Richard L. Robertson & Associates, P.A.

ATTACHMENTS, WRITS AND LEVIES

MANUSCRIPT PREPARED FOR
MECKLENBURG COUNTY BAR SEMINAR

THE NEW MILLENNIUM REMEDIES - RINGING MILLION DOLLAR BELL IN THE NEXT CENTURY
September 24, 1999

Collections - Re-engineering a traditional service

The challenge to forge strong and profitable business client relations is essentially a challenge to law firms to create value for the client through the attorney's services. Collections services for the business client is a natural and traditional type of service provided by attorneys to their business clients. The collections services provided by the law firm should be evaluated for possible re-engineering in order to position your firm more competitively and to aim for measurable results for the client. Law firms should consider overhauling their collections practices and methods with a view towards identifying opportunities for prompt action, recoveries and results for clients. This presentation will attempt to identify some of the legal tools and practical suggestions which can be brought to bear in a collections practice that has been reoriented and re-engineered to better serve the attorney and client.

This presentation will focus on techniques applicable to business collections and will not attempt to deal with issues applicable to consumer debt, such as regulation of attorneys as debt collectors and Fair Debt Collection practices.

The Problem - Collecting for the unsecured creditor who has extended open account credit

Collection attorneys have experienced the sinking feeling that comes with a telephone call from the regular business client describing the substantial past due balance on open account credit. Often this is accompanied by an explanation that the customer had previously been a good customer, but somehow has encountered financial difficulties and that attempts to work with the customer failed. The simple response the attorney is tempted to give is for the client to sue for a judgment and thereafter attempt to enforce its judgment. However, this generalized response does not bring to bear all possible practical and legal tools that can be employed to achieve the best results for the client.

Improving the client's referral of matters to counsel.

This is the proverbial problem of which comes first, the chicken or the egg. If the attorney has demonstrated his ability to obtain results, a client will be more likely to refer collection problems more promptly to the attorney where better opportunities exist to collect. However, in building the relationship with clients, the attorney should frankly discuss with the client the need for the attorney to receive problem accounts for collection promptly before a debtor's financial problems become more aggravated and at a time where the unsecured creditor has the best opportunity to be first in line as to available cash or asset of the debtor. In many instances, the options available will be altered by events affecting the debtor, such as asset purchases by third parties. In some cases, simply becoming the first squeaking wheel enhances the prospect for recovery from the debtor. A firm's regular business clients should be encouraged to bring matters to the attorney as promptly as possible after reasonable efforts to collect have failed.

Canvassing the circumstances to obtain quasi-secured status for the unsecured creditor.

In evaluating the potential avenues available to the client for recovery, a business client's potential lien rights, bond claims and claims to secured status should be fully explored. Obviously, having a secured status or a status which is the approximate equivalent to secured status will greatly improve the odds of success. Depending on the facts presented, questions which the attorney should examine might include one or more of the following:

Does the client have a right to reclaim the goods sold under the UCC?
Upon examination of transaction documents including invoices, has the client reserved a security interest in the goods sold?
In cases involving construction or goods delivered to become fixtures, does the client have a claim to materialman's lien status or claims under a payment bond?
Can a claim be made under the payment bond as a supplier to a subcontractor or contractor?
In cases involving government construction projects, do claims exist under payment bonds pursuant to The Miller Act or under state "Little Miller Acts"?
Does the client have rights of setoff?
Can the client negotiate for return of an unsold portion of goods?
In many cases, the initial proper identification of one or more of these rights that a client may have and advancement of a client's rights are key to the results. For example, a client may believe he has only open account rights, but somehow in standard terms and conditions in a client's invoice, the client may have reserved a security interest in the goods sold, which arguably is sufficient to bind the debtor. (A security agreement among the parties may be sufficient under the UCC even without the filed financing statement necessary to allow the creditor to prevail over third parties.) Other examples include the discovery of a payment bond in construction sufficient to reach your client as a supplier. [See Exhibits 1, 2 and 3 for sample requests for payment bond information and claims under payment bonds]. In many cases, the materialman's claims statute of other jurisdictions may be broader than local law and can include suppliers of subcontractors if the supplier has delivered his goods to the work site, or may encompass goods delivered to be fixtures at a work site. Obviously, the attorney must initially have as complete a factual a picture as possible in order to identify these possible rights the client may have.

