- Category: Judge Somers
- Published on 05 August 2010
- Written by Judge Somers
SIGNED this 23 day of July, 2010.
Dale L. Somers
UNITED STATES BANKRUPTCY JUDGE
Opinion designated for on-line use and print publication
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
BLACK ANGUS HOLDINGS, LLC, CASE NO. 09-21349
MEMORANDUM OPINION AND ORDER ON MORTGAGE LIEN PRIORITY
DISPUTE BETWEEN CEF FUNDING, L.L.C. AND PEOPLE'S BANK
The question before the Court is the priority of the mortgage liens on Debtor's fee
interest in real property located at 7335 W. 119th Street, Overland Park, KS (hereafter the
"Overland Park Property"), which was one of the locations from which Debtor operated a
Back Yard Burger restaurant. CEF Funding, L.L.C. (hereafter "CEF") claims a first
priority lien by virtue of after acquired property provisions in a ground lease mortgage of
the same property. People's Bank (hereafter "Peoples") claims a first priority lien by
Case 09-21349 Doc# 182 Filed 07/23/10 Page 1 of 21
virtue of a mortgage granted to Peoples by Debtor to secure a loan of funds to purchase
the fee interest.
The question of lien priority arose during resolution of CEF’s motion for relief
from stay to exercise its right under loan documents with the Debtor, including mortgages
on four tracts, one of which is the Overland Park Property. Peoples objected to the
motion with respect to the Overland Park Property, in which it asserted a mortgage
interest. A consent order was approved on the motion for relief providing for the
payment of adequate protection as a condition to the stay remaining in place, defining
CEF’s allowed secured claim, establishing procedures for Debtor’s marketing of the
Overland Park Property, and establishing a schedule for disposition of the following
issues relating to the Overland Park Property:
i. Whether CEF holds a valid and perfected mortgage lien and
security interest upon the Debtor’s interests in the Overland
ii. If CEF holds a valid and perfected mortgage lien and
security interest upon the Debtor’s interests in the Overland
Park Property, the scope and priority of such mortgage lien
and security interest.
iii. Whether Peoples Bank holds a valid and perfected
mortgage lien and security interest upon the Debtor’s interests
in the Overland Park Property.
iv. If Peoples Bank holds a valid and perfected mortgage lien
and security interest upon the Debtor’s interests in the
Case 09-21349 Doc# 182 Filed 07/23/10 Page 2 of 21
Overland Park Property, the scope and priority of such
mortgage lien and security interest. 1
This opinion addresses the foregoing issues, which have been fully briefed by the parties.2
The Court has jurisdiction.3
FINDINGS OF FACT.
The parties entered into a stipulation of fact for purposes of resolution of the issues
before the Court, which is hereby adopted as the Court’s findings of fact. The
stipulations are as follows: 4
A. CEF Claims.
1. In June, 2001, Black Angus Holdings, LLC (the “Debtor”) acquired four
existing, operating Back Yard Burger restaurants located in Johnson County, Kansas at
the following addresses: (i) 124 N. Clairborne, Olathe, Kansas; (ii) 5959 Barkley,
Mission, Kansas; (iii) 7404 Nieman Road, Shawnee, Kansas; and (iv) at 7335 W. 119th
Street, Overland Park, Kansas (the “Overland Park Property”)(collectively, the “Four
1 Doc. 142.
2 CEF appears by Michael E. Brown and others of Kutak Rock, LLP, Kansas City, Missouri and
Omaha, Nebraska. Peoples appears by Benjamin M. Wells and Wesley F. Smith, of Stevens & Brand, LLP,
3 This Court has jurisdiction pursuant to 28 U.S.C. § 157(a) and §§ 1334(a) and (b) and the Standing
Order of the United States District Court for the District of Kansas that exercised authority conferred by §
157(a) to refer to the District’s Bankruptcy judges all matters under the Bankruptcy Code and all proceedings
arising under the Code or arising in or related to a case under the Code, effective July 10, 1984. A motion
for relief from stay and objections to exemptions are core proceedings which this Court may hear and
determine as provided in 28 U.S.C.§ 157(b)(2)(G) and (K). There is no objection to venue or jurisdiction
over the parties.
