FILED

United States Court of Appeals

Tenth Circuit

July 20, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: ROBERT JAMES ROSER,

Debtor.

----------------------------

SOVEREIGN BANK,

 Appellant,

v. No. 09-1341

DANIEL A. HEPNER, Chapter 7

Trustee,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 1:08-CV-02313-WYD)

Matthew J. McGowan, Salter McGowan Sylvia & Leonard, Inc., Providence,

Rhode Island, for Appellant.

Joli A. Lofstedt, Connolly, Rosania & Lofstedt, P.C., Louisville, Colorado, for

Appellee.

Before TACHA, HOLLOWAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

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On May 19, 2007, Sovereign Bank gave Robert James Roser a secured loan

to purchase a motor vehicle, and he took possession of the vehicle that day.

Nineteen days later, on June 7, the Bank filed its lien in compliance with the

Colorado Certificate of Title Act (CCTA), Colo. Rev. Stat. § 42-6-121 (2007). 

Because the Colorado Uniform Commercial Code (Colorado UCC), which closely

tracks the Uniform Commercial Code (UCC), gives priority over other security

interests to a purchase-money security interest that is filed within 20 days of the

purchaser’s taking delivery of the collateral, see Colo. Rev. Stat. § 4-9-317(e)

(2007), the Bank felt secure. 

But there was a complication. On May 31 Roser filed a voluntary petition

under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court

for the District of Colorado. Relying on the prior opinion of the Bankruptcy

Appellate Panel for the Tenth Circuit (BAP) in In re O’Neill, 370 B.R. 332

(B.A.P. 10th Cir. 2007), the bankruptcy court held that the trustee in bankruptcy

(the Trustee) could avoid the Bank’s lien, see 11 U.S.C. § 544(a) (authorizing

trustee to avoid certain liens). It noted that the CCTA supersedes the Colorado

UCC with respect to perfection of motor-vehicle liens and held that Colorado

UCC § 4-9-317(e) does not apply to the Bank’s lien in this case. Because the

Bank’s lien was not perfected before the filing of Roser’s bankruptcy petition, the

court held that the Trustee’s interest is superior to the Bank’s lien. The court

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added that the Bank’s postpetition perfection of its lien violated the automatic

stay under 11 U.S.C. § 362(a). The district court affirmed.

The Bank appeals. See 28 U.S.C. § 158(d) (jurisdiction over bankruptcy

appeals from the district courts). Rejecting O’Neill, we reverse. O’Neill

misconstrued Colorado law. The CCTA does not supersede Colorado UCC

§ 4-9-317(e) because the provision does not govern the manner or timing of the

perfection of liens. It governs only the priority of a lien and is not inconsistent

with the CCTA. As a generally applicable law, § 4-9-317(e) gave the lien of the

Bank priority over the Trustee’s interest in Roser’s vehicle. And the automatic

stay did not prohibit the Bank from its postpetition perfection of its lien under the

CCTA because such perfection is excepted from the stay by 11 U.S.C.

§ 362(b)(3).

I. DISCUSSION

“Our review of the bankruptcy court’s decision is governed by the same

standards of review that govern the district court’s review of the bankruptcy

court.” In re Charles, 323 F.3d 841, 842 (10th Cir. 2003) (internal quotation

marks omitted). Because this case presents no disputed factual issues but only

matters of law, our review is de novo. See id.

A. Priority of Interests

The Bankruptcy Code gives the bankruptcy trustee the rights and powers of

a hypothetical person who acquired a judicial lien on the debtor’s property at the

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11 U.S.C. § 544(a)(1) provides in full:

(a) The trustee shall have, as of the commencement of the case,

and without regard to any knowledge of the trustee or of any

creditor, the rights and powers of, or may avoid any transfer of

property of the debtor or any obligation incurred by the debtor that is

voidable by—

(1) a creditor that extends credit to the debtor at the time of

the commencement of the case, and that obtains, at such time

and with respect to such credit, a judicial lien on all property

on which a creditor on a simple contract could have obtained

such a judicial lien, whether or not such a creditor exists.

