David Schwartz, d/b/a Rent A Wreck; Rent Wreck, Inc. d/b/a Bundy Auto Sales v. J.J.F. Management Servcices, Inc. and Rent A Wreck of America, Inc,; Bundy American, LLC

This appeal represents the latest salvo in the scorched-earth assault by Appellant

J.J.F. Management Services, Inc. (“J.J.F.”) and its subsidiary Rent-a-Wreck of America,

Inc. (“RAWA”) on Appellee David Schwartz, owner of a RAWA franchise territory

previously awarded him by a jury verdict over RAWA’s objections. J.J.F. appeals from

the district court’s denial of J.J.F.’s third-party claim to funds in certain deposit accounts

that Schwartz sought to garnish in his effort to satisfy a contempt award against RAWA

for engaging in a pattern of bad faith conduct.

J.J.F. contends that it has priority over Schwartz’s claims to the accounts, which

are owned by RAWA and Bundy American, LLC (“Bundy”), because it made loans to

RAWA for which the accounts served as secured and perfected collateral. J.J.F. also

contends that the district court erred by failing to consider the preclusive effect of a

debtor-in-possession financing order (the “DIP Order”) entered after RAWA and Bundy

filed for bankruptcy.

For reasons detailed below, we affirm. We find that the district court did not err in

concluding that Maryland law permits a trial court to require a third-party movant to

establish a bona fide claim to ownership. In so holding, we decline to grant preclusive

effect to the DIP Order, and we give effect to the district court’s authority to ensure

compliance with its contempt orders.

I.

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Schwartz is the founder of two companies: RAWA, a national business that rents

used automobiles; and Bundy, a company that brokers RAWA-brand franchises. J.J.F.’s

predecessor-in-interest purchased all outstanding RAWA stock in 2006, and since then,

Schwartz’s relationship with RAWA and J.J.F. has been defined by litigation. We begin

by summarizing the key proceedings in the parties’ history before turning to the facts

underlying this appeal.

A.

Disputes between Schwartz and RAWA have come before us multiple times. As

relevant here, after J.J.F.’s takeover of RAWA, we affirmed a jury verdict holding that

Schwartz has an implied franchise agreement to continue operating a Rent-a-Wreck

franchise in the greater Los Angeles area. Schwartz v. Rent A Wreck Am. Inc., 468 F.

App’x 238, 249 (4th Cir. 2012) (unpublished). Following this determination, the district

court ordered that RAWA’s call center not dissuade potential customers from transacting

with Schwartz’s Rent-a-Wreck franchise location or otherwise divert business away from

Schwartz’s franchise territory. See Schwartz v. Rent-A-Wreck of Am., 261 F. Supp. 3d

607, 613 (D. Md. 2017) (describing the district court’s prior order). The district court

later held RAWA in contempt of that order upon finding that the RAWA call center was

informing potential customers that there was no Rent-a-Wreck location inside Schwartz’s

franchise territory. Id. at 614, 622–23.

In its contempt order, the district court recounted RAWA’s acts of bad faith

throughout the parties’ relationship. Id. at 614–15. For instance, RAWA had

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“deliberately changed the address and hours it was listing for Schwartz’s franchise on its

website to an outdated address and to patently incorrect hours.” Id. at 615. RAWA also

“unilaterally demanded that Schwartz in a very short time frame either increase his

franchise’s fleet size from 150 vehicles to 1,726 vehicles or face termination of his

franchise.” Id. Further, RAWA’s CEO John J. Fitzgerald had made “direct verbal

threats” to Schwartz indicating that “he was going to make things difficult for Schwartz

and take everything Schwartz had.” Id. Consequently, the district court ordered RAWA

to pay Schwartz $83,620.80 on June 29, 2017 (the “contempt award”). Id. at 622.

