FEDERAL DEPOSIT INSURANCE CORPORATION v. AMOS et al

Filing 74

ORDER deferring ruling on (10) Motion for Summary Judgment in case 4:16-mc-00004-CDL; deferring ruling on (50) Motion modify consent order; denying (51) Motion for Summary Judgment in case 4:16-cv-00284-CDL Ordered by US DISTRICT JUDGE CLAY D LAND on 7/28/2017 (glg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as receiver for
GULFSOUTH PRIVATE BANK,

*
*

Plaintiff,

*

vs.

*

WILLIAM L. AMOS, JENIFER C.
AMOS, WLA INVESTMENTS, INC.,
INNOVATION TREND SETTERS OF
AMERICA, LLC, and AFLAC, INC.,
as sponsor of the Aflac
Incorporated Market Director
Deferred Compensation Plan,

*

Defendants.

CASE NOS. 4:16-CV-284,
4:16-MC-4

*
*
*
*

O R D E R
The Federal Deposit Insurance Corporation (“FDIC”) holds
several

unsatisfied

Florida

judgments

against

William

Amos.

After registering the judgments in this Court, see case nos.
4:16-MC-3,

4:16-MC-4,

4:16-MC-5,

action, 4:16-CV-284, to

the

FDIC

filed

the

present

collect on the judgments and to

set

aside transfers that Amos made to his wife and the subordination
of a lien on real property controlled by Amos.

The FDIC also

filed a garnishment action, 4:16-MC-4, in this Court to collect
on the judgments.1

1

Today’s Order addresses motions in both actions. William Amos is a
Defendant in both cases. His wife, Jenifer Amos, and WLA Investments,

The

FDIC

filed

a

motion

for

summary

judgment

regarding

three transfers by Amos to his wife and the subordination of the
lien, claiming that those transactions should be voided as a
matter

of

law

pursuant

to

Georgia’s

Uniform

Voidable

Transactions Act (“GUVTA”), O.C.G.A. § 18-2-70 et seq. (ECF No.
51).

The FDIC also moves to modify the Consent Order that the

Court previously entered that granted the FDIC’s motion for a
preliminary injunction (ECF No. 50).
The FDIC also filed a motion for summary judgment in the
garnishment

action

arguing

that

it

is

entitled

to

garnish

credits that Amos’s employer, Aflac, Inc., has made to Amos’s
account

in

the

Aflac

Incorporated

Market

Director

Deferred

Compensation Plan (“the Plan”)(ECF No. 10).
For the reasons explained in the remainder of this Order,
the FDIC’s motion for summary judgment in 4:16-CV-284 seeking to
void certain transactions under GUVTA (ECF No. 51) is denied.
The

Court

defers

ruling

on

the

FDIC’s

motion

to

modify

the

Consent Order in 4:16-CV-284 (ECF No. 50) and defers ruling on
the

FDIC’s

motion

for

summary

judgment

in

the

garnishment

action, 4:16-MC-4 (ECF No. 10).

Inc. are Defendants in 4:16-CV-284.
Innovation Trend
America, LLC and Aflac, Inc. are Defendants in 4:16-MC-4.

2

Setters

of

I.

Summary Judgment Motion in 4:16-CV-284 to Void Transactions
A.

Transfer of Amos & Co.

The

FDIC

seeks

to

void

the

transfer

by

Amos

of

his

ownership in William L. Amos & Company (“Amos & Co.”) to his
wife.

It

argues

that

the

transfer

is

voidable

under

GUVTA

because the transfer was made without receiving a “reasonably
equivalent value” in exchange for the transfer and that Amos was
insolvent at the time of the transfer.

Pretermitting whether

Amos was insolvent at the time of the transaction, the Court
finds that genuine factual disputes exist as to whether Amos
received “reasonably equivalent value” for the transfer, thus
precluding summary judgment.
most

favorable

proceedings,

to

a

Amos,

Viewing the evidence in the light

as

reasonable

required
juror

at

could

this

stage

conclude

of

the

that

this

transfer conferred an indirect economic benefit on Amos.

