           Case: 15-11806   Date Filed: 08/18/2015   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11806
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:14-cv-00266-HLM



GREATER COMMUNITY BANCSHARES, INC.,
f.k.a. Greater Rome Bancshares, Inc.,
GREATER COMMUNITY BANK,
f.k.a. Greater Rome Bank,

                                                         Plaintiffs - Appellants,

                                  versus

FEDERAL INSURANCE COMPANY,

                                                         Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________
                            (August 18, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
                Case: 15-11806       Date Filed: 08/18/2015       Page: 2 of 10


       In this insurance coverage case, Plaintiffs Greater Community Bancshares,

Inc. and Greater Community Bank (collectively “GCB”) appeal the district court’s

grant of summary judgment in favor of the Defendant Federal Insurance Company

(“Federal Insurance”). After review, we affirm. 1

                               I. BACKGROUND FACTS

A.     Insurance Policy

       In 2008, GCB obtained a banker’s professional liability policy from Federal

Insurance covering any claim by a customer for a wrongful act while performing

“Professional Services.” The policy required Federal Insurance to defend any

claim covered under the policy, even if any of the allegations were groundless,

false or fraudulent.

       Relevant to this appeal, an amendment to the policy defined “Professional

Services” to mean “Lending Services.”2 And “Lending Services” was then defined

as “any act performed by an Insured for a Lending Customer of [GCB] in the

course of extending or refusing to extend credit or granting or refusing to grant a

loan or any transaction in the nature of a loan, including any act of restructure,


       1
         We review the grant of summary judgment, as well as the interpretation of an insurance
contract, de novo. See James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274
(11th Cir. 2008). In this diversity case, Georgia law governs as to the insurance policy. See
Dempsey v. Auto Owners Ins. Co., 717 F.2d 556, 559 (11th Cir. 1983).
       2
         The policy’s definition of “Professional Services” also included “Loan Servicing,” but
on appeal, GCB does not argue that its claim to Federal Insurance satisfied this part of the
definition.
                                                    2
             Case: 15-11806     Date Filed: 08/18/2015   Page: 3 of 10


termination, transfer, repossession or foreclosure.” A lending customer was a

“person or entity” to whom “an extension of credit, an agreement to extend credit,

or a refusal to extend credit was made or negotiated on behalf of” GCB.

B.    Underlying Bankruptcy Adversary Complaint

      In 2010, GCB was named as a defendant in an adversary proceeding filed in

the U.S. Bankruptcy Court in the District of Idaho. In the Chapter 7 bankruptcy

adversary proceeding, the trustee for Payroll America Inc. (“Payroll America”)

sued GCB.

      According to the adversary complaint, Payroll America contracted with one

of GCB’s bank account holders, Lori Duke d/b/a Data Processing Services

(“DPS”), to complete certain payroll transactions, such as withholding taxes and

then depositing those tax withholdings with the appropriate government agency.

Using the Automated Clearing House (“ACH”) network and the Federal Reserve

banking system, DPS collected funds from Payroll America’s client accounts and

transferred them to the relevant taxing authority. Pursuant to a written agreement,

GCB, the “Sending Bank,” allowed DPS, as the “Third-Party Sender,” to use

GCB’s Originating Depository Financial Institution routing number to obtain direct

access to the Federal Reserve Bank in Atlanta and perform these payroll functions.

      The bankruptcy trustee’s initial complaint sought only an accounting, but

subsequent amendments added claims of fraudulent transfers by Payroll America


                                            3
             Case: 15-11806    Date Filed: 08/18/2015   Page: 4 of 10


through GCB’s bank. Specifically, the trustee’s second amended complaint

alleged that Payroll America had operated a fraudulent scheme similar to a Ponzi

scheme that robbed “Peter to pay Paul,” and had used DPS’s money transfers made

through GCB’s bank to hide Payroll America’s insolvency and defraud its

creditors. The trustee’s second amended complaint alleged that these money

transfers made at Payroll America’s instruction were fraudulent transactions under

federal and Idaho and Georgia law, that GCB and DPS knew or should have

known the transfers were fraudulent, and that GCB was liable for DPS’s actions

because they were engaged in an agency relationship or a joint venture.

      The trustee’s second amended complaint also alleged that when Payroll

America had “insufficient funds” for some of these ACH money transfers, GCB

“paid out” those funds on Payroll America’s behalf, obligating Payroll America to

repay GCB for the “advance.” DPS, on GCB’s behalf, then demanded

“repayment” from Payroll America to satisfy the “obligation,” which Payroll

America did with commingled funds. The second amended complaint alleged that

when these insufficient-funds transfers occurred, GCB knew or should have known

that Payroll America “was incurring debt to” GCB. The second amended

complaint sought, among other things, to recover the full amount of the money

transfers from GCB and DPS.

