REVISED - August 9, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20331

IN RE: “RONFIN” SERIES C BONDS SECURITY INTEREST LITIGATION

___________________

KLESCH & COMPANY LIMITED; ET AL.

Plaint iffs,

KLESCH & COMPANY LIMITED,

Plaintiff-Appellant,

versus

NAURU PHOSPHATE ROYALTIES (HONOLULU), INC.;

NAURU PHOSPHATE ROYALTIES (HOUSTON) INC.;

NAURU PHOSPHATE ROYALTIES DEVELOPMENT

(HONOLULU), INC; NAURU PHOSPHATE ROYALTIES, INC.,

Defendants-Appellees.

___________________

KLESCH & COMPANY LIMITED,

Plaintiff-Appellant,

versus

NAURU PHOSPHATE ROYALTIES (HOUSTON) INC.,

Defendant-Appellee.

___________________

KLESCH & COMPANY LIMITED,

Plaintiff-Appellant,

versusNAURU PHOSPHATE ROYALTIES, INC.,

Defendant-Appellee.

___________________

KLESCH & COMPANY LIMITED,

Plaintiff-Appellant,

versus

NAURU PHOSPHATE ROYALTIES (HONOLULU), INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

August 6, 1999

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The court below granted summary judgment on plaint iff- appellant’s claim for an equitable

lien. Specifically, it held that plaintiff-appellant could not point to a genuine issue of material fact as

to any of the requisite elements for such a claim. On appeal, plaintiff-appellant argues that the court

below erred when it found that it could not grant the lien as a matter of law. For the reasons set forth

below, we affirm.

F ACTUAL & P ROCEDURAL B ACKGROUND

This case begins on the tiny tropical island of Nauru, located in the Pacific Ocean near the

coast of Japan. Governing the approximately ten thou sand people residing on this island is the

Republic of Nauru (“the Republic”), a democratic government that is also one of the world’s smallest

sovereign nations. One of the things Nauru is known for is its rich phosphate deposits; accordingly,

the Republic generates a significant a mo unt o f revenue from the export and sale of this natural

resource.3

Realizing that these phosphate reserves cannot last forever (and in 1989, were estimated to

last only another eight or ten years), the Republic set aside a fixed porti on of the revenues derived

from the phosphate sales into seven Trust Funds. In 1968, the Republic organized a statutory trust

known as the Nauru Phosphate Royalties Trust (“Trust”) to administer these funds so that the nation

will continue to have adequate incom e well into the future. At the time the events that led to this

lawsuit transpired, the Trust administered almost a billion dollars worth of assets.

In furtherance of its objec t ive, the Trust organized several subsidiaries based in the United

States, four of which were named as defendants in the consolidated action. The Trust is the sole

shareholder of defendant-appellee (1) Nauru Phosphate Royalties, Inc. (“NPR”). In turn, NPR is the

sole s h areholder of defendants-appellees (2) Nauru Phosphate Royalties (Houston), Inc. and

(3) Nauru Phosphate Royalties (Honolulu), Inc. The last of these is the sole shareholder in defendantappellee (4) Nauru Phosphate Royalties Develo pment (Honolulu), Inc. (collectively, “Trust

Subsidiaries”). Three properties owned by the Trust Subsidiaries, namely Kaka’ako Land in

Honolulu, the Pacific House in Washington D.C., and the Singer Building in Houston (collectively,

“Properties”), are the subject of this lawsuit.

In 1972, the Republic enacted t he Republic of Nauru Finance Corporation Act (“The

RONFIN Act”), which created the Republic of Nauru Finance Corporati on (“RONFIN”) to carry on

the business of finance and investment, including the is suance of securities. According to the

RONFIN Act, the Republic is a statutory guarantor of the liab ilit ies and obligations of RONFIN.

Furthermore, the RONFIN Act provides that the Cabinet “may, if it considers it expedient to do so,

direct that the assets of any one or more of” the Trust Funds discussed above “are to be charged or

deposited to secure the repayment of any moneys borrowed by the Corporati on or any credit to it.”

