In Re Lester D. Lane & Bonnie F. Lane, Debtors. Hurst Concrete Prods., Inc. v. Lester D. Lane Bonnie F. Lane, 980 F.2d 601 (9th Cir. 1992). · Go Syfert
In Re Lester D. Lane & Bonnie F. Lane, Debtors. Hurst Concrete Prods., Inc. v. Lester D. Lane Bonnie F. Lane, 980 F.2d 601 (9th Cir. 1992). Cases Citing This Book View Copy Cite
“the bankruptcy code does not require the attachment of a lien in order to perfect an interest.”
53 citation events (36 in the last 25 years) across 20 distinct courts.
Strongest positive: Polanco v. City of Camden (njb, 2020-11-24)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Polanco v. City of Camden (2×) also: Cited "see"
Bankr. D.N.J. · 2020 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the bankruptcy code does not require the attachment of a lien in order to perfect an interest.
discussed Cited as authority (rule) Valentine v. Holmes, III (2×)
Bankr. E.D. Cal. · 2022 · confidence medium
As the Ninth Circuit explained in Hurst Concrete Products, 8 v. Lane (In re Lane), 980 F.2d 601 (9th Cir. 1992), “under California law, a party attains an interest [in real property] 10 || superior to subsequent purchasers upon recordation of the lis 11] pendens.” Id. at 606 (emphasis added); see also United States v. 12 |} $3,124,977.28 in U.S. Currency, 239 Fed.Appx. 335 , 3352007 WL 13 1814329, *1 (9th Cir. June 22, 2007) (“Under California law, a 141 properly recorded and indexed lis pendens provides parties who subsequently acquire an interest in the property with constructive notic…
discussed Cited as authority (rule) Colón Vidal v. Scotiabank de Puerto Rico (In re Colón Vidal)
Bankr. D.P.R. · 2017 · confidence medium
Rivera Rivera, Derecho Registral Inmobiliario, Jurídica Editores, 2002, page 452. 2 Section 547(e)(1) of the Bankruptcy Code Courts provides a definition for when a “transfer” is considered perfected for purposes of avoidance action under 11 U.S.C. § 547 : “(e)(1) For the purposes pf this section— (A) a transfer of real property other than fixtures, but including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected…
discussed Cited as authority (rule) Henderson v. Bank of America, N.A. (In re Simmons)
Bankr. S.D. Miss. · 2014 · confidence medium
Section 101(54) defines transfer, but § 547(e)(1) defines when a transfer is perfected: (e)(1) For the purposes of this section— (A) a transfer of real property other than fixtures, but including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee; 11 U.S.C. § 547 (e)(1). “[T]he definition of a transfer under section 547 is unambiguous: a tr…
cited Cited as authority (rule) In re: Betsey Warren Lebbos
9th Cir. BAP · 2012 · confidence medium
Hurst Concrete 21 Prods. v. Lane (In re Lane), 980 F.2d 601, 605 (9th Cir. 1982); 22 CCP § 405.24; CAL.
discussed Cited as authority (rule) Fontaine v. Conn (In Re Fontaine)
9th Cir. · 2012 · signal: cf. · confidence medium
See Gaughan v. Edward Dittlof Revocable Trust (In re Costas), 555 F.3d 790, 793 (9th Cir.2009) (debtor’s and bankruptcy estate’s property rights are governed by state law); see also Cal. Civ.Code § 1214 (rendering an unrecorded conveyance void as against any judgment affecting the title, unless the conveyance was duly recorded before the record of notice of action); cf. Hurst Concrete Prods., Inc. v. Lane (In re Lane), 980 F.2d 601, 604 (9th Cir.1992) (under California law, a judgment affecting the title or right of possession of property supports a lis pen-dens).
discussed Cited as authority (rule) Smithfield Trust Co. v. Pitchford (In Re Pitchford)
Bankr. W.D. Pa. · 2009 · confidence medium
See In re Medlin, 229 B.R. 353, 357-358 (Bankr.E.D.N.C.1998) (judgment lien transfer was perfected for preference purposes, pursuant to § 547(e)(1)(A), when lis pendens was obtained); In re Carlson, 177 B.R. 645, 647-648 (Bankr.Neb.1995) (same); In re Lane, 980 F.2d 601, 605 (9th Cir.1992) (same); In re Turetsky, 402 B.R. 663, 666 (Bankr.W.D.Pa.2009) (perfection of equitable mortgage occurred when lis pendens was obtained).
cited Cited as authority (rule) Perosio v. NBT Bank National Ass'n (In re Perosio)
2d Cir. · 2008 · signal: cf. · confidence medium
Cf. Hurst Concrete Prods., Inc. v. Lane (In re Lane), 980 F.2d 601, 604-05 (9th Cir.1992).
cited Cited as authority (rule) Brooks-Hamilton v. City of Oakland (In Re Brooks-Hamilton)
Bankr. N.D. Cal. · 2006 · confidence medium
