James Daniel Wisner v. The Piedmont Bank

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10073
____________________
IN RE:
JAMES DANIEL WISNER,
Debtor.
___________________________
JAMES DANIEL WISNER,
Plaintiff-Appellee,
versus
THE PIEDMONT BANK,
Defendant-Appellant.
____________________
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2 Opinion of the Court 22-10073
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03782-ELR
____________________
Before W ILSON, J ILL PRYOR , and H ULL , Circuit Judges.
PER CURIAM:
This case arises from an adversary bankruptcy proceeding
brought by Piedmont Bank against James Wisner. Piedmont al-
leged that Wisner’s debt to Piedmont was non-dischargeable in
bankruptcy under 11 U.S.C. § 523(a)(6). The district court con-
cluded that Piedmont lacked a sufficient interest in the injured
property to support a non-dischargeability claim. This appeal re-
quires us to consider whether, under Georgia law, the initiation
and service of an action seeking to levy on corporate stock—with-
out actual seizure of the stock certificate—establishes an interest in
the stock sufficient to support a non-dischargeability claim under
§ 523(a)(6). After careful review, and with the benefit of oral argu-
ment, we conclude that it does not. We affirm in part, vacate in
part, and remand for further factual findings.
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22-10073 Opinion of the Court 3
I. BACKGROUND1
In 1987, Wisner acquired 90 percent of the outstanding
shares of stock in Atlanta Arms & Ammo, Inc. (“AA&A”). The
stock shares were evidenced by a stock certificate.
Decades later, Wisner guaranteed a debt owed to Piedmont
by a third party. When the third party defaulted and Wisner failed
to perform under the guarantee, Piedmont sued Wisner in Georgia
state court for breach of contract to enforce the guarantee. In Au-
gust 2013, the Superior Court of Newton County entered a final
judgment against Wisner and other defendants for the outstanding
debt (the “Judgment”).
Following entry of the Judgment, Piedmont filed a collateral
action in state court seeking to levy on Wisner’s shares in AA&A.
Specifically, Piedmont sought “charging orders against Wisner’s fi-
nancial interests in” AA&A and “an order compelling Wisner to
turn over and assign all shares of all corporations that he own[ed]
to the Court to be sold at auction.” Doc. 6-1 at 11.2 Wisner was
served with the petition and summons in the levy action in October
2013. Despite filing an action intended to do so, Piedmont never
levied on the stock.
1 Because we write for the parties, we assume their familiarity with the facts
and issues.
2 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-10073
After receiving the summons in the collateral action, Wisner
and AA&A entered into an agreement to sell many of AA&A’s
physical assets to another company, Hairy & Baxter, LLC. Central
to this appeal, the parties dispute when the sale of assets was con-
summated. Wisner maintains that it occurred on February 6, 2014,
whereas Piedmont argues it was not completed until April 1, 2014.
The agreement had a closing date of April 1, 2014, but it specified
that “[n]otwithstanding the foregoing, the purchase and sale of the
Acquired Assets under this Agreement shall be deemed to have
taken place on the Effective Date” of February 6, 2014. Doc. 5-12
at 47.
On February 27, 2014, Piedmont filed a motion for injunc-
tive relief and expedited hearing in the pending levy action, re-
questing the court’s assistance in reaching Wisner’s AA&A stock.
Piedmont also asked the court to enjoin Wisner from transferring
or encumbering the stock until the matter was resolved. The next
day, the state superior court issued an order enjoining Wisner from
“transferring, encumbering, selling, concealing, assigning, with-
drawing, conveying, gifting, wasting, or otherwise disposing in any
way, any of the certificated securities in his possession or control,
related to or held in [AA&A]” (the “Injunction”). Doc. 5-22 at 39.
In the same order, the superior court scheduled a hearing on Pied-
mont’s motion for March 13, 2014, to resolve Piedmont’s request
for a court order requiring Wisner to relinquish his shares in
AA&A. The court ordered Wisner to appear at the hearing and be
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22-10073 Opinion of the Court 5
prepared to turn over the AA&A stock certificate to Piedmont or
to the court pending final disposition of the motion.
