Ellsworth v. Fitzpatrick (In Re Fitzpatrick)

ROBERT D. MARTIN, Bankruptcy Judge.

Plaintiffs Patricia and Jeffrey Ellsworth commenced this adversary proceeding seeking a determination that the trustee in bankruptcy cannot exercise the rights of a hypothetical lien creditor granted by 11 U.S.C. § 544(a)(1) or the rights of a bona fide purchaser granted by 11 U.S.C. § 544(a)(3) to avoid their interest in a duplex. The facts have been stipulated and the question of law is being decided on briefs.

The debtors in this case, Michael and Edyth Fitzpatrick, were the owners of a duplex located in McFarland, Wisconsin. In September of 1979, the…