 72 Add 74
`
`9. Amended Petition for Authority to Make Final Distribution of Estate Assets, R 75 Add 77
`
`10. Order Approving Final Accounting, and Authorizing Final Distribution of Assets of Guardianship
`Estate, R 99 Add 101
`
`*iv 1 1. Rebecca Clem's Notice of Appeal and Designation of Record Add 108
`
`12. Rebecca J’. Clem's Reply to Report of Attorney Ad Lilem, (S 1.30)
`
`Add 111
`
`13. Report of Attorney Ad Litem, (S 1)
`
`Add 133
`
`*V I.
`
`INFORMATIONAL STA'I'El\/IENT
`
`I. ANY RELATED OR PRIOR APPEAL? None
`
`i
`
`Tl;L.I5‘:.'lS()!”z R€‘=_lii~'.;"~;,
`
`2‘-to {iiaim to C‘-rig. US Gov.
`
`A1
`
`"
`‘V
`
`

`
`2005 WL 3709413 (Ark.App.)
`
`Page 3
`
`II. BASIS OF SUPREME COURT JURISDICTION?
`
`(x)Check here if no basis for Supreme Court Jurisdiction is being asserted, or check below all applic-
`able grounds on which Supreme Court Jurisdiction is asserted.
`
`(l)__ Construction of Constitution of Arkansas
`
`(2)_____ Death penalty, life imprisonment
`
`(3)__ Extraordinary writs
`
`(4)___ Elections and election procedures
`
`(5)_ Discipline of attorneys
`
`(6)____ Discipline and disability ofjudges
`
`(7)____ Previous appeal in Supreme Court
`
`(8)_ Appeal to Supreme Court by law
`
`III. NATURE OF APPEAL?
`
`(1)_ Administration or regulatory action
`
`(2)_ Rule 37
`
`(3)_ Rule on Clerk
`(4)_ Interlocutory appeal
`
`;:\~’
`
`(5)_ Usury
`
`(6)___ Products liability
`
`(7)____ Oil, gas, or mineral rights
`
`(8)__ Torts
`
`Construction of deed or will (Order relating to Guardianship)
`
`(10
`
`\..I
`
`Contract
`
`(11)__ Criminal
`
`A guardianship was opened concerning Annie Ree Hopkins, aunt of the Appellant. Amy Clem,
`daughter of the Appellant, was appointed as Guardian of the Person and BancorpSouth Bank., NA.
`was appointed as Guardian of her Estate. *vi Appellant, Rebecca Clem and Annie Ree Hopkins, were
`joint owners with right of survivorship of a number of assets. Appellant was also the payable on
`death beneficiary of a number of assets held by Annie Ree Hopkins. Upon the commencement of the
`
`

`
`2005 WL 3709413 (Ark.App.)
`
`Page 4
`
`guardianship, these assets were contributed to BancorpSouth, the guardian of the estate, for the use
`and benefit of Annie Ree Hopkins. Following the Ward's death, the Guardian of the Estate filed final
`accountings and a Petition for Authority to Make Final Distribution of Estate Assets, including assets
`which had been jointly owned with right of survivorship or payable on death to Appellant. A hearing
`was held in order to enter an Order Granting Authority to Make Final Distribution of Estate Assets to
`BancorpSouth Bank. There was no witness testimony offered at this hearing. The Court ordered that
`assets be held in the Registry of the Court until such time as any potential claims by other heirs con-
`cerning these joint assets could be heard, rather than order the assets be distributed to the original
`joint or beneficial owners. Appellant asserted her objection with the Trial Court that the Trial Court
`had no jurisdiction under which to withhold the assets from her possession. Rebecca Clem now ap-
`peals.
`
`IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE EVIDENCE IS SUFFICIENT TO SUP-
`
`PORT THE JUDGMENT? No.
`
`V. EXTRAORDINARY ISSUES? None.
`
`(____) appeal presents issue of first impression,
`*vii (_)appeal involves issue upon which there is a perceived inconsistency in the decisions of the
`Court of Appeals or Supreme Court,
`(_) appeal involves federal constitutional interpretation,
`(_)appeal is of substantial public interest,
`(____)appeal involves significant issue needing clarification or development of the law, or overruling
`of precedent,
`(___)appeal involves significant issue concerning construction of statute, ordinance, rule, or regula-
`tion.
`
`*VIII II.
`
`JURISDICTIONAL STATEMENT
`
`1. Arkansas law provides that the designation of ownership interest contained in account documents
`shall be conclusive evidence in any action or proceeding involving the deposit account of the inten-
`tion of all depositors to vest title to the deposit account in the manner specified in the account.
`A.C.A. Z3-47-204. Furthermore, this same statute provides that upon the death of a person named as
`a holder of an account with a payable on death designation, the person designated by-him and who
`has survived him shall be the owner of the deposit acr.-:,-amt, Sh-:;uld these statutory provisions con-
`cerning assets placed in joint accounts or designated as “payable on death" be judicially ignored be-
`cause of the possibility or pendency of litigation concerning the circumstances surrounding the incep-
`tion of these accounts? If so, the result reached essentially deprives joint owners of their property
`without due process in the event any other party expresses an intent to pursue future litigation on the
`subject of asset ownership.
`
`2. I express a belief, based on a reasoned and studied professional judgment, that this appeal raises no
`question of legal significance for jurisdictional purposes.
`
`The case presents an instance where the present Arkansas law concerning joint accounts with right of
`
`

