[ PUBLISH ] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_________________________ No. 16

- 10942

_________________________ D.C. Docket No: 8:09

- cv - 00087

- RAL

- TBM SECURITIES AND EXCHANGE COMMISSION , Plaintiff

- Appellee,

versus WELLS FARGO BANK, N.A., Creditor , Interested Party

Appellant ,

_____________________ Appeal from the United States District Court for the Middle District of Florida

_______________________ ( February 22, 2017 ) Case: 16-10942 Date Filed: 02/22/2017 Page: 1 of 122 Before JORDAN and JILL PRYOR , Circuit Judges, and PROCTOR , * District Judge. PROCTOR, District Judge:
I. BACKGROUND Following the collapse of a Ponzi scheme, the district court appointed a receiver to administer the affairs, funds, and property of parties who perpetrated
that failed scheme

. The district court also established a claims administration process by which those who had claims to property administered by the equity

rec eivership could file proofs of claim. In this appeal, we are called upon to decide whether in such a circumstance a district court may extinguish a non

- party’s pre existing rights to property under the administration of the equity receivership if that non

- party fails to comply with the court’ s orders regarding filing of proofs of

c laim. We conclude a district court may not. And , we look to bankruptcy law to aid us in addressing this question of first impression. On January 21, 2009, the SEC initiated an action (the “Nadel action”) following the collapse of a Ponzi scheme perpetrated by Arthur Na del. As a result,

t he district c ourt appointed a Receiver over the Nadel action Defendants. The district court di rected the Receiver to “administer and manage the business affairs, funds, assets, choses in action and any other property of the Defendants and Relief

* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation.

Case: 16-10942 Date Filed: 02/22/2017 Page: 2 of 123 Defendants; marshal and safeguard all of the assets of the Defendants and Relief Defendants; and take wh atever actions are necessary for the protection of the investors .” Accordingly, t he receivership exercised authority not only over claims from victimized investors , but also entities and businesses which were funded with , and properties purchased with , procee ds of Nadel’s Ponzi scheme. While Wells Fargo is not a par ty in the Nadel action, it has secured interest s in three properties which the Receiver took possession of pursuant to the d is trict c ourt’s orders. On April 21, 2010, the district c ourt e ntered an order establishing a claims administration process by which potential claimants (bot h investors and creditors)
could file proof of their claims against the receivership

. As part of the claims administration process, the Receiver would mail a claims packet, which contained a Proof of Claim form , to investors and creditors whose property was i mplicated in the Ponzi scheme. Under authority of the district court order, the packet required that non

- investors (including non - party creditors such as Wells Fargo) provide to the Receiver any amount claimed due, together with supporting documents, by the claim bar date. 1 The district court’s order required that all creditors submit their

1 The Claim Bar Date Notice explained that: If you we re not an investor, but believe you are or may be a creditor of one o[r] more of the Receivership Entities, you must provide to the Receiver by the Claim Bar Date (1) the amount you contend you are owed from any Receivership Entity; (2) any amounts received from any Receivership Entity; and (3) legible copies of all documents on which you base your claim (i.e., all invoices for services or Case: 16-10942 Date Filed: 02/22/2017 Page: 3 of 124 claims before the claim b ar date , and did not distinguish between secured and unsecured creditors with respect to this requirement . The district c ourt (1) established a deadline of September 2, 2010 for filing a Proof of Claim f orm and (2) barred any claims asserted after that date. Consistent with this process, the Receiver mailed a single claims packet to Wells Fargo at its Atlanta, Georgia address. After receiving this pac ket, Wells Fargo submitted a Proof of Claim as to its loan that secured one receivership property within the set claim bar date , but did not submit a P roof of Claim detailing its secured interest in the other two receivership properties

.

