USAA Fed. Sav. Bank v. Hope, 589 B.R. 914 (2018)

July 6, 2018 · United States District Court for the Middle District of Georgia · CIVIL ACTION NO. 5:17-CV-352 (MTT)
589 B.R. 914

USAA FEDERAL SAVINGS BANK, Appellant,
v.
Camille HOPE, Chapter 13 Trustee, Appellee.

CIVIL ACTION NO. 5:17-CV-352 (MTT)

United States District Court, M.D. Georgia, Macon Division.

Signed July 6, 2018

*916Brooke Walker Gram, Christopher S. Anulewicz, Walter E. Jones, Atlanta, GA, for Appellant.

Camille Loretta Hope, Macon, GA, pro se.

ORDER

MARC T. TREADWELL, UNITED STATES DISTRICT JUDGE

In this appeal from the United States Bankruptcy Court for the Middle District of Georgia, USAA Federal Savings Bank contends the Bankruptcy Court, Judge Austin E. Carter presiding, erroneously granted summary judgment to the Trustee1 in an adversary proceeding to *917avoid a transfer, specifically a security deed, in favor of Appellant USAA Federal Savings Bank. For the following reasons, the Bankruptcy Court's decision is AFFIRMED .

I. STANDARD OF REVIEW2

The Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a). In reviewing the decision of a bankruptcy court, a district court functions as an appellate court. Williams v. EMC Mortg. Corp. (In re Williams) , 216 F.3d 1295, 1296 (11th Cir. 2000) (per curiam). Here, the Bankruptcy Court made no findings of fact, nor could it on a summary judgment motion, and the Bankruptcy Court's grant of summary judgment, including its interpretation and application of the Bankruptcy Code, is reviewed de novo. See In re Optical Technologies, Inc. , 246 F.3d 1332, 1335 (11th Cir. 2001) ; Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.) , 904 F.2d 588, 593 (11th Cir. 1990). This Court, therefore, owes no deference to the Bankruptcy Court's interpretation of the law or its application of the law to the facts. Goerg v. Parungao (In re Goerg) , 930 F.2d 1563, 1566 (11th Cir. 1991).

A movant is entitled to summary judgment upon showing "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).3 When the movant bears the burden of proof at trial, it must show there is no genuine dispute that it has met the elements of the claim or defense. See United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1438 (11th Cir. 1991). The non-movant may defeat a properly supported motion by producing "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc. , 931 F.2d 1472, 1477 (11th Cir. 1991) ). In other words, by proving that there is indeed a genuine dispute regarding a material fact. See id.

"A factual dispute is genuine only if 'a reasonable jury could return a verdict for the nonmoving party.' " Info. Sys. & Networks Corp. v. City of Atlanta , 281 F.3d 1220, 1224 (11th Cir. 2002) (quotation marks omitted). Therefore, when deciding if summary judgment is appropriate, the court must not "weigh the evidence and determine the truth of the matter" on its own but should determine only whether a reasonable jury could find in favor of the non-movant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."). In doing so, the court should draw all justifiable inferences, and resolve any reasonable doubts concerning the facts, in favor of the non-movant. Id. at 255, 106 S.Ct. 2505 ; Info. Sys. & Networks Corp. , 281 F.3d at 1224. If, after reviewing the entirety of the record in the light most favorable to the [non-movant], the court determines a reasonable jury could not find in favor of the non-movant, then summary judgment is appropriate. Strickland v. Norfolk S. Ry. Co. , 692 F.3d 1151, 1154 (11th Cir. 2012) ("[T]he District Court [must] consider all evidence in the record *918when reviewing a motion for summary judgment-pleadings, depositions, interrogatories, affidavits, etc.-and can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists.") (quoting Tippens v. Celotex Corp. , 805 F.2d 949, 952 (11th Cir. 1986) ); Info. Sys. & Networks Corp. , 281 F.3d at 1224.

II. FACTUAL BACKGROUND

The undisputed facts are as follows. In 2016, Robert and Alice Brashear refinanced their mortgage on their residence and 7.75 acres of adjoining property located at 84 Brown Hill Road, Elko, Georgia. Doc. 4-1 at 153. Specifically, on August 26, 2016, USAA agreed to loan $264,964 to the Brashears and to pay off the Brashears' existing mortgagee, CB & T, which held its own security deed to the property. Id. at 106, 153. In exchange, the Brashears executed a Security Instrument, granting USAA a security deed to their property. Id. at 153. USAA paid $250,005.73 to CB & T on August 31, 2016. Id. For reasons not explained, however, CB & T did not cancel its security deed until October 6, 2016. Id. For reasons also not explained, USAA did not file its security deed until October 17, 2016, 52 days after the execution of the Security Instrument. Id. On January 13, 2017, 88 days after the security deed was filed, the Brashears filed their Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Georgia. Id.