4 Doc. 145 (references to attachments omitted).
Case 09-21349 Doc# 182 Filed 07/23/10 Page 3 of 21
Restaurants”). The assets acquired by the Debtor consisted primarily of: (i) leasehold, but
not fee ownership, interests in the real estate upon which the Four Restaurants were
located; (ii) the buildings and improvements at the Four Restaurants locations; (iii) the
furniture, fixtures and equipment at the Four Restaurants locations; (iv) inventories and
supplies located at the Four Restaurant locations; and (iv) franchise rights to operate Back
Yard Burger restaurants at the Four Restaurants locations.
2. The Debtor’s acquisition of the Four Restaurants was accomplished through an
Asset Purchase Agreement (the “Asset Purchase Agreement”) by and among McNicoll
Developments, Inc., as seller of the Four Restaurants, the Debtor, as buyer, and Michael
McNicoll as shareholder of the Seller.
3. The Debtor used proceeds of a loan from CEF’s predecessor in interest to
acquire the Four Restaurants. Specifically, in June 2001, CEF’s predecessor in interest
loaned Black Angus Holdings, LLC the aggregate principal sum of $2,570,000 (the “CEF
4. The CEF Loans are evidenced by, inter alia, (i) a Master Loan Agreement (the
“Loan Agreement”) dated April 23, 2001; (ii) a Promissory Note (“CEF Note 1”) dated as
of June 19, 2001, in the original principal amount of $990,000.00; (iii) a Promissory Note
(“CEF Note 2”) dated as of June 20, 2001, in the original principal amount of $1,580,000;
and (iv) a Leasehold Mortgage, Security Agreement, Assignment of Leases and Rents,
and Fixture Filing (the “CEF Mortgage”) dated as of June 19, 2001 and filed of record
Case 09-21349 Doc# 182 Filed 07/23/10 Page 4 of 21
with the Register of Deeds of Johnson County, Kansas on June 21, 2001 in Book 7109, at
Pages 700 et seq.
5. CEF is the holder of CEF Note 1, CEF Note 2 and is the assignee of the CEF
6. The CEF Mortgage was signed and acknowledged by the Debtor and filed in the
records of the Register of Deeds of Johnson County, Kansas maintained for the real
property described as:
ALL THAT PART OF TRACT A, METCALF AT 119TH STREET DEVELOMENT
(sic), A SUBDIVISION IN THE CITY OF OVERLAND PARK, JOHNSON COUNTY,
KANSAS, AND THAT PART OF VACATED 119TH STREET DESCRIBED AS
COMMENCING AT THE NORTHWEST CORNER OF SAID TRACT “A”, SAID
POINT BEING ON THE SOUTH RIGHT-OF-WAY LINE OF 119TH STREET, AS
NOW ESTABLISHED; THENCE NORTH 87°40’39” EAST, ALONG THE SOUTH
RIGHT-OF WAY LINE OF SAID 119TH STREET, 35.00 FEET TO A JOG THEREIN;
THENCE NORTH 1°57’41” WEST, ALONG SAID JOG IN SAID SOUTH RIGHT-OFWAY
LINE, A DISTANCE OF 10.00 FEET; THENCE NORTH 87°40’39” EAST,
CONTINUING ALONG SAID SOUTH RIGHT-OF-WAY LINE, A DISTANCE OF
165.00 FEET TO THE TRUE POINT OF BEGINNING OF THE TRACT OF LAND TO
BE HEREIN DESCRIBED; THENCE SOUTH 1°57’41” EAST, PARALLEL WITH
THE WEST LINE OF SAID TRACT “A”, 251.26 FEET TO A POINT ON THE
SOUTH LINE OF SAID TRACT “A”; THENCE NORTH 88°02’19” EAST, ALONG
THE SOUTH LINE OF SAID TRACT “A”, 83.46 FEET; THENCE NORTH 2°19’21”
WEST, 251.78 FEET TO A POINT ON THE SOUTH RIGHT-OF WAY LINE OF
SAID 119TH STREET; THENCE SOUTH 87°40’39” WEST, ALONG SAID SOUTH
RIGHT-OF-WAY LINE, A DISTANCE OF 81.88 FEET TO THE POINT OF
(the “Overland Park Property Legal Description”).
