Construction Supervision Svcs v. Branch Banking & Trust

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cv-00533-BO,8:12-bk-00569-RDD. [999360942]. [13-1560]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1560

In Re:

CONSTRUCTION SUPERVISION SERVICES, INC.,
Debtor.

-----------------------------BRANCH BANKING & TRUST COMPANY,
Creditor - Appellant,
v.
CONSTRUCTION SUPERVISION SERVICES, INC.,
Debtor – Appellee,
HANSON AGGREGATES SOUTHEAST, LLC; COUCH OIL COMPANY OF
DURHAM, INC.; R.W. MOORE EQUIPMENT CO.; H.D. SUPPLY
WATERWORKS, LTD; WATER WORKS SUPPLY, INC.; MSC WATERWORKS,
INC.; GREGORY POOLE EQUIPMENT COMPANY; THOMAS CONCRETE OF
CAROLINA, INC.; THE JOHN R. MCADAMS COMPANY, INCORPORATED,
Creditors - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:12−cv−00533−BO; 8:12-bk-00569-RDD)

Argued:

January 28, 2014

Decided:

Before KING, SHEDD, and WYNN, Circuit Judges.

May 22, 2014

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Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge King and Judge Shedd joined.

ARGUED: Nicholas C. Brown, HOWARD, STALLINGS, FROM & HUTSON,
P.A., Raleigh, North Carolina, for Appellant.
William John
Wolf, BUGG & WOLF, PA, Durham, North Carolina, for Appellees.
ON BRIEF: Joseph H. Stallings, James B. Angell, Russell W.
Johnson, HOWARD, STALLINGS, FROM & HUTSON, P.A., for Appellant.
Ethan J. Fleischer, BUGG & WOLF, PA, Durham, North Carolina, for
Appellees Hanson Aggregates Southeast, LLC, Couch Oil Company of
Durham, Inc., and R.W. Moore Equipment Co.
Paul A. Sheridan,
Nancy E. Hannah, HANNAH SHERIDAN LOUGHRIDGE & COCHRAN, LLP,
Raleigh, North Carolina, for Appellees H.D. Supply Waterworks,
LTD, Water Works Supply, Inc., Gregory Poole Equipment Company,
Thomas Concrete of Carolina, Inc., and The John R. McAdams
Company, Incorporated.

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WYNN, Circuit Judge:
Generally, after a debtor files a bankruptcy petition, 11
U.S.C.

§

362(a)(4)

provides

for

an

automatic

stay

of

any

attempts by creditors to collect on their claims against the
debtor.

But

exceptions

exist,

including

an

exception

under

Section 362(b)(3) for “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 [11 U.S.C. § 546(b).]”

11 U.S.C. § 362(b)(3).

In essence, Section 362(b)(3) provides an exception for those
with

an

interest

in

property

that

predates

the

bankruptcy

petition but is not yet perfected at the time the debtor files
for bankruptcy if, in the absence of the bankruptcy filing, the
perfected

interest

would

be

effective

against

a

third

party

acquiring rights prior to that perfection.
At

the

heart

of

this

appeal

is

whether

construction

subcontractors entitled to a lien on funds under North Carolina
law had an interest in property when the debtor contractor filed
for bankruptcy, by which time the subcontractors had not yet
served notice of, and thereby perfected, their liens.
review leads us to conclude that the answer is yes.

A careful
And because

there is no dispute that the other criteria of the applicable
bankruptcy

stay

bankruptcy

court

exception
and

have

district
3

been
court

met,

we

hold

correctly

that

the

allowed

the

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subcontractors to serve notice of, and thereby perfect, their
liens post-petition.

I.
Debtor Construction Supervision Services (“CSS”), a fullservice

construction

company,

petition in January 2012.

filed

a

Chapter

11

bankruptcy

CSS, acting as general contractor or

as a first tier subcontractor, placed orders with the Creditor
Appellee

Subcontractors

“Subcontractors”).

(named

in

the

case

caption)

(the

These first tier and second tier suppliers

in turn provided CSS with materials such as stone, concrete, and
fuel

to

run

equipment.

The

Subcontractors

delivered

the

requested materials to CSS on an open account, later invoicing
CSS for the amounts owed them.
After

CSS’s

January

2012

bankruptcy

filing,

the

Subcontractors sought to serve notice of, and thereby perfect,
liens on funds others owed CSS.

Specifically, they asked the

bankruptcy court to clarify the extent of the stay to determine
whether

their

post-petition

notice

and

perfection

would

fall

within the stay’s ambit.
Branch Banking & Trust Company (“BB&T”), which had lent CSS
over one million dollars, secured by, among other things, CSS’s
accounts

and

post-petition

real

property,

notice

and

objected

perfection.
4

to

the

BB&T

Subcontractors’
argued

that

the

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Subcontractors lacked an interest in property because they had
not yet served notice of, and thereby perfected, their liens by
the time CSS filed its bankruptcy petition.

