Tag: 11 usc 544

Bankr. W.D.N.C.: In re Hudgins- Secured Status of Fixture versus Consumer Good


Lendmark financed the purchase and installation of an HVAC unit for Ms. Hudgins’ home. All parties agreed that the HVAC unit was a “consumer good” as defined by N.C.G.S. § 25-9-102, that Lendmark held an automatically perfected purchase money security interest in the HVAC as chattel pursuant to N.C.G.S. § 25-9-309(1) and that Lendmark did not record a fixture filing.

The Trustee argued that without the fixture filing Lendmark’s security interest fell to the hypothetical judgment lien creditor status of bankruptcy estate under 11 U.S.C. § 544. Lendmark countered that its perfected lien against the HVAC as a consumer good was not lost when it became a fixture.… Read More

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Bankr. E.D.N.C.: In re The Willows, II- Discrepancy between the Date of Promissory Note and Deed of Trust Does not Per Se Invalidate Lien


The Deed of Trust held by BB&T against real property references a promissory note dated September 7, 2005. The actual promissory note, however, is dated September 8, 2005. Relying on Beaman v. Head (In re Head Grading Co.), 353 B.R.122, 123- 24 (Bankr. E.D.N.C. 2006), the Debtors attacked the validity of the lien.

BB&T first argued that because the Debtor had executed a Change in Terms Agreement, explicitly affirming the note, it should be estopped from now contesting the enforceability. The knowledge of the Debtor is not, however, imputed to the debtor-in-possession in a § 544(a)(3) action, who instead proceeds as a hypothetical judgment lien creditor.… Read More

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4th Circuit: Lee v. Anasti- Standard for Relief From Stay; Collateral Estoppel; and Debtor’s Standing to Pursue § 544 Avoidance Action


In a property dispute between a sister, Ms.  Lee, and her brother, Mr.  Anasti, over real estate in South Carolina, Ms.  Lee sought to assert superior title to Mr.  Anasti though adverse possession.  This matter was first commenced in South Carolina state court, but when Ms.  Lee filed Chapter 7, later converting to Chapter 13,  and brought an adversary proceeding asserting both adverse possession and seeking to avoid any interest Mr.  Anasti had pursuant to 11 U.S.C. § 544.

The bankruptcy court issued two separate orders, consolidated in this appeal, first, lifting the automatic stay and second, dismissing the adversary proceeding on the basis that Ms. … Read More

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