7. As part of the Debtor’s acquisition of the Four Restaurants, the Debtor obtained
a leasehold interest in the Overland Park Property. Specifically, through an Assignment
and Assumption of Lease Agreement dated June 11, 2001, (the “Overland Park Lease
Assignment”) by and among NTW Incorporated, as assignor, McNicoll Developments,
Inc., as landlord, and the Debtor, as assignee, NTW Incorporated assigned all of its right,
Case 09-21349 Doc# 182 Filed 07/23/10 Page 5 of 21
title, estate and interest in a Lease Agreement (the “Overland Park Lease”) for the
Overland Park Property.
8. The Overland Park Lease Assignment was recorded in the records of the
Register of Deeds of Johnson County, Kansas on June 21, 2001, at Book 7109, Page 680
et seq. The Overland Park Lease Assignment was indexed in the records of the Register
of Deeds of Johnson County, Kansas maintained for the real property defined by the
Overland Park Property Legal Description.
9. The Overland Park Lease provided the Debtor with the right to lease and use the
Overland Park property for a term of years.
10. At all times since June 21, 2001, the CEF Mortgage has remained on file with
the Register if Deeds of Johnson County, Kansas and indexed in such records for the real
property defined by the Overland Park Property Legal Description. At all times since
June 21, 2001, Black Angus Holdings, LLC has owed obligations to the holder of Note 1
and Note 2.
11. Black Angus Holdings, LLC is in default of its obligations under the terms of
Note 1, Note 2 and the CEF Mortgage, for, inter alia, failing to make principal and
interest payments as and when due. The outstanding principal that is due and owing
pursuant to Note 1 is at least $760,549.07. The outstanding principal that is due and
owing pursuant to Note 2 is at least $910,693.58.
B. Peoples Bank Claims
Case 09-21349 Doc# 182 Filed 07/23/10 Page 6 of 21
12. In August, 2005, Peoples Bank loaned the Debtor the principal sum of
$240,000 (the “Peoples Bank Loan”).
13. The Debtor used the proceeds from the Peoples Bank Loan to acquire a fee
ownership interest in the Overland Park Property.
14. The Debtor acquired its fee ownership interest in the Overland Park Property
through a Special Corporation Warranty Deed (the “Overland Park Property Deed”) dated
as of August 15, 2005, made and granted by NTW Incorporated, as the fee owner of the
Overland Park Property, to the Debtor as grantee. The Overland Park Property Deed was
filed of record with the Register of Deeds of Johnson County, Kansas on August 18,
15. The Peoples Bank Loan is evidenced by, inter alia: (i) a Promissory Note (“the
Peoples Bank Note”) dated as of August 15, 2005, in the original principal amount of
$240,000.00; and (ii) a Mortgage (the “Peoples Bank Mortgage”) dated as of August 12,
2005, and filed of record with the Register of Deeds of Johnson County, Kansas on
August 18, 2005.
16. The Peoples Bank Mortgage was signed and acknowledged by the Debtor and
filed in the records of the Register of Deeds of Johnson County, Kansas maintained for
the real property defined by the Overland Park Property Legal Description.
17. At all times since August 18, 2005, the Peoples Bank Mortgage has remained
on file with the Register of Deeds of Johnson County, Kansas and indexed in such records
Case 09-21349 Doc# 182 Filed 07/23/10 Page 7 of 21
for the real property defined by the Overland Park Property Legal Description. At all
times since August 15, 2005, the Debtor has owed obligations to Peoples Bank.
18. The Debtor is in default of its obligations under the terms of Peoples Bank
Note and the Peoples Bank Mortgage, for, inter alia, failing to make principal and interest
payments as and when due. The outstanding principal that is due and owing pursuant to
the Peoples Bank Note is at least $213,723.62.
