Aikens v. City of Philadelphia, Water Revenue Bureau (In Re Aikens)

94 B.R. 869, 1989 WL 3466
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJanuary 25, 1989
Docket15-14765
StatusPublished
Cited by19 cases

This text of 94 B.R. 869 (Aikens v. City of Philadelphia, Water Revenue Bureau (In Re Aikens)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aikens v. City of Philadelphia, Water Revenue Bureau (In Re Aikens), 94 B.R. 869, 1989 WL 3466 (Pa. 1989).

Opinion

OPINION

DAVID A. SCHOLL, Bankruptcy Judge.

For the third time, we consider an attempt by the same debtor, each time on a different theory, to avoid a water and sewer liens imposed by the City of Philadelphia (hereinafter referred to as “the City”) against his residential realty. In the first challenge, brought in the form of the Debt- or’s Objection to the secured status alleged in the City’s proof of claim, we denied the Debtor relief in an Opinion of March 14, 1988, principally on our application of the principle that a judgment debtor himself cannot directly attack the validity of liens against him on the basis of irregularities in the docketing and indexing of same. See In re Aikens, 83 B.R. 344, 347-48 (Bankr.E.D.Pa.1988) (hereinafter “Aikens I”). In the second challenge, the Debtor filed a motion invoking 11 U.S.C. § 522(f)(1) to attack the City’s lien as a “judicial lien.” This attempt also failed because, principally on the basis of enlightenment cast by a decision of May 25, 1988, by the Third Circuit Court of Appeals in Ransom v. Marrazzo, 848 F.2d 398, 404-08 (3d Cir.1988), issued subsequently to our Opinion in Aikens I, we concluded, in an Opinion of June 16, 1988, that the City’s lien was a “statutory lien.” In re Aikens, 87 B.R. 350, 355-56 (Bankr.E.D.Pa.1988) (hereinafter “Aikens II”).

Still undaunted, the Debtor, while not appealing our decisions in either Aikens I or Aikens II, launched, on August 19,1988, a third challenge upon the City’s water and sewer liens against his property, in the form of this adversary proceeding, attacking the validity of the liens under 11 U.S.C. *870 § 545(2). 1

Invoking the Ransom Opinion in the same fashion as we did in Aikens II, we are forced to conclude that the City has not, as required by state law, “enter[ed] the claim” represented by the liens in issue “in the judgment index.” 53 P.S. § 7106(b). Therefore, in this challenge, based upon § 545(2), we are obliged to grant relief to the Debtor, and determine that the liens in issue may be avoided on this basis.

The history of the Debtor’s bankruptcy filing and his pursuit of his other challenges of the City’s liens are well-documented in Aikens I, 83 B.R. at 345, and Aikens II, 87 B.R. at 351-52, and will not be reiterated here. We note that, following the directives in the Orders accompanying Aikens I, 83 B.R. at 348, and Aikens II, 87 B.R. at 356, a Confirmation Hearing was scheduled in the Debtor’s underlying Chapter 13 case, and that the Debtor’s Plan of Reorganization was duly confirmed on October 6, 1988. This development has no appreciable impact on the matter before us.

The instant proceeding was listed for trial on October 6, 1988, as well. By agreement of the parties on that trial-date, we entered an Order directing that the matter be presented to us on a written Stipulation of Facts to be filed on or before November 10,1988, and Briefs to be filed on or before November 30,1988 (Debtor), and December 20, 1988 (City). Due to apparent difficulties in transmission of the Briefs, the final submission of the City was not in our hands until January 5, 1989.