goods provided, loan documents, etc.) or, if any such documents are not available, a detailed explanation as to why such document s are not available. The Claim Bar Date Notice further stated: 4. CONSEQUENCES OF FAILURE TO FILE A PROOF OF CLAIM BY THE BAR DATE
ANY HOLDER OF A CLAIM OR POTENTIAL CLAIM THAT FAILS TO FILE A PROOF OF CLAIM (1) THAT FULLY COMPLIES WITH ALL REQUIREMENTS SET FORTH IN THIS NOTICE AND (2) BY THE CLAIM BAR DATE WILL BE FOREVER BARRED, ESTOPPED, AND ENJOINED FROM ASSERTING SUCH CLAIM AGAIN ST RECEIVERSHIP ENTITIES... THEIR RESPECTIVE PROPERTY, THE RECEIVER, OR THE RECEIVERSHIP ESTATE, AND FROM PARTICIPATING IN ANY DISTR IBUTION FROM THIS RECEIVERSHIP. Case: 16-10942 Date Filed: 02/22/2017 Page: 4 of 125 II. PROCEDURAL HISTORY On February 8, 2012, well after the September 2, 2010 claim bar date, Wells Fargo submitted a motion seeking a determination that the filing of Proofs of
C laim was un necessary to preserve its security interests in, and claims against, collateral in the Receiver’s p o ssession (including the two properties for which it
failed to submit Proofs of Claim )

. Alternatively, Wells Fargo’s motion sought leave to file belated claims pursuant to Rule 60( b) based on excusable neglect. Th e district c ourt deferred ruling on the motion. On December 7, 2015, the Receiver filed a motion seeking two fo rms of relief. First, the Receiver’s motion sought a determination that Wells Fargo’s failure to submit Proof s of Claim for the loans secured by two properties extinguished it s i nterests in those properties. Second, the motion requested the
release of the proceeds from the sale of one of the properties f or whic h Wells Fargo did not file a Proof of Claim

. Wells F argo objected to the motion

. Nevertheless, t he district c ourt granted the Receiver’s motion, finding that Wells Fargo’s security interests in the two properties were not preserved due to its failure to submit P roof s of Claim . The district c ourt further held that Wells Fargo’s Rule 60(b) request was u ntimely and insufficient. The district c ourt specifically determined that Wells Fargo bore the burden to protect its rights pursuant to the framework set forth in the court’s prior or der. The district c ourt reasoned that

Case: 16-10942 Date Filed: 02/22/2017 Page: 5 of 126 secured creditors such as Wells Fargo, despite their secured interest, were obliged to follow court orders in order to protect their rights to coll ateral in the receivership proceedings. Wells Fargo appeals the district c ourt’s o rder

. A fter careful review , and with the benefit of oral argument, we agree with Wells Fargo, and reverse and remand this matter to the district c ourt for further proceedings consistent with this opinion.
III. STANDARD OF REVIEW The sole issue in this appeal is whether the district c ourt correctly determined that Wells F argo’s failure to file certain proofs of c laim in accordance with the district court’s procedure s extinguished Wells Fargo’s secured interest in the receivership properties. This is a question of “pure law,” which we review de

novo . See Young v. New Process Steel, LP , 419 F.3 d 1201, 1203 (11th Cir. 2005) (holding that “[w] e decide ‘pure law’ issues de novo , which is another way of saying that a ruling based on an error of law is an abuse of discretion.”) (internal citations omitted).
IV. DISCUSSION We first address the Receiver’s argument that Wells Fargo’s appeal is untimely. After finding that argument is without merit, we address whether Wells Fargo’s security interests were properly terminated by the district court.

Case: 16-10942 Date Filed: 02/22/2017 Page: 6 of 127 A. Wells Fargo’s Appeal is Timely

