6th Cir. Published Decisions for Week of Nov. 12, 2007 (2 published from Ky; 2 NPO's from Ky)

Opinion	Short Title/District
07a0449p.06	Liberty Life v. Gilbert     Eastern District of Tennessee at Greeneville BOYCE F. MARTIN, JR., Circuit Judge. This Court is faced with the unenviable task of deciphering what would surely be an excellent law school exam question in first-year civil procedure. Liberty Life Assurance of Boston and Sun Life Assurance Company of Canada filed the present interpleader and declaratory relief action in order to determine who was due annuity payments originally received by the decedent, Lloyd Gilbert. Gilbert’s ex-wife, Irene Wolff, claims she is due the annuity payments based on her separation agreement with Gilbert. A loan company, Singer Asset Finance Company, claims it loaned Gilbert a substantial sum of money in exchange for a security interest in Gilbert’s annuity payments. Finally, Gilbert’s daughter, Stephanie Muschlitz, is the named beneficiary on the annuity. We believe the district court correctly decided the numerous legal issues and did not abuse its discretion in weighing the equities, and accordingly affirm its decision.
07a0450p.06	Does v. Munoz     Eastern District of Michigan at Detroit JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants John Does II–III appeal the district court’s order dismissing their challenge to the constitutionality of Michigan’s Setting Aside Convictions Act (“SACA”), Mich. Comp. Laws §§ 780.621-780.624 (2002), and Sex Offender Registration Act (“SORA”), Mich. Comp. Laws §§ 28.721-28.732 (2002). On appeal, plaintiffs contend that the district court erred when it found that they had suffered no substantive due process or equal protection violations from the requirement that they register and appear on Michigan’s Public Sex Offender Registry (“PSOR”). For the following reasons, we affirm the district court’s decision.
07a0451p.06	Seawright v. Amer Gen Fin Serv     Western District of Tennessee at Memphis BOGGS, Chief Judge. Lisa Seawright worked for American General Financial Services (“AGF”) from November 1978 until April 2005.1 AGF terminated Seawright’s employment in April 2005. In response, Seawright filed suit in the United States District Court for the Western District of Tennessee, alleging that AGF discharged her in violation of Tennessee antidiscrimination law and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. AGF moved to compel arbitration, proffering an arbitration agreement to which Seawright had previously agreed. Seawright denies that she agreed to arbitrate. At issue is whether an agreement exists between AGF and Seawright, and if so, whether the agreement is enforceable. The district court found that no enforceable agreement existed. We hold that Seawright’s knowing continuation of employment after the effective date of the arbitration program constituted acceptance of a valid and enforceable contract to arbitrate. We therefore reverse the district court’s denial of AGF’s motion to compel arbitration.
07b0012p.06	In re: Gary Trujillo v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. The CIT Group/ Consumer Finance, Inc. (“CIT”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) appeal the bankruptcy court’s judgment entered July 13, 2006 (the “July 13th Order”), granting summary judgment for Beverly Burden, the chapter 13 trustee (the “Trustee”). The bankruptcy court’s decision is based on its determination that CIT’s mortgage did not provide constructive notice to subsequent purchasers or creditors because the mortgagor’s signature was not properly acknowledged under Kentucky law, and therefore, the mortgage is subject to avoidance by the Trustee. The Creditors further appeal the bankruptcy court’s order entered November 16, 2006, denying the Defendants’ Motion to Alter, Amend or Vacate Judgment (the “Motion to Alter or Amend”).
07a0452p.06	Robert v. Tesson     Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Petitioner Ivan Nicholas Robert appeals a decision in favor of his estranged wife, Respondent Gayle M. Tesson, denying return of their twin sons to Plaintiff’s home country of France. Petitioner alleges that Respondent illegally abducted the twins to the United States, and that the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) requires that they be returned to France. For the reasons that follow, we hold that the district court applied an incorrect legal standard in determining that the children were habitual residents of the United States at the time of the alleged abduction. Nevertheless, because we also believe that applying the district court’s findings of fact to the proper legal standard will not alter the outcome of that court’s decision, we AFFIRM the district court’s decision denying the petition for return of children.