C. Additional Stipulations.
19. All Exhibits attached hereto are incorporated herein by this reference.
20. With respect to the liens granted pursuant to and by the CEF Mortgage, such
liens were validly perfected by the filing of the CEF Mortgage.
21. With respect to the liens granted pursuant to and by the Peoples Bank
Mortgage, such liens were validly perfected by the filing of the Peoples Bank Mortgage.
ANALYSIS AND CONCLUSIONS OF LAW.
A. CEF and Peoples hold valid and perfected mortgage liens on Debtor’s real
property interests in the Overland Park Property.
This case concerns the extent and priority of third parties’ interests in property of
the estate. Since the real property is located in Kansas, the law of Kansas controls.5 The
stipulated facts leave no doubt that under Kansas law both CEF and Peoples hold valid
and perfected mortgage liens in Debtor’s entire interest in the Overland Park Property.
1. The CEF mortgage lien.
5 See Butner v. United States, 440 U.S. 48 (1979).
Case 09-21349 Doc# 182 Filed 07/23/10 Page 8 of 21
As to CEF, the only unusual aspect of its lien is the fact that Debtor acquired fee
interest after the mortgage was executed. In June 2001, when Debtor granted the
mortgage to CEF’s predecessor, Debtor did not own the fee interest but was the holder of
a ground lease and related interests. Hence the mortgage was initially in the leasehold
interest and the buildings, improvements, and other interests described in the mortgage.
However, the mortgage clearly expressed intent that any after acquired interest in
the fee interest would also be subject to the mortgage. The recitals on page one of the
mortgage describe the property mortgaged to include all of Debtor’s right, title and
interest in the Overland Park Property “now owned or hereafter acquired.” The terms of
mortgage preclude merger of the leasehold estate and the fee interest, if the later is
acquired, and provide “if Borrower shall acquire such fee estate [covered by the Ground
Lease], then this instrument shall simultaneously and without further action be spread so
as to become a lien on such fee interest.” Exhibit A to the mortgage, describing the real
property subject to the mortgage, states:
The Property consists of that certain leasehold estate,
together with and including all right, title, and interest of
Borrower therein, which embraces and covers the real
property hereinafter described ....
* * *
[legal description of Overland Park Property]
Together with all right, title and interest of Borrower in
and to any option to purchase, options or rights of first refusal
and renewal options or rights with respect to the Ground
Lease or the Property or any portion thereof or any interest
therein and in and to any greater estate in the Property,
Case 09-21349 Doc# 182 Filed 07/23/10 Page 9 of 21
including the fee simple estate, as may be subsequently
acquired by or released to Borrower.
Hence, CEF’s mortgage provided that the fee interest in the Overland Park Property
would be subject to the mortgage lien, if Debtor acquired that interest, which debtor did
in August 2005.
Mortgages routinely apply to after acquired property through the doctrines of
accessions and fixtures.6 The Kansas Supreme Court has held that a mortgage of land
subject to a railroad right of way at the time of the mortgage attaches to the right of way
when it is abandoned and reverts to the landowner.7 After acquired property clauses are
even used to grant the mortgagee an interest in a later acquired tracts of land in addition
to that described in the mortgage document.8
Peoples does not challenge CEF’s position that its June 2001 mortgage is effective
to effect a conveyance of a lien on the after acquired fee interest and the recording of the
June 2001 mortgage perfected that interest. This Court has no doubt that the Kansas
Supreme Court would find that CEF’s mortgage lien, perfected by the recording on June
21, 2001,9 extends to Debtor’s after acquired fee interest in the Overland Park Property.
6 Restatement (Third) of Property (Mortgages) § 7.5, cmt. a.(1997); see 54A Am.Jur.2d Mortgages
§ 26 (updated 2010).