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time that the bankruptcy petition was filed. See 11 U.S.C. § 544(a).1 He can

avoid any lien inferior to his interest in an asset of the bankruptcy estate. See In

re Haberman, 516 F.3d 1207, 1210 (10th Cir. 2008) (trustee has “the power to

avoid any transfer or obligation that a hypothetical creditor with an unsatisfied

judicial lien on the debtor’s property could avoid under relevant state

nonbankruptcy law.”). In general, the trustee can avoid liens that are unperfected

when the petition for bankruptcy is filed. See In re Charles, 323 F.3d at 842. But

in some circumstances a lien that is perfected after the bankruptcy filing may

nevertheless have priority. Under § 546(b) of the Bankruptcy Code a trustee’s

avoidance rights “are subject to any generally applicable law that . . . permits

perfection of an interest in property to be effective against an entity that acquires

rights in such property before the date of perfection.” 11 U.S.C. § 546(b)(1)(A). 

The term generally applicable law “relates to those provisions of applicable law

that apply both in bankruptcy cases and outside of bankruptcy cases.” S. Rep.

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Colo. Rev. Stat. § 4-9-311 (2007) states in pertinent part:

(a) Except as otherwise provided in subsection (d) of this section

[relating to inventory], the filing of a financing statement is not

necessary or effective to perfect a security interest in property

(continued...)

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No. 95-989, at 86 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787; see Makoroff

v. City of Lockport, 916 F.2d 890, 892 (3d Cir. 1990); 5 Collier on Bankruptcy

¶ 546.03[2][a], at 546-23 (Lawrence P. King ed., 15th ed. rev. 2006). The

applicable law in this case is the law of Colorado. See In re Charles, 323 F.3d at

842–43.

The Bank presents a straightforward argument why its lien would have

priority under Colorado law over a lien of a judgment creditor who obtained

judgment at the time Roser filed for bankruptcy. Under the Colorado UCC:

[I]f a person [1] files a financing statement [2] with respect to a

purchase-money security interest [3] before or within twenty days

after the debtor receives delivery of the collateral, the security

interest takes priority over the rights of a buyer, lessee, or lien

creditor which arise between the time the security interest attaches

and the time of filing.

Colo. Rev. Stat. § 4-9-317(e) (2007). (As discussed below, this section was

amended after Roser filed his petition.) There is no doubt that the Bank satisfied

the requirements of this section. The filing of a lien under the CCTA constitutes

the filing of a financing statement. See Colo. Rev. Stat. § 4-9-311(b)

(“Compliance with the requirements of a [certificate-of-title statute] is equivalent

to the filing of a financing statement.”).2 And there is no dispute that the Bank

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(...continued)

subject to:

. . . .

(2) A certificate-of-title statute of this state covering

automobiles or other goods, which provides for a

security interest to be indicated on the certificate as a

condition or result of perfection of the security interest;

. . . .

(b) Compliance with the requirements of a statute, regulation, or

treaty described in subsection (a) of this section for obtaining

priority over the rights of a lien creditor is equivalent to the filing of

a financing statement under this article. Except as otherwise

provided in subsection (d) of this section [relating to inventory] and

sections 4-9-313 and 4-9-316(d) and (e) [relating to (1) perfection by

possession by or delivery to secured party and (2) initial perfection

in another jurisdiction] for goods covered by a certificate of title, a

security interest in property subject to a statute, regulation, or treaty

described in subsection (a) of this section may be perfected only by

compliance with those requirements, and a security interest so

perfected remains perfected notwithstanding a change in the use or

transfer of possession of the collateral.

(c) Except as otherwise provided in subsection (d) of this section and

section 4-9-316(d) and (e), duration and renewal of perfection of a

security interest perfected by compliance with the requirements

prescribed by a statute, regulation, or treaty described in subsection

(a) of this section are governed by the statute, regulation, or treaty.