The hearing never took place, however. Before the hearing
was held, Wisner agreed to surrender the stock certificate to Pied-
mont, and Piedmont had the hearing removed from the court cal-
endar. A senior vice president for Piedmont testified that the bank
cancelled the hearing with the intention that the stock would be
held by Piedmont in pledge against the Judgment. He further testi-
fied that had Piedmont known about the pending sale to Hairy &
Baxter, the bank would not have agreed to cancel the hearing. Wis-
ner turned over the AA&A stock certificate to Piedmont on March
14, 2014.
When Piedmont learned of the sale of AA&A’s assets to
Hairy & Baxter, it filed a motion in the pending levy action to hold
Wisner in contempt for violating the Injunction. In response, Wis-
ner argued that he was not in contempt of the Injunction because
the sale to Hairy & Baxter had concluded on February 6, before the
Injunction’s entry. The court nonetheless held Wisner in contempt
and then entered the parties’ consent order to resolve the motion
for contempt. The consent order required Wisner to make a lump
sum payment to Piedmont as well as ongoing monthly payments
to satisfy his debt. Wisner paid the lump sum and the monthly pay-
ments until he filed for Chapter 7 bankruptcy about two years later.
In bankruptcy court, Piedmont brought an adversary pro-
ceeding against Wisner, alleging that his debt to Piedmont was
non-dischargeable under 11 U.S.C. § 523(a)(6), which excepts from
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6 Opinion of the Court 22-10073
discharge “any debt . . . for willful and malicious injury by the
debtor to . . . the property of another entity.” Specifically, Pied-
mont alleged that Wisner had willfully and maliciously injured the
AA&A stock by “transferring and allegedly selling all of [AA&A’s]
assets to Hairy & Baxter, LLC.”3 Doc. 8-1 at 8.
Wisner moved for summary judgment in the adversary pro-
ceeding, arguing that Piedmont lacked a sufficient property interest
in AA&A at the time of the alleged injury to support a § 523(a)(6)
non-dischargeability claim. The bankruptcy court denied summary
judgment, explaining that although Piedmont was not the owner
of the AA&A stock, it had a sufficient property interest:
[C]onsidering the particular circumstances of this
case, where a collateral proceeding is pending and
where Piedmont ha[d] possession of the stock with
[Wisner’s] consent, which was given in the face of an
order in the AA&A Action that evidenced the intent
of the Newton County Court to protect Piedmont’s
ability to levy on the stock, there exists a sufficient in-
terest to satisfy the interest requirement under
§ 523(a)(6).
Doc. 5-26 at 12. Thus, the bankruptcy court concluded, “Pied-
mont’s judgment lien attached to the stock upon service of the
summons in the AA&A Action and Piedmont ha[d] an interest in
3 Piedmont also alleged that Wisner’s debt was non-dischargeable under 11
U.S.C. § 523(a)(2)(A) and 523(a)(2)(B). The bankruptcy court granted Wisner’s
motion for summary judgment on these claims.
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22-10073 Opinion of the Court 7
the stock.”
Id. The court scheduled a trial to determine whether
Piedmont could establish the remaining elements of its § 523(a)(6)
claim: namely, whether the sale of AA&A’s assets amounted to
willful and malicious injury to Piedmont’s interest in the AA&A
stock.
After a two-day trial, the bankruptcy court issued an oral rul-
ing. In its oral ruling, the bankruptcy court identified the issue at
trial as whether Wisner “had willfully and maliciously injured the
bank’s interest in the stock of [AA&A] . . . by his conduct in selling
the assets of [AA&A] prior to the hearing in the state court sched-
uled for March 13th, 2014.” Doc. 7-15 at 6. The bankruptcy court
concluded that “any debt that the Newton County Court deter-
mined is attributable to Mr. Wisner’s actions in selling [AA&A] and
taking distributions of the remaining value of the company is non-
dischargeable, pursuant to Section 523(a)(6).”
