Hypothetical Lien Creditor

One of the strong arm powers given to a debtor is the ability to assume the identity of a hypothetical lien creditor. Wearing the hat of a hypothetical lien creditor, the debtor is able to avoid certain liens or other transfers of interests in the debtor’s property. Especially vulnerable are liens or transfers that are not properly recorded. For example, the debtor can assume the guise of a judicial lien creditor (whether or not a judicial lien creditor actually exists) or a creditor who obtains a right of execution against the debtor (whether or not such a creditor actually exists). Any lien or other transfer of property by a debtor that would be avoidable by either of these types of hypothetical lien creditors under non-bankruptcy law is avoidable by the debtor.

Bankruptcy Code § 544(a). See also Avoidance Action, Bona Fide Purchaser, Judicial Lien, Strong Arm Powers.

Email Term