In Re Gilbert John Marino, Debtor. Placer Savings and Loan Association v. Edward M. Walsh, as Trustee in Bankruptcy of Gilbert John Marino

Appellant Placer Savings and Loan Association appeals from a grant of summary judgment in favor of appellee Edward Walsh, Bankruptcy trustee for the debtor John Gilbert Marino. The district court granted Walsh’s motion for summary judgment, holding that Walsh could assert 11 U.S.C. § 544 (a)(3) to avoid obligations arising out of the Waters’ Edge Apartments of which Marino had been co-owner.

Placer now asserts: (1) that a partnership existed between the co-owners of the Waters’ Edge Apartments and that Walsh cannot avoid those partnership liabilities by asserting section 544(a)(3); and (2) that Placer has an equitable lien against Mari-no’s interest and that the lien is unavoidable under section 544(a)(3) because the leasehold upon which the Waters’ Edge Apartments are built is personal property.

Placer’s assertion that the leasehold portion of the apartment property 'is personal property and, therefore, not subject to section 544(a)(3), is correct. We hold that whatever part of Marino’s interest is attributable to the leasehold cannot be protected under section 544(a)(3), and, therefore, may be subject to whatever liabilities Placer may legitimately assert against it. We also…