Amos

claims that as a result of the transfer he was able to remain
employed at Aflac, where he earns a significant salary and other
benefits.
support

The FDIC offers evidence of Amos & Co’s assets to
its

contention

that

the

benefit

he

derived

from

employment with Aflac was not “reasonably equivalent” to the
value of Amos & Co.
liabilities.

But it is unclear if Amos & Co. had any

Amos describes signing checks for Amos & Co.’s

expenses at the time of the transfer.

See, e.g., Amos Dep.

30:7-9.

ongoing

And

Amos

&

Co.

certainly

3

has

expenses

and

liabilities today.

See Pl.’s Mot. to Modify Consent Order 2,

ECF No. 50 (objecting to these expenses).

With only evidence of

Amos & Co.’s assets, the Court cannot find that the value of
Amos’s Aflac employment was not reasonably equivalent to the
value of Amos & Co. at the time of this transaction as a matter
of law.

That is an issue for the jury to decide.

Rather than offering clear evidence of Amos & Co.’s 2014
value, the FDIC argues that this transfer is voidable because
Amos did not receive the value of his employment at Aflac at the
same time that he transferred Amos & Co. to his wife.

But in

determining whether a transaction is voidable, the Georgia Court
of Appeals has declined to take a “narrow, piecemeal view [that]
ignores the essential nature of the transaction.”
v.

Buckley,

733

S.E.2d

499,

502-03

(Ga.

See Truelove

Ct.

App.

2012)

(reversing the trial court’s grant of summary judgment because
the evidence showed that the transfer of the property was “at
essentially

the

same

time”

as

the

defendant

paid

for

the

property and therefore was not an antecedent debt under O.C.G.A.
§ 18-2-75(b)).
economic

Moreover, some courts have held that a future

benefit

circumstances.

may

constitute

“value”

under

similar

See In re PSN USA, Inc., 615 F. App’x 925, 930

(11th Cir. 2015) (per curiam) (recognizing that some circuits
have held that “[t]he mere opportunity to receive an economic
benefit in the future constitutes ‘value’ under the [Bankruptcy]

4

Code.” (quoting In re Fruehauf Trailer Corp., 444 F.3d 203, 212
(3d Cir. 2006))).
Here, Amos transferred Amos & Co. in August 2014 and became
a W-2 employee at Aflac the following month.

Amos represents

that he made the transfer in anticipation of his W-2 employment.
Thus, viewing the facts in the light most favorable to Amos, a
reasonable juror could conclude that the essential nature of the
transaction was Amos giving up ownership of Amos & Co. for W-2
employment.

The Court also observes that it is difficult to

conclude that Amos’s financial condition is worse due to the
transfer, particularly

in light of his Aflac salary

uncertain value of Amos & Co.

and the

For all of these reasons, the

FDIC fails to show that the transfer of Amos & Co. is voidable
as a matter of law.
B.

Cash Transfers

The FDIC also seeks to void two cash transfers from Amos to
his

wife’s

genuine

individual

factual

bank

disputes

exist

precluding summary judgment.
account

that

Amos

and

his

account.

The

regarding

Court
this

finds

that

claim,

thus

One of the transfers was from an
wife

held

jointly.

Therefore,

a

factual dispute exists as to whether this transfer would be
deemed a transfer of assets from Amos to his wife.

It is

undisputed that the account was originally a joint account.

And

Amos states that he and his wife instructed the bank to take her

5

name off of the account and transfer the funds from the joint
account to her personal account at the same time.
Decl. ¶ 3.

