                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                      SYED BASHIR AHMED SHAH,
                                an individual,
                    Plaintiff/Judgment Creditor/Appellant,

                                      v.

                ABDUL J. BALOCH aka ZAHID BHURGI,
                            an individual,
                  Defendant/Judgment Debtor/Appellee,

                       WELLS FARGO BANK, N.A.,
                           Garnishee/Appellee.

                            No. 1 CA-CV 15-0812
                              FILED 10-12-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-013396
           The Honorable Michael L. Barth, Judge Pro Tempore

                                 AFFIRMED


                                 COUNSEL

Windtberg & Zdancewicz, PLC, Tempe
By Michael J. Zdancewicz, Marc Windtberg
Counsel for Plaintiff/Judgment Creditor/Appellant

The Collins Law Firm, PLLC, Mesa
By Ernest Collins, Jr.
Counsel for Defendant/Judgment Debtor/Appellee

Snell & Wilmer, LLP, Phoenix
By Rebekah Elliott, Carlie Tovrea
Counsel for Garnishee/Appellee
                         SHAH v. BALOCH, et al.
                           Opinion of the Court



                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Margaret H. Downie and Judge John C. Gemmill joined.1


J O H N S E N, Judge:

¶1            Syed Bashir Ahmed Shah appeals the superior court's order
quashing garnishment of funds Shah alleges a debtor fraudulently
transferred into a retirement plan. Because Shah's claim does not fall within
the limited exceptions to the federal law barring recovery from a qualified
retirement plan, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Shah sued Abdul J. Baloch for breach of contract and fraud
and obtained a judgment in 2009 for $411,505. Attempting to collect on the
judgment, Shah served a writ of garnishment on Wells Fargo Bank, N.A.,
as the trustee of Baloch's 401(k) account.2 According to the record, Baloch's
401(k) account balance is nearly $50,000; Shah alleged Baloch fraudulently
transferred several thousand dollars into the account after entry of Shah's
judgment against him. Wells Fargo objected to the garnishment and the
superior court quashed the writ, finding the funds in Baloch's 401(k)
account exempt from garnishment under the Employee Retirement Income
Security Act ("ERISA").

¶3            Shah timely appealed the superior court's order. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and



1       The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution and A.R.S. § 12-145
(2017).

2      We take judicial notice that Baloch filed a Chapter 7 bankruptcy in
2011. The bankruptcy court ruled Shah's claim was nondischargeable, and
that court's judgment was affirmed on appeal.




                                      2
                           SHAH v. BALOCH, et al.
                             Opinion of the Court

Arizona Revised Statutes ("A.R.S.") sections 12-2101(A)(4) and (5)(c) (2017)
and 12-120.21(A) (2017).3

                                DISCUSSION

¶4              Under Arizona's version of the Uniform Fraudulent Transfer
Act, a creditor may garnish a transfer made with "actual intent to hinder,
delay or defraud" the creditor. A.R.S. §§ 44-1004(A) (2017), -1007(A)(1)
(2017); see Sackin v. Kersting, 105 Ariz. 464, 465 (1970). Baloch, however,
argues state law prohibits a judgment creditor from executing on or
attaching a judgment debtor's retirement account. See A.R.S. § 33-1126(B)
(2017) (exempting from attachment "money or other assets payable to a
participant in or beneficiary of, or any interest of any participant or
beneficiary in, a retirement plan [qualified under federal law]"). But with
few exceptions, none of which apply here, ERISA preempts state laws that
"relate to any employee benefit plan." 29 U.S.C. § 1144(a) (2017). Thus,
ERISA preempts A.R.S. § 33-1126(B) as applied to a qualified pension plan.
In re Hirsch, 98 B.R. 1, 2 (Bankr. D. Ariz. 1988) ("A.R.S. § 33-1126(B) would
undoubtedly be pre-empted in a state court proceeding wherein creditors
seek to enforce their claims against an ERISA pension plan."), aff'd sub nom
In re Siegel, 105 B.R. 556 (D. Ariz. 1989); see Mackey v. Lanier Collection Agency
& Serv., Inc., 486 U.S. 825, 829–30 (1988) (state garnishment provision
pertaining to employee pension plan preempted by ERISA).

¶5            ERISA grants comprehensive protections to qualified pension
plan participants and beneficiaries.4 At issue in this case is a rule that, to
qualify, a pension plan must "provide that benefits provided under the plan
may not be assigned or alienated." 29 U.S.C. § 1056(d)(1) (2017). The
corresponding Treasury Regulation defines "assignment" and "alienation"
to include "[a]ny direct or indirect arrangement . . . whereby a party
acquires from a participant or beneficiary a right or interest enforceable
against the plan in, or to, all or any part of a plan benefit payment which is,
or may become, payable to the participant or beneficiary." Treas. Reg. §
1.401(a)-13(c)(1)(ii) (2017); see Hoult v. Hoult, 373 F.3d 47, 54–55 (1st Cir.
2004) (anti-alienation regulation entitled to deference under Chevron,

3     Absent material revision after the relevant date, we cite a statute's
current version.

4      We review de novo the superior court's determination that federal
law exempts funds in an ERISA-qualified account from a writ of
garnishment. See Nat'l Collegiate Student Loan Trust 2007-2 v. Rand, 241 Ariz.
169, 171, ¶ 7 (App. 2016).