7 Fed. Farm Mortg. Corp. v. Smith, 149 Kan. 789, 89 P.2d 838 (1939).
8 Restatement (Third) of Property (Mortgages) at § 7.5, cmt.a.
9 This statement should not be interpreted to state that the perfection of the lien on the fee dates relates
back to the date of filing of the mortgage. The Court is only finding that the 2001 recording of the mortgage
is effective as to the fee interest, as well as the interests held by the Debtor on the date of the mortgage.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 10 of 21
2. Peoples’ mortgage lien.
As to Peoples, the 2005 mortgage granted a lien in the Overland Park Property,
“[t]ogether with all rights, easements, appurtances, royalties, mineral rights, oil and gas
rights, crops, timber, all diversion payments or third party payments made to crop
producers and all existing and future improvements, structures, fixtures, and replacement
that may now, or at any time in the future, be part of the real estate described.” Peoples
was thus granted a lien in all of Debtor’s real property interests10 in the Overland Park
Property and that lien was perfected by recording on August 18, 2005. CEF does not
dispute the validity or perfection of Peoples’ lien. CEF also does not dispute the fact that
the proceeds of the obligation secured by Peoples’ lien were used by Debtor to purchase
the fee interest in the Overland Park Property which was conveyed by a Special
Corporation Warranty Deed, executed on August 15, 2005.
B. Peoples’ purchase money lien in Debtor’s fee interest has priority over CEF’s lien
on the same interest.
The dispute in this case is over the priority of the liens in Debtor’s fee interest in
the Overland Park Property. CEF claims a first priority lien under the first to file rule,11
since its mortgage was recorded in June 2001, before Peoples was given its mortgage in
2005. Peoples claims priority as the holder of a purchase money lien on the same interest.
10 Lane v. Woodruff, 1 Kan. App. 241, 40 P. 1079 (1895) (a mortgage upon real estate creates a lien
upon whatever estate, right, or title the mortgagor may have in the real estate mortgaged).
11 K.S.A. 58-2222.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 11 of 21
There is no Kansas law directly on point, so the task of this Court is to predict how the
Kansas Supreme Court would rule, considering all resources available.12
The general rule, which is followed in Kansas,13 is that “a purchase-money
mortgage is entitled to a preference as such over all other claims or liens arising through
the mortgagor, although they are prior in point of time.”14 Commentators state:
It is widely accepted that a purchase money mortgage,
executed at the same time with the deed of purchase of land,
or in pursuance of agreement as part of one continuous
transaction, takes precedence over any other claim or lien
attaching to the property through the vendee -mortgagor. This
is so even though the claim antedates the execution of the
mortgage to the seller. It will also have priority if it is in
favor of a third person who advanced the purchase money
paid to the vendor, provided the money was loaned for this
The Restatement of Property, which the Kansas Court of Appeals has found to be
consistent with Kansas law,16 recognizes the priority of purchase money mortgage liens.
A purchase money mortgage, whether or not recorded, has
priority over any mortgage, lien, or other claim that attaches
to the real estate but is created by or arises against the
12 Morris v. The CIT Group (In re Charles), 323 F.3d 841, 843 (10th Cir. 2003).
13 E.g., Warren Mortg. Co. v. Winters, 94 Kan. 615, 146 P.1012 (1915); Amer. Gen. Financial Serv.,
Inc. v. Carter, 39 Kan. App.2d 683, 184 P.3d 273 (2008).
14 55 Am.Jur.2d Mortgages § 291 (updated 2010).
15 1 Grant S. Nelson and Dale A. Whitman, Real Estate Finance Law § 9.1(5th ed., current through
16 Amer. Gen. Financial Serv., Inc. v. Carter, 39 Kan. App.2d at 687, 184 P.3d at 277.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 12 of 21
purchaser-mortgagor prior to the purchaser-mortgagor’s
acquisition of title to the real estate.17
The comments to the restatement state that the rule is “justified on grounds of
fundamental fairness.”18 The rule “is not limited to judgment lienors;” it also applies to
“those whose claims are based on mortgages of after-acquired property.”19 “Because
third party lending is the dominant source of purchase money land financing in this
country, a rule which facilitates such lending is especially beneficial to the national real
estate economy. Applying the rule to benefit third party lenders is plainly fair.”20
In Kansas, there is no statute addressing the general principle of priority of
purchase money mortgages. However the piecemeal legislation which exists give
preference to purchase money interests. The only statute cited by the parties is K.S.A.