In re Lane, 980 F.2d 601, 603 (9th Cir.1992)(eiting Cal.Civ.Proc.
discussed Cited as authority (rule) Feiler v. United States
9th Cir. · 1995 · confidence medium
To say that a lis pendens also gives a security interest in contractual provisions that do not relate to the title or right of possession of the real property is to distort the definition and purpose of a lis pendens. 31 "A lis pendens filed with the county recorder is a notice that an action is pending 'concerning real property or affecting the title or right of possession of real property.' " In re Lane, 980 F.2d 601, 603 (9th Cir.1992) (quoting Cal.Civ.Pro.Code Sec. 409(a)).
discussed Cited as authority (rule) Feiler v. United States
9th Cir. · 1995 · confidence medium
“A lis pendens filed with the county recorder is a notice that an action is pending ‘concerning real property or affecting the title or right of possession of real property.’ ” In re Lane, 980 F.2d 601, 603 (9th Cir.1992) (quoting Cal.Civ.Pro.Code § 409(a)).
discussed Cited as authority (rule) United States v. 39.63 Acres of Land, Fortuna Land Company, Fortuna Land Co., and Zinigan Land Company v. Greg K. Webster, Trustee-Appellant. United States of America v. 8.56 Acres of Land, Fortuna Land Company, and Greg K. Webster, Trustee-Appellant
9th Cir. · 1994 · confidence medium
I believe this is inconsistent with the precedent of this court holding that "under California law, a party attains an interest superior to subsequent purchasers upon recordation of the lis pendens." In re Lane, 980 F.2d 601, 606 (9th Cir.1992).
cited Cited "see" Coulson v. Kane (In re Price)
D. Haw. · 2018 · signal: see · confidence high
See Lane , 980 F.2d at 604 .
discussed Cited "see" Roderick McBroom v. David Reaves
9th Cir. · 2012 · signal: see · confidence high
See Hurst Concrete Prods., Inc. v. Lane (In re Lane), 980 F.2d 601, 604-06 (9th Cir.1992) (under California’s lis pendens statute, judgment relates back to the date of the recording of lis pendens only if the judgment is entered upon those specific claims asserting any interest in the real property); Tucson Estates, Inc. v. Superior Court, 151 Ariz. 600 , 729 P.2d 954, 957 (1986) (Arizona lis pen-dens statute was taken from Californias lis pendens statute); Perry Park Country Club, Inc. v. Manhattan Sav.
cited Cited "see" WELLS FARGO FUNDING v. Gold
E.D. Va. · 2009 · signal: see · confidence high
See In re Lane, 980 F.2d 601 (9th Cir.1992).
discussed Cited "see" In re: Gruseck v.
6th Cir. BAP · 2008 · signal: see · confidence high
See In re Lane, 980 F.2d 601 (9th Cir. 1992) (because the recording of the lis pendens operated to perfect the filer’s interest against bona fide purchasers, the recording was a transfer under § 547(e)(1)(A)); Rice v. First Ark.
discussed Cited "see" In Re Farnsworth
Bankr. D. Ariz. · 2008 · signal: see · confidence high
See In re Lane, 980 F.2d 601, 606 (9th Cir.1992) (holding that the litigant’s attainment of a superior interest in real property related back in time to the filing of the lis pendens, construing former Cal.Code of Civ.
discussed Cited "see" Fink v. Fidelity Financial Services, Inc. (In Re Beasley)
Bankr. W.D. Mo. · 1995 · signal: see · confidence high
See In re Lane, 980 F.2d 601, 605 (9th Cir.1992) (applying Section 547(e)(1)(A) — the definition of transfer is “unambiguous;” a transfer is perfected when a subsequent purchaser cannot acquire a superior interest.) If a judicial lienholder could still obtain superior rights, then the transfer has not been perfected such that the lien holder “cannot” obtain superior rights.
discussed Cited "see" Long v. Joe Romania Chevrolet, Inc. (In Re Loken)
9th Cir. BAP · 1994 · signal: see · confidence high
See In re Lane, 980 F.2d 601, 625 (9th Cir.1992) (applying Section 547(e)(1)(A) — the definition of transfer is “unambiguous;” a transfer is perfected when *62 a subsequent purchaser cannot acquire a superior interest).
Retrieving the full opinion text from the archive…
In Re Lester D. LANE and Bonnie F. Lane, Debtors. HURST CONCRETE PRODUCTS, INC., Appellant,
v.
Lester D. LANE; Bonnie F. Lane, Appellees
Patrick T. Loughman, Lowthorp, Richards, McMillan, Miller, Conway & Temple-man, Oxnard, Cal., for appellant., Randolph Joyce, Simi Valley, Cal., for appellees.
Feinberg, Goodwin, Schroeder.
Cited by 30 opinions  |  Published
GOODWIN, Circuit Judge:

Hurst Concrete Co. (“Hurst”) appeals a Bankruptcy Appellate Panel (“BAP”) decision denying the secured status of Hurst’s claim to the real property of Lester and Bonnie Lane (“Lanes”).

The threshold question is whether the Superior Court’s judgment in the underlying case affected the title or right of possession of real property within the meaning of the California lis pendens statute. Cal. Civ.Pro.Code § 409(a). We disagree with the BAP’s finding that the Superior Court’s judgment did not affect the title or right of possession of the Lanes’ real property.

The determinative question then is whether the recording of the lis pendens, which occurred prior to the preference period, constituted a transfer under the Bankruptcy Code. 11 U.S.C. § 547(e)(1)(A). We hold that, under California law, the record[*603] ing of a lis pendens constitutes a transfer within the meaning of section 547(e)(1)(A), and, consequently, appellant’s interest in the Lanes’ property is not avoidable as a preferential transfer. We reverse.

BACKGROUND

Appellant-creditor Hurst is a California corporation. Appellee-debtor Lester Lane was, until December 1983, the vice-president and general manager of Hurst. Ap-pellee-debtor Bonnie Lane is Lester Lane’s wife.

On September 7, 1984, Hurst initiated an action against the Lanes, among other defendants, alleging several claims, including conversion, constructive trust, and fraudulent conveyance. Hurst alleged that the defendants had converted and sold concrete pipe valued at $250,000 and then diverted the proceeds for their own personal use. Furthermore, Hurst claimed that the proceeds were invested in real property and that certain parcels of real estate were fraudulently conveyed from Lester to Bonnie Lane in order to hinder Hurst’s recovery. On that same day, Hurst obtained a temporary restraining order against debtors prohibiting them from conveying, encumbering, or otherwise disposing of any assets during the pendency of the lawsuit. On October 11, 1984, the Superior Court issued a preliminary injunction to this effect.

Hurst filed a notice of pendency of action in Ventura County on September 12, 1984 and in Santa Barbara County on September 24, 1984.

On June 9, 1987, the Superior Court found in favor of Hurst. In its judgment, the court found that there had been a fraudulent conveyance of real property, and it also awarded compensatory and punitive damages to Hurst. The court held that the preliminary injunction restraining defendants from conveying the real property would remain in effect until further order by the court.

June 18, 1987 marks the beginning of the ninety day preference period preceding the filing of the Lanes’ bankruptcy petition.

On June 24, 1987, Hurst recorded abstracts of the Superior Court’s judgment in Santa Barbara County. On July 7, 1987, Hurst recorded an abstract of the Superior Court’s judgment in Ventura County.

On September 16, 1987, the Lanes filed a voluntary petition under Chapter 11 of the Bankruptcy Act.

On a motion to determine the secured status of Hurst’s claim to the Lanes’ real property, the bankruptcy court found in favor of Hurst. The court found that Hurst’s claim was secured, because the filing of the abstracts of judgment should relate back in time to the filing of the lis pendens, which was prior to the preference period. The BAP reversed on the ground that the Superior Court’s judgment did not affect title or possession of property, and, therefore, there could not be any relation back in time to the filing of the lis pendens.

STANDARD OF REVIEW

Decisions of the BAP are reviewed de novo. In re Dewalt, 961 F.2d 848, 850 (9th Cir.1992); In re Two S Corp., 875 F.2d 240, 242 (9th Cir.1989). The court of appeals reviews the bankruptcy court’s conclusions of law de novo and its findings of facts under the clearly erroneous standard. Dewalt, 961 F.2d at 850; Two S, 875 F.2d at 242.

DISCUSSION

I. Effect of Superior Court Judgment

A lis pendens filed with the county recorder is a notice that an action is pending “concerning real property or affecting the title or right of possession of real property.” Cal.Civ.Pro.Code § 409(a). The meaning of the phrase “concerning real property” is identical to “affecting the title or right of possession of real property.” Burger v. Superior Court, 151 Cal.App.3d 1013, 1017, 199 Cal.Rptr. 227 (1984).

