August 2, 2001
The American Land Title Association supports the provisions in HR. 333, the House-passed Bankruptcy Reform provisions to clarify In re McConville. Amendments clarifying McConville have been included in Bankruptcy Technical Corrections legislation since 1997 and were in "The Bankruptcy Reform Act which was vetoed by President Clinton. All necessary amendments are included in the House-passed version of H.R. 333, this year?s "Bankruprcy Reform Act. " However, while the version of Bankruptcy Reform introduced in the Senate this year S220, included three provisions to clarify McConville, one provision was inadvertently dropped during Senate consideration. Consequently, the Senate should recede to the House. Click here for a side-by-side on how the House- and Senate-passed bankruptcy bills treat the McConville case.
State and local real property recording acts provide all parties with a single, comprehensive method to search title and ascertain the existence of interests in real property. Bankruptcy Code section 549(c) was specifically intended to preserve the integrity of the state recording acts by protecting buyers, lenders, lessees and other parties who, in return for their interest in real property, advance new value in good faith without knowledge of a bankruptcy filing. Using the state recording system, constructive knowledge of a bankruptcy filing is provided to all parties by recordation of a copy of the bankruptcy petition by the bankruptcy estate in the counties where the bankruptcy estate owns real property.
This practical system of deference to the state real property recording acts as envisioned by section 549(c) was undermined by the decision of the Ninth Circuit in In re McConville, 110 F. 3d 47_(9th Cir.1996 )cert denied 118 S.Ct. 412,139 L.Ed 2d 315(1997) 77 W.L. 136529 (9th Cir. 1997) (decided March 26, 1997 and withdrawing prior decisions reported at 84 F.3d 340 (9th Cir. 1996) and at 97 F.3d 316 (9th Cir. 1996)). In McConville, a purchase-money lender, without knowledge that the debtor had recently filed an undisclosed chapter 11 case, funded the debtor's acquisition of an apartment complex, and simultaneously recorded its purchase-money deed of trust. On these facts, the Ninth Circuit failed to apply section 549(c), instead limiting the application of section 549(c) to transfers of fee interests only and holding that a bona fide encumbrancer for value was not within the protection afforded by section 549(c). In its last decision, the court, attempting equity, applied Sec. 364 of the Code, and found it was breached. It remanded to the district court with direction to modify to give the lenders a limited lien, which the trustee paid.
Limiting section 549(c) to transfers of fee interests, but not security interests, puts at risk every real property lessee, easement grantee, and lender who provides consideration or extends credit in return for its interest in real property in reliance upon the state real property recording acts. It is impossibile for the title insurance industry to search contemporaneously bankruptcy filings in every bankruptcy court in all 50 states at the time of closing.
McConville is easily solved by simple amendments to clarify the law as enacted in 1978 and does not represent a change in the law under the Bankruptcy Code. First, with respect to the Automatic Stay, section 362(b) of the Bankruptcy Code should be amended to clarify that postpetition transfers required to be perfected under section 549(c) and which are otherwise immune from attack under section 549 would not be void or violable as made in violation of the automatic stay. Second, with respect to postpetition transactions, section 549(c) should be clarified to apply to "transfers of interests in real property, including a security interest in real property" where the
purchaser has given fair equivalent value without notice of the pendency of the bankruptcy case and has perfected that interest timely. To clarify that section 549(c) of the Bankruptcy Code applies to encumbrancers, the definition of "transfer" in section 101(54) should be amended by inserting "the creation of a lien."
For additional information please contact Ann vom Eigen, ALTA Legislative and Regulatory Counsel, at 202-296-3671, ext. 233 or email@example.com.