58-2305, which provides: “A mortgage given by a purchaser to secure the payment of
purchase money shall have preference over a prior judgment against such purchaser.” A
Kansas homestead is not “exempt from sale for payment of obligations contracted for the
purchase thereof,”21 and a purchase money mortgage is superior to any homestead
17 Restatement (Third) of Property (Mortgages) § 7.2(b)(1997, current through April 2010).
18 Id., cmt.(b).
21 K.S.A. 59-401. Article 15, section 9 of the Kansas Constitution provides in part: A homestead to
the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated
town or city, occupied as a residence by the family of the owner, together with all the improvements on the
same, shall be exempted from forced sale under any process of law, and shall not be alienated without the
joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for
taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of
Case 09-21349 Doc# 182 Filed 07/23/10 Page 13 of 21
rights.22 As to personal property attached to real estate, a perfected purchase money
security interest in a fixture has priority over a pre-existing mortgage.23
The Kansas appellate courts recognize the general rule of priority of purchase
money mortgages over other liens attaching through the mortgagor. The Kansas Supreme
Court in 1915 stated:
One who executes a purchase-money mortgage is not
regarded as obtaining the title and then placing an
encumbrance on it. He is deemed to take the title charged
with the encumbrance, which has priority even over preexisting
claims. And a mortgage given to a third person to
obtain the money used in buying the property is entitled to the
The Kansas Court of Appeals in a 2008 case quoted with favor the following from an
unpublished Court of Appeals opinion:
“The purchase money mortgage holds a special priority
position over other liens and encumbrances arising through
the mortgagor. It is well established that a purchase money
mortgage executed contemporaneous to the deed of purchase
takes precedence over all other claims or liens attaching to the
property through the mortgagor, including claims antedating
the execution of the mortgage. Our Supreme Court has stated
that a mortgage to secure the purchase money which is given
‘simultaneously with a deed for the property and as a part of
the same transaction takes precedence over all existing and
subsequent claims and liens of every kind against the
improvements thereon . . .. (emphasis added).
22 Foster Lumber Co. v. Harlan County Bank, 71 Kan. 158, 80 P. 49 (1905).
23 Capitol Fed. Saving and Loan Ass’n. v. Hoger, 19 Kan. App.2d 1052, 880 P.2d 281(1994).
24 Warren Mortg. Co. v. Winters, 94 Kan. 615, 619, 146 P.1012, 1013(1915).
Case 09-21349 Doc# 182 Filed 07/23/10 Page 14 of 21
mortgagor.’ Additionally, K.S.A. 58-2305 provides that a
purchase money mortgage ‘shall have preference over a prior
judgment against’ the purchaser.”25
The rationale for the superior status is that the purchase money mortgagor is not regarded
as obtaining title to the property and then executing a mortgage; rather he acquires the
property already subject to the encumbrance in favor of the purchaser money lender.26
Given this rationale, statutory authority for the status is not necessary, as priority follows
from the general rule that any other lien would attach only to the property interest of the
obligor, which is subject to the purchase money lien when acquired by the obligor.
Litigation of priority issues between conflicting purchase money mortgages and
other liens therefore usually pose the question whether there are statutes or other
considerations which defeat the special status of the purchase money lien and elevate the
priority of the non-purchase money lien. For example, in American General Financial
Services, 27 the Court of Appeals held that a purchase money mortgage has priority over a
tax lien, since a tax lien is similar to a judgment lien which is by statute inferior to a
purchase money lien. On the other hand, in Shade28 the Kansas Supreme Court held that
the lien of a purchase money mortgage is inferior to a mechanics’ lien where the
25 Amer. Gen. Financial Serv., Inc. v. Carter, 39 Kan. App.2d at 688-689, 184 P.3d at 278 (2008),
quoting Mutual Benefit Life Insur. Co. v. Cross Town East, Inc., No. 63,829, unpublished opinion filed
December 22, 1989, slip op. at 5-6, 785 P.2d 184, rev. denied 246 Kan. 768 (1990) (citations omitted).