III. PROCEDURAL BACKGROUND

After the Brashears filed their bankruptcy petition, the Trustee filed this adversary proceeding pursuant to 11 U.S.C. § 547(b) to avoid the transfer of the security deed to USAA. Id. The Trustee argued that, under the Bankruptcy Code, the transfer was deemed to have occurred on October 17, 2016, when the security deed was filed, and, thus, the transfer occurred within 90 days of the Brashears filing a bankruptcy petition, making it an avoidable preference under § 547(b). Id. USAA did not then dispute, and never disputed before the Bankruptcy Court, that the transfer occurred on October 17, 2016.4 After the Trustee moved for summary judgment, arguing there was no genuine issue of fact regarding the Trustee's right to avoid the transfer, USAA raised the affirmative defense that the transfer was a substantially contemporaneous exchange under 11 U.S.C. § 547(c)(1) and thus was not an avoidable transfer. Id. at 2-3. The Bankruptcy Court found, first, that there was no genuine issue that the Trustee had met its burden under § 547(b) and that that there was no genuine dispute that the transfer was not a substantially contemporaneous exchange under § 547(c)(1). Id. at 6, 11. Accordingly, the Bankruptcy Court granted summary judgment to the Trustee. Id. at 11. USAA then filed this appeal, which is fully briefed and for which the Court has heard oral argument. Docs. 1; 4; 10; 13; 14; 15.

IV. DISCUSSION

On appeal, USAA presents two challenges to the Bankruptcy Court's grant of summary judgment. First, USAA argues, for the first time, that the transfer did not occur when USAA filed its security deed on October 17, 2016. Doc. 4 at 12. Second, USAA argues, as it did before the Bankruptcy Court, that the transfer was a substantially contemporaneous exchange under § 547(c)(1). Id.

*919A. Whether the Undisputed Facts Establish the Trustee Met the Elements of § 547(b)

USAA argues the Bankruptcy Court erred in finding the Trustee met its burden to establish the security deed was an avoidable preference under § 547(b). Specifically, USAA argues the transfer did not occur within the 90-day preference period.5

Under 11 U.S.C. § 547(b), the trustee may avoid a transfer of an interest by the debtor if the trustee establishes that the transfer was:

(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made-
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if-
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.

11 U.S.C.A. § 547(b). Critical to this action, 11 U.S.C. § 547(e)(2) provides that a transfer occurs "at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected ... within 30 days after" the transfer. But if the transfer is not perfected within 30 days, the transfer is deemed to have occurred "at the time such transfer is perfected." Id. The Bankruptcy Court ruled that the undisputed facts established that the transfer occurred on October 17, 2016, when USAA filed the security deed. Because that was within 90 days of the January 13, 2017 filing of the Brashears' bankruptcy petition, the Bankruptcy Court concluded that the transfer was an avoidable preference.

The Court agrees. The Security Instrument granting USAA an interest in the Brashears' property was executed on August 26, 2016. Doc. 4-1 at 36. Because USAA did not file the security deed until October 17, 2016, which is well beyond the 30-day period following the transfer, the transfer occurred on that date.6 Because the security deed was filed within 90 days of the filing of the Brashears' petition, the transfer was an avoidable preference.

*920USAA now argues the transfer occurred on October 6, 2017, when CB & T cancelled its security deed, rather than on October 17, when USAA filed its security deed. Doc. 15 at 7:2-7. According to USAA, the intent of the transfer was for the Brashears to convey the "full bucket of rights" in the property to USAA and to "convey a first priority lien against the property."7 Id. at 6:6-10, 8:5-8. But under Georgia law, USAA argues, CB & T held legal title to the property through its security deed, and the Brashears retained a "a mere equity of redemption and right of possession of the realty until the secured debt [was] satisfied in full." Patel v. J.P. Morgan Chase Bank, N.A. , 327 Ga. App. 321, 323, 757 S.E.2d 460, 462 (2014) (quotation marks and citations omitted). Therefore, USAA argues the Brashears could not fulfill the intent of the parties, by transferring the "full bucket of rights," until their debt to CB & T was paid and CB & T cancelled its security deed. Doc. 15 at 6:6-10 ("Our position would be that-the intention of the parties ... could not occur under Georgia law until both the CB & T debt had been paid in full and the CB & T security deed was canceled of record.")8 ; see also O.C.G.A. § 44-14-67(a) ("In all cases where property is conveyed to secure a debt, the surrender and cancellation of the deed, in the same manner as mortgages are canceled, on payment of the debt to any person legally authorized to receive the same, shall operate to reconvey the title of the property to the grantor or the grantor's heirs, executors, administrators, or assigns."). CB & T did not cancel its security deed until October 6, 2017. So, USAA argues the transfer did not become effective until that date-when the parties' intent could finally be carried out. And because USAA filed its security deed 11 days later on October 17, 2016, USAA argues under § 547(e)(2) the transfer is deemed to have occurred on October 6, 2017, which is beyond the 90-day preference period and makes the transfer not an avoidable preference.