If, in fact, the client holds a secured interest or remains the owner of the property, then Claim & Delivery proceedings can be brought to enforce the client's interest. Claim and Delivery can be brought where the plaintiff claims he is entitled to possession of the property by reason of ownership or some other contractual right. The Plaintiff must show a superior right or title in the property sought and must recover because of his ownership or title to the property. Claim and Delivery is an ancillary remedy to a pending civil action for possession of specific personal property. N.C.G.S. '1-472 through 1-484.1 set out the requirements for a plaintiff seeking claim and delivery. Actions for claim and delivery must be brought in the county where the property is located. (N.C.G.S. '1-75). The Administrative Office of the Court publishes forms for the Affidavit, Request for Hearing in Claim and Delivery, Notice of Hearing in Claim and Delivery and Findings on Application for Claim and Delivery Order. [See Exhibit 4].

Attachment and Garnishment

As part of the analysis, a creditor's attorney should ask if his creditor client has been victim of some actual or constructive fraud sufficient to qualify the creditor to seek an attachment or garnishment. If the grounds exist for an attachment, then assets of the debtor may be seized for purposes of preserving those assets during the pendency of the proceeding without regard to the requirement for the creditor to have a security interest or superior right to the property. N.C.G.S.'1-440 et seq. provides the grounds for an attachment. Grounds for attachment are as follows:

Defendant is a non-resident; or
Defendant is a foreign corporation; or
Defendant is a domestic corporation, whose president, vice-president, secretary or treasurer cannot be found in the State after due diligence, or
Defendant is a resident of the State who, with intent to defraud his creditors or to avoid service of summons,
has departed, or is about to depart, from the State, or
keeps himself concealed therein, or
Defendant is a person or domestic corporation which, with intent to defraud his or its creditors,

has removed, or is about to remove, property from this State, or

has assigned, disposed of, or secreted, or is about to assign, dispose of, or secret, property.

Obviously, because a Motion for Attachment can be brought ex parte, the procedure can be subject to abuse. The possibility of exposure to claims for abuse of process or malicious prosecution should be weighed in determining if sufficient grounds exist to believe the debtor is intending to defraud creditors and is removing property or is about to remove or assign or secret property. The possible impact of transactions such as asset sales by the debtor on the creditor give rise to interesting scenarios in which the remedy of attachment might apply. For instance, a common fact pattern is that the creditor is aware his debtor is about to conduct an asset sale, either as part of a leveraged buyout by third parties or as a simple sales transaction. Is the knowledge of a pending asset sale without the creditor's having received notice from the debtor complying with the Bulk Sales Act enough to imply an intent to defraud the creditor by the debtor and to assign assets by the debtor? Probably not. However, what if interviews of the debtor's personnel reveal that the asset sale is imminent and there has been no attempt to comply with the Bulk Sales Act. Does this give rise to an inference of intent to defraud the creditor by the apparent attempt to send no Bulk Sales Act notice? In many transactions, the parties to the transaction may waive compliance with the Bulk Sales Act for themselves, but with the buyer potentially seeking indemnification for claims from the seller.

Other types of situations may occur, such as the debtor's refusal to make any good faith payment on account or to otherwise disregard the terms of the business arrangement between the creditor and the debtor coupled with the debtor's merrily proceeding to sell goods from the debtor's inventory. Query: when does this amount to an attempt to dispose of property with intent to defraud creditors? Sample affidavits involved in these two scenarios filed in support of Motions for Attachment and Garnishment are appended hereto as Exhibits 5 and 6. To have the ability to have sufficient information to which your client can testify is dependent upon interviews by your client of the debtor's personnel and knowledge by your client of business plans and actions of the debtor. A surprising amount of information may be volunteered by the debtor's personnel in discussions of the overall business situation and the reasons for non-payment.

Also, your client's knowledge of a debtor's practices with respect to funding of payroll accounts, funds transfers, etc. can be extremely valuable in determining the appropriate timing for action. Within the confines of the Bank Secrecy Act, the client may know from prior payments the location of the debtor's bank from which may be inferred the debtor may have deposit accounts that are available to be garnished in the appropriate case. It is also important to note that the statute requires the posting of an appropriate bond. (The bond shall be in an amount deemed necessary by the court to afford reasonable protection to the defendant, but not less than $200.00. N.C.G.S. '1-440.10(1)). There is no requirement that the bond be double the value of the property and, in most cases, the judge will set reasonable bond.

