NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11758

PAGONA CHRISTAKIS vs. JEANNE D'ARC CREDIT UNION & others.

1

Suffolk. January 6, 2015. - May 6, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,

& Hines, JJ.

Lien. Bankruptcy, Discharge. Judgment, Default. Practice, 

Civil, Execution, Default.

Civil action commenced in the Land Court Department on 

October 17, 2013.

The case was heard by Keith C. Long, J., on motions for 

summary judgment, and a motion for entry of judgment by default 

was also heard by him.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

David G. Baker for the plaintiff.

Sandra M. Boulay for Jeanne D'Arc Credit Union.

John Pagliaro & Martin J. Newhouse, for New England Legal 

Foundation, amicus curiae, submitted a brief.

 

1 Harvest Credit Management VII, LLC, and Citibank (South 

Dakota), N.A.
2

GANTS, C.J. The issue on appeal is whether judicial liens

on real property remain valid after the owner of the property 

receives a discharge under Chapter 7 of the Bankruptcy Code. We 

conclude that the judicial liens survive the discharge where, as 

here, the Bankruptcy Court judge did not avoid them.

2

Background. The plaintiff, Pagona Christakis, filed a 

complaint in the Land Court to remove judicial liens that had 

attached to real property she owned in Billerica after three 

creditors obtained final judgments against her. Only one 

creditor defendant, Jeanne D'Arc Credit Union (credit union), 

filed an answer. The other two creditor defendants, Harvest 

Credit Management VII, LLC (Harvest), and Citibank (South 

Dakota), N.A. (Citibank), failed to respond. The plaintiff 

moved for entry of judgment by default against Harvest and 

Citibank and for summary judgment against the credit union; the 

latter cross-moved for summary judgment. In denying the 

plaintiff's motions and allowing the credit union's motion, the 

judge concluded that "[t]he defendants' liens remain, subject to 

potential review by the [B]ankruptcy [C]ourt to determine if 

they impair exempt property." The judge then entered judgment 

in favor of all the defendants, including the defaulting 

 

2 We acknowledge the amicus brief submitted by the New 

England Legal Foundation.
3

defendants. The plaintiff appealed, and we transferred the case

to this court on our own motion.

We summarize the relevant facts in the summary judgment 

record, viewed in the light most favorable to the plaintiff. 

The defendants are creditors of the plaintiff, apparently for 

unpaid credit card bills.

3 Each defendant sued the plaintiff to 

collect the unpaid debt and obtained a final judgment, based on

which a writ of execution was issued, and a levy of execution

was made on the plaintiff's real property.

4 On July 26, 2010, 

 

3 Although not disputed, the exact nature of the underlying 

debt is unclear from the record. The motion judge described it 

as "apparently for unpaid credit card bills," and the plaintiff 

referred to it as "what appear[s] to be credit card debts."

4 "An execution is a process issued from a court in which a 

judgment has been rendered, in a civil action, for the purpose 

of carrying the judgment into effect." Miller v. London, 294 

Mass. 300, 304 (1936). See Mass. R. Civ. P. 69, 365 Mass. 836 

(1974) ("Process to enforce a judgment for the payment of money 

shall be a writ of execution, unless the court directs 

otherwise").

"The execution creates a lien which is then perfected by a 

levy of execution." Lyons v. Bauman, 31 Mass. App. Ct. 214, 216 

(1991). See LaChance v. Peerless Ins. Co., 36 Mass. App. Ct. 

451, 453 (1994) ("A levy is the taking or seizure of property by 

an officer pursuant to a writ of execution"). To levy an 

execution on real property, an officer need not physically enter 

the land. See McGrath v. Worcester County Nat'l Bank, 3 Mass. 

App. Ct. 599, 603 (1975) ("an overt act by the officer falling 

short of an entry upon the land has been held sufficient to mark 

the commencement of a levy").

Both the execution and the memorandum noting the levy

should be recorded. See G. L. c. 236, § 4 ("the officer shall 

forthwith deposit in the registry of deeds . . . a copy of the 

execution with a memorandum thereon that the execution is in his 
4

the plaintiff's bankruptcy petition was filed pursuant to

Chapter 13 of the Bankruptcy Code and was subsequently converted 

into a Chapter 7 case on April 28, 2011.5 The plaintiff received 

a discharge in bankruptcy on August 19, 2011. See 11 U.S.C. 