Less than a month after the district court ordered RAWA to pay the contempt

award, RAWA and Bundy filed a voluntary bankruptcy petition in the Delaware

Bankruptcy Court. The bankruptcy proceedings placed an automatic stay on Schwartz’s

attempts to collect on the contempt award. The bankruptcy court later dismissed the

petition, finding that RAWA and Bundy were not insolvent, that they had not filed for

bankruptcy in good faith, and that the petitions were “just another chapter in the attempt

to terminate Mr. Schwartz’s [Los Angeles-area] franchise.” In re Rent-A-Wreck of Am.,

Inc., 580 B.R. 364, 388 (Bankr. D. Del. 2018).

B.

The current litigation conveniently began after the bankruptcy petition was

dismissed and the automatic stay was lifted, when Schwartz resumed his attempts to

collect on the contempt award. Schwartz located two deposit accounts in RAWA’s name

at Wells Fargo Bank in Baltimore, Maryland. He filed a motion for writs of garnishment

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against the accounts in federal district court on April 17, 2018. Garnishee Wells Fargo

responded that the accounts contained assets sufficient to satisfy the contempt award.

J.J.F. filed a motion to intervene in the garnishment proceedings on May 2, 2018,

claiming an interest in the deposit accounts superior to Schwartz’s interest. The district

court determined that J.J.F. was an interested third party with respect to the garnishment

proceedings, and it noted that Maryland Rule 2-643 (“Rule 2-643”) creates an avenue by

which an interested third party can claim an interest in property under levy. See Md.

Rule 2-643(e). It therefore denied J.J.F.’s motion to intervene and instead treated J.J.F.’s

claims as a motion by a third party pursuant to Rule 2-643(e) before proceeding to

consider J.J.F.’s claims on the merits. J.A. 178. It is to those issues we now turn.

J.J.F. claimed that it has an interest in the deposit accounts superior to Schwartz’s.

It based this contention on two loans that J.J.F. purportedly made to RAWA and Bundy

which name the deposit accounts as secured and perfected collateral.

First, J.J.F. claimed that it loaned RAWA over two million dollars pursuant to a

promissory note dated March 31, 2006 with a maturity date of March 31, 2011 (the “prepetition

financing”). The promissory note grants J.J.F. an interest in “any money, funds,

credits or other property of any nature whatsoever of [RAWA] now or at any time

hereafter” belonging to RAWA as collateral for the loan. J.A. 614. J.J.F. purportedly

perfected this interest with respect to the Wells Fargo deposit accounts when it entered

into Deposit Account Control Agreements (“DACAs”) with RAWA for those accounts

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on March 6, 2018.1 This date--nearly seven years after the note matured--fell after the

dismissal of the bankruptcy proceedings but before Schwartz’s garnishment motion.

Second, J.J.F. claimed that it has a superior interest in the deposit accounts by

virtue of a debtor-in-possession financing agreement (the “DIP financing”) authorized by

the bankruptcy court in its DIP Order on August 30, 2017. The DIP Order authorized

J.J.F. to loan money to RAWA and Bundy for the specific purpose of funding their

ordinary business expenses during bankruptcy. It also created “continuing, valid,

binding, enforceable, non-avoidable, and automatically and properly perfected

postpetition security interests in” all of RAWA’s and Bundy’s assets, including all

deposit accounts. J.A. 504–05. The bankruptcy court entered the DIP Order as a final

order after providing all interested parties, including Schwartz, with notice and a hearing.

In the DIP Order, the bankruptcy court found that RAWA, Bundy, and J.J.F. negotiated

the financing agreement in good faith and that the parties extended the financing and the

use of collateral in good faith. The terms of the DIP Order establish that it survives the

bankruptcy court’s dismissal of RAWA’s and Bundy’s bankruptcy petition.

The district court considered these transactions in the instant proceeding and

expressed doubt as to whether J.J.F.’s claim to the deposit accounts was bona fide. The

court asked J.J.F. to produce documents substantiating the validity of these loans. While

J.J.F. produced the promissory note, the DACAs, annual RAWA balance sheets, and the

1 In Maryland, a DACA or similar control agreement is the only method for

perfecting a security interest in a deposit account. See Md. Code Ann., Com. Law §§ 9-

312, 9-314.