This argument, based as it is on the intention of the parties, is essentially a contract-interpretation argument.9 The *921Court must inquire whether the agreement between the parties, the Security Instrument, which documented the transfer of the security deed to USAA, reflected this intention-that it would not be effective until CB & T cancelled its security interest. Under Georgia law, a court must first look to the four corners of the document.10 Equifax, Inc. v. 1600 Peachtree, L.L.C. , 268 Ga. App. 186, 191, 601 S.E.2d 519, 523 (2004). And absent ambiguity, those terms are controlling. Id. Ambiguity is defined as:

[D]uplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and [it] also signifies ... doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations.

Holcim, Inc. v. ABDG, Inc. , 265 Ga. App. 818, 596 S.E.2d 197, 200 (2004), citing Early v. Kent , 215 Ga. 49, 50, 108 S.E.2d 708 (1959).

Here, there are no ambiguities in the Security Instrument. The agreement clearly states that it

secures to [USAA]: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, [the Brashears] [do] hereby grant and convey to MERS11 (solely as the nominee for [USAA] and [USAA]'s successors and assigns) and all of the successors and assigns of MERS, with power of sale, the following described property ... which currently has the address of 84 BROWN HILLL RD ELKO, Georgia 31025.

Doc. 4-1 at 66. Nothing in the contract states that the transfer of rights was contingent on any actions between USAA and a third party, which is what would be required to support USAA's argument-the contract would have to be contingent on a third party's interest being extinguished. While the Security Instrument recognized that existing third-party interests in the property with priority over USAA's interest would be extinguished, such as CB & T's security deed, the Security Instrument was in no way contingent upon that happening. Indeed, the point of any refinancing agreement, including this one, is to allow the new lender to take its own security interest and, having gained that security, the new lender can then pay the existing debt. Far from advancing the parties' intent, the argument that debtors have not immediately conveyed any interest to secure debt completely undercuts a new lender's intent in a refinancing agreement-if the new lender is not gaining any interest in the property, it would not advance money to pay the existing debt. In short, the idea that these parties or any parties to a financing agreement do not intend to convey any interest in the secured property until the existing security interest has been cancelled has no basis in law or fact.

Moreover, as USAA admitted at oral argument, the Brashears did have some interest in the property when the Security *922Instrument was executed, and, based on the clear wording of the Security Instrument, it was effective when signed and thus transferred whatever interest the Brashears had to USAA on August 26, 2018. And because USAA did not perfect its security interest until October 17, 2016, the Bankruptcy Court was correct in finding that USAA perfected that interest more than 30 days after the transfer became effective, meaning the transfer occurred on the date of perfection under § 547(e)(2)(B).

Accordingly, the Court affirms the Bankruptcy Court's determination that there is no genuine dispute that the transfer occurred on October 17, 2016, within the 90-day preference period, and thus that there was no genuine dispute that the Trustee met its burden under § 547(b).

B. Substantially Contemporaneous Exchange

In response to the Trustee's summary judgment motion, USAA argued that the transfer between it and the Brashears was intended to be a substantially contemporaneous exchange and thus not avoidable under § 547(b). The Bankruptcy Court, however, found that there was no genuine dispute that the transfer was not in fact a substantially contemporaneous exchange.

