BLACH v. DIAZ-VERSON

Filing 428

ORDER granting 422 Motion for Reconsideration; granting 402 Motion for Disbursement of Funds; denying 404 Motion for Disbursement of Funds; granting 413 Motion for Disbursement of Funds; and denying 418 Motion for Disbursement of Funds. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/25/2019 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HAROLD BLACH,

*

Plaintiff,

*

vs.

*

SAL DIAZ-VERSION,

*

Defendant.

CASE NO. 4:15-MC-5 (CDL)

*

O R D E R
The

Court

previously

granted

Harold

Blach’s

motions

for

disbursement of funds and denied third party claimant Patricia
Diaz-Verson’s motions for disbursement of funds.
2019), ECF No. 420.

Order (Jan. 11,

Patricia filed a motion for reconsideration

(ECF No. 422), which is granted to the extent that the Court’s
January 11, 2019 Order is vacated and replaced with this Order.1
As discussed in more detail below, the Court denies Patricia DiazVerson’s motions for disbursement (ECF Nos. 404, 418).

The Court

grants Blach’s motions for disbursement (ECF Nos. 402, 413).

1

Patricia’s motion for reconsideration is properly characterized as a
motion to alter or amend judgment under Federal Rule of Civil Procedure
59(e), and in ruling on such a motion the Court normally would not
consider previously unsubmitted evidence like the two exhibits Patricia
submitted in support of her motion. But the Court finds that an exception
should be made in this continuing garnishment case because the same issue
will recur when the next motion for disbursement is filed unless this
issue is decided now.

PROCEDURAL BACKGROUND
Harold Blach holds a judgment against Sal Diaz-Verson that
was registered in this Court on October 6, 2015.

The remaining

principal balance of Blach’s judgment is approximately $97,000.
Diaz-Verson has not satisfied the judgment.

Diaz-Verson’s former

employer, AFLAC Inc., makes bimonthly payments to Diaz-Verson,
twenty-five percent of which is subject to garnishment.

Blach has

filed a series of applications for writs of garnishment.

In

response to Blach’s applications for writs of garnishment, the
Clerk issued writs of garnishment (ECF No. 380 on 8/29/2018, ECF
No. 388 on 9/26/2018, ECF No. 396 on 10/24/2018).

AFLAC answered

those writs of garnishment and deposited funds into the Court’s
registry (Answer, ECF No. 393 on 10/11/2018, deposit of $16,244.64
on 10/25/2018; Answer, ECF No. 399 on 11/1/2018, deposit of
$5,309.82 on 11/29/2018; Answer, ECF No. 410 on 12/7/2018, deposit
of $10,619.64 on 12/27/2018).
AFLAC’s Answers.

Diaz-Verson did not object to

The Court holds $32,174.10 in its registry that

is subject to the motions for disbursement.2
Diaz-Verson’s ex-wife Patricia filed third party claims to
the garnished funds, arguing that she has a judgment against Diaz-

2

AFLAC deposited $10,619.64 on January 4, 2019 in response to the writ
of garnishment issued on December 7, 2018. That deposit is not subject
to any pending motions for disbursement. Another writ of garnishment
was issued on December 19, 2018 (ECF No. 412). AFLAC has not yet answered
that writ.

2

Verson that is superior to Blach’s.3

She now claims that Diaz-

Verson is indebted to her for “alimony arrearages” in the amount
of $388,828.29 based on Diaz-Verson’s failure to extinguish two
judgment

liens

that

were

created

against

the

couple’s

condominium that was awarded to Patricia in the divorce.
Verson Aff., ECF No. 417.
Diaz-Verson

breached

beach

P. Diaz-

In the alternative, she claims that

the

settlement

agreement

that

was

incorporated into the divorce decree by failing to extinguish the
judgment liens and that this failure created an “established debt”
that relates back to the date of the divorce decree.

Mot. for

Recons. 2, ECF No. 422.
FACTUAL BACKGROUND
Patricia was married to Sal Diaz-Verson, the Defendant in
this garnishment proceeding. In 2001, the couple purchased a beach
condominium in Escambia County, Florida.
two

creditors

condominium

obtained

based

on

judgment

judgments

Unbeknownst to Patricia,

liens

against

against

the

Diaz-Verson.

beach
First,

SunTrust Bank obtained two judgments against Diaz-Version totaling
$435,455.70.