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DIP Order, it failed to produce any record of payments from J.J.F. to RAWA or any prior

attempts by J.J.F. to collect on the loans. After considering the evidence, the district

court determined that “it remain[ed] highly doubtful that [J.J.F.] ever actually loaned

money to RAWA.” Schwartz v. Rent-A-Wreck of America, No. PJM 07-1679, 2018 WL

4567106, at *4 (D. Md. Sept. 24, 2018). Rather, it concluded that J.J.F.’s motion was

“one more shameless attempt” by J.J.F., RAWA, and Bundy to avoid paying the

contempt award. Id. at *6. The district court accordingly denied J.J.F.’s claim to the

deposit accounts, concluding that a third-party claimant under Rule 2-643(e) must

demonstrate its bona fide entitlement to the garnished property. This appeal followed.

II.

We review a district court’s factual findings for clear error, and we review its

conclusions of law, including its interpretations of state law, de novo. Pierce v.

Underwood, 487 U.S. 552, 558 (1988); see Salve Regina Coll. v. Russell, 499 U.S. 225,

231 (1991) (“[A] court of appeals should review de novo a district court’s determination

of state law.”).

III.

J.J.F. contends that the district court erred in denying its third-party claim to the

funds in the deposit accounts on the ground that its interest is superior to that of

Schwartz. Under Maryland law, one way by which a third party can establish the priority

of its claim to garnished or levied property is by demonstrating that it has a valid superior

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perfected security interest in that property. See, e.g., Md. Code Ann., Com. Law § 9-327

(establishing the order of priorities for security interests in deposit accounts).

First, J.J.F. argues that it has a valid ownership claim by virtue of both the prepetition

financing and the DIP financing, both of which J.J.F. contends grant it a secured,

perfected interest in the accounts. It therefore contends that the district court erred in

denying its motion on the grounds that it could not establish a bona fide claim of

ownership to the accounts. Second, J.J.F. argues that the DIP Order contains relevant

findings of fact and conclusions of law with respect to the validity of its claim to the

accounts and that the district court therefore erred in declining to accord it preclusive

effect. We address each argument in turn.

A.

J.J.F. contends that the district court erred in denying its motion on the grounds

that J.J.F. failed to establish the validity of its claim to the deposit accounts. The district

court treated J.J.F.’s claim as a motion by a third party to release property under levy

under Rule 2-643(e). Rule 2-643(e) creates a mechanism by which any third party “who

claims an interest in property under levy may file a motion requesting that the property be

released.” Md. Rule 2-643(e). The issue here is whether a court may deny such a motion

if it finds that the third-party claimant cannot establish a bona fide claim of ownership of

the property in question.

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We affirm. Maryland law permits a court to deny the Rule 2-643(e) motion of a

third party who cannot establish a bona fide claim of ownership, and the district court

here did not clearly err in determining that J.J.F. could not satisfy that burden.

1.

Under Maryland law, a third party who claims ownership over levied property

bears the burden of establishing its claim to ownership of the property. Guyer v. Snyder,

104 A. 116, 117 (Md. 1918). Consequently, when the third party cannot meet its burden

of demonstrating a bona fide claim to ownership, a court may deny that party’s Rule 2-

643(e) motion claiming an interest. This is consistent with other cases involving levied

property, in which Maryland courts have denied third party claims when the third party

could not show that it had a bona fide claim of ownership to the property. For instance,

the Court of Appeals of Maryland held that a third party could not succeed on a claim

against property that had been levied by a sheriff in anticipation of a sale to satisfy a

judgment because the third party failed to meet its burden of proving ownership. Drury

v. Pashen, 175 A.2d 771, 774 (Md. 1961).

Additionally, federal district courts applying Maryland law have denied Rule 2-

643(e) motions where the third party clearly had no bona fide interest in the property in

question. See, e.g., Cutting Edge Techs., Inc. v. Nosyuiaido, No. WDQ-01-2855, 2011

WL 5118446, at *2 (D. Md. Oct. 26, 2011) (unpublished) (denying a Rule 2-643(e)

motion, in part because the third-party movant “has not demonstrated a sufficient factual

basis for his assertion that the property is his”); Transpacific Tire & Wheel, Inc. v. Orteck

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Int’l, Inc., No. DKC 06-0187, 2010 WL 4296585, at *2 (D. Md. Oct. 29, 2010)

(unpublished) (denying a Rule 2-643(e) motion because the third-party movant did not

hold an interest in the property at issue). Persuaded by this analysis, we hold that a court

may deny a Rule 2-643(e) motion when a third party cannot establish a bona fide claim of

ownership.

