Nelson v. Lowery Building & Supply Co. (In re Satterfield)

110 B.R. 553, 1989 Bankr. LEXIS 2401
CourtUnited States Bankruptcy Court, N.D. Alabama
DecidedJune 23, 1989
DocketBankruptcy No. BK 86-01452; Adv. No. 88-0285
StatusPublished

This text of 110 B.R. 553 (Nelson v. Lowery Building & Supply Co. (In re Satterfield)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Lowery Building & Supply Co. (In re Satterfield), 110 B.R. 553, 1989 Bankr. LEXIS 2401 (Ala. 1989).

Opinion

MEMORANDUM OF DECISION

GEORGE S. WRIGHT, Chief Judge.

This matter came before the Court on the Trustee’s Motion to Sell Property Free and Clear of Liens. After a trial and consideration of applicable law, it is the opinion of this Court that the Trustee’s Motion is due to be GRANTED IN PART AND DENIED IN PART. This memorandum shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.

FINDINGS OF FACT

On July 21, 1988, this Court entered an order allowing the Trustee to sell property 1 free and clear of liens with any valid liens to attach to the proceeds of the sale. Twelve lien claims have been asserted against the proceeds of the sale. The twelve potential lien claims are as follows:

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This Court must now examine each lien individually and determine whether the lien is valid so as to attach to the proceeds of the sale.

[556]*556CONCLUSIONS OF LAW

1. LOWERY BUILDING AND SUPPLY CO.

The Trustee asserts that if the lien filed in favor of Lowery Building and Supply Co. is indeed a verified statement of materialman’s lien in accordance with Alabama Code Section 35-11-213, Lowery has still failed to comply with Alabama Code Section 35-11-221. Section 35-11-221 provides:

Any action for the enforcement of the lien declared in this division must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as otherwise provided in this division.

Lowery has failed to provide this Court with any evidence that suit was filed within six months after the maturity of the entire indebtedness. This Court must make its determination based on the evidence, or lack thereof, before it and must accordingly find that Lowery failed to comply with Section 35-11-221 and is therefore barred from asserting a valid materialman’s lien claim against the proceeds of the sale.

2. HAMMERBLOW COMPANY

The Trustee asserts that the certificate of Judgment filed October 30, 1973 in favor of Hammerblow Company does not create a valid lien inasmuch as under Alabama Code Section 6-9-211, ten years have elapsed from the date of the judgment. Section 6-9-211 provides in pertinent part:

Every judgment, a certificate of which has been filed as provided in section 6-9-210, shall be a lien in the county where filed on all property of the defendant which is subject to levy and sale under execution, and such lien shall continue for 10 years after the date of such judgment; provided that when an action or other proceeding to enforce or foreclose said lien is instituted or begun within said 10 years, but has not been completed, decided or determined within said 10-year period, and at the time said action or proceeding is instituted or begun, or lien claimed therein, a lis pendens notice thereof is filed in the office of the judge of probate of the county in which said property is situated, the lien provided for in this section shall continue as to the property upon which said lien is claimed in said action or proceeding and may be enforced or foreclosed in that action as if said 10-year period had not elapsed, (underlining for emphasis)

Hammerblow has failed to provide this Court with any evidence that its judgment has been revived and the certificate of judgment rerecorded. This being so, the Court finds that Hammerblow allowed its lien to expire on October 30, 1983 when it failed to revive its judgment and rerecord its certificate of judgment and is therefore barred from asserting a valid lien claim against the proceeds of the sale.

3.PEOPLES BANK AND TRUST COMPANY

The Trustee asserts that the judgment in favor of Peoples Bank and Trust fails to comply with Alabama Code Section 6-9-210. Section 6-9-210 provides:

The owner of any judgment entered in any court of this state or the United States held in this state may file in the office of the judge of probate of any county of this state a certificate of the clerk or register of the court by which the judgment was entered, which certificate shall show the style of the court which entered the judgment, the amount and date thereof, the amount of costs, the names of all parties thereto and the name of the plaintiff’s attorney and shall be registered by the judge of probate in a book to be kept by him for that purpose, which said register shall also show the date of the filing of the judgment. Said judge shall make a proper index to said book, which shall also show under the proper letter or letters of the alphabet the names of each and every defendant to said judgment, and such judgments shall be recorded in chronological order of the filing of such judgments. Such certificate shall also show the address of each defendant or respondent, as shown in the court proceedings, (underlining for emphasis)