07a0453p.06	Commercial Money Ctr v. Illinois Union Ins & Citibank v. Illinois Union Ins     Northern District of Ohio at Cleveland RALPH B. GUY, JR., Circuit Judge. This case concerns one of a number of disputes transferred to the Northern District of Ohio as part of the multidistrict litigation captioned In re: Commercial Money Center, Inc. (CMC) Equipment Lease Litigation (No. 02-16000), which arose out of the collapse of CMC’s equipment leasing business in what is alleged to have been a Ponzitype scheme. When CMC filed for bankruptcy, the district court was left to sort out the claims and counterclaims of nearly twenty banking institutions and a half-dozen insurance companies arising out of various lease-backed transactions with CMC and CMC-related entities. These consolidated appeals involve the dispute between several parties to one such transaction—specifically, the dispute between Illinois Union Insurance Company on one hand, and Citibank, N.A., and JP Morgan Chase Bank, N.A., as trustee for Citibank, on the other, concerning Illinois Union’s obligations under an insurance policy containing a negotiated Collateral Security Insurance Endorsement (Coverage E). On appeal, Illinois Union contends that the district court erred in finding, on a 12(c) motion for judgment on the pleadings: (1) that Illinois Union’s policy was “in substance” a surety contract; (2) that Chase, as trustee for Citibank, was the obligee under that surety contract such that it was entitled to recover without regard to the alleged fraud of the principal obligor; and (3) that Illinois Union was precluded by the negotiated waiver of defenses from avoiding the obligations under the Policy on the grounds of fraudulent inducement. Second, Illinois Union argues that, even if correct on these issues of liability, the district court erred in calculating the damages by reference to the lease payments as opposed to the debt those payments secured. Finally, Illinois Union argues that the district court abused its discretion in denying the motion for leave to amend its pleadings. After review of the record and the arguments presented on appeal, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
07b0012p.06	In re: Gary Trujillo v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. The CIT Group/Consumer Finance, Inc. (“CIT”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) appeal the bankruptcy court’s judgment entered July 13, 2006 (the “July 13th Order”), granting summary judgment for Beverly Burden, the chapter 13 trustee (the “Trustee”). The bankruptcy court’s decision is based on its determination that CIT’s mortgage did not provide constructive notice to subsequent purchasers or creditors because the mortgagor’s signature was not properly acknowledged under Kentucky law, and therefore, the mortgage is subject to avoidance by the Trustee. The Creditors further appeal the bankruptcy court’s order entered November 16, 2006, denying the Defendants’ Motion to Alter, Amend or Vacate Judgment (the “Motion to Alter or Amend”).
07b0013p.06	In re: Cocanougher v.     U.S. Bankruptcy Court - Lexington J. VINCENT AUG, JR., Chief Bankruptcy Appellate Panel Judge. In this appeal, the Appellant, Citifinancial Mortgage Co., Inc., f/k/a Associates Home Equity Service, Inc. as successor in interest to MG Investments, Inc. (“Citifinancial”), appeals the bankruptcy court’s judgment voiding Citifinancial’s security interests in real estate owned by the Debtors, William and Tina Cocanougher. The bankruptcy court voided the mortgages based on its finding that both mortgages were defective because the names of the Debtors do not appear in the body of the acknowledgment certificate as required by Kentucky Revised Statute § 423.130. Subsequent assignments of the mortgages were also defective because they failed to provide a brief description of the notes and the date of the notes as required by Kentucky Revised Statute § 382.290. As a result of the defects in the documents, the bankruptcy court found that neither the mortgages nor the assignments were sufficient to put the trustee on notice of Citifinancial’s mortgages. We AFFIRM the decision of the bankruptcy court.
