In re Simon

161 B.R. 329, 1993 Bankr. LEXIS 1746, 1993 WL 496100
CourtDistrict Court, D. Massachusetts
DecidedNovember 29, 1993
DocketBankruptcy No. 93-14545-JNF
StatusPublished
Cited by1 cases

This text of 161 B.R. 329 (In re Simon) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Simon, 161 B.R. 329, 1993 Bankr. LEXIS 1746, 1993 WL 496100 (D. Mass. 1993).

Opinion

MEMORANDUM

JOAN N. FEENEY, Bankruptcy Judge.

I.INTRODUCTION

The matter before the Court is the Objection filed by Clement Thomas, d/b/a/ C & J Remodeling (“Thomas”) to the Chapter 13 plan proposed by the Debtor, Jean May Simon (“Simon” or the “Debtor”). The Debtor filed a Chapter 13 petition on May 14, 1994. On Schedule D, she listed two creditors: Thomas and Statewide Funding Corporation (“Statewide”). The Debtor disclosed that Thomas’ claim stemmed from a mechanic’s hen, while Statewide’s claim pertained to a first mortgage on property that she owns located at 145 Westmore Street, Mattapan, Massachusetts (the “property”). The Debtor proposes in her Chapter 13 plan to treat Statewide’s claim as partially secured and partially unsecured and Thomas’ claim as completely unsecured on the ground that the value of the property is insufficient to secure both obligations. On May 23, 1993, the Debtor commenced an adversary proceeding against Thomas in which she seeks a determination that Thomas’s hen is whohy unsecured based upon the appraised value of the Mattapan property.

Thomas timely filed an objection to the Debtor’s plan. The Court conducted a hearing on the objection and ordered the parties, including Statewide, to file briefs on the issue of whether Thomas’s mechanic’s Hen primes the first mortgage held by Statewide. The Court now makes the following findings of fact and rulings of law in accordance with Fed.R.Bankr.P. 7052 with respect to this limited issue and a subsidiary issue as to whether Thomas’s attorney’s fees are entitled to priority under 11 U.S.C. § 507(a)(3). The issue of whether Thomas’s hen is partially or whohy secured, and, indeed, whether it is properly perfected, shall be determined in the context of the adversary proceeding.

II.FACTS

The following facts do not appear to be in dispute and are set forth in the agreed statement of facts submitted as part of a Joint Pre-trial Memorandum filed by the Debtor and Thomas in conjunction with the adversary proceeding commenced by the Debtor against Thomas and in the memoranda submitted by the parties.

On December 18, 1991, the Debtor executed and dehvered to Statewide a mortgage on property, which was recorded on February II, 1992. Prior to the recordation of the mortgage, the Debtor and Thomas entered into a written agreement pursuant to which Thomas was to perform renovation work on the property.1 The contract was executed by the Debtor on January 2, 1992; the contract price was initially $25,000. Work was to commence on approximately January 2, 1992 and the approximate completion date was May 1, 1992.

On April 24,1992, Thomas filed a Notice of Contract in the Suffolk County Registry District. Four days later on April 28, 1992, he filed a Statement of Account in the same Registry District. The Account contained the following:

Original Contract Amount $25,000.00
Additional Change Order(s) 1,200.00
Additional Materials Ordered 1,500.00
(LESS) Payments and Credits to Date (14,675.47)
$13,024.53

Thomas commenced a civil action against the Debtor, the date of which cannot be conclusively determined from the submissions of the parties, and, on March 23, 1993, he received a default judgment in the amount of $15,069.46. On May 12, 1993, an execution was issued in the amount of $16,446.64. The Debtor filed her Chapter 13 petition two days later.

III. DISCUSSION

The issue that must be determined at this juncture is whether Thomas’ mechanic’s hen primes Statewide’s first mortgage, and, [331]*331thus must be treated as a secured claim by the Debtor in her plan. Prior to the Debt- or’s bankruptcy, Thomas, proceeded under section two of Chapter 254, Mass.Gen.Laws. Ann.Ch. 254, § 2 (West 1988 & Supp.1993), which pertains to contractor’s liens, as opposed to section one, which pertains to laborer’s liens. Pursuant to section 2, a claimant must have a written contract to be eligible for a lien, and the work must relate to a building or structure upon land. Id. The amount of the hen is established at the time the Statement of Claim is filed in the Registry of Deeds. See id. § 8, The record reveals that Thomas filed both the Notice of Contract and the Statement of Claim with the Registry of Deeds. Thomas appears to have perfected his hen as, in addition to the filing of the Notice of Contract and the Statement of Claim,2 he commenced a civil action against the Debtor. See id. § 5. However, the Court has insufficient facts to determine whether Thomas commenced his civil action ■within 60 days after the recordation of the Statement of Claim and whether he filed a certified copy of the complaint in the Registry of Deeds. See id. §§ 5, 11. However, for purposes of this opinion, the Court shah assume that Thomas commenced the civil action within 60 days of the recordation of his Statement of Account in accordance with section 5 of the mechanic’s lien statute as his state court complaint was verified by Thomas on June 26, 1992 — the 60th day following the recordation of the Statement of Account.3 However, the Court shall permit the Debtor to contest this factual conclusion in the context of the adversary proceeding by filing an amended complaint to challenge the perfection of the Hen.

Assuming that Thomas has perfected his contractor’s Hen (the section 2 Hen), the priority of that Hen with respect to Statewide’s mortgage is governed by Mass.Gen.Laws. Ann.Ch. 254, § 7. That section provides the foHowing part:

No Hen, except under section one, shaU avail as against a mortgage aetuaHy existing and duly registered or recorded to the extent of the amount aetuaHy advanced or unconditionaUy committed prior to the filing or recording in the registry of deeds of the notice required by this chapter or against a purchaser, other than the owner who entered into the written contract on which the Hen is based, whose deed was duly registered or recorded prior to the fiHng or recording of such notice; and no Hen under section one shaU avaU against such a mortgage unless the work or labor performed is in the erection, alteration, repair or removal of a building or structure which erection, alteration, repair or removal was actually begun prior to the recording of the mortgage.

Id. § 7 (emphasis suppHed). Since the statute indicates that a contractor’s Hen cannot prime a mortgage, to the extent of aetuaHy advances or amounts unconditionaUy committed, Thomas contends that he also has a laborer’s Hen — a section one Hen, which can prevaH over a mortgage.4

Section one provides in relevant part the foHowing:

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161 B.R. 329, 1993 Bankr. LEXIS 1746, 1993 WL 496100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-simon-mad-1993.