FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 January 20, 2006 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11207

________________________

D. C. Docket No. 04-00196 CV-BH

UNION PLANTERS BANK, N.A.,

Plaintiff-Appellee,

versus

THE PEOPLE OF THE STATE OF NEW YORK,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(January 20, 2006)

Before ANDERSON, BLACK and CARNES, Circuit Judges.

PER CURIAM:

In this lien priority case, we certify three questions to the Alabama Supreme

Court because there are no cases interpreting the Alabama statutes governing

property bail bonds and when they become liens, and because we do not find clear
2

guidance in the statutes themselves. “Where there is doubt in the interpretation of

state law, a federal court may certify the question to the state supreme court to

avoid making unnecessary Erie guesses and to offer the state court the opportunity

to interpret or change existing law.” Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267,

1274 (11th Cir. 2005).

I. FACTS AND PROCEDURAL HISTORY

In July 1999, Serag Khodir issued a mortgage to Union Planters Bank in the

amount of $480,000, covering a property in Baldwin County, Alabama. Almost

two years later, Khodir and his business partner, Salem Hady, were indicted in

New York. The New York trial court set an appearance bond at $300,000 in favor

of New York as security for Mr. Hady’s appearance. Khodir executed a property

bail bond for that amount in favor of New York, and on December 7, 2001, New

York placed of record in the Baldwin County Probate Office a bond executed by

Khodir in order to create a lien on the property to secure the bond. Khodir then

decided to refinance his 1999 mortgage, which he had paid down to $154,000. 

The new mortgage was for $350,000, and represented a refinancing of the

$154,000 plus $196,000. It was recorded on February 12, 2002, and the first

mortgage was recorded as cancelled on March 19, 2002. During the title search,
 On February 26, 2002, a mortgage in the amount of $95,000 was recorded from Khodir 1

to Beggs & Lane, LLP. However, it has been subordinated to New York’s claim and so was not

at issue below or on appeal. Also not at issue in this case is the $154,000 amount of Union

Planters’ original mortgage, which was refinanced in connection with its subsequent mortgage. 

The parties agree that Union Planters’ $154,000 amount has the first priority; they contest only

the balance of Union Planters’ mortgage which was advanced after the recording of New York’s

bail bond.

3

the title company found the Khodir affidavit regarding the bail bond and deemed it

unimportant. 

On June 20, 2003, a judge of the New York State Supreme Court executed

an order forfeiting bail, which was filed with the City Clerk of New York County. 

On September 9, 2003, Union Planters initiated a foreclosure sale and sold the

property for $470,000. The amount due on the mortgage was $358,709.25. New

York domesticated the bond forfeiture as a judgment in Alabama on May 10,

2004.

Union Planters brought suit to determine priority among the three

lienholders. After New York removed the action to federal court, the parties 1

moved for summary judgment. The district court granted Union Planters’ motion,

relying heavily on an opinion issued by the Alabama Attorney General. This

opinion addressed the issue of whether or not a property bail bond is invalidated if

the property is sold. The opinion held that it was not. However, the opinion also

indicated that the bail bond statutes apparently intended to create a lien only after
4

the final forfeiture is entered. The district court held that Union Planters’

mortgage was first in line, construing the statutes as permitting the filing and

creation of a lien only after the forfeiture, and that took place after the second

mortgage was entered.

II. DISCUSSION

A. Does a bail bond become a lien when filed contemporaneously or only after it

has been forfeited?

This question turns on the construction of Alabama statutes. Alabama Code

§ 15-13-152, which establishes the procedure for creating the bond, reads, in

pertinent part:

The affidavit shall be signed by the owners of the properties and the

affidavit shall be the same as a lien against the property, and upon the

rendition of a final forfeiture, the state or its subdivisions may

proceed on the document for sale of the property to satisfy the

judgment.

Ala. Code § 15-13-152. This language would suggest that the affidavit created an

enforceable lien and that the inquiry would end there. However, § 15-13-156

provides a procedure for filing the affidavit and muddies the water. This statute

reads:

(a) Clerks of all courts of the state and its subdivisions may file the

'lien and affidavit' form in the probate court of the county where the

property is located immediately after a final forfeiture is ordered by
5

any court of the State of Alabama or its subdivisions. The probate

court shall file and record it in its real property recordings and there

shall be no charge to the city or state assessed or collected.