2.

The district court here did not clearly err in denying J.J.F.’s Rule 2-643 motion. It

did so because it concluded that J.J.F. needed to “demonstrate its bona fide entitlement to

the garnished accounts that has priority over Schwartz’s claim” and that “[b]y a wide

stretch,” J.J.F. failed to meet this burden. Schwartz, 2018 WL 4567106, at *4. We

consider, first, J.J.F.’s purported interest arising out of the pre-petition financing, and

second, its purported interest arising out of the DIP financing.

With respect to the pre-petition financing, the district court asked J.J.F. to present

evidence establishing the validity of that claim. While J.J.F. produced some documents

bearing on the purported loan, it was unable to conclusively show that it had ever

transferred money to RAWA or Bundy. After considering the documents that J.J.F.

produced, the district court found it “highly doubtful that [J.J.F.] ever actually loaned

money to RAWA,” and it noted the “questionable timing” of the DACAs purporting to

perfect J.J.F.’s interest in the accounts. Id. at *4. It concluded that “[t]he idea that the

[pre-petition financing] was made more than 10 years ago, but was never collected on,

and was overdue, then suddenly became due when Schwartz came calling is nothing short

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of preposterous.” Id. at *5. We agree that the district court did not clearly err in

determining that the circumstances surrounding the pre-petition financing suggest that

J.J.F. lacked a bona fide claim of ownership of the accounts.

Turning to J.J.F.’s purported interest arising out of the DIP financing, we conclude

that the district court also did not clearly err by concluding that J.J.F. lacked a valid claim

to the accounts with respect to the DIP financing. Indeed, it articulated multiple bases for

this conclusion.

First, as we just noted, the district court concluded that J.J.F. had not produced

evidence that money ever changed hands between J.J.F. and RAWA. This finding

applies equally to the DIP financing and the pre-petition financing. Indeed, J.J.F. can

point to nothing in the record--aside from a stipulation by RAWA in the DIP Order--to

suggest that any money was, in fact, ever paid.

Second, the district court concluded, consistent with the bankruptcy court, that

RAWA and Bundy initiated the bankruptcy proceedings in bad faith. The district court

recognized that the entire “bankruptcy proceedings appear to have been nothing more

than thinly-veiled efforts to impede” Schwartz from collecting on the contempt award.

Id. at *6. The court did not clearly err in relying on these findings to conclude that the

DIP financing, which arose out of those bankruptcy proceedings, did not establish a valid

claim to the accounts.

Finally and relatedly, the district court noted that the insider relationship between

RAWA and J.J.F. “further calls into question the validity” of J.J.F.’s claim to the

accounts. Id. at *5; cf. In re TMT Procurement Corp., 764 F.3d 512, 515–17, 522 (5th

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Cir. 2014) (declining, in the bankruptcy context, to find that a DIP lender acted in good

faith when it was aware that a DIP creditor had an insider relationship with the debtor and

that an unrelated third party had an adverse claim to the debtor’s assets). J.J.F. “is

controlled by John J. Fitzgerald, Jr., the same individual who sits as a Director and

Chairman of the Board of Directors at RAWA.” Schwartz, 2018 WL 4567106, at *5.

Indeed, RAWA is wholly owned by J.J.F. and was so when J.J.F., RAWA, and Bundy

negotiated the DIP financing. J.J.F. does not challenge the district court’s factual

findings regarding the nature of its relationship with RAWA, which were accurate. We

therefore cannot say that it erred by citing to the nature of the relationship between the

parties as evidence that J.J.F.’s claim to the accounts lacked validity.