C.    Defendant Federal Insurance’s Refusal to Defend


                                            4
               Case: 15-11806        Date Filed: 08/18/2015      Page: 5 of 10


       Based on the bankruptcy trustee’s initial complaint for an accounting, GCB

filed a claim with Federal Insurance. Federal Insurance denied coverage and

refused to defend GCB.

       After the bankruptcy trustee amended the complaint to allege the fraudulent

transfer claims, GCB resubmitted its claim to Federal Insurance. Federal Insurance

again denied coverage and refused to defend on the basis that the trustee and

Payroll America were not GCB’s customers and because the factual allegations in

the bankruptcy trustee’s second amended complaint did not involve professional

services, i.e., loan servicing or lending services, as defined in the policy.

       GCB defended itself in the bankruptcy-adversary proceedings, ultimately

winning summary judgment. In opposing summary judgment, the bankruptcy

trustee (orally and in writing) argued unsuccessfully that Payroll America was a

customer of GCB and that when DPS’s debit transactions on behalf of Payroll

America failed and GCB temporarily covered the shortfall, Payroll America briefly

owed GCB a debt, which it then repaid through DPS.3 On appeal to the district

court, the bankruptcy trustee renewed this argument, claiming that Payroll America

in effect obtained “short-term loans” from GCB. The district court affirmed the



       3
         The trustee made this argument to try to persuade the bankruptcy court that GCB was
liable for Payroll America’s fraudulent transfers under 11 U.S.C. § 550(a)(1) as an “entity for
whose benefit” the transfers were made. The trustee contended that some of Payroll America’s
fraudulent wire transfers to DPS, as a third party, were in exchange for DPS’s payment of
Payroll America’s short-term debt to GCB and thus were “for the benefit of” GCB.
                                                   5
               Case: 15-11806        Date Filed: 08/18/2015      Page: 6 of 10


grant of summary judgment, rejecting, inter alia, the bankruptcy trustee’s theory

that GCB lent money to Payroll America. 4

D.     Breach of Contract Action

       Plaintiff GCB filed this diversity action against Defendant Federal

Insurance, alleging a breach of its insurance contract under Georgia law. The

district court granted Federal Insurance’s motion to dismiss GCB’s amended

complaint because the underlying fraud claims in the bankruptcy-adversary

proceeding did not fall, or even arguably fall, within the policy’s coverage. The

district court concluded that the bankruptcy trustee’s second amended complaint

contained no allegations of loan servicing or lending services as defined in the

policy, and GCB did not claim that it “in fact gave loans to” Payroll America. The

district court looked to the pleadings—the second amended complaint—and

explained that it would not consider the bankruptcy trustee’s later arguments to the

bankruptcy court and on appeal about short-term loans because GCB did “not

claim that [Payroll America] was in fact a customer of [GCB] or that a loan

agreement existed between [Payroll America] and [GCB].” The district court




       4
         When this breach of contract action was filed, an appeal of the district court’s order
affirming summary judgment was pending in the Ninth Circuit. The Ninth Circuit recently
affirmed and, like the bankruptcy court and the district court before it, rejected the bankruptcy
trustee’s argument that some of the DPS money transfers (called cure wires) were to repay a debt
to GCB. See In re: Payroll Am., Inc., No. 13-35903, 2015 WL 4123469 (9th Cir. July 9, 2015).
                                                   6
              Case: 15-11806     Date Filed: 08/18/2015     Page: 7 of 10


dismissed GCB’s amended complaint without prejudice and denied without

prejudice GCB’s pending motion for leave to file a second amended complaint.

      GCB filed a motion for reconsideration, arguing that the district court had

not addressed the bankruptcy trustee’s allegations that Payroll America owed GCB

a debt. The district court denied the motion. The district court explained that none

of the second amended complaint’s factual allegations indicated that Payroll

America’s “debt” to GCB “could reasonably be understood as a loan or extension

of credit: there is no claim of a loan agreement, an interest [r]ate, or even a due

date. Plaintiffs have not provided any evidence suggesting that a reasonable

insured bank would have believed that it was engaged in either Loan Servicing or

Lending Services, as defined by the Policy, when it processed ACH transactions.

In fact, it is clear that Plaintiffs knew that they did not provide Professional

Services to [Payroll America].” (footnote omitted). The district court denied

GCB’s motion for leave to file a second motion for reconsideration.

