Appeal from the United States Bankruptcy Court for the Northern District of California. BK. No. 93-46450-NK, ADV. NO. 94-4119-AN. Honorable Randall J. Newsome, Bankruptcy Judge, Presiding.
Before: Russell, Hagan, and Volinn, Bankruptcy Judges.
RUSSELL, Bankruptcy Judge:
This appeal arises from the granting of a motion for summary judgment in favor of the chapter 7*fn1 trustee based upon a finding that an abstract of judgment which was recorded 91 days prior to the debtor's bankruptcy was actually within the 90 day statutory preference period due to an enlargement of that period by Rule 9006(a). The judgment creditor appeals. We REVERSE and REMAND.
On April 4, 1986, the debtor, Reinhard R. Bergel ("Bergel") and the appellant, Research Group 80-21 ("RG 80-21") entered into a written, long term lease of commercial real property located at 1119 Mitzi Drive, Calistoga, California. Bergel used the property for his businesses, The Castro Valley Industrial Back School and The Castro Valley Sports and Fitness Center.
In the spring of 1993, RG 80-21 filed an unlawful detainer complaint in state court against Bergel. A stipulated judgment was agreed to, which required Bergel to make specific payments to RG 80-21 ("first judgment"). The first judgment was entered on August 1, 1990. Bergel's failure to make the required payments resulted in a default judgment being entered against him for $231,540.43 ("second judgment"). The second judgment was entered on May 17, 1993.
An abstract of judgment ("abstract") was issued by the state court on June 8, 1993. RG 80-21 recorded the abstract over the next two weeks in the following counties:
County Date Recorded Instrument No.
Contra Costa June 10, 1993 93 153499
Napa June 11, 1993 1993 018483
Alameda June 17, 1993 93215617
Lake June 22, 1993 93-012202
On September 10, 1993, Bergel filed his chapter 7 petition. The appellee, John T. Kendall ("Kendall") was ...