Wolverine Flagship Fund Trading Limited Vs.

134 A.3d 992, 444 N.J. Super. 530

• Court: New Jersey Superior Court Appellate Division
• Decided: March 11, 2016
• Docket: A-0654-14T1
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0654-14T1

WOLVERINE FLAGSHIP FUND TRADING LIMITED, WHITEBOX CONCENTRATED CONVERTIBLE ARBITRAGE PARTNERS, APPROVED FOR PUBLICATION L.P., WHITEBOX MULTI-STRATEGY PARTNERS, L.P. and PANDORA March 11, 2016 SELECT PARTNERS, L.P., APPELLATE DIVISION

Plaintiffs-Appellants,

v.

AMERICAN ORIENTAL BIOENGINEERING, INC., AOXING PHARMACEUTICAL COMPANY, INC. and OLDE MONMOUTH STOCK TRANSFER CO., INC.,

Defendants-Respondents. ________________________________________________

Argued November 4, 2015 – Decided March 11, 2016

Before Judges Yannotti, St. John and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-275-13.

Michael T. Hensley argued the cause for appellants (Bressler, Amery & Ross, attorneys; Mr. Hensley and Lauren Fenton- Valdivia, on the brief).

Respondents have not filed a brief. The opinion of the court was delivered by

ST. JOHN, J.A.D.

Plaintiffs, Wolverine Flagship Fund Trading Limited, a

Cayman Islands corporation, Whitebox Concentrated Convertible

Arbitrage Partners, L.P., a British Virgin Islands Limited

Partnership, Whitebox Multi-Strategy Partners, L.P., a British

Virgin Islands Limited Partnership, and Pandora Select Partners,

L.P., a British Virgin Islands Limited Partnership (collectively

plaintiffs), appeal from the Chancery Division's order denying

injunctive relief. We affirm.

I.

Plaintiffs contend that they collectively own $19,210,000

in outstanding principal amount of 5.00% convertible senior

notes (the notes), issued by defendant American Oriental

Bioengineering, Inc. (AOB), a Nevada corporation. The notes

were issued pursuant to an Indenture between AOB and Wells Fargo

Bank, National Association as trustee, dated July 15, 2008 (the

Indenture). Pursuant to the Indenture, payment of the notes was

an unconditional obligation of AOB, and the notes would mature

in 2015. However, the notes were not secured by any collateral

and Section 11.11 of the Indenture provided, "[n]othing in this

Indenture or in the [notes], expressed or implied, shall be

construed to constitute a security interest under the Uniform

2 A-0654-14T1 Commercial code or similar legislation . . . in any

jurisdiction."

In 2013, plaintiffs brought suit in the Law Division,

Docket No. ESX-L-275-13, against AOB asserting that it was in

default under the Indenture for non-payment of the notes and

other covenant defaults. AOB did not defend that action, and on

August 13, 2013, a $21,096,347.81 default final judgment was

entered against it. Following entry of the judgment, plaintiffs

discovered that the only significant asset held by AOB was a

33.7% interest in Aoxing Pharmaceutical Company, Inc. (Aoxing)

held in certificate form. Aoxing is a Florida corporation with

its headquarters in Jersey City. Olde Monmouth Stock Transfer

Co., Inc. is the stock transfer agent for Aoxing.

On December 3, 2013, plaintiffs filed a complaint in the

Chancery Division against AOB, Aoxing, and Olde Monmouth. The

complaint sought an injunction ordering Olde Monmouth and Aoxing

to cancel the certificated shares held by AOB, reissue them in

defendant's name, and deliver them into the actual possession of

the sheriff for execution. Plaintiffs allege that the

certificates are being held in the People's Republic of China.

Neither AOB nor Aoxing defended the suit. The only action

taken by Olde Monmouth was its accession to a consent order

3 A-0654-14T1 enjoining it from "transferring, canceling, amending or in any

way disposing of the Shares" until otherwise ordered.

On August 22, 2014, the judge issued an order denying

plaintiffs' requested injunction, but reaffirming the earlier

consent order and order of default. It is from that August 22,

2014 order that plaintiffs appeal.

II.

On appeal, plaintiffs argue that the Chancery Division

incorrectly interpreted Uniform Commercial Code (UCC) 8-112, as

adopted by this state at N.J.S.A. 12A:8-112, to require actual

seizure of certificated shares owned by a debtor before a

creditor can reach the debtor's interest in those certificated

shares. Having reviewed the arguments in light of the

applicable law, we affirm the order of the Chancery Division.

A trial court's interpretation of a pertinent statute

concerns questions of law. See Chase Bank USA, N.A. v.

Staffenberg, 419 N.J. Super. 386, 396 (App. Div. 2011). We

therefore review such a determination de novo. See, e.g.,

Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

In 1997, New Jersey adopted the UCC rules concerning the

process by which a creditor can reach certificated securities

4 A-0654-14T1 owned by a debtor. See L. 1997, c. 252. UCC 8-112 was codified

as N.J.S.A. 12A:8-112, which provides in pertinent part:

a. The interest of a debtor in a certificated security may be reached by a creditor only by actual seizure of the security certificate by the officer making the attachment or levy, except as otherwise provided in subsection d. of this section. However, a certificated security for which the certificate has been surrendered to the issuer may be reached by a creditor by legal process upon the issuer.