§ 727(b) (2012) ("a discharge . . . discharges the debtor from 

all debts that arose before the date of the order for relief 

under [Chapter 7] . . ."). The plaintiff did not seek or obtain 

a ruling from the Bankruptcy Court avoiding any of the 

defendants' liens. See 11 U.S.C. § 522(f)(1) (2012) (debtor may 

avoid judicial lien on debtor's interest in property to extent 

that lien "impairs an exemption").

Discussion. Under Federal law, a discharge in bankruptcy 

"voids any judgment at any time obtained, to the extent that 

such judgment is a determination of the personal liability of 

the debtor with respect to any debt discharged under [11 U.S.C. 

§ 727]" (emphasis added). 11 U.S.C. § 524(a)(1) (2012). See 

 

hands for the purpose of taking the land of the defendant"). 

Here, each of the defendants recorded both the execution and the 

memorandum in the registry of deeds and then suspended the levy; 

no sheriff's sale of the property was attempted.

5 Each of the liens was perfected more than ninety days 

before the filing of the bankruptcy petition. See 11 U.S.C. 

§ 547(b) (2012) (trustee may avoid any transfer of interest of 

debtor made "on or within [ninety] days before the date of the 

filing of the petition"). Jeanne D'Arc Credit Union (credit 

union) recorded a writ of attachment on August 28, 2008, and 

subsequently obtained an execution and recorded it on June 9, 

2009. Citibank (South Dakota), N.A., recorded an execution on 

June 2, 2009. Harvest Credit Management VII, LLC, registered an 

execution on December 21, 2009.
5

id. at § 524(a)(2) (discharge "operates as an injunction"

against any act to collect debt "as a personal liability of the 

debtor"). The debt itself is not extinguished by the discharge; 

it remains in existence but cannot be enforced personally 

against the debtor. See One to One Interactive, LLC v. 

Landrith, 76 Mass. App. Ct. 142, 149 (2010). Essentially, "a 

bankruptcy discharge extinguishes only one mode of enforcing a 

claim -- namely, an action against the debtor in personam --

while leaving intact another -- namely, an action against the 

debtor in rem." Johnson v. Home State Bank, 501 U.S. 78, 84 

(1991).

6 As a matter of Federal law, an unavoided, otherwise 

valid lien perfected prior to the bankruptcy filing "survives or 

passes through the bankruptcy." Id. at 83. See In re Garran, 

338 F.3d 1, 5 (1st Cir. 2003) ("a judicial lien attached to 

property is a liability in rem, [and] it is not routinely 

discharged at the conclusion of the bankruptcy case"). This

distinction between in personam and in rem actions "comports 

with the purposes of the bankruptcy process by striking a 

balance between the need for debtors to obtain a reprieve from 

 

6 We use the term "in rem" not in the strict sense that "it 

is directed against the property itself" but in the broader 

sense that encompasses "suits to determine the validity of 

mortgages or other encumbrances upon land, or to enforce liens, 

or to quiet the title to land," which "involve the rights of all 

persons in so far as they assert any interests in the property 

which is the subject matter of the litigation." Gulda v. Second 

Nat'l Bank, 323 Mass. 100, 104 (1948).
6

their debts, while simultaneously protecting creditors' secured 

property rights." United Presidential Life Ins. Co. v. Barker, 

31 B.R. 145, 147 (N.D. Tex. 1983). Thus, the lien may still be 

enforced, but because of the discharge of personal liability, 

the enforcement of the lien "is an action in rem with no 

recourse available against the debtor for any deficiency." 

W. L. Norton, Bankruptcy Law and Practice § 58:4, at 58-17 (3d. 

ed. 2014).

Federal law does not overlook the burden that judicial 

liens can place on a bankrupt debtor. See Farrey v. Sanderfoot, 

500 U.S. 291, 297 (1991) ("Congress enacted [11 U.S.C. § 522(f)] 

with the broad purpose of protecting the debtor's exempt 

property"); In re Garran, 338 F.3d at 5 ("because judicial liens 

may interfere with the 'fresh start' the Bankruptcy Code seeks 

to give debtors, such liens may be avoidable under a separate 

provision of the Bankruptcy Code, § 522[f]"). Under 11 U.S.C. 