07a0454p.06	Ivory v. Jackson     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. In January of 1998, Cedric Ivory was charged with the murder of his girlfriend, Alanna Napier. Following a bench trial before a Michigan state court later that year, Ivory was convicted of second-degree murder and a related firearm offense. He was sentenced to a lengthy term of imprisonment on the two charges. Ivory then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently filed a motion for federal habeas corpus relief, with his principal argument being that his trial counsel provided ineffective assistance due to counsel’s addiction to drugs and alcohol. The district court determined that Ivory’s ineffective-assistance-of-counsel claim was procedurally defaulted and, in any event, without merit. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0455p.06	Mazur v. Young     Eastern District of Michigan at Bay City KAREN NELSON MOORE, Circuit Judge. In this diversity action we are asked to determine whether, under Michigan law, the guarantor of a land contract is liable to the seller for any deficiency once the seller has elected forfeiture as his remedy. For the reasons discussed below, we conclude that a judgment for possession after forfeiture extinguishes the land contract, leaving no legal basis to pursue further claims against the guarantor. Therefore, in this case, the guarantor is not liable, and we affirm the district court’s entry of summary judgment for the guarantor.
07a0456p.06	Doe v. Bredesen     Eastern District of Tennessee at Knoxville GRIFFIN, Circuit Judge. Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN. CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of TENN. CODE ANN. § 39-13-527. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 (“the Registration Act”), TENN. CODE ANN. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see TENN. CODE ANN. § 40-39-202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation (“TBI”) Sexual Offender Registry for the rest of his life, see TENN. CODE ANN. § 40-39-207(g)(1)(B). The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (“the Monitoring Act”), TENN. CODE ANN. § 40-39-301 et seq., which became effective July 1, 2004.1 The Monitoring Act authorized the Tennessee Board of Probation and Parole (“the board”) to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. TENN. CODE ANN. § 40-39-303. In August 2005, Doe’s probation officer notified him that he would be required to wear a global positioning (“GPS”) device at all times beginning in September 2005. Doe brought suit in the United States District Court for the Eastern District of Tennessee (“the district court”) alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts’ requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against selfincrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under FED. R. CIV. P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe’s opposition brief also sought to raise a claim that was not in his complaint – that application of the Registration and Monitoring Acts to himviolated his plea agreement. The district court ruled that Doe’s ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed. For the reasons that follow, we affirm. In doing so, we hold, inter alia, that the Registration Act (TENN. CODE ANN. § 40-39-201 et seq.) and the Monitoring Act (TENN. CODE ANN. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution.
07a0457p.06	USA v. Conces     Western District of Michigan at Grand Rapids Plaintiff/Appellee United States of America commenced this suit on October 27, 2005 in the United States District Court for the Western District of Michigan, seeking to enjoin Defendant/Appellant Charles Conces from promoting an alleged tax-fraud scheme and engaging in other conduct that allegedly interfered with the administration and enforcement of the federal tax laws. After Conces failed to make the initial disclosures mandated under Fed. R. Civ. P. 26(a), the Government sought, and the district court granted, an order compelling these disclosures. When Conces did not comply with this order, the district court entered a default judgment against him, permanently enjoined him from promoting any scheme to avoid federal tax liability, and granted the Government permission to conduct post-judgment discovery to ensure his compliance with the terms of the court’s injunctive award. During post-judgment discovery, the Government served five interrogatories and a document production request upon Conces, who responded by answering only two of the interrogatories and refusing to provide the requested documents. After many delays due to Conces’s numerous objections to the interrogatories, and after the entry of two orders directing him to respond to the Government’s discovery requests, the district court entered a February 23, 2007 order finding Conces in civil contempt and directing that he be incarcerated until he purged this contempt by complying with the court’s prior orders. Conces now appeals from this order, raising a number of challenges to the district court’s finding of contempt and to other rulings made in the course of the lower court proceedings. As explained below, we find that certain of the challenges advanced by Conces are not properly before us, and we affirm the district court’s rulings as to all remaining issues.

NONPUBLISHED DECISIONS ORIGINATING FROM KENTUCKY

Jolley v. Harvell
    Western District of Kentucky at Paducah 07a0793n.06 07/11/13

In re: Samuel Wilson v.
    U.S. Bankruptcy Court - Ashland 07b0016n.06 11/14/2007