In other respects, the security interest is subject to this article.

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complied on June 7, 2007, with the requirements for filing a motor-vehicle lien

under the CCTA. See id. § 42-6-121 (2007). Nor is there any dispute that the

Bank held a purchase-money security interest in Roser’s vehicle. See id.

§ 4-9-103(a) & (b) (defining purchase-money security interest). Thus, because

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the Bank filed its lien within 20 days of Roser’s obtaining the vehicle, it contends

that Colorado UCC § 4-9-317(e) gives its lien a priority over any rights in the

vehicle—including the Trustee’s interest as a hypothetical judicial-lien

creditor—that arose between the time that the Bank’s security interest attached

(May 19, 2007, when it closed the loan) and its CCTA filing on June 7. 

The Trustee argues, however, that we should follow the holding of the BAP

in O’Neill. Although there were complications in O’Neill not present in this case,

the BAP ultimately held that the bankruptcy trustee could avoid a purchasemoney security interest in an automobile that had been filed under the CCTA

within 20 days of the purchase but after the purchaser had filed for bankruptcy. 

See O’Neill, 370 B.R. at 333–34. The BAP reasoned that Colorado UCC § 4-9-

317(e) does not apply to liens perfected under the CCTA. See id. at 337–38. As

did the BAP in O’Neill, the Trustee relies on the following sentence in the CCTA: 

“Except as provided in this section, the provisions of the ‘Uniform Commercial

Code,’ title 4, Colo. Rev. Stat., relating to the filing, recording, releasing,

renewal, and extension of chattel mortgages, as the term is defined in section

42-6-102(9), shall not apply to motor vehicles.” Colo. Rev. Stat. § 42-6-120(1)

(2007).

We do not read CCTA § 42-6-120(1) as broadly as O’Neill did. To be sure,

the CCTA provides its own distinct methods for filing, recording, and perfecting

motor-vehicle liens, see Colo. Rev. Stat. § 42-6-121, releasing such liens, see id.

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§ 42-6-125, and extending them, see id. § 42-6-127. It thus clearly supersedes the

Colorado UCC with respect to those procedural matters regarding motor-vehicle

liens. But the subject matter of Colorado UCC § 4-9-317(e) is not encompassed

within the procedural matters preempted by § 42-6-120(1): “filing, recording,

releasing, renewal, and extension” of liens. Indeed, the Colorado UCC adopts the

CCTA’s own methods for filing, recording, releasing, renewing, or extending

liens. See id. §§ 4-9-311(b) (compliance with requirements of a certificate-oftitle statute constitutes filing of a financing statement for purposes of Colorado

UCC), 4-9-311(c) (similarly incorporating rules for duration and renewal of

perfection of security interest). Accordingly, in applying the Colorado UCC, the

date of perfection for a properly filed motor-vehicle lien is established by the

CCTA. What Colorado UCC § 4-9-317(e) does is then govern the priority of the

rights of creditors in light of that perfection date. Here, for example, the

perfection date under the CCTA was June 7, 2007. Given that perfection date,

§ 4-9-317(e) states that the Bank’s lien had priority over rights of other lien

creditors—such as the Trustee—that arose after Roser acquired his vehicle on

May 19, 2007. 

The Trustee’s three arguments to the contrary are not persuasive. First, he

argues that the supersession of Colorado UCC § 4-9-317(e) by the CCTA is clear

from another CCTA provision, Colo. Rev. Stat. § 42-6-130 (2007), which states:

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The liens or mortgages filed for record or noted on a certificate of

title to a motor vehicle, as provided in section 42-6-121, shall take

priority in the same order that they were filed in the office of the

authorized agent.

