FINAL COPY 309 Ga. 654
S20Q0843. SYNOVUS BANK v. KELLEY.
MCMILLIAN, Justice.
The United States District Court for the Middle District of
Georgia has certified two questions to this Court regarding the
timing under Georgia law when a lien is created on the title of real
property as between a judgment creditor and a judgment debtor —
at the time the judgment is entered or at the time the writ of fieri
facias on that judgment is recorded. This timing makes a difference
under federal bankruptcy law because certain transfers of the
bankrupt debtor’s property may be avoided if they occur within 90
days of the filing of the bankruptcy petition. Asserting that there is
no clear, controlling precedent from this Court on this issue, the
district court has certified the following questions to this Court:
Whether as between a creditor, who obtains a judgment against a debtor’s real property, and the judgment debtor, OCGA § 9-12-80 creates a lien on the debtor’s real property or rather is a lien against the debtor’s real property created at the time of recordation pursuant to OCGA § 9-12-86. If such lien is created at the time of recordation, whether the effective date of creation of that lien relates back to the date of the judgment for purposes of establishing the date a creditor obtained a lien against the judgment debtor’s real property.
We conclude for the reasons stated below that under Georgia law, as
between the judgment creditor and judgment debtor, a lien on the
title to real property is not created until the judgment is recorded,
that the date of that lien is the date of recording, and the date of the
lien does not relate back to the date the judgment was entered.
The parties stipulated to the following facts. On December 7,
2016, Synovus obtained a judgment against Kenneth and Jan
Brownlee in an action filed in the Superior Court of Tift County,
which was styled “First Community Bank of Tifton, a division of
Synovus Bank [hereinafter ‘Synovus’], Plaintiff v. Banner Grain and
Peanut Company, Banner Hay Company, Inc., Kenneth Brownlee
a/k/a Kenny Brownlee, and Jan Brownlee, Defendants.” On
December 22, 2016, the Tift County Superior Court issued a writ of
fieri facias (the “Fi. Fa.”) on that judgment,1 and it was recorded on
1 The Fi. Fa. was issued in the amount of $11,379,007.39. the court’s General Execution Docket (“GED”). On January 3, 2017,
the Fi. Fa. was re-recorded on the Tift County GED to correct the
spelling of the Brownlees’ name by adding a handwritten “e” to the
end of their respective last names. On January 25, 2017, the Fi. Fa.
was recorded on the GED of the Superior Court of Worth County,
where the Brownlees also owned real property. On March 21, 2017,
Kenneth E. Brownlee and Janice J. Brownlee filed a voluntary
petition for Chapter 11 bankruptcy in the United States Bankruptcy
Court for the Middle District of Georgia. On March 7, 2018, the
Brownlees’ bankruptcy case was converted to a Chapter 7
proceeding.
The record shows that Walter W. Kelley was appointed as the
interim trustee for the Chapter 7 proceeding (the “Trustee”). On July
6, 2018, the Trustee filed an adversary proceeding asserting that the
recordings of the Fi. Fa. in Tift and Worth Counties “were transfers
of an interest in property of the Debtors by creation of a judicial lien
under 11 U.S.C. § 547” (“Section 547”) and seeking to avoid those
transfers under Section 547 (b) (4) because the transfers were made within 90 days of the Brownlees’ filing their bankruptcy proceeding.
Section 547 (b) (4) (A) provides that, with certain exceptions, a
bankruptcy trustee
may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property— . . . made . . . on or within 90 days before the date of the filing of the [bankruptcy] petition[.]
11 USC § 547 (b) (4) (A).
The Trustee moved for partial summary judgment under this
provision, and the same day, Synovus filed a motion for partial
summary judgment as to the Brownlees’ Tift County real property
(the “Property”), arguing that the transfer of interest in that
Property could not be avoided because the judgment against the
Brownlees, which the Trustee argued created the lien, was entered
on December 7, 2016, outside the 90-day lookback period under
Section 547 (b) (4). The bankruptcy court granted the Trustee’s
motion and denied Synovus’ motion, holding that “[u]nder Georgia
law, only recording a judgment creates a judicial lien on real property” and thus the transfer of interest in the Brownlees’ real
property occurred on the date the Fi. Fa. was recorded, not the date
the judgment was entered. In re Brownlee, 593 BR 916, 923 (IV)
(Bankr. M.D. Ga. 2018). Synovus appealed that ruling to the district
court, leading to the certified questions posed here.