See Amos

Thus, a reasonable juror could conclude that the

transfer was a division of their mutual funds and not a transfer
of Amos’s assets to his wife.2
Additionally, genuine factual disputes exist as to whether
Amos received reasonably equivalent value for transferring at
least some of the funds in question.
received

reasonably

equivalent

value

Amos contends that he
for

both

cash

transfers

because his wife used the money to pay their mutual household
expenses.
promise

Under GUVTA, “[V]alue does not include an unperformed

made

otherwise

than

in

the

ordinary

course

of

the

promisor's business to furnish support to the debtor or another
person.”

O.C.G.A. § 18-2-73(a).

But several courts have found

that the regular payment of mutual household expenses does not
fall under this exclusion.
501

(6th

Cir.

2008)

See In re Fisher, 296 F. App’x 494,

(distinguishing

the

regular

payment

of

household expenses from a promise to provide for the debtor in

2

The FDIC offers evidence that most of the funds in the joint account
were likely contributed by Amos. See Amos Dep. 133:14-24 (testifying
that his salary is the family’s primary income).
And under Georgia
law, the funds in “[a] joint account belong[] . . . to the parties in
proportion to the net contributions by each to the sums on deposit,
unless there is clear and convincing evidence of a different intent.”
O.C.G.A. § 7-1-812; see also Lamb v. Thalimer Enter., Inc., 386 S.E.2d
912, 914 (Ga. Ct. App. 1989) (holding that O.C.G.A. § 7-1-812 should
be applied to determine how much of the funds in a joint account are
subject to garnishment). But the FDIC fails to point to any specific
calculations regarding the sources of the funds in the joint account.

6

the future); United States v. Goforth, 465 F.3d 730, 735-36 (6th
Cir.

2006)

(holding

that

the

payment

of

regular

household

expenses is reasonably equivalent value and noting that this
holding is consistent with the “greater weight of authority”);
see also Post-Confirmation Comm. for Small Loans, Inc., 2016 WL
1316767,

at

*6-7

(interpreting

11

U.S.C.

§ 550).

But

see

Carneal v. Leighton, 237 F. Supp. 2d 104, 110 (D. Me. 2002)
(relying on a case holding that a son’s promise to provide for
his mother did not confer reasonably equivalent value on his
father

to

hold

that

the

defendant’s

wife’s

payments

for

household expenses and the support of their children was not
reasonably equivalent value under Maine law).
Evidence exists in the present record that the transferred
funds were used primarily for mutual household expenses.
Amos Feb. 2017 Dep. 17:1-16; see also Amos Decl. ¶ 4.

See J.
Thus, a

reasonable juror could conclude that Amos transferred at least
some of the funds to his wife as part of the ordinary course of
their marriage to pay their mutual living expenses.

The Court

declines at this time to find as a matter of law that Amos did
not

receive

circumstances.

reasonably

equivalent

value

under

these

See Goforth, 465 F.3d at 736.

The FDIC argues that not all of the transferred funds were
used

to

pay

mutual

household

expenses.

But

it

fails

to

establish as a matter of law the amount of funds that were not

7

used

to

pay

mutual

household

expenses.

It

has

presented

evidence that a substantial portion of the funds were used to
make a down payment on a house.

But there are factual disputes

as to whether all of the money used to purchase the house was
transferred from Amos to his wife.

See J. Amos Feb. 2017 Dep.

18:2-18 (stating that she could not indicate whether all of the
funds came from transferred funds).
point

to

evidence

regarding

the

The FDIC also failed to
Amoses’

usual

household

expenses, how all of the transferred funds were specifically
spent,

and/or

how

the

challenged

transfers

ordinary transfers between the Amoses.

differed

from

Without any evidence

regarding how much of the transferred funds went to pay ordinary
household expenses, the Court cannot find that any particular
amount of the transferred funds is voidable as a matter of law.
Based on the current record, summary judgment is not appropriate
on the FDIC’s claim to void the cash transfers.
C.

Lien Subordination

Amos is involved in several entities that own investment
properties.

One of those entities borrowed money from a bank to

fund one of the properties.

As part of that transaction, the

bank obtained a mortgage lien on the property to secure the
loan.