Of lesser use in the typical collection for open account credit is the use of receivership statutes to attempt to obtain a prejudgment receivership. A receiver may be appointed prior to judgment: ". . . on the application of either party where he establishes an apparent right to property which is the subject of the action and in possession of the adverse party, and the property of its rents and profits are in danger of being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be had on application to the court." N.C.G.S. '1-502-1. Again, a bond is required.

Reclassification of Insider Claims through Equitable Subordination or Recharacterization of Debt as Equity. Often the creditor faces the unsatisfactory position by the debtor that after payment of other secured indebtedness there are no funds left for the unsecured junior creditor. Sometimes this will include circumstances where other insider loans may have been previously repaid ahead of the unsecured creditor.

This raises the issue of whether the insider loans can be recharacterized as equity contributions. This is most often dealt with after either a voluntary or involuntary bankruptcy of the debtor. This issue has been dealt with in at least two general ways by the bankruptcy courts. First, has been a determination as to when an insider claim should be equitably subordinated and thereby for distribution purposes treating the insider loans as equity contributions. This is the concept of equitable subordination provided for in Section 510(c) of the Bankruptcy Code. The second manner in which bankruptcy courts have approached this issue has been simply as a matter of claims determination as to whether or not loans are in fact equity contribution by insiders. This has been referred to by at least one district court as the determination as to whether the amount advanced by the insider is debt or equity ab initio. As can be seen by the following discussion, the concept of equitable subordination is more complex and in all likelihood requires a showing of "inequitable" conduct in order to apply subordination.

Equitable Subordination. Section 510(c) of the Bankruptcy Code allows bankruptcy courts to apply judicially developed principles of equitable subordination. Section 510(c) provides:

under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or

order that any lien securing such a subordinated claim be transferred to the estate.

11 U.S.C. ' 510(c). On its face, it appears Congress granted broad equitable powers to the Bankruptcy Court to reorder creditor priorities depending upon the circumstances. Section 510(c) is silent as to the principles to be utilized for such reorderings. To date, the most influential decision addressing the issue has been the 1977 opinion of the 5th Circuit in In re Mobile Steel Co., 563 F.2d 692 (5th Cir. 1977). Mobile Steel set down three conditions a Bankruptcy Court must find to exist before it equitably subordinates a claim. First, "[t]he claimant must have engaged in some type of inequitable conduct." Mobile Steel Co., 563 F.2d at 700. Second, "[t]he misconduct must have resulted in injury to the creditors of the bankrupt or conferred some unfair advantage on the claimant." Third, "[e]quitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code]". Id.

Mobile Steel, therefore, requires the Bankruptcy Court to search for inequitable conduct as a first step. If there is no inequitable conduct, a Bankruptcy Court cannot subordinate a claim. In re Lifschultz Fast Freight, 132 F.3d 339 (7th Cir. 1997). U.S. v. Noland, 517 U.S. 535, ______, 116 S.Ct. At 1526-27.

In the context of equitable subordination, "inequitable conduct" generally falls into the following categories: "(1) fraud, illegality, breach of fiduciary duties; (2) undercapitalization; and (3) claimant's use of the debtor as a mere instrumentality or alter ego." In re Lifschultz, supra. See also, Asa S. Herzog & Hoel B. Zweibel, The Equitable Subordination of Claims in Bankruptcy, 15 V and L. Rev. 83, 90 (1961).

Recalling the Context. Before proceeding further in reviewing the Lifschultz application of equitable subordination of insider claims, it may be useful to recall the typical factual context in which the courts are attempting to resolve the claims' priorities. In a particularly well reasoned decision, the 7th Circuit dealt with the attempts by insiders to lend money to save a failing business. In Lifschultz Fast Freight, 132 F.2d 339 (7th Cir. 1997) the court described a typical case.

"A business is ailing. Revenues are down, profits gone. Rather than let it lie, the owners decide to try reviving it. Doing so will require an infusion of new funds. The owners drum up the needed funds but face a choice: which legal form should the owners use, equity or debt? If the business is closely held, the advantage will be to debt, preferably secured. Equity classically carries the right to the firm's residual earnings. But in a closely-held company, this advantage means little, for the owners already have it through their pre-existing equity stakes. A loan, on the other hand, will provide the firm with needed funds while limiting the owners' risk that the company will go bankrupt and the new funds will end up in the wallets of the unsecured creditors. Tax advantages might also accrue. Of course, in opting for debt, the owners also accept a trade-off: outside lenders will or ought to be more reluctant to extend credit to what is now a more heavily-leveraged firm.

An unfair advantage to the owners, allowing them to reap the benefits of both debt and equity? Maybe. Will a bankruptcy court respect this choice of form? Not always. The power of equitable subordination, codified at 11 U.S.C. ' 501(c) allows a bankruptcy court to relegate even a secured claim to a lower tier, even to the lowest - the equity tier."

In Lifschultz itself, the debtor had been in the shipping business since the turn of the century. However, deregulation and the extreme level of competition in the trucking business led the company to lose money in the later 1980's beginning with a $400,000 loss in 1985 and up to a $5.5 million loss in 1989. The insiders attempted to revive the company. The insiders created a new company to which funds were loaned by one of the insiders' affiliated companies, Salson Express Company, Inc. The monies loaned by Salson were borrowed by individual shareholders of Lifschultz and Salson and the insiders in turn loaned the money on a secured basis to Salson Express which in turn loaned the money to the debtor under a loan agreement. Thereafter, additional financing was found with a factoring company. With the factors' loan, the debtor paid off all but $300,000 of the insider secured loan at the time of the bankruptcy petition. The additional loans and capital did not stop operating losses and bankruptcy ensued. The trustee attacked the loan agreement and the remaining $300,000 owed primarily on the basis that the debtor was "undercapitalized" at the time of the insider transaction.

After reviewing the principles of equitable subordination described above, the 7th Circuit made an excellent analysis of the use of undercapitalization as a possible factor to indicate inequitable conduct but held undercapitalization itself is not inequitable conduct in and of itself sufficient to justify equitable subordination. While conceding that undercapitalization "sounds bad", the Court explained that undercapitalization "just means that the company does not have enough funds on its balance sheet or in its till. It is a common token of declining business fortune." Id. at 345. The trustee had argued that "insufficient capital leads to financing the operation with secured debt, and that exposes the unsecured commercial creditors to greater risk of loss." The Court in Lifschultz agreed, but again, asked "where is the wrong?" Id. at 346. The Court noted that "creditors take the risk of dealing with undercapitalized firms and are free to adjust their credit terms or lend elsewhere." Id. at 346. The Court, however, noted that the "morals of the marketplace" forbid deceit and that insiders may not take advantage of their superior knowledge of the company to deceive outsiders. So, if the borrowing company misleads a lender or creditors regarding its financial health, this can constitute the lack of fairness to lead to a finding of inequitable conduct. The Court also distinguished the facts before it from situations where an insider converts a pre-existing equity claim into debt. Ryckman v. Envirodyne Indus., Inc., ______U.S. ______, 117 S.Ct. 77, 136 L.Ed. 2d 36. (1996). In Lifschultz the insiders had contributed fresh working capital.

The 7th Circuit then discussed the problem arising from wrongful or unpredictable subordination by courts and the creation of legal uncertainty of a particular type: "the risk that a court may refuse to honor an otherwise binding agreement on amorphous grounds of equity." The 7th Circuit noted that if a court wrongfully subordinates its claim, "other investors are sure to take heed." The Court in Lifschultz for these reasons stated that the Bankruptcy Court "should be doubly wary of using its power of equitable subordination." The Court concluded that "undercapitalization alone, without evidence of deception about the debtor's financial condition or other misconduct, cannot justify equitable subordination of an insider's debt claim." Id. at 349.

Further Limitations on Treating the Shareholder/Debtor as a Disfavored Class are given by the Supreme Court in Noland.