SunTrust

obtained

judgment

liens

against

the

condominium when those judgments were recorded in Escambia County

3

Patricia previously argued that she held a judgment superior to Blach’s
based on Diaz-Verson’s failure to make recent alimony payments.
The
Court, however, concluded that her judgment based on the alimony
arrearages, which accrued after Blach registered his judgment in this
Court, was not superior to Blach’s judgment. See generally Nov. 2, 2018
Order, ECF No. 400.

3

in 2006 and 2007.

Patricia’s 3d Party Claim Ex. C, Agreed Final

Summ. J. (Aug. 2, 2006), ECF No. 403-3 (recorded in Escambia County
on December 4, 2006); Patricia’s 3d Party Claim Ex. A, Consent
Order & J. (Oct. 31, 2006), ECF No. 403-1 (recorded in Escambia
County on March 29, 2007); Fla. Stat. § 55.10 (stating that a
judgment “becomes a lien on real property in any county when a
certified copy of it is recorded in the official records or
judgment lien record of the county”). Then, in 2009, Porter Bridge
Loan Company obtained a judgment against Diaz-Verson and recorded
the judgment in Escambia County.

Mot. for Recons. Ex. A, Porter

Bridge J., ECF No. 422-1 at 27-30 (recorded in Escambia County on
November 6, 2009).

The outstanding balance of the Porter Bridge

judgment was later assigned to Diaz-Verson’s former lawyer (and
Patricia’s current lawyer), Robert Frey.
The Diaz-Versons divorced in 2011.

They reached a settlement

agreement, which was incorporated into the final judgment and
divorce decree entered on December 2, 2011.
J. & Decree, ECF No. 376-1.

See generally Final

The court ordered “alimony and

division of property” in accordance with the parties’ settlement
agreement.

Id. at 1.

Patricia was awarded “alimony” in the form

of monthly cash payments.
1 at 4-5.

Settlement Agreement § 3, ECF No. 376-

Patricia was also awarded her “home and real estate” in

Fortson, Georgia that was her “current residence” at the time of
the divorce.

Id. § 6, ECF No. 376-1 at 6.

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And, Patricia was

awarded the couple’s beach condominium, “free and clear of any
claim by [Diaz-Verson].
his

right,

title

[Patricia].”

and

[Diaz-Verson] hereby quit claims all of
interest

in

and

to

Id. § 4(a), ECF No. 376-1 at 5.

said

property

to

The divorce decree

acknowledged that there was a tax delinquency on the condominium,
but it required that Diaz-Verson pay Patricia an amount sufficient
to satisfy the taxes and that Patricia would pay the taxes.
§ 4(b), ECF No. 376-1 at 5-6.

Patricia does not argue that Diaz-

Verson failed to pay her that amount.
mention

the

three

condominium.

recorded

Id.

judgment

The divorce decree does not
liens

against

the

beach

Diaz-Verson transferred his interest in the beach

condominium to Patricia by quitclaim deed on July 16, 2012.

The

quitclaim deed does not mention the three recorded judgment liens
against the beach condominium.
In 2015, Patricia prepared to sell the beach condominium. A
July 2015 title search revealed the three judgment liens against
the condominium.

See generally Mot. for Recons. Ex. A, Title

Commitment, ECF No. 422-1.

On July 29, 2015, Frey released his

judgment lien, which was based on the Porter Bridge judgment, as
to the condominium.

The two SunTrust liens remained.

Patricia sold the beach condominium on November 4, 2015.

The

closing statement said that there was a reduction from amount due
to

seller

Suntrust.”

of

$388,828.29

for

“Payoff

of

First

Mortgage

to

Mot. for Recons. Ex. B, Closing Statement, ECF No.

5

422-22.

In her affidavit, Patricia stated that the $388,828.29

arose from Diaz-Verson’s failure to extinguish judgment liens
against the condominium.

P. Diaz-Verson Aff., ECF No. 417.

Patricia did not point to any evidence that she sought to have
Diaz-Verson held in contempt for violating the divorce decree by
failing to extinguish the judgment liens.
DISCUSSION
Under Georgia law, “[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

judgments[.]”
judgment

liens

real

and

personal,

O.C.G.A. § 9-12-80.
is

determined

by

from

the

date

of

such

The “relative position of
seniority;

judgment has priority over a newer judgment.”

an

older

Georgia

NationsBank, N.A.

v. Gibbons, 487 S.E.2d 417, 418–19 (Ga. Ct. App. 1997); accord
O.C.G.A. § 18-4-18 (providing that “the party with the oldest
entered judgment shall have priority” in garnished funds).