Recordation of a lis pendens binds all subsequent parties who acquire an interest in the property by the judgment thereafter rendered in the action. Urez Corp. v. Superior Court, 190 Cal.App.3d[*604] 1141, 1144, 235 Cal.Rptr. 837 (1987). The ultimate operation of the lis pendens on the Lanes’ property is measured by the terms and effective scope of the decision rendered in the Superior Court. Rose v. Knapp, 153 Cal.App.2d 379, 386, 314 P.2d 812 (1957).

The BAP held that the Superior Court’s judgment of money damages is an insufficient basis for the lis pendens filed by Hurst. Under California law, a finding of money damages does not support a lis pendens, because it does not affect the title or right of possession of property. See, e.g., Urez, 190 Cal.App.3d at 1145, 235 Cal.Rptr. 837. However, the record reveals that the Superior Court’s judgment also included a finding in Hurst’s favor on its cause of action for the fraudulent conveyance of real property. A lis pendens is appropriate in connection with a fraudulent conveyance cause of action. McKnight v. Superior Court 170 Cal.App.3d 291, 299-300, 215 Cal.Rptr. 909 (1985); Putnam Sand & Gravel Co. v. Albers, 14 Cal.App.3d 722, 92 Cal.Rptr. 636 (1971). The court confirmed Hurst’s interest in the property by prohibiting any transfer of the property until further order by the court.

The Superior Court’s order prohibiting transfer clearly affected the possession of the Lanes’ property. A judgment affecting possession of property relates to, and receives its priority from, the date the lis pendens is recorded, and is senior and prior to any interests in the property acquired after that date. Stagen v. Stewart-West Coast Title Co., 149 Cal.App.3d 114, 123, 196 Cal.Rptr. 732 (1983).

II. Preference Analysis

The effect of the “relation back” doctrine on Hurst’s claim to be a secured creditor depends on whether a properly recorded lis pendens constitutes a “transfer” under section 547 of the Bankruptcy Code.

The Bankruptcy Code allows the debtor to avoid “preferential transfers,” which are transfers that occurred within a 90-day period prior to the filing of the bankruptcy petition. 11 U.S.C. § 547(b). [1] If the transfer of Hurst’s interest in the Lanes’ real property occurred when it recorded the lis pendens, then the transfer occurred outside of the preference period, and Hurst is a secured creditor. Section 547 provides the framework for our analysis:

A transfer of real property other than fixtures, but including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such a transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee.

11 U.S.C. § 547(e)(1)(A). Applying this definition to the case at hand, the question is whether, following Hurst’s filing of its lis pendens, a bona fide purchaser of the Lanes’ real property could acquire an interest superior to Hurst’s interest in the property.

“Determining what is necessary to perfect a transfer of an interest in real property depends entirely on state law.” In re Gulino, 779 F.2d 546, 549 (9th Cir.1985). Section 409 of the California Code of Civil Procedure sets forth the effect of a lis pendens:

From the time of filing the notice for record only, a purchaser or encumbrancer of the property affected thereby shall be deemed to have constructive notice of the pendency of the action as it relates to the real property and only of its penden-cy against parties designated by their real names.

Cal.Civ.Pro.Code § 409(a).

Appellees argue that the effect of a lis pendens is merely to give notice of a pend[*605] ing claim. They emphasize that, under California law, a lis pendens does not create a lien on the property and, therefore, perfection does not occur until a judgment which affected the real property. Appellees misconstrue both the effect of filing a lis pen-dens and the definition of a transfer under 11 U.S.C. § 547.

Due to the constructive notice supplied by a lis pendens, a conveyance of the real property to a subsequent bona fide purchaser “is void as against ... any judgment affecting the title, unless such conveyance shall have been duly recorded pri- or to the record of notice of action.” Cal. Civ.Code § 1214. Once Hurst recorded the lis pendens, its interest was perfected, because no subsequent purchaser of the Lanes’ property could acquire an interest superior to its interest. Stagen, 149 Cal.App.3d at 123, 196 Cal.Rptr. 732.