These provisions are important because the Properties owned by the Trust Funds, through the Trust

Subsidiaries, are the subject of this lawsuit.

On July 21, 1989, RONFIN issued bearer bonds known as RONFIN Japanese Yen Bonds

Series C (“Series C Bonds”), having an aggregate face value of five billio n yen. Although the1 On April 27, 1995, the day RONFIN defaulted on the Bonds, Klesch wrote to the other Series

C Bondholders and proposed that it represent all of the bondholders in lit igation against, and in

negotiations with, the Republic to secure repayment of the Bonds. Klesch proposed a fee of 15% of

all amounts recovered and a contribution by each bondholder of 1% of the face value of the Bonds

held by it toward the cost of legal proceedings. To date, none of the other bondholders has accepted

Klesch’s invitation.

2 Klesch had also purchased Series B Bonds with a face value of 300 millio n yen on the same day

i t purchased t he Series C Bonds. Its Japanese lawsuit deals with both the Series B and Series C

Bonds, although the case before this court deals only with the Series C Bonds.

4 RONFIN bonds were originally due for repayment on July 27, 1994, by agreement of the ori gi nal

bondholders the maturity date was postponed to April 27, 1995. However, RONFIN did not pay the

bond debt on that day, nor has it made any payment since then.

Approximately one month before the bonds were to have matured, plaintiff-appellant Klesch

& Co., Limited (“Klesch”), purchased certain Series C Yen Bonds (“Bonds”) with a face value of one

billion yen (worth approximately $9.4 millio n at the time of the summary judgment proceedings) in

the secondary bond market at a discount rate, and registered its ownership of the Series C Bonds in

Japan. Klesch is a privately owned British company that focuses on the distressed securities market,

i.e. defaulted bonds. As noted above, on April 27, 1995, RONFIN defaulted on the Bonds. After

making repeated demands to the Republic for repayment, 1 on June 1, 1995, Klesch filed suit in Japan

against the Republic and RONFIN seeking judgment for the full amount owe d to Klesch. 2 After

init ially refusing to acce pt service in this lawsuit and agreeing to appear only to contest the

jurisdiction of the Japanese courts and to assert sovereign immunit y, th e Republic has now filed a

complete answer on the merits. This suit remains pending in Japan.

In May and June 1995, Klesch filed suit in several state courts in the United States against

specific properties owned by the Trust Subsidiaries in those jurisdictions. These lawsuits do not name

the Republic or RONFIN as defendants; instead, they name the specific Trust Subsidiary in control

of the property in the relevant jurisdiction. The first of these lawsuits was filed in the territorial court

system in Guam against the Republic of Nauru (Guam), Inc., an d sought an equitable lien on real

property owned by that defendant in Guam. In February 1997, the Superior Court of Guam granted3 In July and September 1996, and in February 1997, Chase Manhattan (“Chase”) purchased Series

C Bonds with a total face value of 1.350 billio n yen (worth approximately $11 millio n at the time of

the summary judgment p ro ceedings). Subsequently, the district court granted Chase’s motion to

intervene as an additional plaint iff. Chase did not appeal the district court’s decision granting

summary judgment against it, and therefore is not a party to the instant appeal.

4 The parties do not dispute the district court’s determinations as to the correct forum, the proper parties, or the applicable choice of law.

5 summary judgment in favor of the defendant. Although Klesch lodged an appeal in the Supreme

Court of Guam, that appeal was eventually dismissed for lack of prosecution.

The other three American suits were filed in Texas, Hawaii, and Washington, D.C. against

the Trust Subsidiaries for property owned by them in their respective jurisdictions. After the Trust

Subsidiaries removed the cases to federal court, the Judicial Pane l for Multidistrict Litigation,

pursuant to 28 U.S.C. § 1407, consolidated and transferred the cases to United States District Court

for the Southern District of Texas. In these consolidated cases, Klesch asserts that the Republic’s

default on the bonds creates a right to have an equitable lien imposed in its favor on the Properties. 3

To this end, Klesch utilizes language from several documents having to do with the Bond issuance:

(1) the Placement Memorandum; (2) the Purchase Agreement; (3) the Conditions of Bond; and (4)

the Conditions of Guarantee (collectively, “Bond documents”).