Id. at 21.
Regarding the timing of the asset sale, the bankruptcy court
found that Hairy & Baxter paid for the equipment and inventory
on the asset sale agreement’s effective date—February 6th, 2014—
and received a bill of sale to that effect. But despite the February 6
effective date and consummated sale of equipment and inventory
on that date, the bankruptcy court stated that “the sale was con-
summated on February 26, 2014.” Doc. 7-15 at 19. The court fur-
ther found that when the bank removed the March 13 hearing from
the state court calendar, “Mr. Wisner had already consummated
the sale and admitted that [AA&A] had become worthless through
the sale and distributions taken.”
Id. at 20. The bankruptcy court
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8 Opinion of the Court 22-10073
did not address the significance of the sale agreement’s closing date
of April 1. Nor did the bankruptcy court explicitly distinguish be-
tween allegedly injurious acts that occurred before or after the
turnover of the stock certificate on March 14.
Wisner appealed the bankruptcy court’s ruling to the district
court. On appeal, Wisner reiterated his argument that Piedmont
lacked a sufficient property interest in the AA&A stock to support
a § 523(a)(6) claim. The district court agreed, concluding that a
judgment lien did not attach to the AA&A stock upon the filing and
service of the levy action. The district court further concluded that,
regardless of whether Piedmont gained a property interest after the
turnover of the stock certificate on March 14, the alleged injurious
acts, including the sale of assets to Hairy & Baxter, occurred before
the turnover. The district court noted that it was unclear whether
the bankruptcy court found that the asset sale took place on Febru-
ary 6 or February 26. “Nonetheless,” the district court concluded,
“it is clear that the Bankruptcy Court found that the Sale Agree-
ment was consummated during February 2014, before Wisner
turned over the AA&A stock certificate to Piedmont.” Doc. 17 at
27. Thus, Piedmont could not establish a § 523(a)(6) claim. Pied-
mont timely appealed.
II. STANDARD OF REVIEW
We review
de novo conclusions of law, whether by the
bankruptcy court or the district court.
In re Jennings, 670 F.3d 1329,
1332 (11th Cir. 2012). We review the bankruptcy court’s factual
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22-10073 Opinion of the Court 9
findings for clear error.
Id. “If the bankruptcy court is silent or am-
biguous as to an outcome determinative factual question, the case
must be remanded to the bankruptcy court for the necessary fac-
tual findings.”
In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir. 1993).
III. DISCUSSION
A discharge in bankruptcy “does not discharge an individual
debtor from any debt . . . for willful and malicious injury by the
debtor to another entity or to the property of another entity.” 11
U.S.C. § 523(a)(6). The issue on appeal is whether Piedmont had a
sufficient interest in the AA&A stock to assert a § 523(a)(6) non-
dischargeability claim.4 Piedmont makes two arguments on appeal
for why it had such an interest. First, Piedmont contends that it
acquired a sufficient property interest in the AA&A stock when it
initiated and served the collateral action seeking to levy on the
stock. Second, Piedmont argues that it gained a property interest
in the stock when Wisner voluntarily turned over the stock certifi-
cate and that the sale of AA&A’s assets took place after it had
gained this interest. We address each argument in turn.
4 On appeal to the district court, Wisner argued for the first time that his ac-
tions in selling AA&A’s assets did not create a debt to Piedmont under
§ 523(a)(6). The district court properly determined Wisner had waived this is-
sue, and thus we do not address it.
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10 Opinion of the Court 22-10073
A. The Initiation and Service of the Levy Action Did
Not Give Piedmont a Sufficient Property Interest
in the AA&A Stock.