Subsequently,

Investments, Inc.”
Note,

ECF

No.

that

mortgage

was

transferred

to

“WLA

Assignment of Mortgage and Endorsement of

51-17

at

3.

It

8

is

undisputed

that

“WLA

Investments, Inc.” is not a legal entity.
the

assignment

of

the

mortgage

should

Amos contends that
have

been

to

Investments, LLC, which is owned by Amos and his wife.
Dep. 153:1-3, 162:3-5.

See id. at

Amos claims that the balance on the mortgage was

zero when WLA Investments acquired it.
In

Amos

It is unclear if there is, or ever was,

any money owed to WLA Investments on this mortgage.
160:15-161:5.

WLA

September

2016,

an

entity

Id.

owned

by

Amos’s

wife

but

controlled by Amos granted CB&T a lien against the investment
property that was the subject of WLA Investments’ lien to secure
a debt owed to CB&T by another Amos entity.

Id. at 163:5-16.

As

listed

part

of

this

transaction,

an

entity

as

“WLA

Investments, LLC, a/k/a WLA Investments, Inc.” subordinated its
mortgage on the property to the CB&T lien.
167:12.

Id. at 166:16-

It is unclear if WLA Investments received anything in

exchange for the subordination.

Id. at 167:9-12.

The FDIC maintains that this lien subordination must be
voided as a matter of law.

The Court finds that genuine factual

disputes exist to preclude summary judgment.

The FDIC’s claim

to void the lien subordination is premised on its contention
that WLA Investments, Inc. is not a legal entity and is simply
the alter ego of Amos.

But Amos points to evidence that WLA

Investments, Inc. is a misnomer for “WLA Investments, LLC,” an
entity owned by Amos and his wife.

9

See Amos Dep.

166:16-

167:12.

Thus, the present record does not support a finding

that WLA Investments, Inc. is Amos’s alter-ego as a matter of
law.
Additionally, even if WLA Investments is Amos’s alter ego,
the present record does not support the conclusion that as a
matter

of

law

WLA

Investments

did

not

receive

equivalent value for subordinating its mortgage.

reasonably

The FDIC does

not offer evidence regarding the value of the mortgage in 2016.
And Amos testified that the balance owed on the mortgage was
zero when WLA Investments acquired it.
161:5.

See Amos Dep. 160:15-

It is unclear why WLA Investments would bother acquiring

a worthless mortgage and subordinating a worthless lien to CB&T.
But with no indication of how much the mortgage is worth, the
Court

has

no

way

to

determine

if

WLA

Investments

reasonably equivalent value for subordinating it.

received
Thus, the

Court cannot find based on the present record that the lien
subordination is voidable as a matter of law.
II.

Motion to Modify the Consent Order in 4:16-CV-284
On October

27, 2016, the Court entered a Consent Order

regarding the FDIC’s motion for a preliminary injunction in this
case.
Consent

See Consent Order Granting Prelim. Inj., ECF No. 17.
Order

enjoins

Amos,

Jenifer

Amos,

WLA

The

Investments,

Paladin, and Amos & Co. from dissipating assets other than as
permitted in the Order.

The FDIC asks the Court to modify the

10

Consent Order in two ways: (1) prescribe a budget for Amos &
Co.; and (2) order that funds that the FDIC garnished in state
court be deposited in this Court’s registry.
Regarding Amos & Co.’s budget, the Consent Order enjoins
Amos & Co. from dissipating or spending any of its assets “other
than

to

pay

accordance

ordinary

with

the

business
budget

expenses

attached

Consent Order Granting Prelim. Inj. 4.

of

Amos

hereto

as

&

Co.

Exhibit

in
C.”

The Amos & Co. budget

lists three categories of permitted expenses—car payments, life
insurance

payments,

and

taxes.

See

Consent

Order

Granting

Prelim. Inj. Ex. C, Amos & Co. Budget, ECF No. 17 at 14.