Appellees rely on Putnam Sand & Gravel Co. v. Albers, 14 Cal.App.3d 722, 92 Cal.Rptr. 636 (1971); however, Putnam involved an unusual fact situation. In Putnam, a creditor sued to have a fraudulent conveyance set aside and filed a lis pen-dens. While the suit was pending, the property was reconveyed to the debtor. The court, in the interest of judicial economy rather than strict adherence to the letter of the law, took the extraordinary step of allowing the conveyance, because “the very thing requested by plaintiff in its complaint was, in fact, accomplished by the reconveyance.” Id. at 726, 92 Cal.Rptr. 636. [2]

This unusual case does not affect the general rule that a subsequent purchaser cannot acquire an interest in property superior to the interest of a party that has filed a lis pendens. In the present case, the Superior Court’s judgment merely quantified the extent of Hurst’s perfected interest. Until judgment, his interest may have been the entire property, a lien on the property, or zero interest in the property. The last option may seem counterintuitive. However, the definition of a transfer under section 547 is unambiguous: a transfer is perfected when a subsequent purchaser cannot acquire a superior interest.

The purpose of section 547 was to “discourage[ ] ‘secret liens’ upon the debt- or’s collateral which are not perfected until just before the debtor files for bankruptcy, as other creditors might extend credit on the assumption the collateral was free and clear.” Gulino, 779 F.2d at 548-49 (citations omitted). The recording of a lis pen-dens to secure one’s interest in a property is precisely the type of conduct promoted by the drafters of the Code. It is a recorded notice to subsequent parties that they should not assume that the property is “free and clear.”

The Bankruptcy Code does not require the attachment of a lien in order to perfect an interest. Appellees claim that if a statute expressly provides for the creation of a lien upon a party’s action, then the lien would perfect the party’s interest in the property. In re Welsh & Son Contracting Co., 68 B.R. 520 (Bankr.D.Ariz.1986) (statute provided for creation of lien upon levy of writ of attachment upon real property; perfection upon levy). Furthermore, they contend, in the absence of a statute providing for the creation of a lien, the interest cannot be perfected until judgment. In re McCoy, 46 B.R. 9 (Bankr. D.Ariz.1984) (statute did not provide for creation of lien upon service of writ of garnishment; perfection upon judgment). Appellees argue that, since the California lis pendens statute does not provide for the creation of a lien, perfection can only be achieved at judgment.

Appellees misinterpret the relevance of Welsh and McCoy. These cases do not stand for the maxim: Perfection at judgment, or by lien if statute so provides. Rather, these cases stand for the proposition that, under Arizona law, a party does[*606] not attain an interest superior to a subsequent purchaser until a lien has been attached to the property in the case of an attachment proceeding, or until judgment in the case of a garnishment proceeding. McCoy, 46 B.R. at 12 (“This court is bound by Arizona’s highest court’s interpretation of garnishment liens. Thus, the words of that court in Kuffel [v. United States, 103 Ariz. 321, 441 P.2d 771 (1968)], that ‘perfection must await judicial action’ and a creditor ‘did not have the right to the funds impounded’ are controlling herein.”); Welsh, 68 B.R. at 523 (“The creation of the express lien gives the attaching creditor priority over any subsequent bona fide purchasers or creditors. It is evident that, under 11 U.S.C. § 547(e)(1)(A), the levy of the writ of attachment meets the required perfection test.”).

In contrast, under California law, a party attains an interest superior to subsequent purchasers upon recordation of the lis pendens. It is the fact of attainment of a superior interest, not the creation of a lien or the rendering of a judgment, that creates a transfer under the Bankruptcy Code in both California and Arizona.

Accordingly, we hold that the filing of a valid lis pendens is a transfer within the meaning of the Bankruptcy Code. Hurst’s interest in the Lanes’ property relates back in time to the filing of the lis pendens and is therefore not avoidable as a preference. [3]

REVERSED.

1

. This discussion focuses on the preference period. To establish an avoidable transfer, a litigant would have to satisfy seven criteria: (1) a transfer (2) of the debtor’s property (3) to or for the benefit of the creditor (4) for or on account of an antecedent debt (5) made while the debtor was insolvent (6) within 90 days before the original filing of the petition (7) which enables the creditor to receive more than he would receive under a Chapter VII liquidation. 11 U.S.C. § 547(b).

2

. The court also allowed the debtor to file a declaration of homestead subsequent to the filing of the lis pendens. Putnam, 14 Cal.App.3d at 725-26, 92 Cal.Rptr. 636. However, this is an exception to the general rule. A homestead declaration can also be filed subsequent to the rendition of a judgment, and it will even defeat an existing attachment lien. Id. at 725, 92 Cal.Rptr. 636.

3

. Because we reinstate the bankruptcy court’s decision that Hurst is a secured creditor, we need not reach the effect of the Superior Court's finding of a fraudulent conveyance on the question of dishargeability of the Lanes' debt.