Piedmont contends that the district court erred by conclud-
ing that the initiation and service of the levy action upon Wisner
did not give Piedmont a sufficient interest in the AA&A stock to
support a § 523(a)(6) claim. To determine whether the initiation
and service of the levy action vested Piedmont with a sufficient
property interest in the stock, we look to Georgia state law.
See
Butner v. United States, 440 U.S. 48, 55 (1979) (“Property interests
are created and defined by state law.”).
Under Georgia law, judgments “bind all the property of the
defendant in judgment, both real and personal, from the date of
such judgments except as otherwise provided” by statute.
O.C.G.A. § 9-12-80. Notably, a judgment lien does not automati-
cally attach to a chose in action such as the corporate stock at issue
here unless specifically provided by statute.
See O.C.G.A. § 9-13-57
(“Choses in action are not liable to be seized and sold under execu-
tion, unless made so specially by statute.”);
Fourth Nat. Bank of
Macon v. Swift & Co., 127 S.E. 729, 731 (Ga. 1925) (noting that cor-
porate stock is a chose in action). Rather, “to reach the property of
the debtor in such choses in action, some other additional proceed-
ing is necessary to fix the lien of such judgments.”
Fid. & Deposit
Co. of Md. v. Exch. Bank of Macon, 28 S.E. 393, 395 (Ga. 1897). As
the Georgia Supreme Court has explained, the property “must be
reached either by process of garnishment, or by some collateral
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22-10073 Opinion of the Court 11
proceeding instituted for the purpose of impounding it so that it
can be applied in satisfaction of the judgment.”
Id. Significantly,
“[u]ntil it has been so seized by the courts for the purpose of appro-
priating it to the payment of the judgment, it is still subject to the
dominion and control of the debtor.”
Id.
Piedmont concedes that it never levied on the stock but ar-
gues that the initiation of the levy action targeting the AA&A stock
vested it with a sufficient interest. However, “[t]he interest of a
debtor in a certificated security may be reached only by actual sei-
zure of the security certificate by the officer making the attachment
or levy.” O.C.G.A. § 11-8-112. Thus, as the district court explained,
“a judgment lien on corporate shares in the possession of a debtor
can only attach through the
actual seizure of a stock certificate by
a levying officer.” Doc. 17 at 20 (emphasis in original).
Piedmont contends that this reading of Georgia law errone-
ously conflates possession with the attachment of an interest. It fur-
ther argues that nothing in Georgia law forecloses the possibility
that a judgment lien may attach
before a debtor is divested of pos-
session through actual seizure. We reject its contention. As noted
above, Georgia law is clear that corporate stock is a chose in action,
and judgments do not automatically attach to choses in action.
See
O.C.G.A. § 9-13-57. “Choses in action are not liable to be seized and
sold under execution, unless made so specially by statute.”
Id. The
absence of law
prohibiting the attachment of a judgment lien based
solely on the initiation of an action seeking to levy on the stock
therefore cannot support Piedmont’s position. The only
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12 Opinion of the Court 22-10073
mechanism in Georgia law for the seizure of and levy on stock is
O.C.G.A. § 11-8-112, which provides that in these circumstances5
the debtor’s interest in a certificated security may only be reached
by actual seizure of the security certificate.
See id. § 11-8-112(a).
Piedmont further argues it was asserting its present interest
in the AA&A stock by seeking judicial aid to which it is entitled
under O.C.G.A. § 11-8-112(e). Georgia law provides that “[a] cred-
itor whose debtor is the owner of a certificated security . . . is enti-
tled to aid from a court of competent jurisdiction . . . in reaching
the certificated security.”
Id. § 11-8-112(e). Although this language
entitles a creditor to judicial aid “in reaching the certificated secu-
rity,” it does not establish that the interest
is reached by the request
for aid. The request for judicial aid, by itself, does not give the cred-
itor an interest in the certificated security necessary to support a §
523(a)(6) claim. Thus, the district court correctly concluded that
5 The statute provides exceptions to the actual-seizure requirement where the
security certificate has been surrendered to the issuer or is in the possession of
a secured party.