1. Turning to the district court’s first question, we begin with
Section 547, which allows a trustee to avoid transfers of property
made on or within 90 days of the filing of the bankruptcy petition.
Section 547 provides that, with one exception not applicable here, a
transfer of an interest in real property is made “at the time such
transfer takes effect between the transferor and the transferee, if
such transfer is perfected at, or within 30 days after, such time[.]”
11 USC § 547 (e) (2) (A).2 Here, the parties do not dispute that the
2 However, where a transfer is perfected more than 30 days after the
transfer is made, Section 547 provides that the date of the transfer’s perfection is considered to be the date the transfer was made for purposes of determining if the trustee may avoid the transfer. 11 USC § 547 (e) (2) (B). See also OCGA § 9-12-82 (providing that when executions of judgment are entered on the GED more than 30 days after judgment, “the lien shall date from such entry”). Synovus filed the judgment lien in Worth County on January 25, 2017, more than 30 days after the December 7, 2016 judgment date. Synovus thus conceded in the district court that even under its interpretation of the law, the judgment lien on the Property was perfected when the Fi. Fa. was
recorded on the GED in Tift County on December 22, 2016,3 but they
disagree on whether the transfer of interest in the real property was
made as between the Brownlees and Synovus at the time the
judgment was entered or at the time the Fi. Fa. was recorded.
To answer that question, we begin with the statute most closely
on point. OCGA § 9-12-86 (b), provides that
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FINAL COPY 309 Ga. 654
S20Q0843. SYNOVUS BANK v. KELLEY.
MCMILLIAN, Justice.
The United States District Court for the Middle District of
Georgia has certified two questions to this Court regarding the
timing under Georgia law when a lien is created on the title of real
property as between a judgment creditor and a judgment debtor —
at the time the judgment is entered or at the time the writ of fieri
facias on that judgment is recorded. This timing makes a difference
under federal bankruptcy law because certain transfers of the
bankrupt debtor’s property may be avoided if they occur within 90
days of the filing of the bankruptcy petition. Asserting that there is
no clear, controlling precedent from this Court on this issue, the
district court has certified the following questions to this Court:
Whether as between a creditor, who obtains a judgment against a debtor’s real property, and the judgment debtor, OCGA § 9-12-80 creates a lien on the debtor’s real property or rather is a lien against the debtor’s real property created at the time of recordation pursuant to OCGA § 9-12-86. If such lien is created at the time of recordation, whether the effective date of creation of that lien relates back to the date of the judgment for purposes of establishing the date a creditor obtained a lien against the judgment debtor’s real property.
We conclude for the reasons stated below that under Georgia law, as
between the judgment creditor and judgment debtor, a lien on the
title to real property is not created until the judgment is recorded,
that the date of that lien is the date of recording, and the date of the
lien does not relate back to the date the judgment was entered.
The parties stipulated to the following facts. On December 7,
2016, Synovus obtained a judgment against Kenneth and Jan
Brownlee in an action filed in the Superior Court of Tift County,
which was styled “First Community Bank of Tifton, a division of
Synovus Bank [hereinafter ‘Synovus’], Plaintiff v. Banner Grain and
Peanut Company, Banner Hay Company, Inc., Kenneth Brownlee
a/k/a Kenny Brownlee, and Jan Brownlee, Defendants.” On
December 22, 2016, the Tift County Superior Court issued a writ of
fieri facias (the “Fi. Fa.”) on that judgment,1 and it was recorded on
1 The Fi. Fa. was issued in the amount of $11,379,007.39. the court’s General Execution Docket (“GED”). On January 3, 2017,
the Fi. Fa. was re-recorded on the Tift County GED to correct the
spelling of the Brownlees’ name by adding a handwritten “e” to the
end of their respective last names. On January 25, 2017, the Fi. Fa.
was recorded on the GED of the Superior Court of Worth County,
where the Brownlees also owned real property. On March 21, 2017,
Kenneth E. Brownlee and Janice J. Brownlee filed a voluntary
petition for Chapter 11 bankruptcy in the United States Bankruptcy
Court for the Middle District of Georgia. On March 7, 2018, the
Brownlees’ bankruptcy case was converted to a Chapter 7
proceeding.