§ 522(f)(1), a Bankruptcy Court judge may "avoid the fixing of a 

lien," including a judicial lien, "on an interest of the debtor 

in property to the extent that such lien impairs an exemption to 

which the debtor would have been entitled." See id. at 

§ 522(f)(2) (lien deemed to impair exemption to extent that sum 

of lien, all other liens on property, and exemption amount 

"exceeds the value that the debtor's interest in the property

would have in the absence of any liens"). For instance, a 
7

debtor may be able to avoid a judicial lien on a debtor's 

primary residence to the extent that it impairs the homestead 

exemption. See, e.g., In re Mariano, 311 B.R. 335, 340-341 

(Bankr. D. Mass. 2004).

The plaintiff concedes that the defendants' liens remain 

valid under Federal law despite the discharge, but contends that 

they are invalid under Massachusetts law. We agree with the 

plaintiff that "[t]he existence and nature of the lien that 

survives is determined by State law." First Colonial Bank for 

Sav. v. Bergeron, 38 Mass. App. Ct. 136, 137 (1995). See Cohen

v. Wasserman, 238 F.2d 683, 686 (1st Cir. 1956) (validity of 

lien after attached property is taken by eminent domain "depends 

wholly upon the local law"). But we do not agree that 

Massachusetts law should differ from Federal law in this regard.

Massachusetts case law has long provided that liens 

perfected well before the filing of a bankruptcy petition remain 

valid after a discharge. In Casavant v. Boreka, 298 Mass. 528,

529 (1937), we stated that "a valid lien securing [a] debt may 

be enforced," notwithstanding a discharge, provided the lien had 

attached more than the period prescribed by statute before the 

filing of the bankruptcy petition.7

 

7 Under § 67(f) of the Bankruptcy Act of 1898, which was at 

issue in Casavant v. Boreka, 298 Mass. 528, 529 (1937), a lien 

of an attachment was dissolved if the discharged defendant filed 
8

Our early cases also addressed whether a creditor holding 

an attachment on the debtor's property may obtain a special 

judgment to levy an execution after a discharge. In Davenport

v. Tilton, 10 Met. 320, 320, 326 (1845), the debtor obtained a 

discharge, but creditors already held attachments on mesne 

process, which constituted liens on the debtor's property. 

Because the Bankruptcy Act of 1841 specifically provided for the 

survival of a lien after discharge, id. at 321, the main issue

was whether the discharge operated "as to bar every form of 

judgment, and [to] deprive the attaching creditor of the power 

of obtaining any execution." Id. at 328. We held that, despite 

the discharge, the creditors were entitled to a special judgment

to enable them to levy upon the attached property. Id. at 331. 

See Bosworth v. Pomeroy, 112 Mass. 293, 294-295 (1873) (after 

debtor received discharge, where creditor had valid attachment 

of property, creditor entitled to special judgment, "to be 

enforced against the property attached, and not against the 

person or other property of the defendant"). "The object of 

this [special judgment] [was] to enable the plaintiff to avail 

himself of an existing lien saved to him by the bankrupt law, 

and which cannot be enforced in any other way." Id. at 295.

Our treatment of special judgments demonstrates that, under 

 

the bankruptcy petition "within four months after the 

attachment."
9

State law, we distinguish between in personam and in rem actions 

after a discharge, and permit the latter but not the former.8

Other jurisdictions have also concluded that a valid lien 

remains enforceable after discharge.

9 Some States, by statute, 

 

8 By statute, Massachusetts also enables a plaintiff to seek 

a special judgment enforceable only against the discharged 

debtor's property for the amount of the debt. G. L. c. 235, 

§ 24, states:

"If a plaintiff would be entitled to a judgment or a 

decree, except for the bankruptcy or insolvency of the 

debtor or his discharge therein, and if, more than four 

months prior to the commencement of proceedings in 

bankruptcy, . . . any property . . . of a debtor has been 

attached, . . . the court may at any time upon motion enter 

a special judgment or decree for the plaintiff, for the 

amount of his debt . . . to be enforced in the first 

instance only against the property, estate, interest or 

money, so attached or brought within the control of a court 

of equity."