But any supersession of the priority provisions of the Colorado UCC by this

provision can only be partial. We recognize that CCTA § 42-6-130 establishes

priority among liens filed under the CCTA. Perhaps it even overrides Colorado

UCC § 4-9-317(e) when a purchase-money security interest is filed under the

CCTA after another lien is filed under the CCTA (a matter we need not resolve). 

But § 42-6-130 says nothing about the priority of a lien filed under the CCTA

relative to interests in a motor vehicle not perfected under the CCTA (such as a

judgment lien), which is the issue confronting us. We think it unlikely that the

legislature intended to create a legal limbo in that situation. The obvious

inference is that the priorities under the Colorado UCC, including § 4-9-317(e),

would govern. Cf. id. § 4-9-311(c) (“In other respects, the security interest

[perfected under a certificate-of-title statute] is subject to this article.”).

Second, the Trustee claims that the official commentary to the UCC

supports his contention that Colorado UCC § 4-9-317(e) does not apply to liens

filed under the CCTA. As we understand his argument, it derives from the

following passage in O’Neill: 

The UCC drafters . . . recognized that relation back provisions in

titling laws could engender uncertainty to the extent they were

inconsistent with, or exclusive of, the relation back provisions in

Article 9. In further commentary, the drafters wrote:

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Under some certificate-of-title statutes, including the

Uniform Motor Vehicle Certificate of Title and AntiTheft Act, perfection generally occurs upon delivery of

specified documents to a state official but may, under

certain circumstances, relate back to the time of

attachment. This relation-back feature can create great

difficulties for the application of the rules in Sections 9-

303 [relating to time that goods are covered by a

jurisdiction’s certificate-of-title statute] and 9-311(b). 

Accordingly, the Legislative Note also recommends to

legislatures that they remove any relation-back

provisions from certificate-of-title statutes affecting

security interests.

O’Neill, 370 B.R. at 337–38 (quoting UCC § 9-311 cmt. 5). O’Neill apparently

read the comment as recommending that states exclude relation-back provisions

like § 4-9-317(e) from applying to liens governed by certificate-of-title statutes. 

But that reading would be mistaken.

To begin with, the first paragraph of the UCC comment explicitly states

that the consequences of perfection are governed by UCC Article 9 even if the

manner of perfection is set forth in another statute. The first paragraph states in

full:

Subsection (b) [of § 9-311] makes clear that compliance with the

perfection requirements (i.e., the requirements for obtaining priority

over a lien creditor), but not other requirements, of a statute,

regulation, or treaty described in subsection (a) [of § 9-311, which

describes, among other things, certificate-of-title statutes] is

sufficient for perfection under this Article. Perfection of a security

interest under such a statute, regulation, or treaty has all the

consequences of perfection under this Article.

UCC § 9-311 cmt. 5 (emphasis added).

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In 1978 the National Conference of Commissioners on Uniform State Laws

withdrew this uniform act as obsolete. 11 U.L.A.199 (2003).

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Moreover, the paragraph of comment 5 quoted by O’Neill is not speaking

of UCC priority provisions such as Colorado UCC § 4-9-317(e) when it criticizes,

and recommends repeal of, “relation-back provisions from certificate-of-title

statutes affecting security interests,” U.C.C. § 9-311 cmt. 5. Rather, the concern

is with provisions that deem the perfection date to be one before actual

perfection. This is made clear by the comment’s reference to the provision of the

Uniform Motor Vehicle Certificate of Title and Anti-Theft Act3

 that permits

perfection to “relate back to the time of attachment.” UCC § 9-311 cmt. 5. This

provision states: 

A security interest is perfected by the delivery to the Department of

the existing certificate of title, if any, an application for a certificate

of title containing the name and address of the lienholder and the

date of his security agreement and the required fee [and registration

card]. It is perfected as of the time of its creation if the delivery is

completed within ten (10) days thereafter, otherwise as of the time of

delivery.

Unif. Motor Vehicle Certificate of Title and Anti-Theft Act § 20(b), Selected

Commercial Statutes at 1241 (West 2009) (alteration in original, emphasis added). 