After determining that it was the proper forum, that the defendants before it were the proper

parties, and that the laws of Texas, Hawaii, and D.C. (as opposed to Japanese law) were the correct

choices of law, the district court on April 2, 1997, granted summary judgment in favor of the Trust

Subsidiaries. The court reasoned that Klesch could not point to a genuine issue of material fact as

to any of the three elements of an equitable lien claim. The district court entered final judgment on

March 5, 1998, after denying Klesch’s motion to stay entry of final judgment and for reconsideration.

This appeal followed. 4

D ISCUSSION

I5 Klesch argues that the court below erred in requiring it to satisfy this third element; accordingly,

Klesch submits that the proper test consists of only the first two elements. We discuss this argument

in more detail infra

.

6 We review de novo the denial of equitable relief when that denial stems from a matter of law.

See F.D.I.C

. v. Dawson

, 4 F.3d 1303, 1308 (5 th Cir. 1993). Alternatively, we review for an abuse

of discretion a district court’s denial of equitable relief when that denial stems from its weighing of

the equities. S ee National Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 707 (5 th

Cir. 1994). Defendants-appellants contend that the abuse of discretion standard applies in this case

because, they say, the district court weighed the equities before issuing its decision. We disagree. The

court below held that equitable relief was unava i lable as a matter of law; it did not withhold such

relief simply as a matter of discretion. Consequently, we review de novo the decision of the district

court. See Dawson , 4 F.3d at 1308 (reaching similar result).

The court below disposed of Klesch’s equitable lien claim on summary judgment. Of course,

we review de novo the grant of summary judgment, applying the same criteria as did the district court.

See id. at 1306. As such, we review the evidence and draw all inferences in the light most favorable

to the nonmovant. See id. “Summary judgment is proper if the pleadings, depositions, answers to

interrogatories, and admissions on f ile, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Id. (citing F ED

. R. C IV

. P. 56(c)).

II

The district court held that to obtain an equitable lien, Klesch had to satisfy three elements:

(1) that there exi st s an express or implied agreement between the parties

demonstrating a clear intent to create a security interest in order to secure an obligation between them;

(2) that the parties intended specific property to secure the payment;

(3) and that there is no adequate remedy at law. 5

After closely scrutinizing each of these elements, the court concluded that Klesch could not point to

a genuine issue of material fact as to any of them. As a m atter of l aw, then, the court rendered7

summary judgment in favor of the Trust Subsidiaries. On appeal, Klesch advances challenges to the

district court’s conclusion as to each element. We discuss each of these challenges below.

A

Because the second element is the most direct way in whi ch t o dispose of this appeal, we

begin our analysis there. To obtain an equitable lien, the plaint iff must show that “the parties intended

specific property to secure pay ment.” I n re Daves

, 770 F.2d 1363, 1367 (5 th Cir. 1985). This

property must be identified “with reasonable certainty.” See Skip Kirchdorfer, Inc. v. United States

,

6 F.3d 1573, 1581 (Fed. Cir. 1993). Most importantly for purposes of this appeal, the property must

be distinguished from the general assets of the debtor. See In re Magrill

, 22 F.2d 757, 758 (5 th Cir.

1927).

The district court held that, as a matter of law, the Bond documents did not contain a specific

identification sufficient to allow the court to conclude that the parties intended to secure the Bonds

with the three Properties. After finding (1) that the Bo nd do cuments identified several properties

with which the Republic could secure the Bonds, and (2) that the Bond documents gave the Republic

discretion to choose which of these properties it could use in this effort, the court rejected Klesch’s

claim. It reasoned that:

If the Republic of Nauru has the dis cret io n t o choose which Fund, and which

invest ment or asset contained in the Funds, to charge to secure repayment of the

Series C Bonds, the specific Properties have not been sufficiently identified to permit

the imposition of an equitable lien on those Properties.