Once the bankruptcy petition is filed, any action to obtain a 

special judgment is stayed automatically under § 362 of the 

Bankruptcy Code. See 11 U.S.C. § 362(a) (2012); Irving Levitt 

Co. v. Sudbury Mgt. Assocs., Inc., 19 Mass. App. Ct. 12, 15-17 

(1984).

9 See, e.g., Guttchen v. Gabriel, 49 P.3d 223, 225-226 

(Alaska 2002) (discharge did not extinguish lien); Stewart v. 

Underwood, 146 Ariz. 145, 148-149 (Ct. App. 1985) (discharge did 

not extinguish debt; lien valid under State law); Rino Gnesi Co. 

v. Sbriglio, 98 Conn. App. 1, 12 (2006) (plaintiff could pursue 

"its claim to perfect the attachment lien" after defendants' 

discharge); Everidge v. American Sec. Corp., 464 N.E.2d 374, 376 

(Ind. App. 1984) (unavoided judgment lien on real estate 

survives discharge); Socony Mobil Oil Co. v. Burdette, 309 So. 

2d 655, 656 (La. 1975) ("It is well settled that a judicial 

mortgage . . . retains its viability in rem upon the incumbered 

property left to the bankrupt or his assignee"); Carman v. 

European Am. Bank & Trust Co., 78 N.Y.2d 1066, 1067 (1991) 

("liens and other similar secured interests ordinarily survive 

bankruptcy" and under New York statutory law, debtor may have 
10

enable a discharged debtor to seek a State court docket entry 

recognizing a discharge of personal liability, but those 

statutes have been interpreted to preserve the validity of liens 

obtained prior to the bankruptcy filing. See Albritton v. 

General Portland Cement Co., 344 So. 2d 574, 576 (Fla. 1977) 

(Florida statute allows debtor to clarify on record that 

discharged judgment no longer constitutes personal liability on 

debtor but "does not affect a lien which arose from the judgment 

prior to bankruptcy"); Ducker v. Standard Supply Co., 280 S.C. 

157, 15 (1984) (discharged debtor entitled to docket entry 

discharging judgment as to personal liability but not as to lien 

upon real property).

In comparison, Wisconsin law provides that upon a debtor's 

application to the court, "the only thing required for 

satisfaction of a judgment debt and cessation of an associated 

judgment lien is that the underlying judgment has been 

discharged in bankruptcy." Megal Dev. Corp. v. Shadof, 286 Wis. 

2d 105, 133 (2005). See In re Spore, 105 B.R. 476, 485 (Bankr. 

W.D. Wis. 1989) (Wisconsin law "provide[s] the legal basis and 

the legal means for debtors discharged in bankruptcy to void 

liens surviving bankruptcy"). But this mechanism was created by 

statute, not through interpretation of Wisconsin common law. 

 

"qualified discharge" marked on docket to show that 

"notwithstanding the debtor-owner's discharge in bankruptcy, the 

property may, nonetheless, still be burdened by liens").
11

See Wis. Stat. Ann. § 806.19(4) (Thompson Reuters 2013) ("Any 

person who has secured a discharge of a judgment debt in 

bankruptcy . . . may submit an application for an order of 

satisfaction of the judgment" and "[u]pon satisfaction, a 

judgment shall cease to be a lien on any real property that the 

person discharged in bankruptcy owns or later acquires"). There 

is no similar statutory provision in Massachusetts.

We are not persuaded that we should alter the long-standing

balance of interests between debtors and creditors, reflected in

Federal law and our common law, by extinguishing both actions in 

personam and actions in rem against the discharged debtor. The 

plaintiff contends that "a court must vacate a void judgment" 

pursuant to Mass. R. Civ. P. 60, 365 Mass. 828 (1974), and where 

a judgment is vacated, the liens resting on that judgment must 

be vacated as well. See Field v. Massachusetts Gen. Hosp., 393 

Mass. 117, 118 (1984). But a discharge merely voids a judgment 

"to the extent that such judgment is a determination of the 

personal liability of the debtor." 11 U.S.C. § 524(a)(1). 