. As an initial matter, the Receiver argues that Wells Fargo untimely noticed its appeal, a nd accordingly is procedurally barred from bringing the appeal. Specifically, the Receiver contends that Wells Fargo’s security interest in the two properties for which it did not file Proofs of Claim was extinguished at the point
that it failed to submit those Proofs of Claim in compliance with the distric t court’s order. Accordingly, the Receiver argues, Wells Fargo’s “Motion for Determination” was effectively a motion for reconsideration, which was untimely, because it was filed more than a year after the entry of the relevant district court order. Similarly, then, the Receiver argues, Wells Fargo had until only September 21, 2010 to appeal the district court’s order establishing the claims filing procedure. But the Receiver’s argument is without meri t. The district court’s order establishing the claims filing procedure cannot be characterized as a “final trial court judgment that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” 2 Fla. Wildlife Fed’ n, Inc, v. Adm’r,
U.S. EPA , 737 F.3d 689, 692 (11th Cir. 2013) (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 467, 98 S.Ct. 2454 , 2457 (1978)). And, as the order was not final, it did not put Wells Fargo on notice that the district court would

2 Moreover, Wells Fargo clearly contests the abolition of its security interests in the p roperties at issue, not the creation of a claims procedure.

Case: 16-10942 Date Filed: 02/22/2017 Page: 7 of 128 extin guish its secured interests by later order or that its security interests would be automatically terminated upon non - filing of a Proof of C laim. Accordingly, the first order from which Wells Fargo could take an appeal was the district court’s February 2, 2016 order. Wells Fargo’s appeal is timely. Fed. R. App. P. 4(a)(1)(A).
B. The District Court Erred When it Terminated Wells Fargo’s Security Interest in the Properties at Issue. As we have observed, a “d istrict court has broad powers and wide disc retion to determine r el ief in an equity receivership.” SE C v. Elliott , 953 F.2d 1560, 1566 (11th Cir. 1992)

. This discretion derives from the inherent powers granted an equity court to fashion relief. Id. ( citing SEC v. Safety Finance Service, Inc. , 674 F.2d 368, 372 (5th Cir. 1982) )

. To be sure, among these broad powers is the power to establish proof of claim procedures and set an effective claims bar date. See
SEC v. Tipco, Inc. , 554 F.2d 710, 711 (5th Cir. 1977)

. However, wh ile a federal district court has wide

- ranging authority to supervise a receivership, we hold it does not have the authority to extinguish a creditor’s pre

- exist ing state law security interest , as the district c ourt purported to do here

. It is axiomatic that security interests in property are determined by state law,
Butner v. United States , 440 U.S. 48, 55, 99 S.Ct. 914, 918 (1979), and that “a receiver appointed by a federal court takes property subject to all liens, priorities, or privi leges existing or accru ing under the laws of the s tate, ” Marshall v. New

Case: 16-10942 Date Filed: 02/22/2017 Page: 8 of 129 York , 254 U.S. 380, 385, 41 S.Ct. 143, 145 (1920). B ut b eyo nd these well

established rules , t here is minimal authority with respect to a district court’s authority , in the context o f a receivership , to extinguish a secured creditor’s pre

existing state law security interest by operation of its own claims administration
process . We note, however, that our Circuit’s bankruptcy law has fielded and answered questions similar to those presented here and specifically addressed what limits are imposed upon a district court under similar circumstances

. 3 We conclude bankruptcy law is both analogous and instructive here . A fter all, a primary purpose of both receivership and bankruptcy proceedings is to promote the efficient and orderly administration of estat es for the benefit of creditors. See, e.g. , Elliott , 953 F.2d at 1572

- 73 (analyzing bankruptcy law in the receivership context)

. Accordingly, we analyze the question before us through the lens of our bankruptcy decisions. In the bankruptcy context, a secured creditor’s lien remains intact through the bankruptcy, regardless of whether the creditor files a proof of claim. In re

3 A number of other circuits have a lso looked to bankruptcy law to aid in addressing issues raised in the receivership context

. See e.g. , Marion v. TDI Inc. , 591 F.3d 137, 148 (3d Cir. 2010) (analyzing bankruptcy law in a receivership context); Fidelity Bank, Nat’l Ass’n v. M.M. Grp., Inc. , 77 F.3d 880, 882 (6th Cir. 1996) (finding it “appropriate and helpful to refer to the rules governing appellate standing in bankruptcy proceedings” when no case law existed regarding the rules in a receivership action); Unisys Fin. Corp. v. Resolution Trust Corp. , 979 F.2d 609, 611 (7th Cir. 1992) (reasoning that bankruptcy law is “parallel” and “instructive” in the receive rship context).