                                        3
                          SHAH v. BALOCH, et al.
                            Opinion of the Court

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). Baloch's
retirement plan undisputedly is a qualified plan under 26 U.S.C. § 401(k)
(2017) and contains the required anti-alienation provision.

¶6            ERISA's anti-alienation bar generally prohibits a creditor
from garnishing a qualified plan to collect on a judgment against a plan
participant. In Guidry v. Sheet Metal Workers Nat'l Pension Fund, 493 U.S.
365, 367 (1990), a labor union sought a constructive trust on the pension
benefits of an official who had embezzled from the union. The Supreme
Court likened a constructive trust to a garnishment, and noted that the anti-
alienation provision "erects a general bar to the garnishment of pension
benefits from plans covered by" ERISA. Id. at 371. As Wells Fargo argues,
under this principle, funds Baloch deposited into his 401(k) plan are not
subject to garnishment because they are or may become payable to him as
a benefit.

¶7             Shah argues funds that a participant fraudulently conveys
into a 401(k) account may be garnished because such a transfer is void as a
matter of law. See also Sackin, 105 Ariz. at 465. But under Guidry, even a
fraudulent transfer of funds by a participant into his or her qualified plan
may not be recovered unless a statutory exception applies.5 A bankruptcy
court applied this principle in Matter of Loomer, 198 B.R. 755 (Bankr. D. Neb.
1996), ruling that even if a fraudulent transfer could be proved, the ERISA
restraint on alienation precluded enforcement of a judgment against the
retirement plan. Id. at 759–60; see Majteles v. AVL Corp., 696 N.Y.S.2d 748,
749, 751–52 (Sup. Ct. 1999) (judgment creditor barred from recovering
funds insolvent company fraudulently conveyed to company's pension
plan).

¶8            The cases Shah cites do not apply under the circumstances
here. Wagner v. Galbreth, 500 B.R. 42 (D.N.M. 2013), and In re Vaughan Co.,
Realtors, 493 B.R. 597 (Bankr. D.N.M. 2013), both concerned pension plans
that had invested in what turned out to be a Ponzi scheme. See Wagner, 500
B.R. at 45–46; Vaughan, 493 B.R. at 601–03. In unwinding the scheme, a
bankruptcy trustee sought to recover transfers the perpetrator had made to
the pension plans as returns on their investments before the fraud was
discovered. See Wagner, 500 B.R. at 45; Vaughan, 493 B.R. at 601–03. In both
cases, the court held the ERISA anti-alienation provision did not bar

5     There are two statutory exceptions to the anti-alienation rule, neither
of which is at issue here. See 29 U.S.C. § 1056(d)(2) ("voluntary and
revocable assignment of not to exceed 10 percent of any benefit payment")
and (d)(3)(A) (qualified domestic relations order).


                                       4
                          SHAH v. BALOCH, et al.
                            Opinion of the Court

recovery from the pension plans. See Wagner, 500 B.R. at 49; Vaughan, 493
B.R. at 607–08. But in approving the trustee's recovery of the transfers, the
courts did not hold the ERISA anti-alienation rule generally excepts
fraudulent conveyances. Instead, they reasoned based on Treas. Reg. §
1.401(a)-13(c)(1)(ii) that the anti-alienation bar did not apply because the
transfers to be unwound there were between the perpetrator and the
respective trustees of the pension plans, not between the perpetrator and a
plan participant. See Vaughan, 493 B.R. at 606 (plan trustee contracted with
fraudulent investment company as trustee; "no evidence that [he] acted in
his capacity as a beneficiary or participant"); Wagner, 500 B.R. at 48.

¶9             As noted, the regulation defines "assignment" and
"alienation" to include "[a]ny direct or indirect arrangement . . . whereby a
party acquires from a participant . . . a right or interest enforceable against
the plan in, or to, all or any part of a plan benefit payment which is, or may
become, payable to the participant." Treas. Reg. § 1.401(a)-13(c)(1)(ii).
Under this provision, whether funds fraudulently transferred to a pension
plan may be recovered depends on the circumstances of the transfer giving
rise to the claim. The anti-alienation rule did not bar recovery in Vaughan
and Wagner because the claims there arose out of investment transactions
between the trustees of the two plans and the perpetrator, who was
otherwise a stranger to the plans. By contrast, Shah has a judgment against
Baloch, a plan participant, and seeks to enforce that judgment against
Baloch's transfers into the plan.6

