IN RE: JERRY WAYNE OAKES; JENNIFER ANN OAKES & DONALD F. HARKER v. PNC MORTGAGE COMPANY - Articles

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Posted by: Landry Butler on Feb 6, 2018

Court: 6th Circuit Court (Published Opinions)

Attorneys 1:

ARGUED: Amelia A. Bower, PLUNKETT COONEY, Columbus, Ohio, for Appellant. Dianne F. Marx, RIESER & MARX LLC, Dayton, Ohio, for Appellee.

Attorneys 2:

ON BRIEF: Amelia A. Bower, PLUNKETT COONEY, Columbus, Ohio, for Appellant. Dianne F. Marx, John Paul Rieser, RIESER & MARX LLC, Dayton, Ohio, for Appellee.

Judge(s): HARRISON, OPPERMAN, and WISE, Bankruptcy Appellate Panel Judges.

Court Appealed: Appeal from the United States Bankruptcy Court for the Southern District of Ohio at Dayton.

DANIEL S. OPPERMAN, Chief Bankruptcy Appellate Panel Judge. PNC Mortgage Company (“PNC”) requests that this Panel hold that the Chapter 7 Trustee, Donald F. Harker (“Trustee”), cannot avoid its mortgage under 11 U.S.C. § 541(a)(1) as a hypothetical lien creditor. PNC argues that the Ohio Supreme Court addressed similar issues regarding a trustee’s avoidance powers as a bona fide purchaser, and the Ohio Legislature subsequently amended its statutes to limit a trustee’s avoidance powers. The Panel granted leave to appeal to resolve a split in the Ohio bankruptcy courts. Because the Panel finds that the Ohio Supreme Court did not address the Trustee’s avoidance powers as a hypothetical judicial lien creditor, and the Ohio Legislature did not make its amendments retroactive, we affirm the bankruptcy court’s order denying PNC’s motion for judgment on the pleadings.