On appeal, Klesch begins by reiterating the argument it made to the district co urt that the

three Properties in question were, in fact, sufficiently identified in the Bond docume nt s. Initially,

Klesch points out that Condition 1 of the Conditions of Guarantee provides that the “Cabinet of the

Republic shall, if necessary, direct that the assets of one or more of the funds as referred t o in

Condition 18 of the bo nds are to be charged or deposited to secure the repayment of any monies

borrowed by RONFIN or any credit granted to it.” Condition 18 of the Conditions of Bonds points

to: “[A]ny funds governed by the Nauru Phosphate Royalties (Payment and Investment) Act of 1968,8

as amended, and the Nauru Phosphate Royalties Trust Ordinance 1968

. . . .” Finally, the Placement

Memorandum provides that, with emphasis added by this court:

The property investments of the Fun ds include ownership of Nauru House, Savoy

Plaza Ho t els, Prima House and Islanders Place, Melbourne; Kaka’ako Land,

Honolulu ; 3 Chesham Street, London; Sheraton Hotels; Auckland and Rotorua, New

Zealand, Pacific House, Washington ; and the Singer Building, Houston

. In addition,

the Funds have equity interest in their properties such as Pacific Star Hotel, Guam and

Pacifi c St ar Building, Manila with the balance of such ownership being the other

entities of the Republic of Nauru.

According to Klesch, these three references in the Bond documents together lead to the conclusion

that the properties are sufficiently identified.

Second, Klesch contends that, in contrast to the district court’s holding, equitable liens may

be imposed where the debtor retains discretion to choose which ass et will serve as the security

interest. Klesch principally relies on the Supreme Court’s opinion in Sexton v. Kessler & Co. , 225

U.S. 90 (1912). In S exton

, the creditor entered into an agreem ent wi th the debtor that a certai n

amount of securities may be kept in an escrow account separate and apart in the hands of the debtor

and the debtor had the power to make substitutions of the securities at its discretion. S ee id. at 96.

The Court held that the creditor had an equitable lien, even though the debtor could substitute the

securities in the account. S ee id. at 98. Relying on S exton

, Kl esch submits that the district court

erred in requiring the Republic to have given up all di scretion regarding the asset alleged to be

security. Finally, Klesch contends in the alternative that there is at least a genuine issue of material

fact as to whether the Bond documents sufficiently identify the Properties so as to create an equitable

lien.

Klesch misreads Sexton

, overlooking the critical fact that the debtor’s right to replace the

securities in the specified account was limited to “others of equal value.” See id. at 95. In light of

this, the fact that the debtor in Sexton could substitute security interests was of little consequence;

there was no doubt as to which property would serve to satisfy the unpaid debt (the escrow account),

nor as to the value of that property.9

In the instant matter, Nauru did not establish a certain, specified, fixed-value escrow account

for satisfaction of its debt in the event of default, merely retaining the right to alter the contents of

the account without changing its value. Instead, Nauru retained plenary control over which of its

various properties would be used to satisfy the debt. At no point was any particular property or set

of properties specifically fixed as the debt’s potential source of satisfaction, subject perhaps to future

substitution by other property of equal value. Such discretion over multiple properties of differing

values precludes the finding of specificity essential to the recognition of an equitable lien.

B

In the alternative, we consider Klesch’s challenges to the district court’s decision as to the

first and third elements of the equitable lien test. As a matter of convenience, we begin by addressing

the third element of the equitable lien claim. Klesch contests the district court’s conclusion that it

needed to prove a third element of the equitable lien claim, namely that there did not exist an adequate

legal remedy. The court found that Klesch could not prove this element as Klesch had filed a lawsuit

in Japan for damages resulting from the default on the Series C Bonds. The court further held that

this legal alternative was adequate as a matter of law because the Japanese lawsuit was proceeding

smoothly, there was no attempt by the Republic to sell or hide its assets in other countries, and that

the fact that the Republic did not have any assets in Japan was irrelevant as Klesch could enforce a

judgment elsewhere in the world (presumably including the United States).

