NORTHERN DISTRICT OF CALIFORNIA
YURY and IRINA TRUBNIKOV, No. 01-11202
Memorandum on Motion to Avoid Lien
Prior to bankruptcy, debtors Yury and Irina Trubnikov sold their home at 4 Bay Way, San
Rafael, California, to creditors Ruslan Torsheov, Fatima Evloeva and Vakha Evloev under a lease
option agreement. After a trial, a state court found that the Trubnikovs had made material
misrepresentations and ordered the agreement rescinded. The court further found that the creditors had
a purchaser's lien on the property to secure about $240,000.00 in damages, attorneys' fees and costs.
The Trubnikovs then commenced Chapter 11 bankruptcy proceedings and have moved to avoid the
creditors' lien pursuant to § 522(f)(1)(A) of the Bankruptcy Code. The creditors oppose the motion
on grounds that their lien is a statutory lien rather than a judicial lien.
California Civil Code § 3050 provides:
One who pays to the owner any part of the price of real property, under an agreement
for the sale thereof, has a special lien upon the property, independent of possession,
for such part of the amount paid as he may be entitled to recover back, in case of a
failure of consideration.
A lien is not a judicial lien if the creditor had an interest in the property before the occurrence of judicial
action. In re Boyd
, 31 B.R. 591, 594 (D.C. 1983), aff'd 741 F.2d 1112 (8th
Cir. 1984). Just because a
creditor resorts to judicial process to enforce a lien does not mean that a lien is an avoidable judicial lien.
In re Thompson
, 240 B.R. 776, 781 (10th
Cir. BAP 1999); In re Harpole
, 260 B.R. 165, 172
California Civil Code § 3050 gives a purchaser of realty who rescinds a contract for the
vendor's fraud a lien on the property for the portion of the purchase price paid before rescission.
(1921) 186 Cal. 459. Since the creditors in this case had such a lien by
statute prior to the commencement of their state court lawsuit, their lien is a statutory lien rather than a
judicial lien and is accordingly not avoidable under § 522(f)(1)(A) of the Bankruptcy Code. Their use
of the courts to enforce their lien did not transform it into a judicial lien.
For the foregoing reasons, the Trubnikovs' motion will be denied. Counsel for the creditors
shall submit an appropriate form of order.
Dated: December 26, 2001 ___________________________