In applying equitable subordination, some Courts have held that certain categories of claims required no showing of inequitable conduct for subordination. The most recognized category of such claims was the equitable subordination of non-pecuniary loss tax penalty claims. Some courts have extended this exception to the requirement for a showing of inequitable conduct, to in some instances, "reclassifying" shareholder loans from debt to equity. See e.g., SPC Plastics Corp. v. Griffith (In re Structure Light Plastics Corp.), 193 B.R. 451 (Bankr. S.D. Ohio 1995) (where the court reclassified shareholder loan for redemption of the shareholder's shares and subordinated this as equity and subordinated the shareholder's interest to claims of the unsecured creditors.) However, the Supreme Court in U.S. v. Noland, 517 U.S. 335, 116 S.Ct. 1524, 134 L.Ed. 2d (1996) reversed the 6th Circuit and held that bankruptcy courts could not categorically equitably subordinate tax penalty claims.

The Supreme Court in Noland reasoned that had Congress intended to categorically equitably subordinate tax penalty claims, that Congress would have said so in its priority scheme. The Court intended to give bankruptcy courts some power to apply equitable subordination to the circumstances but it did not intend to give the bankruptcy courts the power to legislate: [T]he adoption in Section 510(c) of "principles of equitable subordination" permits a court to make exceptions to a general rule when justified by particular facts. . . But if the provision also authorized a court to conclude on a general, categorical level that tax penalties should not be treated as administrative expenses to be paid first, it would empower a court to modify the operation of the priority statute at the same level at which Congress operated when it made its characteristically general judgment to establish the hierarchy of claims in the first place. This is, the distinction between characteristic legislative and trial court functions would simply be swept away, and the statute would delegate legislative revision, not authorize equitable exception. We find such a reading improbable in the extreme. Id., 116 S.Ct. At 1527; citations omitted; emphasis added.

This language would appear to bar all forms of "categorical equitable subordination" including subordination of shareholder loans through simple "reclassification". However, the Supreme Court later in its opinion attempted to limit its holding:

"Given our conclusion that the 6th Circuit's rationale [for equitable subordination of the tax penalty] was inappropriately categorical in nature, we need not decide today whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated. We do hold that . . . the circumstances that prompt a court to order equitable subordination must not occur at the level of policy choice at which Congress itself operated in drafting the Bankruptcy Code . . ."

In this instance, Congress could have, but did not, deny noncompensatory, postpetition tax penalties the first priority given to other administrative expenses, and bankruptcy courts may not take it upon themselves to make that categorical determination under the guise of equitable subordination." Id. at 1528; citations omitted, emphasis and bracketed material added. Despite the Court's attempt to limit its holding, the language utilized by the Supreme Court in its analysis is not confined solely to the context of tax penalties. The Court's admonition that "the circumstances that prompt a court to order equitable subordination must not occur at the level of policy choice at which Congress itself operated . . ." appear to apply to all forms of categorical equitable subordination. Arguably, if Congress had intended to subordinate shareholder loans regardless of the circumstances, then Congress could have done so in the priority statutes. See D. Schechter, "Inequitable Subordination: The End of Categorical Equitable Subordination?" Bankr. Lit. Vol. 4 No. 2, p. 3 (1996).

The Supreme Court in Noland appears to say that bankruptcy courts are not free to rewrite the bankruptcy priorities. Noland indicates bankruptcy courts must cease categorical equitable subordination type reasoning and find evidence of misconduct on the part of the former shareholders. With the Supreme Court's restrictions in Noland, bankruptcy courts may increasingly rely upon undercapitalization as the standard. However, under the reasoning in Noland and Lifschultz, the undercapitalization itself must also be accompanied by some other inequitable conduct.

Reclassification of Debt as Equity. Courts have held that regardless of equitable subordination, that the court has the power to determine whether or not the contribution by the insider is debt or equity. As stated by the Court in In re Cold Harbor Assocs., L.P., 204 B.R. 904, 915 (Bankr. E.D. Va. 1997), "[A] court is not required to accept the label of 'debt' or 'equity' placed by the debtor upon a particular transaction, but must inquire into the actual nature of a transaction to determine how best to characterize it." (Copy attached as Exhibit 7).