The

question for the Court is whether Patricia demonstrated that she
holds a judgment that is older than, and thus superior to, Blach’s
October 6, 2015 judgment.
In

her

disbursement,

present

third-party

Patricia

characterizes

claims

and

Diaz-Verson’s

motions
failure

for
to

extinguish the SunTrust judgment liens as an “alimony arrearage.”
Under Georgia law, although “a judgment for permanent alimony does

6

not create a lien for future monthly installments unless a lien is
expressly created against the property in the alimony judgment,”
a person who receives an alimony judgment “is entitled to an
execution or fi. fa. for the purpose of enforcing the judgment
whenever and as often as an instalment or instalments become due
and are unpaid.”

Cale v. Hale, 277 S.E.2d 770, 772 (Ga. Ct. App.

1981) (quoting Wood v. Atkinson, 201 S.E.2d 394, 395 (Ga. 1973);
accord O.C.G.A. § 19-6-4(b) (“A grant of permanent alimony may be
enforced either by writ of fieri facias or by attachment for
contempt.”).

So, if Diaz-Verson was in arrears on his alimony

payments before Blach registered his judgment on October 6, 2015,
Patricia would be entitled to priority for the arrearage as of
that date based on the alimony judgment.

See Cale, 277 S.E.2d at

722 (concluding that an ex-wife had priority in the portion of a
garnishment fund that represented her ex-husband’s arrearage on
the date of the judgment held by another creditor).
Patricia did not cite any authority for her position that the
award of the beach condominium was alimony or that SunTrust’s
judgment liens against the beach condominium should be considered
an

alimony

arrearage.

Under

Georgia

law,

“[a]limony

is

an

allowance out of one party’s estate, made for the support of the
other party when living separately. It is either temporary or
permanent.”

O.C.G.A.

§

19-6-1(a).

The

Diaz-Versons’

divorce

decree does include a judgment for permanent alimony in the form

7

of monthly payments.

See Settlement Agreement § 3, ECF No. 376-1

at 4-5 (awarding permanent “alimony” to Patricia).

The divorce

decree also requires Diaz-Verson to maintain a life insurance
policy with Patricia as the beneficiary “so long as alimony is due
and payable under th[e] agreement.”

Id. § 9, ECF No. 376-1 at 9.

But the divorce decree does not categorize the beach condominium
as alimony.

Without some indication that the parties intended for

the beach condominium to be alimony rather than equitable division
of the marital property, the Court cannot conclude that it was
alimony.

Patricia thus does not have an alimony judgment related

to the beach condominium.
The

next

question

is

whether

Patricia

nonetheless

has

priority in the garnishment funds based on Diaz-Verson’s failure
to

extinguish

the

judgment

liens.

To

have

priority

in

the

garnishment funds, Patricia must have a judgment against DiazVerson that predates Blach’s October 6, 2015 judgment.
O.C.G.A.

§

18-4-2(b)

(permitting

garnishment

“when

a

See
money

judgment was obtained”); O.C.G.A. § 18-4-18 (providing that “the
party with the oldest entered judgment shall have priority” in
garnished funds).

Patricia argues that Diaz-Verson’s “breach of

the [divorce decree]” is an “established debt,” but she did not
point to any evidence that the debt was reduced to a judgment, and
she did not point to any authority for her position that any debt
Diaz-Verson owes her based on his failure to extinguish the liens

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should be treated as a judgment.

Mot. for Recons. 2; cf. Stone v.

Stone, 673 S.E.2d 283, 285 (Ga. Ct. App. 2009) (concluding that an
ex-husband could bring a breach of contract action against his exwife based on her failure to indemnify him for debts she incurred
through a credit line on their house as the settlement agreement
incorporated into their divorce decree required her to do).
In summary, Patricia did not point to evidence or authority
to establish that she holds a judgment against Diaz-Verson based
on his failure to extinguish the SunTrust liens.

Therefore, she

is not entitled to priority in the garnished funds.
CONCLUSION
For the reasons set forth above, the Court denies Patricia
Diaz-Verson’s motions for disbursement (ECF Nos. 404, 418).

The

Court grants Blach’s motions for disbursement (ECF Nos. 402, 413).
The Clerk is instructed to enter judgment in favor of Plaintiff
Harold Blach with regard to the writs of garnishment issued on
August 29, 2018 (ECF No. 380), September 26, 2018 (ECF No. 388),
and October 24, 2018 (ECF No. 396).

The Clerk shall disburse to

Harold Blach $32,174.10, plus any interest earned on that sum while
it was held in the Court’s registry.
IT IS SO ORDERED, this 25th day of January, 2019.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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