26 Warren Mortg. Co. v. Winters, 94 Kan. at 619 , 146 P. at 1013.
27 Amer. Gen. Financial Serv., Inc. v. Carter, 39 Kan. App.2d at 689, 184 P.3d at 278.
28 Shade v. Wheatcraft Indus., Inc., 248 Kan. 531, 809 P.2d 538 (1991).
Case 09-21349 Doc# 182 Filed 07/23/10 Page 15 of 21
mechanics’ lien attached after execution of the mortgage but before the mortgage was
recorded and the mechanics’ lienholder had no actual notice of the prior mortgage.29 The
court found that Kansas statutes, particularly the mortgage recording act, reflect
legislative intent that it is a duty of a purchase money mortgagee, as any other mortgagee,
to record promptly to preserve priority over innocent mechanics’ lienholders.30 In
addition, a purchase money lien is subordinate to a lien for improvements on the property
where the mortgagee authorized the work or it was done with his knowledge or his is
estopped by his conduct to assert priority.31
The question in this case is whether the circumstances of CEF’s leasehold
mortgage caused Peoples’ purchase money lien to loose its priority. If there is a special
circumstance here, it must be because the legal description of the Overland Park Property
mortgaged to CEF included the fee interest, if later acquired, in addition to leasehold
estate, the improvements, and other property interests held by the mortgagor at the time of
execution. The only case cited by CEF to support its priority based upon the relation of
the fee interest to the ground lease is Chapman,32 a 1932 decision of the California
Supreme Court. That case involved a mortgage of a leasehold interest where the lease
included an option to purchase the underlying fee. The option was exercised. The issue
29 Id., 248 Kan. at 536, 809 P.2d at 542.
31 Golden Belt Lumber Co. v. Klinzman, 138 Kan. 877, 28 P.2d 736 (1934).
32 Chapman v. Great Western Gypsum Co., 216 Cal. 420, 14 P.2d 758 (1932).
Case 09-21349 Doc# 182 Filed 07/23/10 Page 16 of 21
presented was whether the lien of the mortgage attached to the fee. The court held that
the option to purchase the fee was a real property interest to which the mortgage lien
attached. Therefore, after exercise of the option, the fee was also subject to the mortgage.
Chapman does not support CEF’s claim of priority. Peoples concedes that CEF has a
mortgage lien on the fee interest. The issue here is priority, not attachment. Chapman
does not address priority of the lien in relation to a lien securing funds advanced to
exercise the option.
The fact that the CEF mortgage was recorded first does not cause the later
recorded purchase money lien to loose its priority. Purchase money priority is an
exception to general rule of priority based upon the time of recording. In fact, the Kansas
Supreme Court has held that a purchase money mortgage retains its higher priority even if
it is recorded after a second non-purchase money mortgage on the same property.33 The
Court stated, “[t]the weight of authority seems to support the view that a purchase-money
mortgage because of its character as such has priority over another, which is not defeated
by the mere circumstance of the other reaching the register first, where the purchase-
money mortgage is recorded without any unnecessary delay after its delivery.”34
However, the purchase money priority reaches only to the interests purchased with the
33 Kuehn v. Amer. Nat’l Bank of Pryor, Okl., 117 Kan. 717, 232 P. 1060 (1925).
34 Id., 117 Kan. at 719 , 232 P. at 1061.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 17 of 21
funds advanced; it does not extent to preexisting interests of Debtor which were also
described in the Peoples mortgage.35
The Court rejects any suggestion by CEF that its lien on the after-acquired fee
interest attached at the time the mortgage was executed rather at the time the fee interest
was acquired, there by giving it priority under the first to file rule. CEF’s mortgage
identifies the interest as property to be acquired to which the mortgage will spread.
