In Re Dickson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0242p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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In re: NANCY E. DICKSON,

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Debtor.

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No. 10-5580

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NANCY E. DICKSON,

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Plaintiff-Appellee,

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v.

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COUNTRYWIDE HOME LOANS, dba America’s

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Wholesale Lender,

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Defendant-Appellant.

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On Appeal from the Bankruptcy Appellate Panel

for the Sixth Circuit.

07-05073—Joseph M. Scott, Jr., Bankruptcy Judge.

Argued: July 26, 2011

Decided and Filed: August 26, 2011

Before: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: John P. Brice II, WYATT, TARRANT & COMBS, LLP, Lexington,

Kentucky, for Appellant. Jon Jay Lieberman, ATKINSON, SIMMS & KERMODE

P.L.L.C., Lexington, Kentucky, for Appellee. ON BRIEF: John P. Brice II, WYATT,

TARRANT & COMBS, LLP, Lexington, Kentucky, for Appellant. John M. Simms,

ATKINSON, SIMMS & KERMODE P.L.L.C., Lexington, Kentucky, for Appellee.

1

No. 10-5580 In re Dickson Page 2

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OPINION

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GRIFFIN, Circuit Judge. Plaintiff-debtor Nancy E. Dickson filed a voluntary

Chapter 13 bankruptcy petition on July 16, 2007, seeking to reorganize her debts. As

a part of this process, Dickson successfully sought to avoid a lien on her manufactured

home held by defendant-appellant Countrywide Home Loans (“Countrywide”). Before

this court, Countrywide appeals the judgment of the Bankruptcy Appellate Panel for the

Sixth Circuit (“BAP”) affirming the bankruptcy court’s judgment and order avoiding

Countrywide’s lien. Countrywide asserts that Dickson does not have standing to avoid

the lien, and that even if Dickson possessed standing, the lien is not avoidable. We

disagree and affirm.

I.

The BAP recited the facts as follows:

On September 19, 1998, [Dickson] executed a promissory note and

mortgage on her real property, which she had purchased in 1997, in

consideration for a $79,000 loan from Countrywide. At the time the

promissory note and mortgage were executed there were no

improvements on the mortgaged real property. The mortgage in favor of

Countrywide stated that Countrywide was granted a lien against the real

property and “all improvements now or hereafter erected on the property,

and all easements, appurtenances, and fixtures now or hereafter a part of

that property.” The mortgage was duly and properly recorded with the

Harrison County Clerk on September 22, 1998. [Dickson] then used the

proceeds of the loan to purchase a manufactured home which she placed

on the mortgaged real property.

On March 22, 1999, [Dickson] filed a petition for relief under Chapter 7

of the Bankruptcy Code. On May 13, 1999, the Chapter 7 trustee filed

a notice of intent to abandon both the manufactured home and the real

property. [Dickson] was granted a Chapter 7 discharge on September 8,

1999, and the bankruptcy court entered its Final Decree on September

13, 1999. [Dickson] did not reaffirm the debt with Countrywide.

Subsequently, [Dickson] defaulted on the loan with Countrywide. As a

result, Countrywide initiated foreclosure proceedings on June 15, 2006,

No. 10-5580 In re Dickson Page 3

in the Commonwealth of Kentucky Harrison Circuit Court (“State

Court”). Countrywide’s complaint in the State Court asserted that

[Dickson] granted Countrywide a security interest in both the real

property and the manufactured home. Countrywide asserted in its

complaint that while the parties intended the mortgage to secure a valid,

first lien on the manufactured home, [Dickson] failed to surrender the

title to the manufactured home preventing Countrywide from noting its

lien on the title. Countrywide sought a judgment from the State Court

that it had a valid lien on the home, as well as an order that the home be

deemed a fixture on the property and sold in satisfaction of its lien. On

July 13, 2006, Countrywide filed a notice of lis pendens in the office of

the Harrison County Clerk which specifically referenced the

manufactured home.