The absence of promissory notes is strong evidence that the parties intended that the contribution be an equity contribution. Estate of Mixon v. United States, 464 F.2d 394, 403 (5th Cir. 1972). The absence of the existence of a fixed maturity date and the right to actual enforcement of payment of interest and principal are also related issues. Id. 204 B.R. at 917. "An 'open-ended' repayment term . . . tends to demonstrate that the advances in question bear the earmarks of an equity contribution." Id. at 918. The absence of a specific schedule for repayment of interest indicates a contribution is 'equity'. Roth Steel Tube, 800 F.2d at 631. In determining whether courts typically examine all of the circumstances to determine whether an insider advance is a loan or equity contribution. In Celotex Corp. v. Hillsborough Holdings Corp. (in re Hillsborough Holdings Corp.), 176 B.R. 223, 248 (Bankr. M.D. Fla. 1994), the court listed the following relevant factors:

The intent of the parties;

The names given to the instruments evidencing the indebtedness;

The existence of a fixed maturity date;

The existence and enforcement of scheduled payments of principal and interest;

The connection between the cash contribution and any subsequent participation in management of the debtor;

The identity of interest between creditor and shareholder;

The existence of inadequate capitalization prior to the contribution;

The ability of the debtor to obtain loans on similar terms from outside sources; and

The extent to which the contribution was used to purchase capital asset.

The court in In re Cold Harbor noted:
". . . a critical group of factors concerning the formality of the alleged loan agreement. The more specific and complete the parties are in identifying and codifying the terms of the alleged loan agreement, the more like a loan the transaction appears. By contrast, if the terms of such an agreement are vague and non-specific, such a transaction appears more like a shareholder contributing capital to keep his investment float. A second important group of factors relates to the financial situation of the corporation and the time the purported loan is made. If investment in the corporation appears to have been especially risky (e.g., it was thinly capitalized), or the source of funds to repay the loan was not made clear, then the transaction has more of the earmarks of an equity contribution. An additional group of factors in this category is the relationship between the limited partner, equity ownership and the parties participating in the making of the loan, reflected by the concern over whether there is an affinity between the equity holders and the alleged lenders, and whether control of the corporation is dependent upon the loan in question." In re Cold Harbor Assocs., 204 B.R. at 918.

Levies.

One recent North Carolina Court of Appeals decision is noteworthy because of its overview of the types of bank accounts which are subject to levy. In Jimenez v. Brown, ___ N.C.App. ___, 509 S.E.2d 241 (N.C. Court of Appeals December 29, 1998) Rev. denied, 305 N.C. 96 ___ S.E.2d ____, 1999(N.C. March 3, 1999). The North Carolina Court of Appeals reviewed the ability of the holders of a judgment against an underinsured motorist to attach and garnish various types of bank accounts held either jointly or as custodian with the judgment debtor's son. The Court also addressed whether or not the contents of a safe deposit box may be reached by attachment or garnishment. Id. at 244. (Copy attached as Exhibit 8).

The Court then addressed an account held for the debtor's son as custodian under the North Carolina Uniform Transfers to Minor's Act. The Court noted the provisions of N.C.G.S.'33A-11(b) which make the account irrevocable and the property separate from all other property of the custodian. The Court reviewed the provisions of N.C.G.S. '33A-17(a) which define the circumstances under which a third party may assert a cause of action against custodial property. The Court held that the provisions of 17(a) was an exclusive list of when a third party claimant may recover against custodial property. Interestingly, the Court held: "A tort committed prior to the custodianship is not enumerated with this list; therefore, if the accounts were set up under the UTMA, they are not subject to attachment."

The Court separately addressed a Totten Trust which is the type of statutory trust account which may be created under N.C.G.S. '53-146.2. The judgment debtor's son again was the beneficiary of this Totten Trust. The Court ruled that because the Totten Trust was revocable during the grantor's lifetime, that this asset was attachable.

Finally, the Court addressed the status of a joint account and for the first time ruled that joint accounts are vulnerable to seizure by the creditor of one depositor to the limit of the amount of funds in the account equitably owned by the debtor depositor and do not extend to funds equitably owned by the innocent depositor. Thus, the Court held: "Equitable ownership should be the determining factor and thus hold that joint accounts are attachable to the extent of the debtor's contribution to the account. To hold otherwise would allow seizure of money belonging to an innocent third party." Id. at 246. The Court upheld the trial court's order attaching the joint account between the judgment debtor and his son even though the record was silent as to who contributed funds to the account since "absent a showing to the contrary, the Court of Appeals is entitled to presume the trial court's determination was proper." Id. at 246. This decision now offers fairly clear guidance as to the rights of levy on custodial and joint bank accounts.