But it

does not provide an amount of money that Amos & Co. may spend on
each category.

Apparently, the parties anticipated working out

the amount after the Consent Order was entered and failed to do
so.

See id. (“Reasonable and necessary details regarding the

foregoing

monthly

expenses

to

be

provided

to

Plaintiff

by

Defendants by close of business October 28, 2016.”).
Since the entry of the Consent Order, the FDIC has received
monthly reports of Amos & Co.’s expenses.

In support of its

motion to modify, the FDIC argues that Amos & Co.’s expenses
currently exceed its commission income.

It thus concludes that

Amos & Co.’s assets will soon be depleted, irreparably harming
the FDIC’s ability to collect its judgments against Amos.

11

Based on the present record, it is not entirely clear that
the FDIC’s concerns are well founded.

It appears that Amos &

Co. has assets in addition to the monthly premium income.

But

the Court is not prepared today to make a definitive decision on
this issue.

The parties will have an opportunity to be heard on

this motion at the pretrial conference.
The Court is also skeptical about whether it has authority
to

direct

that

garnishment
should

action

present

pretrial

the

garnished

be

the

conference

funds

transferred

Court
to

to

with

legal

support

this

held
this

in

a

state

Court.

authority
Court’s

court

The

prior

FDIC

to

jurisdiction

the
to

enter such an order and exercise control of those funds.
III. Motion for Summary Judgment in 4:16-MC-4
The FDIC filed a garnishment action against Aflac as the
sponsor of Amos’s Aflac Incorporated Market Director Deferred
Compensation Plan (“the Plan”).

Aflac has taken the position

that the funds credited to Amos’s Plan account are not subject
to garnishment.

See Aflac’s Answer, ECF No. 8.

The FDIC filed

a motion for summary judgment, arguing that it is entitled to
garnish the credit to Amos’s Plan account now (ECF No. 10).
As part of his employment with Aflac, Amos is enrolled in
the

Plan.

“[T]he

nonqualified
designated

Plan

deferred

employees

is

intended

compensation

who

are

within

12

to

plan
a

be

an

unfunded,

covering

select

group

certain
of

key

management or highly compensated employees.”

Amos Decl. Ex. 1,

First Am. to the Aflac Incorporated Market Director Deferred
Compensation Plan ¶ 4, ECF No. 16-1 at 4 (“Plan Am.”).

The Plan

allows Amos to elect to defer receiving part of his compensation
until

a

designated

date

or

upon

his

separation

from

Aflac.

Aflac Incorporated Market Director Deferred Compensation Plan
¶ 5.2, ECF No. 10-3 at 27 (“Plan”); Plan Am. ¶¶ 8-10.
also makes contributions to the Plan.

Aflac

Quarterly Statement, ECF

No. 10-3 at 45.
The Plan is unfunded, meaning that the money credited to
Amos’s account is purely a bookkeeping record.

Plan ¶ 3.1(b).

Aflac maintains a Rabbi Trust with money that it will use to pay
out

accounts

if

participating

employees

entitled to funds in their accounts.

leave

Aflac

or

are

The Plan states, “The

right of a Participant or his Beneficiary to receive payments
under

the

Plan

transferred,

may

pledged,

not

be

anticipated,

encumbered,

attached

alienated,
or

sold,

garnished

by

creditors of such Participant or Beneficiary, except [in certain
circumstances not applicable here].”

Plan ¶ 10.7.

Defendants argue that the Plan account is not subject to
garnishment because: (1) the funds are not yet owed to Amos; and
(2) the

Plan

garnishment.

explicitly

provides

that

it

is

not

subject

to

The Court must first determine whether Georgia law

13

provides

for

garnishment

of

the

funds

credited

to

the

Plan

account before these funds are owed to Amos.
Generally, “[a]ll obligations owed by the garnishee to the
defendant” and “[a]ll money or other property of the defendant
in

the

possession

or

control

of

the

garnishee”

garnishment period are subject to garnishment.
4(a) & (b).

during

the

O.C.G.A. § 18-4-

Under a plain reading of this text,

a strong

argument exists that the funds in Amos’s Plan account are not
subject to garnishment at this time because Aflac did not owe
Amos the funds or hold the funds specifically for Amos during
the garnishment period.