                                  II. DISCUSSION

      Under Georgia law, an insurer’s duty to defend is determined by comparing

the language of the policy with the allegations in the underlying complaint against

the insured. Hoover v. Maxum Indem. Co., 291 Ga. 402, 407-08 (2012). The

ordinary rules of contract construction apply to insurance contracts, and policy

terms are given their ordinary and common meaning unless otherwise defined in


                                               7
              Case: 15-11806     Date Filed: 08/18/2015    Page: 8 of 10


the contract. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 269 Ga. 326,

327-28 (1998). “If the facts as alleged in the complaint even arguably bring the

occurrence within the policy’s coverage, the insurer has a duty to defend the

action.” Hoover, 291 Ga. at 408 (quotation marks omitted).

      Where the policy requires the insurer to defend groundless, false, or

fraudulent claims, “the insurer has a duty to defend even where the complaint

against the insured sets forth false factual allegations which would bring the claim

within the coverage of the policy.” Penn-Am. Ins. Co. v. Disabled Am. Veterans,

Inc., 268 Ga. 564, 564 (1997). Moreover, “in making a determination of whether

to provide a defense, the insurer is entitled to base its decision on the complaint

and the facts presented by its insured.” Colonial Oil Indus., Inc. v. Underwriters

Subscribing to Policy Nos. TO31504670 and TO31504671, 268 Ga. 561, 562

(1997). For this reason, the insurer has a duty to defend even where “the complaint

against the insured falsely indicates non-coverage” but the insurer knows of or can

ascertain “true facts showing coverage.” Penn-Am., 268 Ga. at 565 (citing Loftin

v. United States Fire Ins. Co., 106 Ga. App. 287, 294-97 (1962)). Likewise, the

insurer has a duty to defend where “the allegations of the complaint against the

insured are ambiguous or incomplete with respect to the issue of insurance

coverage.” Id. “Thus, it is only where the complaint sets forth true factual

allegations showing no coverage that the suit is one for which liability coverage is


                                              8
               Case: 15-11806   Date Filed: 08/18/2015    Page: 9 of 10


not afforded and for which the insurer need not provide a defense.” Id. (citing

Great Am. Ins. Co. v. McKemie, 244 Ga. 84, 85 (1979), and Loftin, 106 Ga. App.

at 291).

      Here, the bankruptcy trustee’s second amended complaint alleged that

Payroll America conducted a Ponzi-like scheme using ACH money transfers it

instructed DPS to make through GCB as the “Sending Bank.” During this process,

GCB sometimes briefly covered Payroll America’s shortfalls due to differences

between ACH debits and credits or to insufficient funds, which Payroll America

then repaid.

      We agree with the district court that, when read in context, the debt

allegations in the second amended complaint do not refer to the kind of activities

that constitute “Lending Services,” as defined in the policy The terms “loan” and

“extension of credit” do not appear in the second amended complaint. The term

“debt” does appear in the second amended complaint, as do the terms “advance”

and “obligation.” However, none of the factual allegations suggest that the kind of

“debt” Payroll America was alleged to have briefly incurred when it initiated ACH

money transfers involved a “loan” or an “extension of credit” by GCB to Payroll

America. As the district court explained, there are no allegations of a loan

agreement, an interest rate, or a term, or any other indications of a conventional

bank “loan” or “extension of credit.” As the district court further noted, the “debt”


                                             9
               Case: 15-11806        Date Filed: 08/18/2015        Page: 10 of 10


as alleged appears at most to be some form of overdraft protection, rather than a

loan.5 In any event, GCB’s alleged role as the “Sending Bank” in Payroll

America’s ACH money transfers was not a “loan” or the “extension of credit” as

those terms are commonly understood.

       Moreover, GCB agrees that in fact Payroll America was never GCB’s

customer and that GCB did not give a loan or extend credit to Payroll America. 6

In fact, GCB has repeatedly prevailed on this point in the underlying bankruptcy

litigation. In other words, GCB’s claim as alleged did not show coverage, and the

“true facts” confirm that the claim was not covered. Under such circumstances,

Georgia law does not require the insurer to defend against the claim.

       For these reasons, we affirm the district court’s order granting summary

judgment to Federal Insurance. GCB’s request to certify a question to the Georgia

Supreme Court is denied.

       AFFIRMED.




       5
        GBC’s reliance on Synovus Bank v. Griner, 321 Ga. App. 359 (2013), is misplaced.
Griner addressed only whether bank overdraft fees constituted interest for purposes of Georgia’s
usury laws. See id. at 367-69.
       6
        For this reason, the district court also correctly concluded that the bankruptcy trustee’s
subsequent legal arguments in opposing, and then appealing, summary judgment do not
determine coverage.
                                                    10