Generally, if a trustee has established that a transfer meets the requirements of § 547(b), that transfer may be avoided. But § 547(c)(1) provides an exception to that general rule. Hedrick v. Novastar Mortgage, Inc. (In re Hedrick) , 524 F.3d 1175, 1188 (11th Cir.), amended on reh'g in part , 529 F.3d 1026 (11th Cir. 2008). Essentially, § 547(c)(1), or the "substantially-contemporaneous-exchange exception," grants creditors an affirmative defense to prevent a transfer that was intended to be a contemporaneous exchange for new value from being avoided by the trustee. Official Unsecured Creditors' Comm. v. Airport Aviation Servs. Inc. (In re Arrow Air, Inc.) , 940 F.2d 1463, 1465-66 (11th Cir. 1991) ; see also Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida Systems, Inc.) , 861 F.2d 1555, 1558 (11th Cir. 1988). To avail itself of this exception, a creditor holds the burden to establish that the transfer was "intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor" and that it was "in fact a substantially contemporaneous exchange." 11 U.S.C. § 547(c)(1)(A), (B) ; In re Arrow Air, Inc. , 940 F.2d at 1465-66 ; In re Jet Florida Systems, Inc. , 861 F.2d at 1558.

Here, the Trustee has established that there is no genuine dispute that the elements of § 547(b) have been met. Thus, the Trustee is entitled to summary judgment unless, in response, USAA has produced "significant, probative evidence demonstrating the existence of a triable issue of fact" concerning whether it can meet the elements of the substantially contemporaneous exchange exception. See Four Parcels Real Prop. , 941 F.2d at 1438. It is undisputed that the transfer was intended to be substantially contemporaneous.12 However, USAA has not presented evidence from which the Court could find the transfer was in fact substantially contemporaneous and thus has not adduced sufficient evidence to prove a triable issue *923of fact regarding whether the transfer meets the exception.

When considering whether the transfer was in fact substantially contemporaneous, "courts should take into account the objective reasonableness of the time taken to perfect the interest, the cause of any delay, and the motivations for it." Hedrick v. Novastar Mortgage, Inc., (In re Hedrick) , 524 F.3d 1175, 1190 (11th Cir. 2008), amended on reh'g in part on other grounds , 529 F.3d 1026 (11th Cir. 2008). Courts should consider the "length of the delay between the transfer and perfection," "the nature of the transaction and how long a creditor in that type of transaction usually takes to perfect its interest in the normal course of affairs." Id. In In re Hendrick , the Eleventh Circuit stated "[t]he most important fact may be whether the delay in perfecting the interest was intended by the creditor or resulted from its negligence." Id. at 1191. And to meet its burden under 547(c)(1), a creditor must adduce evidence both that the delay was not intentional and that the cause was not negligence. See In re Hedrick , 524 F.3d at 1190-91 (citing Arnett v. Sec. Mutual Fin. Corp. (In re Arnett) , 731 F.2d 358,360 (6th Cir. 1984) ("Thus, where delayed perfection of a security interest may be satisfactorily explained, and in the absence of dilatoriness or negligence on the part of a transferee , the transfer may still be found 'substantially contemporaneous' with the exchange of new value to the debtor, regardless of the lapse of time." (emphasis added) ) ); see also Dye v. Rivera (In re Marino) , 193 B.R. 907, 916 (9th Cir. B.A.P. 1996) ("[T]hat Rivera was neither dilatory nor negligent in his actions is significant.").

In short, there must be some evidence of the cause of the delay.

USAA has proffered testimony from A.J. Loll, the custodian of records for USAA's servicer, Nationstar Mortgage LLC, who stated "the delay in perfecting the security interest was not intended by USAA and was not improperly motivated."13 Doc. 4-1 at 98. But that is all USAA did. USAA has offered no evidence of the *924reason for the 52-day delay in perfection.14 Moreover, regarding the other relevant factors, USAA has adduced no evidence from which the Court could find the delay was objectively reasonable. And at oral argument, USAA agreed that "it was not the usual practice of lenders to wait for the cancellation of the security deed" and that lenders typically "want their security interest protected as soon as it can be protected." Doc. 15 at 7:12-22.

From this evidence, the Court cannot conclude that USAA has produced "significant, probative evidence demonstrating the existence of a triable issue of fact" as to whether it can establish the transfer was a substantially contemporaneous exchange under § 547(c)(1). See Four Parcels of Real Prop. , 941 F.2d at 1438. Therefore, because the Trustee has established there is no genuine dispute that the elements of § 547(b) have been met and USAA has not established a genuine dispute regarding whether the transfer meets the § 547(c)(1) exception, the Trustee is entitled to judgment as a matter of law.

V. CONCLUSION

For the reasons stated herein, the Court AFFIRMS the Bankruptcy Court's grant of summary judgment in favor of the Trustee.

SO ORDERED, this 6th day of July, 2018.