[557]*557The Certificate of Judgment2 in favor of Peoples Bank and Trust Company is lacking the address of the defendant. The question is whether this omission is fatal. Ball v. Vogtner, 362 So.2d 894, 896 (Ala. 1978) holds that, “to create a lien, the statutory requirements as to the contents of the certificate must be strictly observed”. However, the Supreme Court of Alabama indicated in Bank of Anniston v. Farmers & Merchants State Bank of Krum, Texas, 507 So.2d 927 (Ala.1987) that all omissions are not fatal. In Bank of Anniston a notation on the certificate of judgment stating, “(Texas & Florida addresses) (also Anniston)”, sufficiently complied with the address requirement of section 6-9-210. The Bank of Anniston case stated:

We note, however, that the statutory requirements that the contents of the certificate of judgment be strictly observed must be viewed in relation to the purpose of that requirement. That purpose is to provide notice of the judgment to anyone searching title to the real property. 507 So.2d at 929.

Even in light of Bank of Anniston, the requirements of Section 6-9-210 must be met so as to provide notice of judgments to those searching title. See also Reuf v. Fulks, 219 Ala. 252, 122 So. 14 (1929). Section 6-9-210 clearly states that the address of the defendant must be included in the certificate of judgment. The case law strongly reaffirms this requirement. This Court has once before faced the issue of address omission on a certificate of judgment. In re Langdon, BK No. 77-2093 (N.D.Ala. Oct. 11, 1978), aff’d, CA78-H-1278-W (N.D.Ala. March 5, 1979). In affirming the Langdon opinion, Federal District Judge James H. Hancock interpreted the case of Duncan v. Ashcraft, 121 Ala. 552, 25 So. 735 (1899) and held that there must be “substantial compliance in every essential particular” and that an essential particular is the address of the judgment debtor as shown in the court proceeding. Judge Hancock further cites Parker v. Mauldin, 353 So.2d 1375 (Ala.1978) for the proposition that the address requirement of Section 6-9-210 has consistently been strictly observed by the Alabama Courts. Inasmuch as the address of the defendant has been entirely omitted in derogation of Section 6-9-210 and that substantial compliance in every particular has not been met, this Court must find that a valid lien claim cannot exist against the proceeds of the sale.

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Related

Milwaukee County v. M. E. White Co.
296 U.S. 268 (Supreme Court, 1935)
Bank of Anniston v. FARMERS & MER. ST. BK.
507 So. 2d 927 (Supreme Court of Alabama, 1987)
Parker v. Mauldin
353 So. 2d 1375 (Supreme Court of Alabama, 1977)
Gillian v. Conoco, Inc. (In Re Norman)
41 B.R. 1 (M.D. Alabama, 1983)
Ball v. Vogtner
362 So. 2d 894 (Supreme Court of Alabama, 1978)
Bishop v. McPherson
168 So. 675 (Supreme Court of Alabama, 1936)
North Birmingham American Bank v. Realty Mortgage Co.
134 So. 796 (Supreme Court of Alabama, 1931)
Reuf v. Fulks
122 So. 14 (Supreme Court of Alabama, 1929)
McCarty v. Robinson
131 So. 895 (Supreme Court of Alabama, 1930)
Cortner v. Galyon
137 So. 30 (Supreme Court of Alabama, 1931)
First Nat. Bank of Montgomery v. Powell
155 So. 624 (Supreme Court of Alabama, 1934)
Mathews v. Mobile Mutual Insurance
75 Ala. 85 (Supreme Court of Alabama, 1883)
Duncan v. Ashcraft
121 Ala. 552 (Supreme Court of Alabama, 1898)

Cite This Page — Counsel Stack

Bluebook (online)
110 B.R. 553, 1989 Bankr. LEXIS 2401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-lowery-building-supply-co-in-re-satterfield-alnb-1989.