USAA Fed. Sav. Bank v. Hope
USAA Fed. Sav. Bank v. Hope
Opinion of the Court
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 Trustee
I. STANDARD OF REVIEW
The Court has jurisdiction to hear this appeal pursuant to
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).
"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 ,
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
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).
*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.
Under
(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.
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.
*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."
This argument, based as it is on the intention of the parties, is essentially a contract-interpretation argument.
[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. ,
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) ,
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. ,
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) ,
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."
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. ,
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.
At the time of the Bankruptcy Court's order, Walter W. Kelley was the Chapter 7 Trustee. Doc. 4-1 at 152. The bankruptcy petition has now been converted into a Chapter 13 petition with Camille Hope as Chapter 13 Trustee. But this does not affect the Trustee's standing to pursue this adversary proceeding. Cf. Matter of Ware ,
From the briefs, the parties apparently think that the clearly erroneous standard of review applies to at least some of the Bankruptcy Court's findings. However, in In re Optical Techs., Inc. , the Eleventh Circuit "ma[de] clear that both the district court and [the Eleventh Circuit] review a bankruptcy court's entry of summary judgment de novo."
Rule 56 is made applicable to bankruptcy proceedings by Fed. R. Bankr. P. Rules 5056 and 9014.
USAA argues that it did raise an argument about the date of the transfer as a part of its equitable subrogation argument before the Bankruptcy Court. Doc. 4 at 13 n.1. The Bankruptcy Court easily rejected that equitable subrogation argument, and USAA does not raise it here. This Court fails to see how that argument preserved the argument that the transfer, according to § 547(e)(2), did not occur on October 17, 2016.
Understandably, the Trustee argues USAA waived this argument by not raising it before the Bankruptcy Court. Doc. 10 at 11. Even more, USAA admitted the transfer was deemed to have occurred on October 17, 2016 under § 547(e)(2) and thus was within the 90-day preference period. Doc. 4-1 at 90 & n.2 (USAA's response to Trustee's summary judgment motion).
In addition to the suspect argument that its equitable subrogation argument somehow trumped its admission, USAA argues that, even if it had not raised the issue in the Bankruptcy Court, the Court must consider this argument because it is a pure question of law and failure to consider the argument would result in a miscarriage of justice. Doc. 13 at 5-6 (citing Access Now, Inc. v. SW. Airlines Co. ,
Those arguments are not convincing. Nevertheless, the Court will address the argument that the transfer did not occur on October 17.
For purposes of preference avoidance actions, state law determines when a security interest is perfected. Hedrick v. Novastar Mortg., Inc. (In re Hedrick) ,
In its brief, USAA argued that the Brashears had no rights in the property because of CB & T's security deed. Doc. 4 at 12 ("Under Georgia law, the Debtors did not acquire rights in the property until CB & T cancelled its security deed."). At oral argument, USAA backed off that specious argument. Doc. 15 at 5:15-16:10. USAA now appropriately admits that the Brashears had some rights in the property that could be transferred even if they did not have "the full bucket of rights."
The Court points out that, even accepting USAA's strained interpretation of the Security Instrument and its argument that the transfer did not become effective until the Brashears could transfer the "full bucket of rights," it could be argued the transfer became effective, and the intention of the parties was carried out, when USAA extinguished the Brashears' debt on August 31, 2016. See Coleman Road Ass., Ltd. v. Culpepper ,
"Traditional contract-interpretation principles make contract interpretation a question of law, decided by reading the words of a contract in the context of the entire contract and construing the contract to effectuate the parties' intent." Feaz v. Wells Fargo Bank, N.A. ,
The Security Instrument states that it "shall be governed by federal law and the law of the jurisdiction in which the Property is located." Doc. 4-1 at 73.
MERS refers to Mortgage Electronic Registration Systems, Inc. Doc. 4-1 at 65. MERS acted as the nominee for USAA and is the grantee under the Security Instrument.
In its reply to USAA's summary judgment response, the Trustee stated, concerning USAA's § 547(c)(1) argument, that "the only issue to be decided in this case is whether the 52-day delay is in fact a substantially contemporaneous exchange within the meaning of [§] 547(c)(1)(b)." Doc. 4-1 at 144-145 (quotation marks omitted). And the Bankruptcy Court "assum[ed] that [USAA] ha[d] met its burden with regard to element one." Doc. 4-1 at 158.
Loll claimed to have read USAA's response to the motion for summary judgment and to have "personal knowledge of the procedures utilized by Nationstar in making, receiving, and maintaining records in the regular course of Nationstar's business." Doc. 4-1 at 96. But Loll, whose name and title were stamped into blanks on his affidavit, did not claim to have personal knowledge of the refinancing of the Brashears' property. See id. at 96-98. Given that Loll claims only to be a records custodian, he does not appear to have sufficient knowledge to support his testimony that the "delay in perfecting the security interest was not intended by USAA and was not improperly motivated." Id. at 98. Indeed, at oral argument, USAA agreed with the Court's statement that the "fill-in-the-blank affiant ... culled some information from the documents, but other than that, the affidavit doesn't tell us anything about the cause of the delay." Doc. 15 at 12:10-19.
But even so, viewed in the light most favorable to USAA, the Court agrees with the Bankruptcy Court that Loll's affidavit is evidence that the delay was not improperly motivated or intentional. The Bankruptcy Court, based on this evidence, found that USAA had established the delay was not improperly motivated or intentional. Relying on Hedrick , USAA argues that the Bankruptcy Court gave too little weight to this determination because, according to USAA, whether the delay was intentional is the "most important fact" in the analysis. Doc. 4 at 17. However, as the Bankruptcy Court pointed out, USAA's interpretation of Hedrick is too narrow. Doc. 4-1 at 161-62. Hedrick actually states "the most important fact may be whether the delay in perfecting the interest was intended by the creditor or resulted from its negligence. "
USAA has alluded, without supporting evidence, that the delay in perfection was based on CB & T's delay in cancelling its security deed. But USAA has offered no explanation, much less evidence, of how CB & T's delay in cancelling its security deed prevented USAA from perfecting its security interest.
Reference
- Full Case Name
- USAA FEDERAL SAVINGS BANK v. Camille HOPE, Chapter 13 Trustee
- Status
- Published