On May 25, 2007, Countrywide filed a motion for In Rem Judgment in

the State Court foreclosure proceeding. In its motion, Countrywide

acknowledged that it had not noted its lien on the certificate of title nor

obtained an affidavit of conversion of the manufactured home to real

property in accordance with Kentucky Revised Statute § 186A.297. The

motion further sought a judgment from the State Court ordering that the

property be deemed converted to real property and sold as part of the real

property to satisfy Countrywide’s lien. [Dickson] did not oppose

Countrywide’s motion. On June [7], 2007, the State Court granted the

In Rem motion and [entered] an order finding that Countrywide held a

first priority and superior lien against the real property, that the real

property be sold to satisfy Countrywide’s lien, and that the manufactured

home be “deemed converted to real estate and considered to comply with

K.R.S 186A.297.” The State Court judgment also ordered that the

“County Clerk shall accept for recording an affidavit of conversion from

the purchaser of the property, and this Court’s order converting the home

to real estate, herein. Alternatively, the Clerk shall issue a new

certificate of title to the purchaser of the property.” [Dickson] did not

appeal the State Court judgment.

On July 16, 2007, [Dickson] filed a petition for relief under Chapter 13

of the Bankruptcy Code. Countrywide filed a motion for relief from stay

seeking to sell [Dickson’s] property. [Dickson] and the Chapter 13

trustee (“Trustee”) opposed Countrywide’s motion on the grounds that

Countrywide failed properly to perfect its lien on the manufactured

home. On October 9, 2007, the bankruptcy court issued an order

granting the Trustee thirty days in which to file an adversary proceeding

to determine the interest of Countrywide. The bankruptcy court further

ordered that if the Trustee did not file such an adversary proceeding,

[Dickson] would then have an additional fifteen days to do so. If no

adversary was filed, the stay would be lifted.

No. 10-5580 In re Dickson Page 4

The Trustee did not file an adversary proceeding. [Dickson], therefore,

filed an adversary complaint pursuant to 11 U.S.C. §§ 544, 547, 550, and

551 on November 14, 2007, in which she asserted that Countrywide did

not properly perfect its lien on her manufactured home. On March 20,

2008, Countrywide filed a motion for summary judgment in which it

asserted that [Dickson] lacked standing to bring the adversary proceeding

because the mortgage lien was consensual and she may not exercise the

Trustee’s avoidance powers under 11 U.S.C. § 544, that [Dickson]’s

claim is barred by res judicata as a result of the actions of the trustee in

[Dickson]’s Chapter 7 case in relation to her property, that the lis

pendens filing provided [Dickson] with constructive notice of

Countrywide’s lien preventing avoidance, and finally, that the prior State

Court judgment prevented avoidance of Countrywide’s lien. [Dickson]

responded with a cross motion for summary judgment in which she

asserted that she had standing as a result of the bankruptcy court’s

October 9, 2007 order and Countrywide’s failure to object to same, that

her prior bankruptcy case did not have res judicata effect, that

Countrywide’s lien on the manufactured home was unperfected because

it failed to note its lien on the certificate of title, and that the State

Court’s judgment did not preclude avoidance of the lien.

Following a hearing on April 29, 2008, the bankruptcy court denied both

motions for summary judgment and stated:

[Countrywide] argues that [Dickson] does not have standing

because the mortgage lien is consensual. However, the lien was

created by the non-consensual judgment lien; thus, [Dickson]

does have standing.

...

This Court finds that whether the Defendant holds a valid lien is

determined by the intent of the parties at the time of contract

formation and whether [Dickson] granted [Countrywide] a lien

on the mobile home. There is nothing in the record of this case

that demonstrates the intent of the parties or the intent of

[Dickson] in not responding to the Motion for In Rem Judgment

in State Court, nor is there any evidence that [Dickson] granted

a lien to [Countrywide] on the mobile home.

Following the bankruptcy court’s ruling on the motions for summary

judgment, Countrywide took [Dickson]’s deposition and questioned her

regarding her intention at the time of contract formation. While

[Dickson]’s testimony at that deposition was equivocal regarding her

intention to grant a lien to Countrywide on the manufactured home, she

ultimately agreed that she was granting a lien on the manufactured home

in favor of Countrywide. The deposition of Countrywide’s designated

No. 10-5580 In re Dickson Page 5

representative, Kelly Darraugh, was also taken. Kelly Darraugh testified

that neither she, nor anyone else at Countrywide, had direct knowledge

of Countrywide’s intention regarding the manufactured home at the time

of contract formation, nor had she ever seen the certificate of title or an

affidavit documenting affixing of the manufactured home to the real

estate.