Case: 16-10942 Date Filed: 02/22/2017 Page: 9 of 1210 Bateman , 331 F.3d 821, 827 (11th Cir. 2003) (“ An unsecured creditor is required to file a proof [of] claim for its claim to be allowed, but filing is not mandatory for
a secured creditor

. In fact, a secured creditor need not do anything during the

course of the bankruptcy proceeding because it will always be able to look to the underlying collateral to satisfy its lien. ”) (citations omitted); In re Thomas , 883 F.2d 991, 997 (11th Cir. 1989) ( finding that a creditor’s lien was not voided in bankruptcy proce eding, and a proof of claim must only be filed in a Chapter 13 proceeding to preserve a deficiency claim). 4 This reasoning is also consistent with treatises that have addressed the issue in the receivership context. For example , one such treatise states that: The appointment of a receiver does not invalidate liens existing at the time the receiver is appointed , although it may affect or change the remedy or remedies which the lienholder may use to enforce his lien. Generally speaking the person who has a specific lien on property is entitled by following proper procedure to pay himself out of the property and if it be insufficient, then to prove his claim for the deficiency. In the case of receivership such claim must come out of the proceeds of propert y not covered by the specific lien and such claim for deficiency must prorate with the unsecured creditors. Generally speaking no other creditor except the lienholder is entitled

4 The Receiver argues that the cases cited by Wells Fargo “are a creature of, and unique to, the fe deral bankruptcy code itself.” Response Br. at 27. But that argument is simply off the mark. Secured creditors’ liens ride through bankruptcy for reasons beyond 11 U.S.C. § 506(d)

. In fact, well before section 506(d) was added to the modern Bankru ptcy Code, courts held that creditors’ secured interests were preserved throughout bankruptcy. Long v. Bull ard , 117 U.S. 617, 620

- 21 (1886); s ee also White v. FIA Card Servs., N.A. , 494 B.R. 227, 230 (Bankr. W.D. Va. 2012) (“A longstanding pre

- Code rule allowed secured creditors to choose not to participate in a debtor’s bankruptcy proceeding and still retain v alid, enforceable liens once the debtor was discharged from bankruptcy.”)

.

Case: 16-10942 Date Filed: 02/22/2017 Page: 10 of 1211 to any part of the proceeds of property covered by a lien until the lienor i s first paid. Ralph Ewing Clark, A Treatise on the Law and Practice of Receivers , § 646 (3d ed. 1959)

. A secured creditor certainly may file a proof of claim in a receivership action, in turn submitting itself to the jurisdiction of the receivership, and entitling itself to access of the general pool of receivership assets for any unsecured portion of its debt. 5 In fact, this may often be advisable where a secured creditor is

u ndersecured or anticipates having a claim for deficiency beyond what may be paid out of the collateral. However, a federal district court cannot order a secured creditor to either file a proof of claim and submit its claim for determination by the receive rship court, or lose its secured state

- law property right that existed prior to the receivership.
V

. CONCLUSION For the reasons stated above, we reverse the district court’s order gra nting the Receiver’s Motion for Determination that Wells Fargo’s Failure to Comply with this Court’s Claims Administration Process Extinguished its Purported Interests in Re ceivership Properties, and for Release of Proceeds of Sale of Sarasota Property. Wells Fargo’s security intere sts remain intact as to the two

5 As the dis trict court correctly noted, there is a distinction between a secured creditor’s in rem rights to the collateral and its right to receive a distribution for the general pool of receivership asset s . Nevertheless , the district court erred when it then determined that Wells Fargo’s failure to file P roofs of Claim for two of its properties extinguished its in rem rights to the collateral as well as its right to receive a distribution from the pool of receivership assets.

Case: 16-10942 Date Filed: 02/22/2017 Page: 11 of 1212 properties for which it did not file a Proof o f Claim in the district court. This case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. Case: 16-10942 Date Filed: 02/22/2017 Page: 12 of 12