More particularly, if such imposition of such constructive trust were to constitute such a transfer, such transfer would, pursuant to 11 U.S.C. § 547(e)(1)(A), have been perfected by Smithfield as of August 15, 2007, when such lis pendens was obtained because, by virtue of such lis pendens, a bona fide purchaser could not thereafter have obtained an interest in the Debtor's Residence superior to Smithfield's constructive trust in the same, see Aultman, 223 B.R. at 486-487 (because of pre-petition lis pendens filing, constructive trust beneficiary primed—i.e., trumped— any bona fide purchaser of property that was the subject of such constructive trust). 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). Continuing on, such transfer would, pursuant to 11 U.S.C. § 547(e)(2)(B), have been made on August 15, 2007, that is, "at the time such transfer [wa]s perfected," because such transfer was perfected more than 30 days after June 8, 2005, which date, as set forth above, is when such transfer would be deemed to have taken effect between Smithfield and the Debtor.
Instead, they involved a payment made out of a bank account, trust account, or other property already owned by the debtor. SeeIn re Battery One–Stop, 36 F.3d 493 (6th Cir.1994) (garnishment on bank account); In re Wind Power Systems, 841 F.2d 288 (9th Cir.1988) (attachment lien on debtor's assets); In re Latham, 823 F.2d 108 (5th Cir.1987) (same); In re Conner, 733 F.2d 1560 (11th Cir.1984) (garnishment attached to funds already turned over to state court); In re Carlson, 177 B.R. 645 (Bankr.D.Neb.1995) (lien on real property); In re Aspen Data Graphics, 109 B.R. 677 (Bankr.E.D.Pa.1990) (garnishment on bank account). Debtors initially filed for Chapter 13, but their case was converted to one under Chapter 7, and a Chapter 7 Trustee was appointed who was joined as a party to the appeal.
Id. at 606. The same conclusion was reached by the bankruptcy court in Matter of Carlson, 177 B.R. 645 (Bankr.D.Neb.1995). A third decision arrives at the same conclusion on somewhat different facts.
The cases all involved a garnishment, attachment, or similar procedure which a creditor obtained before the 90-day preference period, followed by payment to or entry of a judgment for the creditor during the preference period. Freedom Group v. Lapham-Hickey Steel Corp. (In re Freedom Group), 50 F.3d 408 (7th Cir. 1995); Battery One-Stop v. Atari Corp. (In re Battery One-Stop), 36 F.3d 493 (6th Cir. 1994); Wind Power Systems v. Cannon Financial Group (In re Wind Power Systems), 841 F.2d 288 (9th Cir. 1988); Phillips v. Mbank Waco (In re Latham), 823 F.2d 108 (5th Cir. 1987) (per curiam); Askin Marine Co. v. Conner (In re Conner), 733 F.2d 1560 (11th Cir. 1984); Butler v. Grimminger (In re Carlson), 177 B.R. 645 (Bankr. D. Neb. 1995). The question faced by all these courts was whether transfers to the creditors were made, within the meaning of 11 U.S.C. § 547(e)(2), when the garnishment or attachment procedure occurred, or only later when the payment or judgment occurred.
The cases all involved a garnishment, attachment, or similar procedure which a creditor obtained before the 90-day preference period, followed by payment to or entry of a judgment for the creditor during the preference period. Freedom Group v. Lapham-Hickey Steel Corp. (In re Freedom Group), 50 F.3d 408 (7th Cir. 1995); Battery One-Stop v. Atari Corp. (In re Battery One-Stop), 36 F.3d 493 (6th Cir. 1994); Wind Power Systems v. Cannon Financial Group (In re Wind Power Systems), 841 F.2d 288 (9th Cir. 1988); Phillips v. MBank Waco (In re Latham), 823 F.2d 108 (5th Cir. 1987) (per curiam); Askin Marine Co. v. Conner (In re Conner), 733 F.2d 1560 (11th Cir. 1984); Butler v. Grimminger (In re Carlson), 177 B.R. 645 (Bankr.D.Neb. 1995). The question faced by all these courts was whether transfers to the creditors were made, within the meaning of 11 U.S.C. § 547(e)(2), when the garnishment or attachment procedure occurred, or only later when the payment or judgment occurred.