Subsequently, [Dickson] and Countrywide filed renewed cross motions

for summary judgment and moved, via an agreed order, to submit the

matter for determination on briefs as if tried before the court. The

bankruptcy court then ordered the parties to submit proposed findings of

fact and conclusions of law. On April 30, 2009, the bankruptcy court

issued a Judgment Order in which it adopted [Dickson]’s proposed

findings of fact and conclusions of law and entered judgment in favor of

[Dickson]. The adopted conclusions of law concluded, among other

things, that [Dickson] had standing, that the only manner in which to

perfect a lien on a manufactured home under Kentucky law is by noting

the lien on the certificate of title, that Countrywide had failed to perfect

its lien, and that even if Countrywide had perfected its lien, such lien was

avoidable as a preference.

On May 5, 2008, Countrywide filed a Motion to Amend Findings of Fact

and Conclusions of Law and to Alter, Amend, or Vacate the Judgment.

In response, [Dickson] filed a motion nunc pro tunc for derivative

standing. The bankruptcy court granted [Dickson]’s motion, and largely

denied Countrywide’s motion, granting it only with respect to amending

the Court’s findings of fact as to a point not at issue here.

Countrywide Home Loans v. Dickson (In re Dickson), 427 B.R. 399, 401-03 (6th Cir.

BAP 2010) (footnotes omitted). On appeal, the BAP upheld the bankruptcy court’s

judgment and order in favor of Dickson, holding that she had derivative standing to

avoid Countrywide’s lien, which was avoidable as a preference pursuant to 11 U.S.C.

§ 547. Id. at 404-08. This appeal followed.

II.

We review the decision of the bankruptcy court directly, giving no deference to

the decision of the BAP. Heavrin v. Schilling (In re Triple S Restaurants, Inc.), 519 F.3d

575, 578 (6th Cir. 2008). Legal conclusions are reviewed de novo and factual findings

are reviewed for clear error. Id.

No. 10-5580 In re Dickson Page 6

III.

Our analysis starts with the provisions of Kentucky law governing the perfection

of liens on manufactured homes. In Kentucky, a manufactured home is personal

property for which a certificate of title is required. Kentucky Revised Statutes (“KRS”)

§ 186A.070; Citizens Nat’l Bank of Jessamine Cnty. v. Washington Mut. Bank, 309

S.W.3d 792, 796 (Ky. Ct. App. 2010). In order to perfect a lien on personal property,

the lien must be noted on the certificate of title. See KRS § 186A.190(2) (“[T]he sole

means of perfecting and discharging a security interest in property for which a certificate

of title is required by this chapter is by notation on the property’s certificate of title[.]”);

Citizens Nat’l Bank, 309 S.W.3d at 796. However, a manufactured home may be

converted from personal property to an improvement to real estate, KRS § 186A.297,

thereby allowing perfection through first recording without notice, KRS § 382.110.

In the case at bar, the plain language of the mortgage contract did not grant

Countrywide a lien on Dickson’s manufactured home as personal property. Rather, the

mortgage grants Countrywide a lien on the real estate and “all improvements now or

hereafter erected on the property, and all easements, appurtenances, and fixtures now or

hereafter a part of that property.” Accordingly, unless converted to an improvement to

real estate, Countrywide did not obtain a security interest in the manufactured home

through the mortgage contract.1 Turner v. EMC Mortg. Corp., No.

2003-CA-002522-MR, 2005 WL 1540158, at *1 (Ky. Ct. App. July 1, 2005) (citing First

Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829 (Ky. Ct. App. 2001) (“A

mortgage is a contract between the borrower and lender subject to the rules of

interpretation applicable to contracts. When the language is clear and free from

ambiguity, it needs no construction and will be enforced according to its express

terms.”).

Moreover, even if Countrywide obtained a lien against the manufactured home

by way of the mortgage contract, it is undisputed that Countrywide did not note this

1

Countrywide does not assert that Dickson’s manufactured home can be considered an easement,

appurtenance, or fixture under Kentucky law.