The Stipulation of Facts is relatively brief and expands somewhat upon the previous description of the City’s procedures for indexing and docketing water and sewer liens which we recited in Aikens I, 83 B.R. 345, and the Court of Appeals quoted in Ransom, 848 F.2d at 405, as follows:

water liens are contained in volumes which are located in the Prothonotary’s office in which each entry is given a court term and number. However, the court term and number is not established by the Prothonotary’s office, as is the case in other court filings. Rather, the water department itself designates the numbers, assigning same according to the department’s own, street-related account numbers from its computer printouts. A volume with such print-outs is delivered to the Prothonotary once annually, usually in the fall. The names of the property owners on these print-outs are not in alphabetical order, as they are in the judgment index, but according to addresses. The Prothonotary’s office does virtually nothing with the volumes except to act as their custodian and make them available to the public upon request.

Since the Stipulation of Facts entered here is not lengthy and constitutes the entire record, we quote it here in full:

1. Wilson Aikens owns the home at 902 E. Price Street, Philadelphia, together with his wife Essie Aikens. The fair market value of the property is $20,-000.00 and the balance due on the first mortgage is $9,300.00.
2. The Prothonotary of the Philadelphia Court of Common Pleas maintains a judgment index, recording all non-municipal judgment liens, indexed by the last name of the defendant, in room 268, City Hall, Philadelphia. There are two signs above the door to room 268, saying “Judgment Index” and “Locality Index.”
3. As of the date Mr. Aikens filed his bankruptcy petition, January 27, 1987, the judgment index in room 268 City Hall *871 did not include any entries under Mr. Aikens’ name reflecting In Rem liens held by the City of Philadelphia for water/sewer charges.
4. The Prothonotary of the Philadelphia Court of Common Pleas maintains a municipal and mechanic’s liens record open to the public in room 262, City Hall, Philadelphia. In room 262 the public may consult bound paper indices labelled “Locality Index” and/or “Municipal and Mechanic’s Lien Index” which cover liens up through and including 1982. Since 1982 the Prothonotary has made available in room 262 computer terminals connected to the account records of the Water Revenue Bureau. Persons searching for water/sewer liens may, given either the property address or the owner’s name, call up on the screen the record of all delinquent water/sewer charges for each calendar quarter until the present. On the account record for Mr. Aikens for each year in which a lien was created (1982, 1984, 1985 and 1986), there appears a charge (either $5.00 or $10.00) for the imposition of the lien. After finding the lien charges on the computer terminal, a searcher may then look in the water/sewer lien book (a bound computer printout) for the appropriate year, at the appropriate address, to find the lien number. Since 1982, the combination of the computer terminals and the water/sewer lien books has, according to the Prothonotary, constituted the index to the water/sewer liens.
5. On January 27 [sic — probably meant 23, the filing date], 1987, had inquiry been made of the Prothonotary regarding water/sewer liens at the subject property the inquirer would have been referred to room 262 City Hall.
6. The lien books which may be consulted by the public in Room 262 of City Hall contain lists of City water/sewer liens arranged by property address in numeric and alphabetic order.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mulligan v. United States (In Re Mulligan)
1999 BNH 13 (D. New Hampshire, 1999)
In Re Rice
126 B.R. 189 (E.D. Pennsylvania, 1991)
In Re Boerne Hills Leasing Corp.
117 B.R. 264 (W.D. Texas, 1990)
In Re Shapiro
109 B.R. 127 (E.D. Pennsylvania, 1990)
In Re Orsa Associates, Inc.
106 B.R. 418 (E.D. Pennsylvania, 1989)
Booker v. City of Philadelphia/Water Revenue Bureau
106 B.R. 381 (E.D. Pennsylvania, 1989)
In Re Cabrillo
101 B.R. 443 (E.D. Pennsylvania, 1989)
Aikens v. City of Philadelphia
100 B.R. 729 (E.D. Pennsylvania, 1989)
Kessler v. Homestead Savings (In Re Kessler)
99 B.R. 635 (E.D. Pennsylvania, 1989)
Bell v. Philadelphia Housing Authority (In Re Bell)
97 B.R. 208 (E.D. Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
94 B.R. 869, 1989 WL 3466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aikens-v-city-of-philadelphia-water-revenue-bureau-in-re-aikens-paeb-1989.