In sum, on these facts, we find it difficult to grant J.J.F. the benefit of the doubt

with respect to whether it had a valid claim to the accounts. Indeed, we share the district

court’s concerns that “[a]t the end of the day, [J.J.F.’s Rule 2-643(e) motion] is one more

shameless attempt by [RAWA, Bundy, and J.J.F.] to avoid paying the [contempt award

owed to Schwartz].” Id. at *6. We are reluctant to allow J.J.F.--an insider of RAWA,

whose attempts to frustrate Schwartz’s franchise rights and collection of the contempt

award have been well-documented--to jump the line of priorities that Maryland secured

transactions law establishes without a clear showing that J.J.F. is actually entitled to the

funds in the deposit accounts at issue.

B.

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Notwithstanding the above, J.J.F. contends that the DIP Order conclusively

establishes that J.J.F.’s claim to the deposit accounts is valid because that order

purportedly shows both that J.J.F. has a superior interest in the deposit accounts and that

the DIP financing was done in good faith. Accordingly, J.J.F. contends that the district

court erred in failing to consider the preclusive effect of the DIP Order on J.J.F.’s claim.2

Res judicata operates to preclude subsequent litigation of certain matters when

there has been a prior judgment between the same parties.3 First Union Commercial

Corp. v. Nelson, Mullins, Riley and Scarborough (In re Varat Enters.), 81 F.3d 1310,

1315 (4th Cir. 1996). A prior judgment between the same parties may operate to bar

subsequent litigation under one of two related res judicata doctrines: claim preclusion or

issue preclusion. Id. We conclude that neither bars Schwartz’s claims.

2 J.J.F. claims that “the lower court neglected to mention the debtor-in-possession

financing and the DIP Order.” Appellant’s Br. at 10. We note, however, that the district

court did consider the DIP Order as evidence of whether J.J.F.’s claim was bona fide.

See Schwartz, 2018 WL 4567106, at *3 (noting that J.J.F. did produce “a copy of Judge

Silverstein’s final order from RAWA’s and Bundy’s bankruptcy proceedings approving

post-petition filing for [J.J.F.]”).

3 A bankruptcy order is considered a prior judgment between the same parties for

purposes of res judicata when the parties to the subsequent litigation are comprised of the

bankrupt debtor and any party in interest to the bankruptcy proceeding. Grausz v.

Englander, 321 F.3d 467, 473 (4th Cir. 2003). A party in interest to a bankruptcy

proceeding is “one who has a pecuniary interest in the distribution of [the debtor’s] assets

to creditors.” Id. Schwartz was a party in interest to the bankruptcy proceedings

involving RAWA, J.J.F.’s parent company; he had a pecuniary interest in the distribution

of RAWA’s assets because RAWA owed money to him in the form of the contempt

award. The DIP Order is therefore a prior judgment between the same parties for the

purposes of res judicata.

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1.

Claim preclusion applies when later litigation between two parties arises from the

same cause of action as previous litigation between the parties. Id. Claims arise out of

the same cause of action when they “arise out of the same transaction or series of

transactions . . . or the same core of operative facts.” Id. at 1316 (citations omitted). In

the bankruptcy context, we have held that a legal malpractice claim arose out of the same

cause of action as a bankruptcy fee order when the malpractice claim related to the

quality of legal services provided in connection with the bankruptcy proceeding. Grausz

v. Englander, 321 F.3d 467, 473 (4th Cir. 2003). Similarly, a debtor was barred from

contesting a creditor’s claims to the debtor’s property outside the bankruptcy context

when the bankruptcy court had already determined that those claims were legitimate.

Covert v. LVNV Funding, LLC, 779 F.3d 242, 247 (4th Cir. 2015). In contrast, a

bankruptcy plan confirmation did not bar a creditor from later asserting claims to the

debtor’s property during the same bankruptcy proceeding when the plan confirmation

made no determination as to the validity of those claims because that issue was not before

the bankruptcy court. LVNV Funding, LLC v. Harling, 852 F.3d 367, 374–75 (4th Cir.

2017).