No. 10-5580 In re Dickson Page 7

security interest on the certificate of title, and the filing of a lis pendens2 cannot serve

to perfect a security interest in a manufactured home. See Citizens Nat’l Bank, 309

S.W.3d at 795-96 (holding that the filing of a lis pendens does not perfect a security

interest in a manufactured home when the home remains personal property); Strong v.

First Nationwide Mortg. Corp., 959 S.W.2d 785, 788 (Ky. Ct. App. 1998) (noting that

the filing of a lis pendens does not create a lien against property or establish priority

among creditors). Accordingly, before the state-court foreclosure judgment,

Countrywide did not have a perfected lien on Dickson’s manufactured home.

On June 7, 2007, the state court entered an in rem judgment and order of sale

converting Dickson’s manufactured home to an improvement to real property.

Countrywide asserts that this judgment created a perfected security interest in the

manufactured home. We agree. The state-court judgment “deemed” Dickson’s

manufactured home to be converted to real estate pursuant to KRS § 186A.297:

It is ORDERED that the manufactured home, [a] 1998 Champion

Pebblebrook II . . . , is deemed converted to real estate and shall be

considered to comply with KRS 186A.297. The County Clerk shall

accept for recording an affidavit of conversion from the purchaser of the

property and this Court’s Order converting the property to real estate,

herein. Alternatively, the Clerk shall issue a new certificate of title to the

purchaser of the property.

Dickson did not appeal this judgment. Accordingly, the conversion ordered in the state-

court judgment is binding on Dickson under the doctrine of res judicata, also known as

issue preclusion.

“Issue preclusion . . . bars subsequent relitigation of a fact or issue where that fact

or issue was necessarily adjudicated in a prior cause of action and the same fact or issue

is presented in a subsequent suit.” Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582, 589

(6th Cir. 2009). Four requirements must be met before issue preclusion may be applied:

2

“Lis pendens is defined as [a] notice, recorded in the chain of title to real property, . . . to warn

all persons that certain property is the subject matter of litigation, and that any interests acquired during

the pendency of the suit are subject to its outcome.” Greene v. McFarland, 43 S.W.3d 258, 260 (Ky.

2001) (internal quotation marks and citation omitted).

No. 10-5580 In re Dickson Page 8

(1) the precise issue must have been raised and actually litigated in the

prior proceedings; (2) the determination of the issue must have been

necessary to the outcome of the prior proceedings; (3) the prior

proceedings must have resulted in a final judgment on the merits; and

(4) the party against whom estoppel is sought must have had a full and

fair opportunity to litigate the issue in the prior proceeding.

Id. at 589-90 (emphasis removed).

Here, Dickson contends that we are free to hold that her manufactured home was

not converted to real property pursuant to KRS § 186A.297, asserting that such a holding

would not “conflict” with the state-court judgment. This assertion is nonsensical. The

state-court judgment unambiguously and unequivocally “deemed” the manufactured

home to be “converted to real estate [in compliance] with KRS 186A.297.” A holding

to the contrary by this court would directly conflict with the state-court judgment on an

issue of Kentucky law.

Once converted to real property, the manufactured home fell clearly within the

terms of the mortgage contract (granting a security interest in favor of Countrywide on

the listed real estate, together with “all the improvements now or hereafter erected on the

property”). This mortgage was recorded with the Harrison County Clerk, perfecting

Countrywide’s interest in the real estate. KRS §§ 382.110, 382.270. Accordingly, upon

the entry of the state-court judgment on June 7, 2007, Countrywide possessed a perfected

lien on Dickson’s manufactured home.

IV.

Having set forth when and how Countrywide perfected its lien on Dickson’s

manufactured home, we now analyze whether Dickson has standing to seek its

avoidance. A Chapter 13 trustee is authorized to avoid certain property transfers in order

to prevent further payment on the debt. See e.g., 11 U.S.C. §§ 544, 547.3 The

Bankruptcy Code also authorizes a debtor to avoid a limited subset of these transfers

3

Chapters 1, 3, and 5 of the Bankruptcy Code apply to bankruptcies filed under Chapter 13. See

11 U.S.C. § 103(a).

No. 10-5580 In re Dickson Page 9

pursuant to 11 U.S.C. § 522(h). In the present case, Countrywide asserts that Dickson

does not have standing to avoid its lien under § 522(h). We disagree.