Unlike the Chapman case, Debtor’s leasehold mortgage did not grant a lien in an option
to purchase, which the California court found was itself a real property interest. The CEF
mortgage did not grant a lien in a present fee interest; the mortgage included an
agreement that an after-acquired property interest would also be subject to the mortgage
lien. At the time of the mortgage, Debtor had no interest in the fee simple interest to
which the mortgage could attach. CEF provides no authority to support the proposition
that the priority of a lien on after acquired property relates back to the date of the
recording of the initial mortgage instrument.36 As mentioned above, the rationale stated
by the Kansas Supreme Court for the priority of a purchase money lien is that when the
mortgagor acquires the fee interest the lien of the purchase money lender has already
attached. Given this reasoning, when Debtor received title to the fee it was already
35 Resolution Trust Corp. v. Bopp, 18 Kan App.2d 271, 850 P.2d 939 (1993) (purchase money priority
over judgment lien only to the extent the funds advanced were actually used for the purchase and construction
36 For example, see K.S.A. 58-2336, providing for priority of future advances from the date of
recording a mortgage when made pursuant to a future advance clause and the advances do not exceed the
maximum amount stated in the mortgage.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 18 of 21
subject to the purchase money lien and the lien of CEF which attached when Debtor
acquired the fee was necessarily second in priority after the purchase money lien, without
regard to the earlier date of recording of the CEF mortgage.
CEF also argues purchase money lien priority is limited to a conflict with a
judgment lien against the mortgagor’s interest. It urges that the Kansas Legislature in
K.S.A. 58-2305 specifically chose to limit the priority to judgment liens and if it intended
to grant purchase money liens priority over other conflicting interests it would have
enacted explicit legislation. The Court rejects this argument as inconsistent with Kansas
case law. The statute giving purchase money liens over judgment liens has been in effect
since 1868.37 Yet, as discussed above, the Kansas appellate courts have consistently
recognized the general principle of the priority of purchase money liens over conflicting
liens, including, but not limited to judgment liens. As stated above, given the rationale of
the Kansas Supreme Court for the priority of purchase money liens, that the property
comes into the hands of the mortgagor already subject to the lien of the purchase price, no
statutory authority for the special status is required, since the usual rules of attachment
and priority dictate the result recognized by the courts. However, to the extent the CEF is
arguing that Peoples’ purchase money lien is not entitled to priority based upon K.S.A.
58-2305, the Court agrees. The statute is limited to judgment liens, and CEF is not
37 G.S. 1868, ch. 68.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 19 of 21
asserting a judgment lien. Peoples does not rely upon K.S.A. 58-2305 as a basis for its
The Court therefore concludes that the Kansas Supreme Court would hold that
Peoples’ mortgage lien securing funds loaned to purchase the Debtor’s fee interest in the
Overland Park Property is prior to CEF’s lien arising under its ground lease mortgage.
Even though earlier filed, CEF’s mortgage lien on the fee interest is of lower priority.
Peoples’ priority, however, is limited to the fee interest and does not extend to the
improvements, rents, and other real property interests conveyed by the Peoples’ mortgage
which were not purchased with funds advanced by Peoples. The Court finds this to be a
just and equitable result. Peoples advanced the funds which made Debtors’ purchase of
the fee possible and it relied upon getting paid from that interest. Without Peoples’
advance to the Debtor, CEF would have no lien on the fee interest. CEF’s predecessor
did not rely upon the value of the fee when entering into the transaction; if CEF were to
have a first priority lien it would be given a windfall at the expense of Peoples.
For the foregoing reasons the Court finds:
1. CEF holds a valid and perfected mortgage lien and security interest upon
Debtor’s interests in the Overland Park Property.
2. CEF’s lien in the Overland Park Property is of higher priority than the lien of
Peoples as to all interests subject to the lien except the fee interest in the Overland Park
Property which was acquired with the proceeds of Peoples Bank’s 2005 loan.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 20 of 21
3. Peoples Bank holds a valid and perfected mortgage lien and security interest
upon Debtor’s interests in the Overland Park Property.
4. Peoples Bank’s lien in the Overland Park Property is of lower priority than the
lien of CEF as to all interests subject to the lien except the fee interest in the Overland
Park Property which was acquired with the proceeds of Peoples Bank’s 2005 loan.
The foregoing constitute Findings of Fact and Conclusions of Law under Rules
7052 and 9014(c) of the Federal Rules of Bankruptcy Procedure which make Rule 52(a)
of the Federal Rules of Civil Procedure applicable to this matter.
IT IS SO ORDERED.
Case 09-21349 Doc# 182 Filed 07/23/10 Page 21 of 21
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