bronner's this case is a very narrow single issue and that is simply does a lean in favor of a louisiana condominium association act as a is it a security interest under bankruptcy law definition  is and as such it's subject to the anti modification provisions of thirteen twenty two b to the bankruptcy judge and as affirmed by the district court judge found that it was a statutory lien rather than a security interest i would agree with those courts in that there is no louisiana jurisprudence on point in this particular case as such i think we need to establish and review both elisa and federal bankruptcy code all authority on to arrive at this decision and make those definitions under the bankruptcy code in section one hundred one fifty one his security interest is one which is created by agreement section five zero two a proof of claim is one which is deemed allowed when it's unless it's objected to in this particular case riverbend filed a secured claim was identified as a secured claim that claim was is allowed claim it was not object to section five zero six to find a secured claim as an allowed claim of his creditor secured by a lien on proper the estimate again this meets that definition the supreme court  earlier decision does not and its recent decision in bank of america versus caucus indicated that secured claim does not have to be fully secured but just at least have some security interest in the property and be fully allowed this parties that consent can be established by action or inaction or some other method in this particular case the contract in my opinion was formed when the economy and declaration was filed in public registry in orleans parish there after mr green acquired his property when he acquired his property he was contractually agreeing to be bound by this previously recorded condominium declaration therein lies a consensual agreement when he signed his deed his deed was subject to the prior record of declaration so under louisiana kotler authority under nine hundred twenty seven i would suggest that the lien is indeed consensual now both judge magner bankruptcy court judge justin lazo sitting in an appeal of the bankruptcy judge decision i believe or incorrect in finding that this court's opinion in bar team was in a political are from reason distinguish interest at all it was totally unsecured therein lies the difference in this case the bankruptcy court found as a matter of law that the lien of the riverbend association had a secured interest in the condominium unit own by mr green to this court actual language in the condominium agreement speaks of it as a privilege it is a privilege which is yet art here it's a louisiana term of art you're absolutely correct and if you look at the of the decision and board to which i indicated in there the court said under texas law a homeowners association claim one unpaid maintenance assessment is secured by a lien running with the land saying the terra colony lien is a binding subordinate security interest security interest in the debtors primary residence so if we it's going to govern this decision it's really going to be louisiana law right i believe it's louisiana in connection with the definitions of bankruptcy code so under louisiana law i mean it's hard to follow what the bankruptcy judge in the district judge clue did here in terms of the louisiana law component of it because it describes itself as a privilege there's a whole statutory home for it which pr a privilege is not a security interest that case is soley arising under and that's a citizen is based upon chapter nine which is the u c c code in louisiana has nothing to do with real estate in fact under the  though after this many years this i've been called upon to act like one might say i'm a stop from saying that but as i understand in louisiana what you have to look at is not the cases but you've got to look at the so the condominium association by its existence does not have their privilege until certain things are done one has to have the declaration of the con being with him according to it has to send a notice to the  consent that was it was a consensual in the security interest that wasn't created by statute it was a statutory lien by bankruptcy court definition same thing came in the district court opinion in re perry which relied upon this state texas state bland and stern i believe that the cases all rely upon similar situations the one which was relied upon want in opposition the young case is different because in the young case the court held that pennsylvania law under pennsylvania law the purchaser is not bound by the recreation of the declaration bound being the key word in louisiana in texas in massachusetts in pennsylvania in all the jurisdictions of the other cases we relied upon the p to that particular owner that lien does not take effect until that owner becomes bound by those declarations there in i believe lies a difference whether we call it a privilege or whether we call it a lien in fact in this in the difference is if you look at the category of of liens and privileges of privileges and who is in the strike the wording from the look the category pivot is you can have various privileges which will rise soley soley as an operational law by force of law arises because the material supplier was not paid that's all it takes in this case in the case of a privilege or a lien on it condominium association for nonpayment of assessments that lead arises because the owner has agreed to subject himself to that condominium declaration regime that makes it consensual versus the other categories of louisiana liens and privileges which are not required to have any consent they operate solely as a matter of law is lien does not operate solely as a matter of law it requires consent when you sign your deed saying i'm buying this property and i see it's subject to the condominium declaration recorded book  tape so and so second is you've got to send in the notice at least seven days in advance with the affidavit and then third has to be filed in public records that's totally different from the the other categories of privileges in louisiana so i think we're really we've got to focus on how this lead this privilege fits into the statutory authority of the bankruptcy code and i think bharti is right on point if you look at the texas that is under title seven condominiums of the property code eighty two one one three says association plan for assessment and assessment levied by the association against a unit or unit owner is a personal obligation of the  and secured by continuing lead on the unit so the texas legislature has established that lien here does that mean that it operates solely as a matter of law if that's the case then the panel in bharti was wrong in finding that it was consensual security interest party as is the opinion in this circuit which i believe should be applied to this case i think it's it's that simple that if you look at what louisiana al a contract you see offer an acceptance on a means offering you to buy here or someone's offer to buy their property in this condominium association you accepted you accepted subject to the declarations which in that a condominium association gets a privilege on when they when the when when you when you purchase a condominium for their assessments so the fact that at some later time the condominium association may have to record that agreement or at some point within a year in this case and the statute has to file a lawsuit with force it doesn't alter the fact that it still is a statutory leena not a can not a contractual obligation these three the three definitions in the bankruptcy code of statutory means security and security interests and judicially and are mutually exclusive so i suggest they really can't have it both ways that all they've done is they've taken interest i really like clear as to the reference to the recent decision of the state's u s supreme court and bank of america that's a chapter seven when stripping case i think only one circuit the eleventh circuit has ever held that  child a junior lean in a kid could be stripped in a in a chapter seven case assad frankly wasn't surprised by the decision i don't think it has really any bearing before this this court today if if the court were to twenty to be to the end i modification and then they go and say security interest is defined by the bankruptcy code as a lien created by agreement liens a charge against our interest in property to secure payment of a debt or performance of an obligation texas law treats restrictive covenants i create assessment lanes as contractual lanes that touch and concern the land we agree that we santa has no case which to says it whether or not a privilege to a from the homes condo association is contractual or statutory there is no case of point that's why we have to look at existing definitions both in bankruptcy court and louisiana code and look at the case law i would suggest to you that the decision in pairing which is relied upon in bharti was based upon the texas condominium act which creates the lien same as louisiana wherein lies the difference and it's no different from the statement in the texas kind of in an act yet under texas law in wood and perry and party of all held that it runs with the land as such it's a contract same thing in louisiana there is no question but it runs with the land under louisiana condominium act under eleven twenty three it indicates that the property is effective against third part of the condos declarations effect against third parties upon registration so if you compare louisiana texas they are so similar that there should be no distinction by calling want to lean and want to privilege if we're trying to get to what is supposed to be happening in the bankruptcy code i would suggest