Section 522(h) of the Bankruptcy Code provides:

The debtor may avoid a transfer of property of the debtor or recover a

setoff to the extent that the debtor could have exempted such property

under subsection (g)(1) of this section if the trustee had avoided such

transfer, if –

(1) such transfer is avoidable by the trustee under section 544, 545,

547, 548, 549, or 724(a) of this title or recoverable by the trustee

under section 553 of this title; and

(2) the trustee does not attempt to avoid such transfer.

Thus, for a debtor to avoid a transfer under § 522(h), the transfer must be avoidable by

the trustee pursuant to § 522(g)(1), which provides in relevant part:

[T]he debtor may exempt under subsection (b) of this section property

that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or

553 of this title, to the extent that the debtor could have exempted such

property under subsection (b) of this section if such property had not

been transferred, if –

(1)(A) such transfer was not a voluntary transfer of such property by the

debtor; and

(B) the debtor did not conceal such property[.]

(Emphasis added.) Accordingly, a Chapter 13 debtor has standing to avoid a transfer

under § 522(h) if five conditions are met: (1) the transfer was not voluntary; (2) the

transfer was not concealed; (3) the trustee did not attempt to avoid the transfer; (4) the

debtor seeks the avoidance pursuant to §§ 544, 545, 547, 548, 549, or 724(a) of the

Bankruptcy Code; and (5) the transferred property is of a kind that the debtor would

have been able to exempt from the estate if the trustee had avoided the transfer under one

of the provisions in § 522(g). Kildow v. EMC Mortg. Corp. (In re Kildow), 232 B.R.

686, 692-93 (Bankr. S.D. Ohio 1999).

Here, Countrywide asserts that Dickson does not have standing under § 522(h)

because the transfer at issue was voluntarily granted via the mortgage contract. In

No. 10-5580 In re Dickson Page 10

contrast, Dickson argues that the transfer at issue was involuntarily granted via the state-

court judgment. Accordingly, we must identify the relevant “transfer” at issue and then

determine whether that transfer was “voluntary.”

The word “transfer” is a term of art in the Bankruptcy Code, defined as follows:

(A) the creation of a lien;

(B) the retention of title as a security interest;

(C) the foreclosure of the debtor’s equity of redemption; or

(D) each mode, direct or indirect, absolute or conditional, voluntary or

involuntary of disposing of or parting with –

(i) property; or

(ii) an interest in property.

11 U.S.C. § 101(54). The Supreme Court has noted that this definition is “expansive”

because it includes every mode of disposing or parting with a property interest. Barnhill

v. Johnson, 503 U.S. 393, 400 (1992).

In this case, Countrywide asserts that the transfer at issue is the mortgage

contract. However, this contract is a real-estate mortgage, which by its terms does not

encompass personal property.4 It was not until the manufactured home was converted

to an improvement to real estate, thereby bringing the home within the boundaries of the

mortgage contract, that Countrywide obtained a perfected security interest in the

manufactured home. Accordingly, while a transfer in real property did occur through

the mortgage contract, the mortgage was not the triggering transfer. See Hoffman v.

Cent. Pa. Nat’l Bank (In re Hoffman), 96 B.R. 46, 47 (Bankr. W.D. Pa. 1988) (noting

that “several transfers” may be involved within a single “transaction” as a result of the

“broad and comprehensive” definition of the term “transfer”).

4

The mortgage contract is unambiguously a real-estate mortgage that does not grant Countrywide

a security interest in personal property. Thus, Countrywide’s reliance upon the alleged admissions made

by Dickson in her deposition testimony is misplaced. See generally Friction Materials Co. v. Stinson, 833

S.W.2d 388, 391 (Ky. Ct. App. 1992). Moreover, lay persons, such as Dickson, are not qualified to make

legal conclusions. Fed. R. Evid. 701(c); Mitroff v. Xomox Corp., 797 F.2d 271, 276-77 (6th Cir. 1986).

No. 10-5580 In re Dickson Page 11

The transfer in this case that perfected Countrywide’s lien on the manufactured

home was the state-court judgment. Indeed, prior to the Kentucky judgment, Dickson

was the owner of an unencumbered manufactured home. The judgment converted the

manufactured home into real property and thus transferred it within the reach of the

mortgage contract, subjecting it to foreclosure. Most certainly, this conversion

constitutes a “mode . . . of disposing of or parting with . . . an interest in property.” 11

U.S.C. § 101(54)(D)(ii).