. . . .

d. The interest of a debtor in a certificated security for which the certificate is in the possession of a secured party, or in an uncertificated security registered in the name of a secured party, or a security entitlement maintained in the name of a secured party, may be reached by a creditor by legal process upon the secured party.

e. A creditor whose debtor is the owner of a certificated security, uncertificated security, or security entitlement is entitled to aid from a court of competent jurisdiction, by injunction or otherwise, in reaching the certificated security, uncertificated security, or security entitlement or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by other legal process.

"Our primary goal in interpreting a statute is to determine

the Legislature's intent." In re Raymour and Flanigan

Furniture, 405 N.J. Super. 367, 381 (App. Div. 2009).

Generally, the language of the statute is the best indicator of

5 A-0654-14T1 the legislature's intent. See DiProspero v. Penn, 183 N.J. 477,

492 (2005). "We ascribe to the statutory words their ordinary

meaning and significance, and read them in context with related

provisions so as to give sense to the legislation as a whole."

Ibid. (citations omitted). We only look to extrinsic evidence

"if there is ambiguity in the statutory language that leads to

more than one plausible interpretation." Ibid.

Subsection (a) of N.J.S.A. 12A:8-112 does not, on its face,

present any ambiguities. The subsection consists of a general

rule and two exceptions. The general rule is that "a

certificated security may be reached by a creditor only by

actual seizure of the security certificate." N.J.S.A. 12A:8-

112(a). The two exceptions apply where the certificate has been

surrendered by the debtor to the issuer, or "as otherwise

provided in subsection d." Ibid.

Common sense dictates that the Legislature's use of the

restrictive term "only" in stating the general rule, followed by

the naming of two exceptions, implies that the two exceptions

named are the only exceptions applicable to the subsection.

This interpretation is also consistent with the maxim expressio

unius est exclusio alterius, which stands for the proposition

that explicitly naming one or more things implies the exclusion

6 A-0654-14T1 of all other things. See Evans v. Atlantic City Bd. of Educ.,

404 N.J. Super. 87, 92 (App. Div. 2008).

Plaintiffs contend that subsection (e) of N.J.S.A. 12A:8-

112 is properly interpreted to permit the use of any means

"allowed at law or in equity" to satisfy a claim. In support of

this argument, plaintiffs point out that subsection (e) contains

a disjunctive phrase, entitling a creditor to the aid of the

court "in reaching the certificated security . . . or in

satisfying the claim in regard to property that cannot readily

be reached . . . ." N.J.S.A. 12A:8-112(e) (emphasis added).

From this, plaintiffs argue that section (e) requires the court

to use its broad equitable powers in two distinct situations:

either to reach a certificated security, or alternatively, when

a certificated security cannot be reached.

This interpretation would make subsection (e) function as

an additional (and very broad) exception to the possession

requirement in subsection (a). Indeed, under such an

interpretation, the exception contained in (e) would swallow the

general rule set forth in (a).

When two sections of a statute appear to conflict with each

other, "we must read the provisions in pari materia, construing

them 'together as a unitary and harmonious whole.'" Timber Glen

Phase III, LLC v. Township of Hamilton, 441 N.J. Super. 514, 522

7 A-0654-14T1 (App. Div. 2015) (quoting Am. Fire & Cas. Co. v. N.J. Div. of

Taxation, 189 N.J. 65, 80 (2006)). "'Every reasonable

construction should be applied' to assure each section is

meaningful." Ibid. (internal quotation marks omitted) (quoting

Twp. of Mahwah v. Bergen Cnty. Bd. of Taxation, 98 N.J. 268, 281

(1985), cert. denied, 471 U.S. 1136, 105 S. Ct. 2677, 86 L. Ed.

2d 696 (1985)). In light of this principle, the broad equitable

and legal remedies permitted under subsection (e) should stop

short of any remedy that circumvents the actual seizure

requirement of subsection (a).

This approach is similar to the interpretation adopted by

the Eleventh Circuit in First National Bank v. Dyes, 638 S.W. 2d

957, 958 (1982). In that case, plaintiff obtained a judgment

against her ex-husband for 600 certificated shares in the Dr.

Pepper Company. Ibid. Plaintiff's husband never transferred

the shares. Ibid. The district court looked to section 8.317

of the Texas Business and Commercial Code,1 and in particular, to

1 The statute, which has since been repealed, followed the Uniform Stock Transfer Act and read as follows:

(a) No attachment or levy upon a security or any share or other interest evidenced thereby which is outstanding shall be valid until the security is actually seized by the officer making the attachment or levy but a security which has been surrendered to the (continued)

8 A-0654-14T1 the second subsection, entitling a creditor to "such aid . . .

as is allowed at law or in equity." Id. at 959-60.