Such a conclusion is consistent with

Georgia’s general rule that:
The rights of a garnishing creditor rise no higher
than those of the defendant [debtor]. What one cannot
recover himself cannot be recovered by garnishment
against him. . . . The creditor may stand in his
debtor's shoes by means of garnishment, but he gains
no additional privileges.
First Nat. Bank of Atlanta v. Sinkler, 317 S.E.2d 897, 900 (Ga.
Ct. App. 1984) (quoting Summer v. Allison, 193 S.E.2d 177, 184
(Ga. Ct. App. 1972)).
The FDIC does not contend that Amos is currently owed any
payment from the Plan account.

Nevertheless, the FDIC argues

that the express exclusion of deferred compensation plans from
an exemption in the Georgia garnishment statute indicates that
the

funds

in

the

Plan

account

14

are

subject

to

garnishment,

regardless of whether the funds are presently owed to Amos.
O.C.G.A. § 18-4-6 provides:
Funds or benefits from an individual retirement
account or from a pension or retirement program shall
be exempt from the process of garnishment until paid
or otherwise distributed to a member of such program
or beneficiary thereof.
Funds in an unfunded plan maintained by an employer
primarily for the purpose of providing deferred
compensation for a select group of management or
highly compensated employees shall not be exempt from
the process of garnishment.
O.C.G.A.

§

18-4-6(a)(2)

distinction

between

&

(3).

The

retirement

FDIC

reasons

benefits

and

that

the

deferred

compensation plans would be meaningless if the Court does not
allow garnishment of the funds in Amos’s Plan account before the
funds are owed to Amos.
The FDIC’s argument does not consider the following.
exemption

provides

that

garnishment

“until

defendant.

O.C.G.A.

means

a

that

retirement

paid

or

otherwise

§ 18-4-6(a)(2)

creditor

benefits

cannot

are

distributed”

(emphasis

garnish

exempt
to

added).

retirement

The
from
the
This

benefits

directly from a defendant’s employer, even if the funds are owed
to

the

defendant—the

funds

must

literally

pass

through

defendant’s hands before they are subject to garnishment.

the
See

Davis v. Davis, 288 S.E.2d 748, 749 (Ga. Ct. App. 1982) (“‘Paid
or

otherwise

transferred’

in

[the

former

version

of

this

provision] means exactly what it says; if the legislature had

15

intended the statute to mean ‘payable’ or ‘transferable,’ it
would have used those words.”).

The statute excludes funds in a

deferred compensation plan from this exemption, meaning that if
and when the funds in Amos’s Plan account are owed to Amos, the
FDIC may garnish these funds directly from Aflac.

As noted

above, the FDIC makes no argument that the funds are owed to
Amos at this time.

Thus, a strong argument exists that the

FDIC is not entitled to summary judgment on this issue.
Because a decision on this issue may have ramifications
beyond this specific garnishment action, the Court finds that
oral

argument

issues

a

final

on

this

motion

ruling.

is

necessary

Accordingly,

the

before
parties

the

Court

should

be

prepared to address this motion at the pretrial conference.
CONCLUSION
As
summary

explained

in

today’s

Order,

judgment

in

4:16-CV-284

the

seeking

FDIC’s
to

motion

void

for

certain

transactions as a matter of law under GUVTA (ECF No. 51) is
denied.

The Court defers ruling on the FDIC’s motion to modify

the Consent Order in 4:16-CV-284 (ECF No. 50) and defers ruling
on the FDIC’s motion for summary judgment in the garnishment
action, 4:16-MC-4 (ECF No. 10).
IT IS SO ORDERED, this 28th day of July, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE

16