The record shows that Walter W. Kelley was appointed as the
interim trustee for the Chapter 7 proceeding (the “Trustee”). On July
6, 2018, the Trustee filed an adversary proceeding asserting that the
recordings of the Fi. Fa. in Tift and Worth Counties “were transfers
of an interest in property of the Debtors by creation of a judicial lien
under 11 U.S.C. § 547” (“Section 547”) and seeking to avoid those
transfers under Section 547 (b) (4) because the transfers were made within 90 days of the Brownlees’ filing their bankruptcy proceeding.
Section 547 (b) (4) (A) provides that, with certain exceptions, a
bankruptcy trustee
may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property— . . . made . . . on or within 90 days before the date of the filing of the [bankruptcy] petition[.]
11 USC § 547 (b) (4) (A).
The Trustee moved for partial summary judgment under this
provision, and the same day, Synovus filed a motion for partial
summary judgment as to the Brownlees’ Tift County real property
(the “Property”), arguing that the transfer of interest in that
Property could not be avoided because the judgment against the
Brownlees, which the Trustee argued created the lien, was entered
on December 7, 2016, outside the 90-day lookback period under
Section 547 (b) (4). The bankruptcy court granted the Trustee’s
motion and denied Synovus’ motion, holding that “[u]nder Georgia
law, only recording a judgment creates a judicial lien on real property” and thus the transfer of interest in the Brownlees’ real
property occurred on the date the Fi. Fa. was recorded, not the date
the judgment was entered. In re Brownlee, 593 BR 916, 923 (IV)
(Bankr. M.D. Ga. 2018). Synovus appealed that ruling to the district
court, leading to the certified questions posed here.
1. Turning to the district court’s first question, we begin with
Section 547, which allows a trustee to avoid transfers of property
made on or within 90 days of the filing of the bankruptcy petition.
Section 547 provides that, with one exception not applicable here, a
transfer of an interest in real property is made “at the time such
transfer takes effect between the transferor and the transferee, if
such transfer is perfected at, or within 30 days after, such time[.]”
11 USC § 547 (e) (2) (A).2 Here, the parties do not dispute that the
2 However, where a transfer is perfected more than 30 days after the
transfer is made, Section 547 provides that the date of the transfer’s perfection is considered to be the date the transfer was made for purposes of determining if the trustee may avoid the transfer. 11 USC § 547 (e) (2) (B). See also OCGA § 9-12-82 (providing that when executions of judgment are entered on the GED more than 30 days after judgment, “the lien shall date from such entry”). Synovus filed the judgment lien in Worth County on January 25, 2017, more than 30 days after the December 7, 2016 judgment date. Synovus thus conceded in the district court that even under its interpretation of the law, the judgment lien on the Property was perfected when the Fi. Fa. was
recorded on the GED in Tift County on December 22, 2016,3 but they
disagree on whether the transfer of interest in the real property was
made as between the Brownlees and Synovus at the time the
judgment was entered or at the time the Fi. Fa. was recorded.
To answer that question, we begin with the statute most closely
on point. OCGA § 9-12-86 (b), provides that
[n]o judgment, decree, or order or any writ of fieri facias issued pursuant to any judgment, decree, or order of any superior court, city court, magistrate court, municipal court, or any federal court shall in any way affect or become a lien upon the title to real property until the judgment, decree, order, or writ of fieri facias is recorded
Worth County property was transferred within the 90-day lookback period and the transfer date did not relate back to the date of judgment; therefore, Synovus did not move for summary judgment on that property. 3 A transfer of real property is perfected for purposes of Section 547
“when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee[.]” 11 USC § 547 (e) (1) (A). See also OCGA § 9-12-82 (“As against bona fide purchasers for value without actual notice of a judgment . . . who have acquired a transfer or lien binding the defendant’s property, no money judgment obtained in any court of this state or federal court in this state outside the county of the defendant’s residence shall create a lien upon the property of the defendant located in any county other than that where obtained unless the execution issuing thereon is entered upon the general execution docket of the county of the defendant’s residence within 30 days from the date of the judgment.”). We do not address whether the recording of the Fi. Fa. constitutes a transfer under the terms of this provision. in the office of the clerk of the superior court of the county in which the real property is located and is entered in the indexes to the applicable records in the office of the clerk. ...