See O.C.G.A. § 11-8-112(a), (d). In such circumstances, the
debtor’s interest in the certificated security may be reached by legal process
upon the issuer or the secured party in possession of the security certificate.
See id. The existence of these exceptions underscores that the initiation and
service of the levy action here was insufficient to reach the AA&A stock. In
the exceptions, the Georgia legislature contemplated scenarios where a
debtor’s interest in a certificated security may be reached without actual sei-
zure of the security certificate, but the legislature declined to provide for an
exception in the circumstances present here. Actual seizure is required unless
the certificate has been surrendered to the issuer or is in the possession of a
secured party.
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22-10073 Opinion of the Court 13
Piedmont did not have a sufficient property interest in the AA&A
stock based on the initiation and service of the collateral action
seeking to levy on the stock.
B. Questions of Fact Remain as to Whether Pied-
mont Had a Security Interest in the AA&A Stock
and Whether the Sale of AA&A Assets Occurred
After Piedmont Acquired that Interest.
Alternatively, Piedmont argues that it obtained either an
ownership interest or a security interest in the AA&A stock when
Wisner turned over the stock certificate on March 14. It argues fur-
ther that Wisner’s actions after he turned over the stock certificate
injured this interest. Specifically, it contends that the sale of
AA&A’s assets to Hairy & Baxter was not consummated until the
closing date of April 1, after Piedmont had gained a security interest
in the stock by obtaining possession of the certificate.
The bankruptcy court did not determine whether Piedmont
acquired a sufficient interest in the AA&A stock when the stock
certificate was turned over because the court concluded instead
that Piedmont gained an interest in the stock upon the initiation of
the levy action. For the same reason, the bankruptcy court made
no factual findings concerning the timing of the asset sale to Hairy
& Baxter. Because the bankruptcy court’s findings are ambiguous
on these outcome-determinative factual questions, we must re-
mand.
See In re JLJ Inc., 988 F.2d at 1116.
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14 Opinion of the Court 22-10073
A security interest in a certificated security attaches and be-
comes enforceable when (1) “value has been given[,] (2) [t]he
debtor has rights in the collateral or the power to transfer rights in
the collateral to a third party[,]” and (3) “the security certificate has
been delivered to the secured party . . . pursuant to the debtor’s
security agreement.” O.C.G.A. § 11-9-203(b)(1)–(3).
Here, the latter two elements are satisfied. First, it is undis-
puted that Wisner owned the stock and had the power to transfer
rights in the stock to Piedmont. Second, as the bankruptcy court
concluded, Wisner’s turnover of the stock certificate was voluntary
and the product of a consensual agreement between the parties.
See Barton v. Chem. Bank, 577 F.2d 1329, 1333–34 (5th Cir. 1978)6
(concluding that a valid oral security agreement existed where the
secured party had possession of the collateral and circumstances
supported that the asset was held in pledge). After obtaining the
Judgment against Wisner, Piedmont brought a collateral proceed-
ing seeking to levy on the AA&A stock. Wisner understood that
Piedmont was trying to acquire his shares in AA&A through the
pending levy action. The order of the superior court setting a hear-
ing on Piedmont’s motion for an injunction was intended to pro-
tect Piedmont’s ability to levy on the stock. As the bankruptcy
court explained, under these circumstances “the only conceivable
6 Decisions of the former Fifth Circuit handed down prior to October 1, 1981,
are binding on this Court.
See Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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22-10073 Opinion of the Court 15
purpose for transferring the stock was to provide security for satis-
faction of the judgment.” Doc. 5-26 at 10 (alteration adopted) (in-
ternal quotation marks omitted). Thus, the court concluded, Wis-
ner agreed to “turn[]the stock over to Piedmont . . . with the likely
exchange being cancellation of the March 13 hearing.”
Id.