(b) In all final forfeiture cases of property bail, where the judgment

has been satisfied by the sureties or the court has set aside the final

forfeiture and the sureties liability has been discharged by law, the

clerk of the court shall see that any 'lien and affidavit' form previously

filed is so cancelled. The clerk may cancel it by issuing a cancellation

of the lien. The cancellation shall be in writing and filed and recorded

by the judge of probate of the county where the property is located.

The probate court shall not charge a filing or recording fee to the city

or state.

Ala. Code § 15-13-156. It is unclear whether subsection (a) should be construed

to permit filing the affidavit only after final forfeiture, as Union Planters argues, or

merely means that if it is filed then there shall be no filing fee, as New York

argues.

Union Planters relies upon the Attorney General Opinion. That Opinion

indicated that § 15-13-156 was controlling, even though it did cite the language in

§15-13-152, which states the affidavit is the same as a lien against the property. 

Ala. Op. Att’y Gen. No. 2000-140, 2000 WL 33310643 (2000). The Opinion

stated: “There is no prescribed procedure for filing a lien or otherwise securing the

property from subsequent encumbrances or sale by the owners/sureties after the

property bond is approved and the defendant released and prior to a final forfeiture

being entered.” Id. at *1. The Attorney General also said: “Although the
6

Legislature apparently did not intend for a lien on the property to be created until

after the entry of final forfeiture, filing the affidavit in the office of the probate

judge prior to this time to provide notice that the owner(s) have pledged the

property as security for bail is not prohibited; it just is not a filing which is

authorized without prepayment of costs.” Id. at *2. The Opinion also noted that

there was no “express statutory guidance on the procedure to be followed in

accepting a pledge of real property for bail or ensuring that the state’s interest in

the pledged property is adequately protected” before the defendant’s appearance at

trial or entry of final forfeiture. Id. 

On the other hand, New York notes that the Attorney General Opinion is

only persuasive authority. Ala.Code 1975, § 36-15-19; State, Dep’t of Revenue v.

Arnold, – So.2d –, 2005 WL 628883 at *2 (Ala. Mar. 18, 2005) (stating opinions

are not controlling, but merely advisory, and serve to offer protection from

liability only to “such officer” to whom that opinion is directed). New York also

argues that Ala. Code § 15-13-156(a) merely says that the affidavit “may” be filed

immediately after forfeiture; it does not say that it may be filed only then. Rather,

if filed after forfeiture (or filed again then), § 15-13-156(a) provides that there

should be no recording fee (or additional fee). New York suggests that its lien

was properly filed on December 7, 2001, upon payment of the usual filing fees and
7

pursuant to Alabama’s general recording statute. See Ala. Code § 35-4-58.

Because the statutes create an ambiguity about when the property bail bond

becomes a lien, and because there are no Alabama cases that indicate what the

proper interpretation should be, we respectfully certify to the Alabama Supreme

Court the following questions:

1. DOES THE PROPER CONSTRUCTION OF ALA. CODE § 15-13-152 AND

§ 15-13-156 PERMIT THE HOLDER OF THE BAIL BOND TO FILE THE

AFFIDAVIT BEFORE FORFEITURE OF THE BOND; AND IF SO, DOES

THAT FILING CREATE AN ENFORCEABLE LIEN AT THAT TIME? IF YES,

DOES THAT FILING MEAN THAT THE FILER WOULD TAKE

PRECEDENCE IN A FORECLOSURE OVER THE LIENS OF SUBSEQUENT

FILERS SUCH AS UNION PLANTERS?

B. Did the bail bond affidavit create an equitable mortgage?

New York argues in the alternative that, assuming arguendo that its lien may

lack some formal requisites, the affidavit would create an equitable mortgage.

New York cites as authority Murphy v. Carrigan, 116 So.2d 568, 571-72 (Ala.

1959), which sets out the requirements for an equitable mortgage, and notes that

“[a]lthough a conveyance . . . may lack the formal requisites of a mortgage . . .
8

equity will look to the substance.” New York also cites Barnett v. Waddell, 27

So.2d 1 (Ala. 1946), and Moorer v. Tensan Land & Timber Co., 20 So.2d 105

(Ala. 1944). Union Planters argues that New York waived this argument by

failing to raise it properly below. However, our review of the record reveals that

the argument was fairly presented to the district court and the issue was joined. 