Synovus acknowledges OCGA § 9-12-86 but argues that statute
must be read in conjunction with OCGA § 9-12-80, which provides
that “[a]ll judgments obtained in the superior courts, magistrate
courts, or other courts of this state shall be of equal dignity and shall
bind all the property of the defendant in judgment, both real and
personal, from the date of such judgments except as otherwise
provided in this Code.” According to Synovus, under § 9-12-80,
judgments have effect from the date of judgment and bind the
property of the defendant from that time.
In considering these two statutes, we rely on the “well-settled
rule of statutory construction that a statute must be construed in
relation to other statutes, and all statutes dealing with the same
subject matter are construed together and harmonized wherever
possible so as to give effect to the legislative intent.” Hastings v.
Hastings, 291 Ga. 782, 784 (732 SE2d 272) (2012) (citation and punctuation omitted). See also Hartley v. Agnes Scott College, 295
Ga. 458, 462 (2) (b) (759 SE2d 857) (2014). Additionally, in reviewing
the statutes,
we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
Bishop v. Goins, 305 Ga. 310, 311 (824 SE2d 369) (2019) (citation
and punctuation omitted).
Applying these principles to the statutes at issue here, we
conclude that although § 9-12-80 sets out the general principle that
a judgment “bind[s]” all the judgment debtor’s property, “both real
and personal,” from the date it is entered, that general principle is
expressly limited by the phrase “except as otherwise provided in this
Code.” The statute itself does not explicate the manner in which a
judgment “bind[s]” the judgment debtor’s property, and the
exception language contemplates that other Code provisions may
also address the effect of a judgment on a debtor’s property. OCGA § 9-12-86 (b) directly addresses the effect of a judgment on a
judgment debtor’s real property when the judgment or writ of fieri
facias is properly recorded, thus creating an exception to § 9-12-80’s
general rule.
The text of § 9-12-86 (b) could not be plainer in defining when
a judgment lien is created on the title to real property, providing
that “[n]o judgment . . . of any superior court . . . shall in any way
affect or become a lien upon the title to real property until the
judgment . . . is recorded . . . in . . . the county in which the real
property is located[.]” (Emphasis supplied.) The phrase “in any way”
is broad enough to encompass not only the effect of a recorded lien
as to third parties, but also as to the parties to the judgment
underlying the lien. Accordingly, we hold that as between the
judgment creditor and the judgment debtor, no lien is created on the
title to the debtor’s real property until “the judgment, decree, order,
or writ of fieri facias” is properly recorded as required by § 9-12-86.
This reading applies the plain text of the statutes to give effect
to both. As we explained in Nat. Bank of Ga. v. Morris-Weathers Co., 248 Ga. 798, 800 (286 SE2d 17) (1982), although the provision
currently codified at OCGA § 9-12-86 (b)4
causes a judgment to have no effect as a lien on real estate during the period in which it is not recorded, it does not mean that the judgment does not exist. The period between the taking of the judgment and its recording is merely a period of dormancy. When the judgment is recorded as provided for in the code, the dormancy ends and the judgment becomes effective as a lien on real estate.
And although the judgment has no effect on real property during the
dormancy period, the judgment still binds the judgment debtor’s
property in other respects during that period. For example, where a
defendant appeals the judgment, the judgment remains binding on
the judgment debtor’s real and personal property to the extent that
it prevents the alienation of the property by the judgment debtor
from the time the judgment is signed through the pendency of the
appeal. See OCGA § 9-12-88.5 Also, OCGA § 9-12-86 by its plain
4 This provision was formerly codified at § 110-515 of the 1933 Georgia
Code. 5 OCGA § 9-12-88 provides:
In all cases in which a judgment is rendered and an appeal is entered from the judgment, the property of the defendant in terms does not apply to a judgment debtor’s personal property.