`
`2005 WL 3709413 (Ark.App.)
`
`Page 5
`
`survivorship and payable on death should be applied to the assets at hand.
`
`*X III.
`
`POINT ON APPEAL AND PRINCIPAL AUTHORITIES
`
`A. Did the Trial Court Err by Ordering Guardianship Assets, which contained survivorship rights, to
`be held in the Registry of the Court Upon Termination of the Guardianship Estate rather than be paid
`out to the surviving joint owner(s)?
`B. Has Rebecca Clem been deprived of property without due process?
`
`*xi IV. TABLE OF AUTHORITIES
`
`A. Cases
`
`Amant v. Callahan, 341 Ark. 857 (Ark. 2000)
`
`Arg 1
`
`Babb v. Matlock, 340 Ark. 263 (Ark. 2000)
`
`Arg 2
`
`In re Evatt, 291 Ark. 153 (Ark. 1987)
`
`Arg 10
`
`B. Statutes
`
`U.S. CONST. amend. XIV, § 1
`
`Arg 9
`
`Ark. Code. Ann. §23—47—204 (2004)
`
`Arg 1, 2, 8, 11
`
`Ark. Code Ann. §28~65—305 (2004)
`
`Arg 8
`
`Ark. Code Ann §28—l—l 11 (2004)
`
`Arg 8
`
`*1 V. ABSTRACT
`
`Following the death of Annie Ree Hopkins, who had been under guardianship per Order of the Cir-
`cuit Court of Miller County Arkansas, Probate Division, the Guardian of the Estate, BancorpSouth
`filed a Petition for Authority to Make Final Distribution of Estate Assets. (Record 72). A hearing on
`this Petition was held on April 26, 2004 in which no witness testimony was taken, but only discus-
`sions were had between the lawyers involved in the case and the Circuit Judge, Honorable Charles A.
`Yeargan. An additional hearing was held on Juiv 14, 2004.
`
`The following lawyers were present and represented the parties at both hearings as indicated below:
`
`1. Steve Harrelson, representing Elmo Preston and Mary Ann Davis, parties interested in the Estate.
`
`2. Tina Green representing BancorpSouth Bank, Guardian of the Estate.
`
`3.
`
`/R‘
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`
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`
`

`
`2005 WL 3709413 (Ark.App.)
`
`Page 6
`
`4. Jim Cranford, appointed Ad Litem for Ms. Annie Ree Hopkins to assist the Guardian of the Estate
`to identify and gather assets.
`
`5. Marshall Wood representing Rebecca Clem, Appellant, a joint or beneficial owner of the majority
`of the assets at issue.
`
`I. HEARING ON APRIL 26, 2004
`
`A. Discussion by Ms. Green:
`
`Your Honor in our Petition we provided you with information with how we got assets into the guardi-
`anship and all of the liquid assets werejoint right of *2 survivorship. R 122. We are not making any
`claims as far as how they became joint right of survivorship, only that's the way we received them at
`the time that they were turned over to the Guardian.
`
`BancorpSouth was appointed as the Guardian of the Estate of Annie Ree Hopkins on November 2,
`2001. R. 127. She passed away on January