Here, the claims at issue in this case do not arise out of the same cause of action as

those at issue in the DIP Order. The purpose of the DIP Order was to provide for

RAWA’s and Bundy’s financing needs during bankruptcy. In contrast, the present action

relates to J.J.F.’s priority over the funds in the previously garnished accounts. The two

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proceedings therefore do not concern the “same core of operative facts,” In re Varat

Enters., 81 F.3d at 1316.

2.

J.J.F.’s issue preclusion argument fares no better. Issue preclusion applies “when

the later litigation arises from a different cause of action.” Id. at 1315. It “operates to bar

subsequent litigation of those legal and factual issues common to both actions that were

‘actually and necessarily determined by a court of competent jurisdiction’ in the first

litigation.” Id. (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). The issue

in question is whether J.J.F.’s claim to the deposit accounts is valid. We hold that the

DIP Order does not preclude Schwartz from contesting the validity of J.J.F.’s interest in

the deposit accounts here because that issue was not actually litigated for purposes of the

DIP Order.

J.J.F. contends that the DIP Order was actually litigated because it was

accompanied by notice and a hearing, at which Schwartz was telephonically represented

by counsel. However, our inquiry focuses on whether the issue in question was actually

litigated. See id. The bankruptcy court did not decide the merits of J.J.F.’s claim to an

interest in the deposit accounts.4 Instead, it cabined any statements on the validity of

4 Indeed, such a determination would be atypical at the DIP financing stage; in

bankruptcy, “[f]inancing motions are typically filed early in a case under emergency

circumstances and done on an expedited basis,” and, therefore, the court is unlikely to

make findings on the validity of interests at issue. In re Mariner Post-Acute Network,

Inc., 267 B.R. 46, 54–55 (Bankr. D. Del. 2001).

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J.J.F.’s existing interest to a section of the DIP Order that was explicitly based on

RAWA’s and Bundy’s stipulations, “without prejudice to the rights of parties in interest,”

including Schwartz. J.A. 497. Therefore, the validity of J.J.F.’s interest was not actually

litigated for the DIP Order.

This case is therefore distinguishable from our decision in Spartan Mills v. Bank of

America Illinois, 112 F.3d 1251 (4th Cir. 1997), on which J.J.F. seeks to rely. We held

there that a DIP order barred a creditor from later asserting that it had a priority security

interest in a debtor’s assets. Id. at 1255–57. However, the preliminary DIP order by the

bankruptcy court in that case imposed a deadline by which creditors could raise

challenges to the validity or priority of the pre-petition interests and claims at issue in the

DIP order, after which its statements on the validity and priority of the pre-petition

interests “would be established” as a finding of the bankruptcy court and would “no

longer be provisional.” Id. at 1253. We held that the creditor was barred by res judicata

from later litigating the priority of the interests in that DIP order because it had notice of

the deadline and did not timely object to the DIP order. Id. at 1257–58.

In contrast, the bankruptcy court here did not make findings on the validity of the

pre-petition interests at issue in the DIP Order. The parties did not adjudicate the matter,

and the bankruptcy court did not purport to reach a conclusion as to the validity of J.J.F.’s

existing interest. Instead, the bankruptcy court simply entered the order, which itself was

based upon RAWA’s and Bundy’s stipulations as to the pre-petition financing. While the

court did set a deadline by which interested parties could challenge those stipulations, it

did not state, as the bankruptcy court in Spartan Mills did, that it would transform those

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statements into findings of fact if no party objected. See id. at 1253. Thus, unlike in

Spartan Mills, the validity of the interests in the DIP Order here was not actually

litigated. Issue preclusion therefore does not bar Schwartz’s claims.

Accordingly, we hold that the DIP Order does not have preclusive effect here

under principles of res judicata. Were we to hold otherwise, the practical effect would be

to permit two related parties to strip a third party of his legitimate claims to assets by

negotiating an insider financing agreement pursuant to a sham bankruptcy. We decline to

endorse such a scheme.

IV.

The district court did not clearly err in finding that J.J.F. could not demonstrate a

bona fide third-party interest in the accounts. We therefore affirm its denial of J.J.F.’s

motion and instruct it to take whatever measures it deems appropriate to protect the

judicial process with respect to its contempt orders.

AFFIRMED