Section 4-9-317(e), in contrast, does not reset the date of perfection; instead it

gives some security interests priority over earlier-perfected security interests. A

relation-back provision of the sort addressed in the comment may have some

consequences similar to those caused by § 4-9-317(e); but the manner in which

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The Colorado legislature enacted the following amendments (additions are

emphasized):

Colo. Rev. Stat. § 4-9-317(e): Except as otherwise provided in sections 4-9-320

and 4-9-321, if a person files a financing statement with respect to a

purchase-money security interest before or within twenty days after the debtor

receives delivery of the collateral, or if a person perfects under article 6 of title

42, C.R.S., a purchase-money security interest in a motor vehicle, other than

inventory, before or within thirty days after the debtor receives delivery of the

motor vehicle, the security interest takes priority over the rights of a buyer,

(continued...)

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such a provision interacts with provisions of the UCC that are based on the actual

date of perfection can cause unintended consequences to the carefully crafted

scheme of the UCC. See UCC § 9-311 cmt. 5 (“This relation-back feature can

create great difficulties for the application of the rules in Sections 9-303 and

9-311(b).”). The comment is not suggesting that certain UCC provisions not

apply in the context of certificate-of-title statutes. It is stating that provisions in

certificate-of-title statutes that reset the perfection date may create problems

when applying UCC Article 9 (which, the comment observes, generally governs

liens filed under such statutes) and therefore should be repealed.

The Trustee’s third argument for supersession of Colorado UCC

§ 4-9-17(e) by the CCTA is based on statutory amendments enacted in response to

O’Neill (but too late to help the Bank in this case). The Colorado legislature

amended the Colorado UCC and the CCTA to provide expressly that § 4-9-317(e)

applies in the motor-vehicle context, effective for liens filed after April 22, 2009. 

See 2009 Colo. Legis. Serv. Ch. 182 (S.B. 09-150), sec. 5.4 There would be no

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4

(...continued)

lessee, or lien creditor which arise between the time the security interest attaches

and the time of filing.

Colo. Rev. Stat. § 4-9-324(a): Except as otherwise provided in subsection (g) of

this section, a perfected purchase-money security interest in goods other than

inventory or livestock has priority over a conflicting security interest in the same

goods, and, except as otherwise provided in section 4-9-327, a perfected security

interest in its identifiable proceeds also has priority, if the purchase-money

security interest is perfected when the debtor receives possession of the collateral

or within twenty days thereafter, or, if the collateral is a motor vehicle, as

defined in section 42-6-102, C.R.S., within thirty days thereafter.

Colo. Rev. Stat. § 4-6-120(1): (1) Except as provided in this section and section

42-6-130, the provisions of the “Uniform Commercial Code”, title 4, C.R.S.,

relating to the filing, recording, releasing, renewal, priority, and extension of

chattel mortgages, as the term is defined in section 42-6-102(9), shall not apply to

motor vehicles. Any mortgage or refinancing of a mortgage intended by the

parties to the mortgage or refinancing to encumber or create a lien on a motor

vehicle, or to be perfected as a valid lien against the rights of third persons,

purchasers for value without notice, mortgagees, or creditors of the owner, shall

be filed for public record. The fact of filing shall be noted on the owner's

certificate of title or bill of sale substantially in the manner provided in section

42-6-121.

Colo. Rev. Stat. § 42-6-130: The liens or mortgages filed for record or noted on a

certificate of title to a motor vehicle, as provided in section 42-6-121, shall take

priority in the same order that they were filed in the office of the authorized

agent; except that the priority of a purchase-money security interest, as defined in

section 4-9-103, C.R.S., shall be determined in accordance with sections

4-9-317(e) and 4-9-324(a), C.R.S.

The legislature also added a subsection (subsection 4) to Colo. Rev. Stat.

