Memorandum of Decision Re: Attachment as Preference

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re DONALD and CAROL BADE,                                       No. 91-10976      Debtors. ___________________________/ SCOTT LABORATORIES, INC.,      Plaintiff,    v.                                                                              A.P. No. 91-1186 DONALD and CAROL BADE,      Defendants. ______________________________/
Memorandum of Decision
     On January 14, 1991, plaintiff Scott Laboratories obtained a temporary protective order regarding the debtors' home. On February 5, 1991, Scott recorded a notice of attachment. The first date is outside the 90-day preference period, but the second is not. The issue before the court, on cross-motions for summary judgment, is whether Scott's interest is avoidable as a preference.      Resolution of this case involves a simple application of the Bankruptcy Code. Section 547(b)(4)(A)(4) makes a transfer avoidable if made on or within 90 days before the petition was filed. Section 547(e)(2)(B) provides that a transfer of real property is deemed to have taken place at the time it is perfected if not perfected 10 days after the transfer takes effect between the transferor and the transferee. Section 547(e)(1)(A) provides that a transfer of real property is perfected when a bona fide purchaser cannot require a superior interest.      The recording of the notice of attachment cannot relate back to the temporary protective order because more than ten days had passed since it became effective between Scott and the Bades. Until the notice of the writ was recorded, a bona fide purchaser would have had superior rights. Accordingly, the transfer is deemed by law to have been made on February 5, 1991.      Scott's reliance on In re Wind Power Systems, Inc., 841 F.2d 288 (9th Cir.1988), is entirely misplaced. That case did not involve real property, and was accordingly decided by applying section 547(e)(1)(B). In this case, section 547(e)(1)(A) applies.      There appearing to be no other disputed issues of fact, judgment will be entered in favor of the debtors, as debtors in possession, and against Scott. The estate shall recover its costs of suit.      Counsel for the Bades shall submit an appropriate form of judment.
Dated: March 27, 1992                                                                              _______________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy