AND, b/c is NOT judicially-supervised, unrecorded MAY not NJF TD … be noticed (§ C holds secured claim in amount of Bifurcation 506(a)) undersecured – value of collateral AND unsecured claim in amount of deficiency If C conducts and obtains then JF deficiency judgment, deficiency judgment becomes unsecured claim in bankruptcy… AND, collecting right before bankruptcy would deficiency judgment … likely be b/c it made C alters preferential off” deficiency judgment “better C’s economic status (whereas, foreclosure does NOT) Judgment lien… After plaintiff (C) obtains judgment against defendant (D), C files judgment, obtains and records (under state law) arises abstract judgment lien (encumbering D’s property) On March 1st, C obtains judgment against D… on March 15th, “bell” rings… on March 20th, C files judgment, obtains and records abstract, arises… judgment lien b/c judgment obtained on March 1st and arises on March judgment lien … 20th, debt IS AND, IS antecedent… judgment lien preferential Obtaining judgment ONLY half the battle C must move quickly to file and obtain (failure to do so MAY be malpractice for C’s counsel) judgment lien Do before judgment entered better able to quickly obtain title search(es) judgment lien (discovery in aid of judgment) ask D Judgment-debtor exam properties Refi loan… On January 1st, old recorded on D’s property… on July 1st, made TD refi loan (new lender replaces old lender, old obligation extinguished in favor of new obligation), new executed, but NOT recorded… on August 1st, TD “bell” rings… on September 1st, new recorded… TD as per new IS unless, 1 of 2 theories delayed perfection, TD preferential … successfully asserted… Theory #1 (generally does NOT work) new lender is perfected” “federally when able to beat out a AND, b/c old was still of subsequent BFP4V… TD record, any would have been put on notice (though, subsequent BFP4V notice of old NOT new thus, new was perfected” TD, TD)… TD “federally at all times (NOT delayed) Theory #2 (mixed results, though trending against) equitable subrogation
… AND, b/c NJF is NOT judicially-supervised, unrecorded TD MAY not be noticed Bifurcation (§ 506(a)) – undersecured C holds secured claim in amount of value of collateral AND unsecured claim in amount of deficiency If C conducts JF and obtains deficiency judgment, then deficiency judgment becomes unsecured claim in bankruptcy… … AND, collecting deficiency judgment right before bankruptcy would likely be preferential b/c it made C “better off” deficiency judgment alters C’s economic status (whereas, foreclosure does NOT) Judgment lien… After plaintiff (C) obtains judgment against defendant (D), C files judgment, obtains and records abstract (under state law) judgment lien arises (encumbering D’s property) On March 1st, C obtains judgment against D… on March 15th, “bell” rings… on March 20th, C files judgment, obtains and records abstract, judgment lien arises… … b/c judgment obtained on March 1st and judgment lien arises on March 20th, debt IS antecedent… AND, judgment lien IS preferential Obtaining judgment ONLY half the battle C must move quickly to file and obtain judgment lien (failure to do so MAY be malpractice for C’s counsel) Do title search(es) before judgment entered better able to quickly obtain judgment lien Judgment-debtor exam (discovery in aid of judgment) ask D properties Refi loan… On January 1st, old TD recorded on D’s property… on July 1st, refi loan made (new lender replaces old lender, old obligation extinguished in favor of new obligation), new TD executed, but NOT recorded… on August 1st, “bell” rings… on September 1st, new TD recorded… … as per delayed perfection, new TD IS preferential unless, 1 of 2 theories successfully asserted… Theory #1 (generally does NOT work) new lender is “federally perfected” when able to beat out a subsequent BFP4V… AND, b/c old TD was still of record, any subsequent BFP4V would have been put on notice (though, notice of old TD, NOT new TD)… thus, new TD was “federally perfected” at all times (NOT delayed) Theory #2 (mixed results, though trending against) equitable subrogation
Bankruptcy_Schechter-Fall-2009.docx