On appeal, Klesch offers several attacks on t he district court’s analysis. Klesch initially

submits that it need not prove the third element because of the Supreme Court’s decision in Seymour

v. Freer

, 75 U.S. 202 (1868). According to Klesch, the S eymour Court held the right to proceed in

equity to enforce a lien and the right to sue on a contract are concurrent remedies, and “the remedy

in equity is the better one.” Id. at 215. Kl esch erroneously reads S eymour

. The S eymour Court

addressed the question of whether a legal remedy was available in addition to an existing equitable

remedy to enforce a trust. S ee id. This reading is consistent with the general rule that a court in

equity should not act when the moving party has an adequate remedy at law. See Moral es v.6 This argument was considered, and rejected, by the district court. The district court

acknowledged that Klesch correctly stated the general rule, but held that an exception existed in quasi

in rem proceedings like this one. S ee Mort v. United States , 86 F.3d 890, 893 (9 t h Cir. 1996). The

district court distinguished Mort by noting that the instant case was a quasi in rem action, and that

the rule specified in Mort did not encompass such cases. The district court did not cite any authority

for this holding. On appeal, Klesch submits that the rule in Mort does apply to quasi in rem action,

and cites Hill v. Hill

, 345 P.2d 1015, 1025 (Kan. 1959). The Trust Subsidiaries do not challenge

Klesch’s citation to Hill

, nor does it defend the district court’s reasoning on this point. Instead, it

offers an alternative justification for the district court’s conclusion, which we address infra

.

7 In response, Klesch contends that the Trust Subsidiaries cannot now argue there exists a close

relationship between themselves and the Republic when on summary judgment they argued that they

were not the proper parties to this case. S ee Ergo Science, Inc. v. Martin

, 73 F.3d 595, 598 (5 th Cir.

1 996) (“Judicial estoppel prevents a party from asserting a position in a legal proceeding tha t is

contrary to a position previously taken in the same proceeding.”). We decline Klesch’s invitation,

however. The Trust Subsidiaries’ motion for summary judgment, which the district court rejected,

argued that the Republic and RONFIN, and not they, were the proper parti es to the United States

litigation. This was simply a matter of proper pleading. That argument did not challenge the view that

the Trust Subsidiaries are closely related to the Republic and RONFIN.

10 TransWorld Airlines, Inc. , 504 U.S. 374, 381 (1992); see also Palmco Corp. v. American Airlines,

Inc.

, 983 F.2d 681, 686 n.9 (5 th Cir. 1993) (holding that specific performance was not available to

a party who can sue for breach of contract).

Next, Klesch contends that the Japanese lawsuit was inadequate because the defendants in that

lawsuit (RONF IN and t he Republic) were not the same as existed in the present case (the Trust

Subsidiaries). S ee Mort v. Uni ted States , 86 F.3d 890, 893 (9 t h Cir. 1996). 6 As the Trust

Subsidiaries observe, however, courts have not rigidly adhered to the general rule describe in Mort

,

and have made exceptions when there is a close relationship between the two parties. S e e, e.g.,

O’Neal v. Southwest Mo. Bank

, 118 F.3d 1246, 1253 (8 th Cir. 1997) (holding that bankruptcy court

correctly declined to impose a constructive trust or an equitable lien on debtor’ s bank where the

plaint iff had an adequate legal remedy for money damages against debtor); TCF Banking & Sav., F.A.

v. Loft Homes, Inc.

, 439 N.W.2d 735, 740 (Minn. Ct. App. 1989) (reviewing cases and stating that

equitable relief should be barred where plaint iff has an adequate legal remedy against the same party

“or a closely related governmental e nt it y.”). Applying this exception to the facts in this case, we

cannot ignore the close relationship the Republic has with the Trust Subsidiaries. Accordingly, we

reject Klesch’s argument to the contrary. 711

Getting to the heart of the matter at last, Klesch argues that the district court erred in finding

that the Japanese lawsuit was an adequate legal remedy because t he defendants there at one point

resisted jurisdiction and asserted sovereign immunit y, and because the Republic is not solvent. S ee

Surko Enter., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex. App.

