UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FIFTH THIRD BANK, an Ohio 

Banking

Corporation, successor by merger 

with 

Fifth Third Bank, a Michigan 

banking corporation,

Plaintiffs,

v

MACAULEY COMMERCIAL 

HOLDINGS, LLC, a Michigan 

limited liability company; SLEEP 

DIAGNOSTICS OF MICHIGAN, 

P.C., a Michigan professional service 

corporation; RICHARD 

MACAULEY, an individual; LEAF 

FUNDING, INC., a foreign 

corporation; PHILIPS MEDICAL

CAPITAL LLC, a foreign limited 

liability company; STATE OF 

MICHIGAN; ASCENTIUM 

CAPITAL LLC, a foreign limited 

liability company; UNITED STATES 

OF AMERICAN-INTERNAL 

REVENUE SERVICE; 

CORPORATION SERVICE 

COMPANY, jointly and severally,

Defendants.

No. 15-12234

HON. THOMAS L LUDINGTON

MAG. PATRICIA T. MORRIS

STIPULATION AND ORDER 

SETTING PRIORITIES & 

INTERESTS BETWEEN 

PLAINTIFF

AND THE MICHIGAN 

DEPARTMENT OF TREASURY

AND

DISMISSING CASE AGAINST 

MICHIGAN 

 

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Michael E. Moore (P57315)

Lisa A. Hall (P70200)

Plunkett Cooney

Attorney for Plaintiff

333 Bridge Street NW, Suite 530

Grand Rapids, MI 49504

(616) 752-4600

Moe Freedman (P74224)

Assistant Attorney General

Attorney for Defendant Michigan Department of Treasury

Revenue & Collections Division

3030 W Grand Blvd, Ste 10-200

Detroit, MI 48202

(313) 456-0140

/

STIPULATION AND ORDER 

SETTING PRIORITIES & INTERESTS BETWEEN PLAINTIFF

AND THE MICHIGAN DEPARTMENT OF TREASURY

AND

DISMISSING CASE AGAINST MICHIGAN DEPARTMENT OF 

TREASURY

STIPULATION

Plaintiff, Fifth Third Bank, through its attorneys, Plunkett 

Cooney, by Michael E. Moore and Lisa A. Hall, and Defendant, 

Michigan Department of Treasury, through its attorneys, BILL 

SCHUETTE, Michigan Attorney General, and Moe Freedman, 

Assistant Attorney General, stipulate as follows:

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1. Plaintiff, Fifth Third Bank named Defendant, the State of 

Michigan’s Department of Treasury (“Treasury”) in this action because 

Treasury claims an interest in the property that is subject of this action 

as the result of State Tax Liens recorded with the Michigan Secretary of 

State. Plaintiff does not have monetary claims against Treasury but is 

simply seeking to subject Treasury's interest in the property that is the 

subject of this case to any order that may be issued by the Court in this 

action. 

2. Plaintiff holds an all asset perfected security interest in the 

assets of Sleep Diagnostics of Michigan, P.C. that was perfected by 

filing a financing Statement with the Michigan Secretary of State on 

December 23, 2010, against the Personal Property interest of Sleep 

Diagnostics of Michigan, which is the subject of this lawsuit.

3. On December 05, 2012, Defendant Treasury recorded Tax 

Lien # 1755014 with the Michigan Secretary of State against the 

personal property interests of Sleep Diagnostics of Michigan. 

4. On June 19, 2013, Defendant Treasury recorded Tax Lien # 

1796103 with the Michigan Secretary of State against the personal

property interests of Sleep Diagnostics of Michigan.

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5. On July 21, 2015 Treasury levied a bank account of Sleep 

Diagnostics and received $50,461.69 which it applied to unpaid tax 

claims of Sleep diagnostics. 

6. The funds Treasury received through its levy are not 

included in the property that Plaintiff is seeking to subject to its 

interests in this action.

7. Plaintiff filed a Motion in this case seeking to have the funds 

acquired by Treasury through the tax levy subjected to their security 

interest but later withdrew that motion. 

8. Treasury recognizes and affirms that the interest claimed 

by the Plaintiff in the property which is the subject of this case is 

senior, superior and prior in all respects to the interest claimed by 

Treasury. Further, that Treasury’s interests in the property described 

above shall be subjected to and extinguished by any sale that takes 

place pursuant to an Order of this Court, unless the property is 

redeemed from said sale as provided for by statute. Further, Treasury's 

lien shall transfer to any excess proceeds derived from the sale, over 

and above the amount necessary to satisfy Plaintiff's claim.

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9. In the event that this action results in a sale of the subject

property, pursuant to the enforcement of Plaintiff's rights, that any 

excess proceeds derived from said sale, over and above the amount 

necessary to satisfy Plaintiff, be promptly paid into the Court subject to 

further order of the Court as to priorities, with Treasury being entitled 

to apply for payment of such surplus proceeds. 

10. Treasury reserves the right to present any and all evidence 

necessary to substantiate the existence of its lien, the amount of its lien, 

and the respective priority of its lien with respect to any lien holders 

other than the Plaintiff so as to protect its right to any surplus proceeds 

from any judicial foreclosure action. 

11. Treasury is dismissed without prejudice and without costs as 

a Defendant in this matter.

12. This Stipulation and Order does not affect Plaintiff's 

Complaint against the remaining Defendants, and Plaintiff's case 

against the remaining Defendants will proceed unaffected by this 

Stipulation and Order.

____/s/Michael E. Moore______ ______ /s/Moe Freedman _____

Michael E. Moore (P57315) Moe Freedman (P74224)

Attorney for Plaintiff, Attorney for Defendant, State of

Fifth Third Bank Michigan Department of Treasury

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Date: ____May 13, 2016________ Date: _____May 13, 2016_____

ORDER BASED ON STIPULATION SETTING PRIORITIES & 

INTERESTS BETWEEN PLAINTIFF AND THE MICHIGAN 

DEPARTMENT OF TREASURY

AND

DISMISSING CASE AGAINST DEFENDANT MICHIGAN 

DEPARTMENT OF TREASURY

At a session of said Court, held in 

United States District Court, 

Eastern District of Michigan, on

___________________________, 2016.

PRESENT: 

HON: _______________________.

 U.S. District Court Judge

As Stipulated above between Plaintiff, Fifth Third Bank and 

Defendant, State of Michigan Department of Treasury,

IT IS SO ORDERED. 

This Order does resolve the last pending claim in this case.

____________________________________

DISTRICT COURT JUDGE

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