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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15243
________________________
D.C. Docket No. 1:18-cv-01485-WMR,
1:16-bkc-72067-PMB
In Re: BARBARA JEAN KRIEG,
Debtor.
__________________________________________________________________
NEIL C. GORDON,
Chapter 7 Trustee for the Estate of Barbara Jean Krieg,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, National Association,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 10, 2020)
Before WILSON and GRANT, Circuit Judges, and MARTINEZ,* District Judge.
GRANT, Circuit Judge:
Neil Gordon—a Chapter 7 Trustee for the estate of debtor Barbara Krieg—
seeks to use his powers under the bankruptcy code to avoid Wells Fargo’s security
interest in Krieg’s real property. See 11 U.S.C. § 544(a)(3). The bankruptcy and
district courts rejected his attempt and granted summary judgment to Wells Fargo.
We affirm.
Gordon says that the security deed in favor of Wells Fargo was improperly
recorded because it was attested by an unofficial witness and acknowledged before
an officer. His argument turns on a single premise: that under the Georgia law in
effect when Wells Fargo recorded its deed in 2012, security deeds in land were
required to be attested by at least two witnesses. Not so. To record a security deed
in real property, the deed (1) “must be attested by or acknowledged before an
officer” and (2) “must also be attested or acknowledged by one additional
witness.” O.C.G.A. § 44-14-33 (2012) (amended 2015) (emphasis added);
id.
§ 44-14-61 (2012) (amended 2015). In cases like these, where “the language of a
statute is plain and unambiguous, judicial construction is not only unnecessary but
forbidden.” Six Flags Over Ga. v. Kull,
576 S.E.2d 880, 881 (Ga. 2003). The use
*
Honorable Jose E. Martinez, District Judge for the United States District Court for the Southern
District of Florida, sitting by designation.
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of the word “or” in “attested or acknowledged” plainly contemplates these two acts
as alternative methods of authenticating a security deed.
Even more importantly for our purposes, this common-sense reading of
§ 44-14-33 is reflected in not one, but two Supreme Court of Georgia opinions
describing the pre-2015 recording requirements for security deeds in land. See
U.S. Bank Nat’l Ass’n v. Gordon (“Gordon I”),
709 S.E.2d 258 (Ga. 2011); Wells
Fargo Bank, N.A. v. Gordon (“Gordon II”),
749 S.E.2d 368 (Ga. 2013). In both
cases, the court applied § 44-14-33 and “held that ‘a security deed is duly filed,
recorded, and indexed only if . . . it is attested or acknowledged by a proper officer
and (in the case of real property) an additional witness.’” Gordon
II, 749 S.E.2d at
370 (quoting Gordon
I, 709 S.E.2d at 261) (emphasis added and quotation marks
omitted). We decline to accept Gordon’s invitation to certify the question before
us so that the Supreme Court of Georgia—the final arbiter of Georgia law—may
consider whether it wrongly decided Georgia law the first (and second) time he put
this issue before it.
Nor will we dwell on Gordon’s attempts to complicate this straightforward
issue. His citations to opinions going back to the 1800s that describe, in dicta,
now-superseded recording statutes, and other opinions that do not squarely address
the issue presented in this case, are simply not relevant. And we are not persuaded
by his attempts to overlay a statutory provision generally governing land deeds
(which requires two attesting witness) onto the specific provision governing
security deeds in land (which does not). Compare O.C.G.A. § 44-5-30 (2012)
(amended 2015) (land deeds), with
id. § 44-14-33 (security deeds in real property).
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The Supreme Court of Georgia has said that a specific statutory provision controls
over a more general one, and that statutes “should be read according to the natural
and most obvious import of the language, without resorting to subtle and forced
constructions.” Mayor of Savannah v. Savannah Elec. & Power Co.,
54 S.E.2d
260, 265 (Ga. 1949); Integon Indem. Corp. v. Canal Ins. Co.,
353 S.E.2d 186, 188
(Ga. 1987). We honor those principles today.
The grant of summary judgment is AFFIRMED. The motion to certify a
question of state law to the Georgia Supreme Court is DENIED.
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