Consequently, the district court ordered the Dr. Pepper Company

and First National Bank to cancel defendant's certificated

shares, and reissue them in plaintiff's name. Id. at 958.

The Eleventh Circuit reversed, holding the statute "affords

a creditor a means of gaining control of a certificate or other

security from the owner or holder thereof, not the issuer." Id.

at 959. The court noted the purpose of the seizure requirement

is to prevent the fraudulent transfer of cancelled certificates,

and held that the statute "provides no right to the issuance of

a new certificate when the old one cannot be reached." Ibid.

Similarly, in Detox Industries, Inc. v. Gullet, a judgment

debtor placed his only asset, certificated shares of Detox

(continued) issuer may be attached or levied upon at the source.

(b) A creditor, whose debtor is the owner of a security shall be entitled to such aid from courts of appropriate jurisdiction, by injunction or otherwise, in reaching such security or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which cannot readily be attached or levied upon by ordinary legal process.

[Tex. Bus. & Com. Code. § 8.317 (1968), repealed Sept. 1, 1995.]

9 A-0654-14T1 Industries, in the hands of his son. 770 S.W. 2d 954, 955 (Tex.

App. 1989). The son, in turn, took the shares outside the

state, and could not be located. Ibid. The trial court ordered

Detox Industries to cancel defendant's shares and reissue new

shares in the name of the receiver. A Texas appellate court

reversed, holding that a turnover order can only be issued

against the debtor, or a third party, that is in actual

possession of the certificates. Id. at 958.

Plaintiffs rely upon two published cases in support of

their argument. First, plaintiffs cite the Second Circuit Court

of Appeals in Inter-Regional Financial Group, Inc. v. Hashemi,

562 F.2d 152, 155 (2d Cir. 1977), cert. denied, 434 U.S. 1046,

98 S. Ct. 892, 54 L. Ed. 2d 798 (1978), for the proposition that

subsection N.J.S.A. 12A:8-112(e) acts as a further exception to

the seizure requirement in subsection (a). However, in that

case, the trial court actually only enjoined the debtor to turn

over certificated securities to the sheriff for execution.

Ibid. This is consistent with a narrow interpretation of

subsection (e), and does not support the proposition that the

court can reissue the certificated shares owned by a debtor.

Plaintiffs also cite House v. Williams, 573 So. 2d 1012

(Fla. Dist. Ct. App. 5th Dist. 1991), in which a judgment

creditor sought to attach a debtor's certificated shares in a

10 A-0654-14T1 privately-held, family-owned company. Id. at 1012-13. The

defendant in that case claimed he did not know where the

certificates were located. Ibid. Consequently, the court

ordered the corporation to issue new certificates in defendant's

name, and deliver them to the sheriff for execution. Ibid. An

appellate court upheld the order without explaining its

reasoning. Ibid. The court's omission of any explanation or

analysis seriously limits the persuasiveness of the opinion.

Lastly, plaintiffs argue concern for public policy and

justice demands reversal. We agree that, by affirming the

chancery court's order in this case, plaintiffs would be

foreclosed from pursuing one avenue of recovery for a

substantial debt. However, the policy considerations in this

case cut both ways. The purpose of the actual seizure

requirement in N.J.S.A. 12A:8-112 is to prevent fraudulent

transfers of cancelled stock certificates to innocent third

parties. This is illustrated by a comment to N.J.S.A. 12A:8-

112:

In dealing with certificated securities the instrument itself is the vital thing, and therefore a valid levy cannot be made unless all possibility of the certificate's wrongfully finding its way into a transferee's hands has been removed. This can be accomplished only when the certificate is in the possession of a public officer, the issuer, or an independent third party. A debtor who has been enjoined can

11 A-0654-14T1 still transfer the security in contempt of court. Therefore, although injunctive relief is provided in subsection (e) so that creditors may use this method to gain control of the certificated security, the security certificate itself must be reached to constitute a proper levy whenever the debtor has possession.

[N.J.S.A. 12A:8-112 cmt. 1 (citation omitted).]

Plaintiffs maintain that this rationale dates from the pre-

internet age, and that potential buyers of cancelled

certificates can be put on record notice by publishing advisory

notices on the internet. However, N.J.S.A. 12A:8-112 was

adopted in 1997, thus plaintiffs' contention that the

Legislature could not have comprehended the usefulness of the

internet in providing record notice is dubious. See N.J.S.A.

12A:8-112. Furthermore, we have neither the authority to enact

such a notice requirement, nor the expertise to determine the

sufficiency of such a requirement. See Roman Check Cashing v.

N.J. Dep't of Banking & Ins., 169 N.J. 105, 111 (2001).

In sum, we conclude that the Chancery Division judge

correctly found that, under N.J.S.A. 2A:8-112(a), actual seizure

of certificated shares is required before a creditor may reach a

debtor's interest in those shares.

Affirmed.

12 A-0654-14T1