Having determined the state-court judgment to be the operative transfer at issue,

we must next decide whether this transfer was “voluntary.” While the Code does not

define this term, the bankruptcy courts “have generally concluded, . . . that an

involuntary transfer ‘occurs when . . . property is transferred by operation of law, such

as by means of an execution of judgment, repossession, or garnishment.’” Funches v.

Household Fin. Consumer Discount Co. (In re Funches), 381 B.R. 471, 493 (Bankr. E.D.

Pa. 2008) (quoting Berman v. Forti, 232 B.R. 653, 656 (D. Md. 1999)); see also In re

Dipalma, 24 B.R. 385, 387 (Bankr. D. Mass. 1982) (noting that a transfer created “by

operation of law” is involuntary). Here, the judgment was not a consent judgment, but

a default judgment. Accordingly, the state-court conversion of Dickson’s manufactured

home to an improvement to real property was involuntary because it was accomplished

by operation of law without consent.

With the exception of the involuntary nature of the transfer resulting in its

perfected lien on Dickson’s manufactured home, Countrywide does not dispute that

Dickson meets all the other requirements to have standing under § 522(h). In re Kildow,

232 B.R. at 692-93. Accordingly, we hold that Dickson has direct, statutory standing

to seek the avoidance of Countrywide’s lien. In view of our holding that Dickson

possesses direct standing, it is unnecessary for us to address the issue of whether she

possesses “derivative standing” as found by the BAP. In re Dickson, 427 B.R. at 404-

06.

No. 10-5580 In re Dickson Page 12

V.

The final issue is whether Countrywide’s lien was properly avoided. Upon

review, we hold that it was. Section 547 allows for the avoidance of preferences, which

are transfers of property made by the debtor within the 90-day period preceding the

filing of the bankruptcy petition. 11 U.S.C. § 547(b). In order to avoid a transfer as a

preference under § 547, the transfer must be:

(1) to or for the benefit of a creditor;

(2) for or on account of an antecedent debt owed by the debtor before

such transfer was made;

(3) made while the debtor was insolvent;

(4) made –

(A) on or within 90 days before the date of the filing of the

petition; or

(B) between ninety days and one year before the date of the

filing of the petition, if such creditor at the time of such

transfer was an insider; and

(5) that enables such creditor to receive more than such creditor

would receive if –

(A) the case were a case under chapter 7 of this title;

(B) the transfer had not been made; and

(C) such creditor received payment of such debt to the extent

provided by the provisions of this title.

11 U.S.C. § 547(b)(1)-(5).

“[F]or purposes of § 547 of the Bankruptcy Code, a transfer is deemed to have

been made at the time the transfer is perfected, if perfection takes place more than 30

days after its creation[.]” Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck &

Son, Inc.), 385 B.R. 799, 2008 WL 1756243, at *8 (6th Cir. BAP 2008) (unpublished

table opinion) (citing 11 U.S.C. § 547(e)(2)(B)). In this case, the creation and perfection

of Countrywide’s interest in the manufactured home occurred at the time of the state-

court judgment, which was filed on June 7, 2007. Dickson filed for Chapter 13

No. 10-5580 In re Dickson Page 13

bankruptcy on July 16, 2007, placing the state-court judgment well-within the 90-day

preference period.

While Countrywide asserts that it perfected its lien outside the preference period

through the filing of the lis pendens, as described above, a lis pendens cannot perfect an

interest in personal property, such as a manufactured home. See Citizens Nat’l Bank,

309 S.W.3d at 795-96. Other than the timing of perfection, Countrywide does not

dispute that all of the other requirements of § 547 are satisfied. Accordingly, we hold

that Countrywide’s lien on the manufactured home was properly avoided pursuant to

§ 547.5

VI.

In sum, we hold that Dickson possessed direct statutory standing to avoid

Countrywide’s lien pursuant to § 522(h), and that the lien was properly avoided pursuant

to § 547. On this basis, we affirm the judgment in favor of Dickson.

5

Dickson also asserts that Countywide’s lien is avoidable pursuant to § 544. Because we hold

that the lien was avoidable pursuant to § 547, we need not address this issue.