Third Circuit Decision Is A Cautionary Tale

Friday, October 4, 2019   (0 Comments)
Posted by: Carly Cahur
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Tax lien certificates are a marketable commodity in several jurisdictions, including New Jersey.  The Third Circuit’s recent decision in In re Hackler v. Arianna Holdings Company, LLC, No. 18-1650, __ F.3d __, 2019 2019 WL 4309510 (3d Cir. Sept. 12, 2019), however, will leave certificate holders insecure about their tax lien rights in the face of the Bankruptcy Code’s avoidance powers.  Notwithstanding a properly executed, pre-petition tax lien certificate auction and subsequent foreclosure, the Third Circuit, in affirming the United States Bankruptcy and District Courts for the District of New Jersey, held that a tax lien certificate foreclosure, within 90 days of the homeowners’ chapter 13 bankruptcy filing, was an otherwise avoidable preferential transfer under Section 547 of the Bankruptcy Code and, as a result, the property was returned to the Debtors.

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