Dickson- Countrywide (6th Cir.)

The U.S. Court of Appeals for the Sixth Circuit recently ruled that a Chapter 13 debtor whose mobile home was involuntarily converted to real property by court order had standing to seek avoidance of a perfected lien on the real property under Section 522(h)(1) of the bankruptcy code.

The borrower in this matter gave Countrywide Home Loans ("Countrywide") a note and mortgage on an unimproved lot in consideration for a loan. She then used the loan proceeds to purchase a manufactured home, and placed that home on the mortgaged real property. Under the terms of the mortgage, Countrywide was granted a lien against the real property and "all improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of that property." Several years later, the borrower filed for bankruptcy under Chapter 7 and was granted a discharge; she did not reaffirm the debt.

After a subsequent default, Countrywide initiated foreclosure proceedings.

In its foreclosure complaint, Countrywide asserted that while the parties had intended the mortgage to secure a valid, first lien on the manufactured home, the borrower had failed to surrender the title to the manufactured home, thus preventing the Countrywide from noting its lien on the title to the manufactured home. Countrywide obtained a judgment from the state court that it had a valid first priority lien on the real property, that the real property be sold to satisfy Countrywide's lien, and that the manufactured home be "deemed converted to real estate."

Shortly thereafter, the borrower filed a Chapter 13 petition. Countrywide sought relief from the stay, but the borrower responded by filing an adversarial complaint, asserting that Countrywide had failed to properly perfect its lien on the manufactured home. Countrywide moved for summary judgment on the bases that the borrower lacked standing to bring the adversary proceeding because the mortgage lien was consensual, that the borrower's claim was barred by res judicata as a result of the prior Chapter 7 case, and that the prior state court judgment prevented avoidance of Countrywide's lien. The borrower filed a similar cross motion for summary judgment, disputing each of Countrywide's assertions.

The bankruptcy court denied both parties' motions, and ruled that the borrower did have standing because the lien at issue was created by a non-consensual judgment lien. After renewed cross motions from both parties, the bankruptcy court eventually again ruled in favor of the borrower, concluding that "the only manner in which to perfect a lien on a manufactured home under Kentucky law is by noting the lien on the certificate of title, that Countrywide had failed to perfect its lien, and that even if Countrywide had perfected its lien, such lien was avoidable as a preference." On appeal, the Bankruptcy Appellate Panel upheld the bankruptcy court's judgment and order in favor of the borrower, and Countrywide appealed to the Sixth Circuit.

The Sixth Circuit noted that, under Kentucky law, "a manufactured home is personal property for which a certificate of title is required" and that "[i]n order to perfect a lien on personal property, the lien must be noted on the certificate of title." However, the Court also noted that "a manufactured home may also be converted from personal property to an improvement to real estate.thereby allowing perfection through first recording without notice."

The Court further noted that "the plain language of the mortgage contract did not grant Countrywide a lien on [the borrower's] manufactured home as personal property." Accordingly, "unless converted to an improvement to real estate, Countrywide did not obtain a security interest in the manufactured home through the mortgage contract."

The Court also considered various state-law decisions in ruling that "even if Countrywide obtained a lien against the manufactured home by way of the mortgage contract, it is undisputed that Countrywide did not note this security interest on the certificate of title, and the filing of a lis pendens cannot serve to perfect a security interest in a manufactured home" and thus, "before the state-court foreclosure judgment, Countrywide did not have a perfected lien on the borrower's manufactured home."

The Court then examined the state court order of sale converting the borrower's manufactured home to an improvement to real property, and concluded that the state court judgment created a perfected security interest in the manufactured home. The Court also noted that, because the borrower did not appeal the state court judgment, the conversion was binding under the doctrine of res judicata.

In addition, the conversion also placed the manufactured home "clearly within the terms of the mortgage contract," which then "granted a security interest in favor of Countrywide on the listed real estate, together with 'all the improvements now or hereafter erected on the property.'"

Accordingly, the Court ruled, "upon the entry of the state-court judgment.

Countrywide possessed a perfected lien on the borrower's manufactured home."

The Court then considered whether the borrower had standing to seek avoidance of Countrywide's perfected lien. Considering the language of Section 522(h) of the Bankruptcy Code, the Court ruled that "a Chapter 13 debtor has standing to avoid a transfer under Section 522(h) if five conditions are met: (1) the transfer was not voluntary; (2) the transfer was not concealed; (3) the trustee did not attempt to avoid the transfer;

(4) the debtor seeks the avoidance pursuant to Sections 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code; and (5) the transferred property is of a kind that the debtor would have been able to exempt from the estate if the trustee had avoided the transfer under one of the provisions in Section 522(g)."

The Court ruled that Countrywide did not obtain a perfected security interest in the manufactured home until it "was converted to an improvement to real estate, thereby bringing the home within the boundaries of the mortgage contract," and thus, "while a transfer in real property did occur through the mortgage contract, the mortgage was not the triggering transfer."

Rather, the Court ruled, the "conversion of [the borrower's] manufactured home to an improvement to real property was involuntary because it was accomplished by operation of law without consent." Countrywide did not dispute that the borrower met requirements 2 through 4 of Section 522(h), and therefore, the Court ruled, the borrower "possesses direct standing"

to avoid Countrywide's lien pursuant to Section 522(h).

Finally, the Court also considered whether the lien was properly avoided pursuant to Section 547, which as you may recall allows for the avoidance transfers within the 90 days period before the filing of a bankruptcy petition. The Court first examined a prior decision holding that under Section 547, "a transfer is deemed to have been made at the time the transfer is perfected, if perfection takes place more than 30 days after its creation."

However, the Court ruled, "the creation and perfection of Countrywide's interest in the manufactured home occurred at the time of the state-court judgment. [which was] well-within the 90-day preference period" and therefore, the Court ruled "Countrywide's lien on the manufactured home was properly avoided pursuant to Section 547.5."