¶10           Shah further cites Batiza v. Superfon, 175 Ariz. 431, 436 (App.
1992), in which the court held the ERISA anti-alienation rule did not bar a
claim alleging that a pension plan had fraudulently transferred assets. As
in Wagner and Vaughan, however, the underlying claim in that case was

6      Shah argues that Vaughan relied on other cases "that have permitted
recovery of fraudulent transfers from ERISA plans." We have reviewed
each of the cases Vaughan cites as support for its statement that "[a]lthough
only a handful of courts have examined this issue, the majority permitted
bankruptcy trustees to use the avoiding power of [bankruptcy law] to
recover from ERISA plans." See 493 B.R. at 607 (citing In re Goldschein, 241
B.R. 370, 379 (Bankr. D. Md. 1999), In re CF&I Fabricators of Utah Inc., 163
B.R. 858, 878 (Bankr. D. Utah 1994), Velis v. Kardanis, 949 F.2d 78, 82 (3d Cir.
1991), and In re Key Commc'ns, Inc., No. 93-2899, 1994 WL 242643, at *1 (5th
Cir. May 17, 1994)). Although some of the cited cases expressed in dictum
the view that a fraudulent transfer might be recovered from a plan, none of
the cases actually permitted a creditor of a participant in a qualified plan to
recover an alleged fraudulent transfer by the participant to the plan.


                                       5
                         SHAH v. BALOCH, et al.
                           Opinion of the Court

against the plan itself (for breach of contract), not a claim against a
beneficiary or participant. Id. at 432–33, 435.

¶11            Shah argues public policy requires us to except fraudulent
transfers by plan participants from the anti-alienation rule. But Guidry
rejected—in no uncertain terms—the suggestion that courts may create
equitable exceptions to the anti-alienation rule. See Guidry, 493 U.S. at 376
("The identification of any exception" to ERISA's prohibition of the
assignment or alienation of pension benefits "should be left to Congress.");
see also Loomer, 198 B.R. at 760 ("Courts are forbidden from carving out
exceptions to the ERISA alienation restriction."). Guidry held that because
Congress has enumerated specific exceptions to anti-alienation, courts may
not create other exceptions, even for criminal conduct, and even when the
result is that funds are rendered immune from otherwise valid collection
efforts:

      Nor do we think it appropriate to approve any generalized
      equitable exception—either for employee malfeasance or for
      criminal misconduct—to ERISA's prohibition on the
      assignment or alienation of pension benefits. [29 U.S.C. §
      1056(d)] reflects a considered congressional policy choice, a
      decision to safeguard a stream of income for pensioners (and
      their dependents, who may be, and perhaps usually are,
      blameless), even if that decision prevents others from
      securing relief for the wrongs done them. If exceptions to this
      policy are to be made, it is for Congress to undertake that task.

      As a general matter, courts should be loath to announce
      equitable exceptions to legislative requirements or
      prohibitions that are unqualified by the statutory text. The
      creation of such exceptions, in our view, would be especially
      problematic in the context of an antigarnishment provision.
      Such a provision acts, by definition, to hinder the collection of
      a lawful debt. A restriction on garnishment therefore can be
      defended only on the view that the effectuation of certain
      broad social policies sometimes takes precedence over the
      desire to do equity between particular parties. It makes little
      sense to adopt such a policy and then to refuse enforcement
      whenever enforcement appears inequitable. . . .

      Understandably, there may be a natural distaste for the result
      we reach here. The statute, however, is clear.




                                     6
                          SHAH v. BALOCH, et al.
                            Opinion of the Court

493 U.S. at 376–77; see Patterson v. Shumate, 504 U.S. 753, 760 (1992) ("Indeed,
this Court itself vigorously has enforced ERISA's prohibition on the
assignment or alienation of pension benefits, declining to recognize any
implied exceptions to the broad statutory bar."); see also Transamerica Mortg.
Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 19–20 (1979) ("[I]t is an elemental
canon of statutory construction that where a statute expressly provides a
particular remedy or remedies, a court must be chary of reading others into
it.").

¶12           As in the cases cited above, the result here is distasteful.
Guidry, 493 U.S. at 377; Loomer, 198 B.R. at 763. The superior court order
that we are affirming leaves Shah unable to satisfy his judgment from funds
Baloch allegedly fraudulently transferred to his pension plan to avoid the
judgment. But the case authorities interpreting 29 U.S.C. § 1056(d) do not
permit exceptions that Congress has not authorized.

                                CONCLUSION

¶13           For the reasons stated, we affirm the superior court's order
quashing the writ of garnishment. Wells Fargo and Baloch each seek
attorney's fees pursuant to A.R.S. § 12-1580(E), under which a prevailing
party in a garnishment "may be awarded costs and attorney fees in a
reasonable amount determined by the court." We deny both requests for
attorney's fees, but award them their costs on appeal pursuant to A.R.S. §
12-342(A) (2017).




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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