Although the evidence suggested that Wisner turned the
stock over to Piedmont in exchange for cancellation of the impend-
ing hearing, and the bankruptcy court characterized this scenario
as “likely,” the court never made explicit factual findings to that
effect. Despite having concluded in its order denying Wisner’s mo-
tion for summary judgment that “a question of fact exists as to
whether Piedmont holds a consensual lien in the stock,”
id. at 11,
the court never resolved the underlying fact question whether
value had been given to Wisner in exchange for turning over the
stock certificate. Therefore, an issue of fact remains as to whether
Piedmont acquired a security interest in the stock after Wisner sur-
rendered the certificate to Piedmont on March 14.7
7 Piedmont also argues that it obtained an interest as a “purchaser” of the stock
under O.C.G.A. § 11-8-104(a)(1). Georgia law defines “purchase” with refer-
ence to the creation of an interest in the property.
See O.C.G.A. § 11-1-201(29)
(defining “purchase” as “taking by sale, discount, negotiation, mortgage,
pledge, lien, security interest, issue or reissue, gift, or any other voluntary
transaction creating an interest in property”). The bankruptcy court deter-
mined that “Piedmont may be a purchaser . . . if it can establish at trial that
value was given in exchange for possession of the stock certificate.” Doc. 5-26
at 11. As discussed above, the bankruptcy court did not resolve the factual
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16 Opinion of the Court 22-10073
Assuming that Piedmont acquired a property interest in the
AA&A stock after gaining possession of the stock certificate, it must
also show that the stock was injured after Piedmont acquired that
interest. This question about the timing of the injury turns on
whether the sale of AA&A’s assets to Hairy & Baxter was consum-
mated on February 6, as Wisner contends, or on April 1, as Pied-
mont contends. The district court concluded that it did not matter
whether Piedmont gained an interest in the AA&A stock after ac-
quiring the stock certificate in March because the bankruptcy court
found that the sale of AA&A’s assets to Hairy & Baxter was con-
summated in February 2014. Because the sale—and thus the injury
to the AA&A stock—took place before Piedmont acquired the
stock certificate, the district court determined that Piedmont
lacked a sufficient interest in the AA&A stock to support a non-dis-
chargeability claim at the time of the alleged injury. Thus, the dis-
trict court concluded, remand to the bankruptcy court for factual
findings was unnecessary.
We disagree. Because the bankruptcy court concluded that
Piedmont had a sufficient property interest in the AA&A stock after
its initiation of the levy action in October 2013, the court had no
reason to—and did not—make factual findings distinguishing be-
tween conduct that occurred before or after the surrender of the
question of whether value had been given to Wisner in exchange for the cer-
tificate.
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22-10073 Opinion of the Court 17
stock certificate on March 14.8 Although the bankruptcy court’s
oral ruling suggests that the sale was completed in February 2014
before the surrender of the stock certificate, the timing of the sale
was not directly at issue. At best, the bankruptcy court’s factual
findings are ambiguous as to when the asset sale to Hairy & Baxter
took place. If the sale occurred after Piedmont gained possession of
the stock certificate, the injury to the AA&A stock caused by the
sale may support a non-dischargeability claim if Piedmont had a
property interest in the stock at that time. Accordingly, we remand
to the district court with instructions to remand to the bankruptcy
court for further findings of fact.
IV. CONCLUSION
For the above reasons, we affirm in part, vacate in part, and
remand with instructions to remand to the bankruptcy court. On
remand, the bankruptcy court should consider (1) whether Pied-
mont gained a property interest in the stock after Wisner surren-
dered the stock certificate and (2) if so, whether the asset sale injur-
ing the AA&A stock occurred after Piedmont acquired that inter-
est.
AFFIRMED in part, VACATED in part, and REMANDED.
8 Piedmont asserts that additional injurious transactions occurred after it
gained possession of the stock certificate on March 14. However, these trans-
actions were independent of the asset sale agreement with Hairy & Baxter,
which formed the basis for Piedmont’s § 523(a)(6) non-dischargeability claim.
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