– Houston

[1 st Dist.] 1989, no writ) (holding a legal proceeding to be inadequat e where the debtor was not

solvent). We adopt the district court’s findings on this point, however. The problems faced by Klesch

are the ordinary ones faced everyday by litigants, and we no t e t hat t he defendants in the Japanese

lawsuit have now filed a complete answer on the merits. Additionally, if Klesch emerges victorious

in Japan it can enforce a judgment elsewhere in the world. Consequently, we agree with the district

court’s conclusion that Klesch cannot as a matter of law satisfy this third element of the equitable lien

claim.

C

Finally, Klesch challenges the district court’s conclusion as to the first element of the equitable

lien claim. The court found that Klesch could not satisfy the first element because, even assuming

Klesch was correct in its interpretation of the Bond documents , the docum ents di d not create a

pr esent right to a security interest in the three Properties. Instead, at most the Bond documents

created a conditional promise to grant, in the future, a right to a security interest. Relying again on

Sexton

, the court held that there is a difference between giving an “absolute present right to security,”

which can be the basis for an equitable lien, and a promise of action in the future to create a right of

security, which does not give rise to an equitable lien. Finding that the Bond documents created the

latter, the court specifically looked to Condition 1 of the Conditions of Guarantee. Again, that

document states, wit h emphasis added by this court, that “the Cabinet [of the Republic] shall, if

necessary

, direct that the assets of any one or more of the funds as referred to in condition 18 of the

Bonds [i.e the assets of the Trust subsidiaries, including the Properties] are to be c harged or

deposited to secure the repayment of any moneys borrowed by RONFIN or any credit granted to it.”8 Klesch also submits that we should not consider the fact that the Republic’s Cabinet has so far

refused to di

rect t he assets in the Funds as required by Condition 1. We are sitting as a court of

equity, says Klesch, and we should not allow a party to rely on its own failure to complete a

condition, which was required by the agreement, to argue that the equi t able lien has not yet been

created. S ee Luse v. Rea

, 207 S.W. 942, 944 (Tex. Civ. App.

– Amarillo 1918), aff’d 231 S.W. 310

(Tex. 1921) (“The maker of a note ought not be heard to say that h e has not done that which he

ought to have done to secure repayment of these notes.”). Similarly, Klesch points out that allowing

the Trust Subsidiaries to rely on the condition that it had no plan ever to carry out would be to allow

a fraud upon the bondholders. As the district court correctly observed, however, Klesch’s argument

misses the mark. The Trust Subsidiaries “need not rely on equity to defeat [Klesch’s] arguments.

Rather, [the Trust Subsidiaries] rely on the unambiguous language of the bon d documents in

opposing [ Klesch’s ] request for equitable relief.” (emphasis in original).

12 The court reasoned that this language does not create an equitable lien because it is conditioned on

a future event: specifically, the decision by the Republic’s Cabinet to direct the assets be charged.

On appeal, Klesch submits that an agreement to give security conditioned on a future event

can give rise to an equitable lien. 8 It begins by challenging the district court’s interpretation of

Sexton

. The district court read Sexton too broadly, according to Klesch; the better interpretation is

one in which the basis for an equitable lien need only be more than a “general promise” and is “a

question of more or less.” See 225 U.S. at 98. If so, the Guarant ee is a clear example of “less.”

Klesch did not show that the Guarantee is anythi ng mo re than a general promise. Indeed, the

Guarantee i s wholly unlike the “absolute present right” that the Sexton Court held to create an

equitable lien. First, the commitment in the Guarantee to give security is not absolute, as it was in

Sexton

, but instead is conditioned upon the Republic’s future determinat ion that a pl edge i s

necessary. Second, that the Republic had much greater discretion over the alleged security interest

than the debtors in Sexton to choose exactly which of its many assets will be used as security, and

to replace securities without an obl igat io n t o replace them. Accordingly, the district court’s

interpretation of Sexton was correct. S ee id. (noting that “a general promise to give security in the

future is not enough”).

