Kellner v. Fifth Third Bank (In re Durham)

Decision Denying Trustee’s Motion For Summary Judgment

GUY R. HUMPHREY, Bankruptcy Judge.

I. Introduction

This matter is before the court on the motion (doc. 23) of plaintiff Jeffrey M. Kellner, the Chapter 13 trustee, for summary judgment on his claim to avoid the unrecorded mortgage lien of defendant Fifth Third Bank as to certain real property pursuant to his powers as a hypothetical judgment lien creditor under 11 U.S.C. § 544(a)(1). Fifth Third Bank opposes summary judgment on the basis that the doctrine of lis pendens bars the Chapter 13 trustee from proceeding as a hypothetical judgment…