Under rule 60, "[a] judgment is void if the court from which it 

issues lacked jurisdiction over the parties, lacked jurisdiction 

over the subject matter, or failed to provide due process of 

law." Harris v. Sannella, 400 Mass. 392, 395 (1987). See 

Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 

649 (1st Cir. 1972) ("A void judgment is one which, from its 
12

inception, was a complete nullity and without legal effect"). A

discharge does not indicate that a judgment was a nullity from 

the start, nor does a discharge arise from a lack of 

jurisdiction or a failure to provide due process. The debt 

itself is not extinguished and would not be void as to personal 

liability but for the bankruptcy filing. Therefore, where a 

discharge only voids a judgment as to actions in personam, the 

liens resting on that judgment need not be invalidated, because 

the judgment is not void as to actions in rem. Consequently, 

the judge did not err in granting summary judgment to the credit 

union.10

 

10 We also note the credit union's argument that even if a 

mortgage or a consensual lien survives a discharge under State 

law, see Pearson v. Mulloney, 289 Mass. 508, 515 (1935), a 

judicial lien should not receive the same treatment. Federal 

law distinguishes between consensual and nonconsensual liens by 

enabling the debtor to avoid certain judicial liens in 

bankruptcy. See In re Smith, 401 B.R. 674, 687 (Bankr. E.D. Pa. 

2009) (Congress has demonstrated belief that consensual 

lienholders "are sufficiently worthy of protection that they 

should be provided with a shortcut, a head start . . . to 

collect their claims"); Cross, The Application of Section 522(f) 

of the Bankruptcy Code in Cases Involving Multiple Liens, 6 

Bankr. Dev. J. 309, 338-339 (1989) (judicial liens avoidable 

because they provide "back door" means for creditors to reach 

exempt assets and they impair debtor's "fresh start"). Yet, 

there is no similar distinction between unavoided judicial liens 

and consensual liens when determining whether a lien survives a 

Chapter 7 discharge. See Farrey v. Sanderfoot, 500 U.S. 291, 

297 (1991) ("Ordinarily, liens and other secured interests 

survive bankruptcy"). See also In re Swiatek, 231 B.R. 26, 29 

(Bankr. D. Del. 1999) ("The in rem aspect of a judgment is 

equally viable in the context of a nonconsensual lien as in that 

of a consensual one"). In the absence of any State law to the 

contrary, we see no reason to draw such a distinction.
13

The judge also entered judgment for Citibank and Harvest, 

even though they were in default. We consider now whether the 

defaulting defendants were also entitled to judgment. The entry 

of default means that the "well-pleaded facts" of the complaint 

are accepted as true. Nancy P. v. D'Amato, 401 Mass. 516, 519

(1988). It does not mean that the party in default is deemed to 

have admitted the plaintiff's conclusions of law. See Jones v. 

Boykan, 464 Mass. 285, 295 (2013), citing Productora e 

Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 

834-835 (1978) (Productora). In order for a judge to enter a

judgment by default, the factual allegations in the complaint 

must be sufficient to state a claim for relief. See Productora, 

supra (after default, plaintiff's factual allegations must still 

"constitute a legitimate cause of action" in order for judgment 

to enter). If the factual allegations, accepted as true, would 

not permit a finding of liability, then a defaulting defendant 

is entitled to dismissal of the complaint despite its default. 

See Nancy P., supra at 519-520 (where defendant defaulted, judge 

appropriately dismissed plaintiff's claim of negligent 

infliction of emotional distress, because facts as alleged did 

not state "claim for relief"). Here, even if we accept as true 

the facts alleged in the complaint, the defaulting defendants' 

liens survive the discharge as a matter of law. We therefore 
14

conclude that Citibank and Harvest Credit were as entitled to 

judgment as the credit union. 

Conclusion. The defendants' liens survived the bankruptcy 

discharge as a matter of Federal and State law. Therefore, we 

affirm the grant of summary judgment in favor of the credit 

union and affirm the denial of the plaintiff's motions for 

summary judgment and for entry of judgment by default. We 

affirm as well the entry of judgment on behalf of all the 

defendants.

So ordered.