§ 42-6-120. That subsection states: “The rights of a buyer, lessee, or lien creditor

that arise after a mortgage attaches to a motor vehicle and before perfection under

this article shall be determined by section 4-9-317, C.R.S.”

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need for these amendments, the Trustee claims, if § 4-9-317(e) had previously

been applicable. But these amendments do not confirm the Trustee’s

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interpretation of the pre-amendment law, which applies here. Even if the postO’Neill legislature thought that O’Neill had been decided correctly, a later

legislature cannot change the meaning of a statute; it can only amend the statute. 

Its view of O’Neill’s interpretation of the prior statute would not be dispositive,

or even particularly persuasive. See Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 117–18 (1980) (cautioning that “the views of a

subsequent Congress form a hazardous basis for inferring the intent of an earlier

one” (internal quotation marks omitted)). And, in any event, it would be

speculating to say that the legislature’s response to O’Neill was an endorsement

of O’Neill’s interpretation. The Trustee does not explain how the legislature

would have acted differently if it had disagreed with how O’Neill read the prior

statute. 

Thus, Colorado UCC § 4-9-317(e) is not superseded by the CCTA, and the

Bank’s lien would have priority over a hypothetical judgment lien obtained on

May 31, 2007. Because the Trustee has not disputed that § 4-9-317(e) applies in

nonbankruptcy cases, the provision is “generally applicable law” within the

meaning of § 546(b)(1)(A) of the Bankruptcy Code and governs the dispute

before us. See 5 Collier on Bankruptcy ¶ 546.03[2][a], at 546-22 to 546-23

(noting that UCC § 9-317(e) is “generally applicable law” under § 546 of the

Bankruptcy Code). The Trustee cannot avoid the Bank’s lien. 

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B. Automatic Stay in Bankruptcy

Finally, because the Bank filed its lien after Roser filed his Chapter 7

petition, the Trustee argues that the Bank’s perfection violated the automatic stay

in bankruptcy and was ineffective. We disagree. 

Section 362(a) of the Bankruptcy Code provides for an automatic stay of a

number of actions immediately upon the filing of a bankruptcy petition under any

chapter of the Code. See generally 3 Collier on Bankruptcy ¶ 362.03 (discussing

the scope of the stay). In particular, § 362(a)(4) provides for the automatic stay

of “any act to create, perfect, or enforce any lien against the property of the

estate.” 

Excepted from the automatic stay, however, is “any act to perfect, or to

maintain or continue the perfection of, an interest in property to the extent that

the trustee’s rights and powers are subject to such perfection under section 546(b)

of this title.” 11 U.S.C. § 362(b)(3); see 5 Collier on Bankruptcy ¶ 546.03[5], at

546-28. Section 546(b) states in pertinent part: “The rights and powers of a

trustee under section[] 544 . . . of this title are subject to any generally applicable

law that . . . permits perfection of an interest in property to be effective against an

entity that acquires rights in the property before the date of perfection.” 

11 U.S.C. § 362(b)(1)(A). Colorado UCC § 4-9-317(e) is such a law; it permits

perfection of a purchase-money security interest to be effective against interests

acquired before the date of perfection. See 3 Collier on Bankruptcy ¶ 362.05[4],

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at 362-54 to 54.1 (postpetition perfection under UCC § 9-317(e) is “effective

against the trustee under section 546(b)” and thus not subject to the automatic

stay); cf. In re Lockridge, 303 B.R. 449, 456–57 (Bankr. D. Ariz. 2003) (although

§ 362(b)(3) may prevent automatic stay from applying to postpetition perfection

under UCC § 9-317(e), debtor nevertheless entitled to automatic stay because

creditor failed to perfect its interest within § 4-9-317(e)’s 20-day time limit). The

perfection of the Bank’s purchase-money security interest did not violate the

automatic stay. 

II. CONCLUSION

We REVERSE the judgment of the district court and REMAND for further

proceedings consistent with this opinion.

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