Next, Klesch cites several cases from other jurisdictions as support for its argument that an

agreement to give security in the future is enforceable by an equitable lien. It relies most heavily

upon In re Cutty’s-Gurnee

, 133 B.R. 948-49 (Bankr. N.D. Ill. 1991), which it interprets to hold that9 Klesch also argues that, even if we were to find that its right to an equitable lien did not exist

prio r to the occurrence of the contingency, the equitable lien must have arisen when RONFIN

defaulted on the Bonds. The district court expressly rejected this argument, noting that such a

conclusion

is inconsistent with the plain language of Condition 1, which states that on default,

the Republic of Nauru shall if necessary, direct that the assets of one or more of the

Funds are to b e charged or deposited. The Guarantee requires that the guarantor

take specific action be fo re any lien would be created. Moreover, the Placement

Memorandum clearly discloses that many of the listed assets were already statutorily

dedicated for other uses, or already pledged or encumbered, when the bonds were

issued.

(emphasis in original). We agree with the district court’s view and thus reject Klesch’s argument to

the contrary.

13 a present security interest is created even when the agreement to provid e security requi res an

additional, future act by the debtor

– in that case, the creation of a mortgage in favor of the creditor. 9

In re Cutty’s-Gurnee is inapposite, however. The court there held that a future security interest could

give rise to an equitable lien, but only where the creating language does not reserve any discretion

to the debtor. See 133 B.R. at 948. This circumstance is in stark contrast with the case at bar, where

discretion was given to the debtor via the “if necessary” language.

The proper focus here is on whether the parties have manifested an intent to utilize certain

property to secure debt. The answer lies largely in whether the agreement speaks in discretionary or

mandatory terms. If the agreement speaks mandatorily 

### S S even if conditionally 

### SS

then there is strong

evidence of such an intent. Whether the promise in question was conditional or future-oriented is not

particularly important 

### SS

an agreement that mandatorily a ttaches property to secure debt on the

occurrence of some future event implicates both condi t io nalit y and future-orientation, but is still

mandatory in nature, and thus still manifests the intent to create a sec urity interest. Thus, the

discretionary “if necessary” language of the instant agreement is critical, because it belies the notion

that the agreement manifested an intent to create a security interest: It fails to commit the debtor to

using its property, under any objective set of circumstances, in satisfaction of its debt.

A second factor weighing against Klesch is the fact that the subj ect property has no

“separation from other property or assets of the debtor.” S ee in re Magill

, 22 F. 2d at 759. Such

separation often accompanies or evinces a certain dispossession of control, which is forceful evidence1 0 For the first time on appeal, Klesch claims it has a security interest under the equal and ratable

clause of Condition 18 of the Co ndition of Bonds. Klesch argues that an equal and ratable clause

based on an affirmative pledge gives rise to an equitable interest at the time of the undertaking. We

dismiss Klesch’s last minute use of the equal and ratable clause as an attempt to raise a new issue on appeal. See United States ex rel. Wallace v. Flintco Inc. , 143 F.3d 955, 971 (5 th Cir. 1998).

14 that the property was intended to be subject to a secu rity interest. In S exton

, for example, the

debtors “placed in a separate package in their safe deposit vaults certain securities named, the

package being marked, ‘Escrow for account of Kessler & Co, Limited, Manchester[.]’” S exton

,

225 U.S. at 95. Although the debtor did have the right, under the agreement, to make substitutions,

there was, at all times, some specific property held separately from the general assets of the debtor

and plainly marked as being subject to a security interest. The ci rcumstances in S exton markedly

differ from those present here, because in none of the three documents cited by Klesch were the three

properties set aside or distinguished from any of the other properties listed therein. 10

C ONCLUSION

Because we agree with the district court that Klesch cannot establish any of the elements of

the equitable lien claim, we need not reach the argument that Klesch should be collaterally estopped

from asserting an equitable claim in the instant case because it has already lost a virtually identical

litigation in Guam. For the reasons set forth above, we AFFIRM the district court’s grant of

summary judgment against Klesch.