Bankruptcy Forms: Filing Bankruptcy Chapter 7 Bankruptcy Software Chapter 13

The Center For Debt Management
Center4DebtManagement.com ... Always open 24 / 7

Note: For affordable legal assistance The Center For Debt Management highly recommends Standard Legal's Do-It-Yourself Bankruptcy Forms Software Kits. For credit repair services,
the most trusted law firm in America with over 15 years of experience is Lexington Law Firm.

For more bankruptcy help and bankruptcy alternatives, go to Bankruptcy Resources



TITLE 11–BANKRUPTCY

CHAPTER 5–CREDITORS, THE DEBTOR, AND THE ESTATE

Sub Chapter III – The Estate

Sec. 545. Statutory liens

 The trustee may avoid the fixing of a statutory lien on property of 
the debtor to the extent that such lien--
        (1) first becomes effective against the debtor--
            (A) when a case under this title concerning the debtor is 
        commenced;
            (B) when an insolvency proceeding other than under this 
        title concerning the debtor is commenced;
            (C) when a custodian is appointed or authorized to take or 
        takes possession;
            (D) when the debtor becomes insolvent;
            (E) when the debtor's financial condition fails to meet a 
        specified standard; or
            (F) at the time of an execution against property of the 
        debtor levied at the instance of an entity other than the holder 
        of such statutory lien;

        (2) is not perfected or enforceable at the time of the 
    commencement of the case against a bona fide purchaser that 
    purchases such property at the time of the commencement of the case, 
    whether or not such a purchaser exists;
        (3) is for rent; or
        (4) is a lien of distress for rent.

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2597; Pub. L. 98-353, title III, 
Sec. 460, July 10, 1984, 98 Stat. 377.)


                      Historical and Revision Notes

                         legislative statements

    Section 545 of the House amendment modifies similar provisions 
contained in the House bill and Senate amendment to make clear that a 
statutory lien may be avoided under section 545 only to the extent the 
lien violates the perfection standards of section 545. Thus a Federal 
tax lien is invalid under section 545(2) with respect to property 
specified in sections 6323(b) and (c) of the Internal Revenue Code of 
1954 [title 26]. As a result of this modification, section 545(b) of the 
Senate amendment is deleted as unnecessary.
    Statutory liens: The House amendment retains the provision of 
section 545(2) of the House bill giving the trustee in a bankruptcy case 
the same power which a bona fide purchaser has to take over certain 
kinds of personal property despite the existence of a tax lien covering 
that property. The amendment thus retains present law, and deletes 
section 545(b) of the Senate amendment which would have no longer 
allowed the trustee to step into the shoes of a bona fide purchaser for 
this purpose.


                        senate report no. 95-989

    This section permits the trustee to avoid the fixing of certain 
statutory liens. It is derived from subsections 67b and 67c of present 
law [section 107(b) and (c) of former title 11]. Liens that first become 
effective on the bankruptcy or insolvency of the debtor are voidable by 
the trustee. Liens that are not perfected or enforceable on the date of 
the petition against a bona fide purchaser are voidable. If a transferee 
is able to perfect under section 546(a) and that perfection relates back 
to an earlier date, then in spite of the filing of the bankruptcy 
petition, the trustee would not be able to defeat the lien, because the 
lien would be perfected and enforceable against a bona fide purchaser 
that purchased the property on the date of the filing of the petition. 
Finally, a lien for rent or of distress for rent is voidable, whether 
the lien is a statutory lien or a common law lien of distress for rent. 
See proposed 11 U.S.C. 101(37); Bankruptcy Act Sec. 67(c)(1)(C). The 
trustee may avoid a lien under this section even if the lien has been 
enforced by sale before the commencement of the case. To that extent, 
Bankruptcy Act Sec. 67c(5) is not followed.
    Subsection (b) limits the trustee's power to avoid tax liens under 
Federal, state, or local law. For example, under Sec. 6323 of the 
Internal Revenue Code [Title 26]. Once public notice of a tax lien has 
been filed, the Government is generally entitled to priority over 
subsequent lienholders. However, certain purchasers who acquire an 
interest in certain specific kinds of personal property will take free 
of an existing filed tax lien attaching to such property. Among the 
specific kinds of personal property which a purchaser can acquire free 
of an existing tax lien (unless the buyer knows of the existence of the 
lien) are stocks and securities, motor vehicles, inventory, and certain 
household goods. Under the present Bankruptcy Act (Sec. 67(c)(1)) 
[section 107(c)(1) of former title 11], the trustee may be viewed as a 
bona fide purchaser, so that he can take over any such designated items 
free of tax liens even if the tax authority has perfected its lien. 
However, the reasons for enabling a bona fide purchaser to take these 
kinds of assets free of an unfiled tax lien, that is, to encourage free 
movement of these assets in general commerce, do not apply to a trustee 
in a title 11 case, who is not in the same position as an ordinary bona 
fide purchaser as to such property. The bill accordingly adds a new 
subsection (b) to sec. 545 providing, in effect, that a trustee in 
bankruptcy does not have the right under this section to take otherwise 
specially treated items of personal property free of a tax lien filed 
before the filing of the petition.


                               Amendments

    1984--Par. (1)(A). Pub. L. 98-353, Sec. 460(1), struck out ``is'' 
after ``is''.
    Par. (1)(C). Pub. L. 98-353, Sec. 460(2), substituted ``appointed or 
authorized to take'' for ``apponted''.
    Par. (2). Pub. L. 98-353, Sec. 460(3), substituted ``at the time of 
the commencement of the case'' for ``on the date of the filing of the 
petition'' in two places.


                    Effective Date of 1984 Amendment

    Amendment by Pub. L. 98-353 effective with respect to cases filed 90 
days after July 10, 1984, see section 552(a) of Pub. L. 98-353, set out 
as a note under section 101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 106, 303, 349, 502, 522, 
546, 547, 548, 550, 551, 552, 749, 764, 901, 926 of this title; title 26 
sections 6327, 7437.



Back Index Next

Note: For affordable legal assistance The Center For Debt Management highly recommends Standard Legal's Do-It-Yourself Bankruptcy Forms Software Kits. For credit repair services,
the most trusted law firm in America with over 15 years of experience is Lexington Law Firm.

For more bankruptcy help and bankruptcy alternatives, go to Bankruptcy Resources

Go to Index of Related Articles and Resources!

Click Below To Check Out More Financial Resources

Return to Top

The Center For Debt Management™

Helping Consumers Save Money and Reduce Debt Is Our Only Business!™

We invite you to explore the sectors listed below. We promise that you'll find exceptional values, offers and resources in which to reduce your living expenses and to enjoy life!


Debt Management and Financial Services! The Internet's oldest and most comprehensive debt management agency! Resources for debt management, consumer credit counseling, debt consolidation, debt reduction settlements, legal aid, financial aid, loans and financing, credit repair, credit reports, insurance quotes, income sources, tax assistance, and more.

Established in 1989 and serving the online community since 1992!


This site was created and designed by Daniel A. Gelinas
Disclaimer and Privacy Policy      © Copyright  2007 "The Center For Debt Management"      Contact Us
Return to Top

Legal Resource Center: United States Code TITLE 11 Filing Bankruptcy Forms Software