USCA11 Case: 21-11742 Date Filed: 12/10/2021 Page: 1 of 22
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11742
Non-Argument Calendar
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In Re: NRP LEASE HOLDINGS, LLC, et al.,
Debtors.
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1944 BEACH BOULEVARD, LLC,
Plaintiff-Appellant,
versus
LIVE OAK BANKING COMPANY,
Defendant-Appellee.
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2 Opinion of the Court 21-11742
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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-01344-TJC
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Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.
LAGOA, Circuit Judge:
1944 Beach Boulevard, LLC, a debtor in possession, filed a
complaint to avoid Live Oak Banking Company’s blanket lien on
all of its assets. The bankruptcy court denied Beach Boulevard’s
motion for summary judgment and granted Live Oak’s cross-mo-
tion for summary judgment, concluding that Live Oak had per-
fected its security interest, notwithstanding defects in its financing
statements. The district court affirmed the bankruptcy court.
The issues in this appeal are based solely on Florida statutory
law relating to the perfection of security interests. In Florida, a
creditor’s financing statement that does not list the debtor’s correct
name is, as a matter of statutory prescription, “seriously mislead-
ing” and therefore ineffective to perfect the creditor’s security in-
terest. Fla. Stat. § 679.5061(2). There is no dispute that Live Oak’s
financing statements did not list Beach Boulevard’s correct name.
Florida Statute § 679.5061(3), however, establishes a safe harbor for
defective financing statements, and whether Live Oak perfected its
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21-11742 Opinion of the Court 3
security interest depends upon whether its financing statements fall
within that statutory safe harbor.
This is a question of significant importance affecting credi-
tors and debtors located or doing business in Florida, and at least
two lower courts, applying Florida law, have reached different con-
clusions regarding the application of the statutory safe harbor.
Principles of comity and federalism instruct us that “[b]ecause the
only authoritative voice on [Florida] law is the [Florida] Supreme
Court, it is axiomatic that that court is the best one to decide issues
of [Florida] law.” Blue Cross & Blue Shield of Ala., Inc. v. Nielsen,
116 F.3d 1406, 1413 (11th Cir. 1997). We therefore respectfully cer-
tify this issue of Florida law discussed below to the highest court of
that state.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case comes to us from a bankruptcy proceeding under
Chapter 11 of the United States Bankruptcy Code. In a bankruptcy
proceeding, trustees are sometimes appointed to manage and ad-
minister the debtor’s estate. Title 11 U.S.C. § 544(a) grants a bank-
ruptcy trustee the status of a hypothetical lien creditor “who has
completed the legal process for perfection of its lien upon all prop-
erty available for the satisfaction of its claim against the debtor,”
thereby taking priority over all unperfected security interests. In re
Summit Staffing Polk Cnty., Inc., 305 B.R. 347, 350 (Bankr. M.D.
Fla. 2003). Where a trustee is not appointed, a debtor—referred to
as a debtor in possession—continues to manage and administer its
estate during the proceedings. By virtue of 11 U.S.C. § 1107, a
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4 Opinion of the Court 21-11742
debtor in possession, such as Beach Boulevard, generally has the
rights and powers of a bankruptcy trustee. In re Int’l Yacht & Ten-
nis, Inc., 922 F.2d 659, 661 (11th Cir. 1991).
Beach Boulevard is a limited liability company organized un-
der the laws of Florida and operates a family entertainment center
in Jacksonville, Florida, known as “Adventure Landing.” On De-
cember 5, 2019, Beach Boulevard and its affiliated businesses filed
voluntary petitions for relief under Chapter 11 of the United States
Bankruptcy Code.
As of the petition date, Beach Boulevard and its affiliates
were jointly and severally liable to Live Oak on two loans guaran-
teed by the U.S. Small Business Administration, totaling approxi-
mately $3,000,000.00. The two loans purport to be secured by a
blanket lien on all of Beach Boulevard’s assets. Attempting to per-
fect its security interests in these assets, Live Oak filed two UCC-1
Financing Statements with the Florida Secured Transaction Regis-
try (the “Registry”). These filing statements identify the debtor as
“1944 Beach Blvd., LLC,” instead of its legal name, “1944 Beach
Boulevard, LLC,” as listed in the articles of organization filed with
the Florida Secretary of State.
In its complaint, Beach Boulevard asserted that Live Oak’s
UCC-1 financing statements were “seriously misleading” and
therefore unperfected, and that Beach Boulevard could use its
power as a hypothetical lien creditor to avoid Live Oak’s lien on its
assets. The sole basis for Beach Boulevard’s claim is that the financ-
ing statements failed to sufficiently “provide the name of the
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21-11742 Opinion of the Court 5
debtor,” as required by Florida law, because they abbreviated
“Boulevard” to “Blvd.” Beach Boulevard claimed that, because of
this mistake, a search of the Registry under its correct legal name,
“1944 Beach Boulevard, LLC,” did not reveal the existence of Live
Oak’s asserted liens. In addition to the allegations in its complaint,
Beach Boulevard submitted affidavits to this effect in support of its
motion for summary judgment.
Live Oak answered the complaint and asserted its affirma-
tive defenses. In pertinent part, Live Oak asserted that its financing
statements substantially complied with Florida law and that abbre-
viating “Boulevard” to “Blvd.” was a minor error or omission that
does not render the financing statements defective or seriously mis-
leading. Live Oak pointed out that, while its liens do not appear
on the first page of results for a search in the Registry under “1944
Beach Boulevard, LLC,” the search results are displayed in alpha-
betical order and “merely clicking the blue ‘<