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1. Overview.
The trustee cannot avoid a transfer that is the fixing of a statutory lien that is not avoidable under section 545 of the Bankruptcy Code. This exception ensures that a statutory lien preserved under section 545 is not avoided as a preferential transfer, where the lien arises or is perfected within the preference period. E.g., Souers v. Nevada Ready Mix (In re Souers), 163 B.R. 346 (Bankr. S.D. Iowa 1994); but see Countrywide Home
Loans v. Dickson (In re Dickson), ---B.R. ---, 2010 Bankr. LEXIS 944 (B.A.P. 6th Cir. 2010) (holding that bankruptcy court properly avoided preference period lien on debtor's manufactured home).
A "statutory lien" is one created by statute, which arises automatically, and is not based on an agreement to repay or judicial action. E.g., In re Madcat Two, Inc., 127 B.R. 206 (Bankr. E.D. Ark. 1991). An example is the perfection of a federal tax lien. See Spicer v. Internal Revenue Service (In re Motion Marketing Solutions, Inc.), 403 B.R. 403 (Bankr. N.D. Tex. 2009). The exception is available to avoidance of the filing and perfection of statutory lien, not to protect payments made by debtor to the lien creditor. See In re Reliant Contractors, Inc., 280 B.R. 705 (Bankr. S.D. Ala. 2001); compare In re Rand Energy Co., 259 B.R. 274 (Bankr. N.D. Tex. 2001) (finding exception applicable to protect payments received by creditor who, in reliance on payments, took no steps to perfect an otherwise available statutory lien that would have been protected from avoidance; payments did not allow creditor to receive any more than it would have as a secured creditor based on statutory lien).
BAPCPA expands and clarifies the preference exception relating to alimony and support payments. Section 547(c)(7) is amended to exclude from avoidance transfers that are "bona fide payment of a debt for a domestic support obligation. "Domestic support obligation" is defined as "a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provisions of this title, that is-
(A) owed to or recoverable by
(i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or
(ii) a governmental unit;