Synovus argues that OCGA § 9-12-86 should be read in context
with similar statutes to establish priority as between the judgment
creditor and bona fide purchasers for value and should not apply as
between the judgment creditor and debtor. However, we note that
the only statute that expressly addresses the validity of liens as
between the parties to a judgment provides that “[n]othing in Code
Sections 9-12-81 and 9-12-82 shall be construed to affect the validity
or force of any deed, mortgage, judgment, or other lien of any kind
as between the parties thereto.” OCGA § 9-12-85. OCGA §§ 9-12-81
and 9-12-82 address the requirement of recording the liens in order
to preserve the judgment creditor’s priority over third parties acting
in good faith and without notice and bona fide purchasers for value
without notice. Based on the plain language of the text, we conclude
that nothing in OCGA §§ 9-12-85, 9-12-81, or 9-12-82 limits the
judgment shall not be bound by the judgment except so far as to prevent the alienation by the defendant of his property between its signing and the signing of the judgment on the appeal, but the property shall be bound from the signing of the judgment on the appeal. application of § 9-12-86 to disputes between bona fide purchasers for
value and the judgment creditor.
2. Given our determination that the effective date of the lien is
the date it is recorded, we turn to the district court’s second question:
whether “the effective date of creation of that lien relates back to the
date of the judgment for purposes of establishing the date a creditor
obtained a lien against the judgment debtor’s real property.” We find
no support in the Georgia statutes or in the case law for such a
result.
Synovus points to our decision in Morris-Weathers to argue
that as between the parties to the judgment, the effective date
relates back to the date of judgment. That case involved the
competing claims of three judgment creditors, all of whom obtained
their judgments during the same term of court and all of whom
sought to recover excess proceeds from the sale of the judgment
debtor’s land. Morris-Weathers, 248 Ga. at 799. Under OCGA § 9-12-
87 (a), “[a]ll judgments signed on verdicts rendered at the same term of court shall be considered, held, and taken to be of equal date.”6
However, the Court of Appeals had held that in accordance with
what is now codified at OCGA § 9-12-86, “the priorities among
competing lienholders as to the real property in the present case
must be based upon the time and date of the recording[,]” and the
court determined priority among the three judgment creditors
accordingly. Morris-Weathers Co. v. Decatur Fed. S & L Assn., 158
Ga. App. 177, 178 (279 SE2d 482) (1981).
On certiorari review of that decision, the single issue before
this Court was “whether the Court of Appeals erred in holding that
[§ 9-12-86] makes the date of recordation of a judgment on the
general execution docket the single date and sole criterion for
measuring priorities between competing judgment lien holders and
the sole criterion for determining the effect of a judgment on the title
to real property.” Morris-Weathers, 248 Ga. at 798-99. After first
concluding that no lien on real property was created until the deed
6 At the time that Morris-Weathers was decided, this provision was codified at Code 1933 § 110-505. Although renumbered, the statutory text has remained unchanged. was recorded, we held “that for priority purposes, the judgment then
relates back to the date of its rendition and shall be considered of
equal date with other perfected liens arising from judgments on
verdicts rendered at the same term of court.” Id. at 800. That holding
is limited by the facts of the case and the express qualifier “for
priority purposes,” and we interpret it to mean that although the
liens were not created until they were recorded, the Court would
look back to the judgment dates to determine priority among the
competing same-term judgment holders under § 9-12-87. As we
noted: “To hold otherwise would reinstitute the race to the
courthouse by competing judgment creditors.” Id. Therefore, we do
not read Morris-Weathers as holding that as between the judgment
creditor and debtor, the date of the lien relates back to the date of
judgment.7
7 Although Synovus also cites Roberson v. Roberson, 199 Ga. 627, 630 (3)
(34 SE2d 836) (1945), and Crosby v. King Hardware Co., 109 Ga. 452, 453-54 (6) (34 SE 606) (1899), which hold that a judgment becomes binding as between the parties on the date it is entered, those cases were decided before the legislature enacted what is now OCGA § 9-12-86 in 1958 to establish that a lien on the title to real property is created at the time of recordation and has no effect on the property’s title before that time. See Ga. L. 1958, p. 379, §§ 1- 5. Accordingly, those cases are not applicable to our analysis. Certified questions answered. All the Justices concur.
DECIDED AUGUST 24, 2020.
Certified question from the United States District Court for
the Middle District of Georgia.
Moore, Clarke, Duvall & Rodgers, David A. Garland, Stephan
A. Ray, for appellant.
Kelley Lovett Blakey & Sanders, Walter W. Kelley, Thomas D.
Lovett, Thomas D. Lovett III, for appellee.