Therefore, the issue was preserved, even though the district court did not address

it specifically.

Alabama law requires that a lien be based on debt that is not contingent. 

See, e.g., First State Bank v. SouthTrust Bank, 519 So.2d 496, 497 (Ala. 1987). 

“In order for an equitable mortgage to exist, it is essential that the mortgagor have

a mortgageable interest in the property sought to be charged as security; that there

be clear proof of the sum which it was to secure; that there be a definite debt,

obligation or liability to be secured, due from the mortgagor to the mortgagee; and

the intent of the parties to create a mortgage, lien or charge on property

sufficiently described or identified to secure an obligation.” Murphy, 116 So.2d at

571. New York argues that each requirement is satisfied: that Khodir clearly had a

mortgageable interest in the property; that the $300,000 sum secured was clear;

that the obligation to produce the accused in court was definite and absolute (and

no more contingent or inchoate than any other mortgage); that the intent to create a
9

lien was clear; and that the property was adequately described. 

Because there are no Alabama cases addressing this issue in the context of

bail bonds, we certify the following question:

2. IF NEW YORK IS PRECLUDED FROM TAKING PRECEDENCE

PURSUANT TO THE RESOLUTION OF THE PRECEDING QUESTION, DID

THE AFFIDAVIT NEVERTHELESS CREATE AN EQUITABLE MORTGAGE;

AND IF SO, WOULD NEW YORK TAKE PRECEDENCE OVER THE LIENS

OF SUBSEQUENT FILERS SUCH AS UNION PLANTERS?

C. Did Union Planters' actual notice of the bail bond mean that its mortgage is

secondary?

Finally, New York argues that because Union Planters had actual

knowledge of the bail bond, the bail bond takes precedence. New York points to

the fact that it is undisputed that Union Planters’ agent, the title searcher, actually

copied the affidavit during the title search. New York argues that a subsequent

purchaser or mortgagee who has actual notice of a previously existing lien takes

subject to the prior lien. See, e.g., Olympia Produce v. Associates Fin. Serv., 584

So.2d 477, 479 (Ala. 1991) (“A person taking a real property interest can have

either actual or constructive knowledge of a prior interest in the property, or can
10

have both kinds of knowledge. Either gives the holder of the prior interest priority

over the person taking the subsequent interest.”). Union Planters replies that even

though it did have notice of the affidavit, the affidavit did not create an

enforceable lien. Therefore, Union Planters continues, actual notice does not

create a change in priorities.

Thus we certify this final question: 

3. IF NEW YORK DOES NOT TAKE PRECEDENCE PURSUANT TO THE

RESOLUTION OF EITHER OF THE TWO PRECEDING QUESTIONS, CAN IT

NEVERTHELESS TAKE PRECEDENCE BECAUSE UNION PLANTERS’

AGENT, THE TITLE SEARCHER, HAD ACTUAL KNOWLEDGE OF THE

AFFIDAVIT?

Our statement of the questions to be certified is not meant to limit the scope

of inquiry by the Alabama Supreme Court. “This latitude extends to the Supreme

Court's restatement of the issue or issues and the manner in which the answers are

given.” Washburn v. Rabun, 755 F.2d 1404, 1406 (11th Cir. 1985). As mentioned

above, an answer to one of the questions may render resolution of the other ones

unnecessary. In order to assist the court's consideration of the case, the entire

record, along with the briefs of the parties, shall be transmitted to the Alabama
 Union Planters also argues in its brief on appeal that New York has not properly

2

domesticated and recorded its judgment of forfeiture, and thus that New York cannot yet enforce

its judgment. However, if the Alabama Supreme Court answers one of the three certified

questions in favor of New York, it is our understanding that that would constitute a holding that

New York’s previously filed lien has priority over the February 12, 2002, increase in Union

Planters’ mortgage, and thus would answer the priority of liens questions posed in this

declaratory judgment action. It is our understanding that New York could then proceed in the

appropriate manner to enforce its lien. On the other hand, if the Alabama Supreme Court decides

all three certified questions in favor of Union Planters, then it is our understanding that it will

have been decided that Union Planters has priority, and thus answer the questions posed in this

appeal.

11

Supreme Court.2

 QUESTIONS CERTIFIED.