The Subcontractors

maintained that the stay did not block them from noticing and
perfecting

post-petition

exception

for

petitions,

the

because

property

doing

interests

post-petition

so

that

perfection

fell

under

predate
of

a

stay

bankruptcy

which

would

be

effective against third parties who acquired a pre-perfection
interest.
The

bankruptcy

court

acknowledged

that

there

existed

opinions from its own district (the Eastern District of North
Carolina) in BB&T’s favor.

In re Constr. Supervision Servs.,

Inc., 12-00569-8-RDD, 2012 WL 892217, at *1 (Bankr. E.D.N.C.
Mar. 14, 2012).

But the bankruptcy court disagreed with those

decisions

ruled

and

against

BB&T,

holding

that

the

Subcontractors had an interest in property upon delivery of the
materials

and

perfection.
for

the

equipment,

Id. at *2-4.

pertinent

stay

i.e.,

before

lien

notice

and

And because all other requirements
exception

were

concededly

met,

the

Subcontractors were not stayed from noticing, i.e., perfecting
their liens.
BB&T
bankruptcy

Id.

appealed
court,

to
held

the
that

district
Creditor

court,

which,

Appellees’

like

the

post-petition

notice and perfection of their statutory claim of lien on funds
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constituted
automatic

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a

permitted

stay.

BB&T

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exception

further

to

the

appealed

bankruptcy

to

this

reviews the legal issues at stake here de novo.

code’s

Court,

which

See, e.g., In

re Quigley, 673 F.3d 269, 271 (4th Cir. 2012).

II.
On

appeal,

BB&T

primarily

contends

that

because

the

Subcontractors failed to notice their liens on funds before CSS
filed for bankruptcy, the Subcontractors lacked an interest in
property at the time CSS filed its petition.

We disagree.

A.
Upon

the

filing

of

a

Chapter

11

bankruptcy

petition,

creditors are automatically stayed from attempting to collect on
claims against the debtor.

In other words, the stay protects

the bankruptcy estate from dismemberment via a creditor race to
the

courthouse

distribution.

in

favor

See,

of

e.g.,

a

systematic

Safety-Kleen,

and

equitable

Inc.

asset

(Pinewood)

v.

Wyche, 274 F.3d 846, 864 (4th Cir. 2001) (“A chief purpose of
the

automatic

stay

is

to

allow

for

a

systematic,

equitable

liquidation proceeding by avoiding a chaotic and uncontrolled
scramble for the debtor’s assets in a variety of uncoordinated
proceedings

in

different

courts.”

(quotation

marks

omitted)).

Bankruptcy Code Section 362 describes the scope of the stay,
listing what does, and does not, fall within its ambit.
6

Amongst

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those things the stay bars are “any act[s] to create, perfect,
or

enforce

any

lien

against

property

of

the

estate[.]”

11

U.S.C. § 362(a)(4).
As

with

most

things,

exceptions

to

the

stay

exist.

Crucially for this case, Section 362(b)(3) provides an exception
for

“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) . . . .”

11 U.S.C. § 362(b)(3).

Section 546(b), in turn, subjects the bankruptcy trustee’s
rights and powers to generally applicable laws that “permit[]
perfection of an interest in property to be effective against an
entity that acquires rights in such property before the date of
perfection . . . .”
Section

546(b)

intervention

of

11 U.S.C. § 546(b).

“protect[s],
a

bankruptcy

in

spite

petition,

In other words,
of

those

the

surprise

whom

State

law

protects by allowing them to perfect their liens or interests as
of

an

effective

perfection.”

date

that

is

earlier

than

the

date

of

S. Rep. 95-989, 86, 1978 U.S.C.C.A.N. 5787, 5872.

See also In re Maryland Glass Corp., 723 F.2d 1138, 1141 (4th
Cir. 1983) (“‘[T]he intervention of a petition . . . should not
cut off an interest holder’s opportunity to perfect where the
interest

holder

could

have

perfected

against

an

entity

subsequently acquiring rights in the property if bankruptcy had
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not intervened.’” (quoting 4 Collier on Bankruptcy § 546.03[2],
at 546-48 (15th ed. 1983))).
Both

Section

362(b)(3)

and

Section

546(b)

refer

to

“an

interest in property”—the phrase on which this appeal turns.

If

the Subcontractors had an “interest in property” when CSS filed
for

bankruptcy,

the

parties

agree

that

the

Subcontractors

fulfill all of the other Section 362(b)(3) exception criteria
and may thus notice and perfect their interests post-petition.
To determine whether the Subcontractors had an interest in
property, we must consider what “interest in property” means.
In doing so, we look first to the plain language of the term,
which Congress failed to define.

We may consult dictionaries to

get at its “‘plain or common meaning.’”

Blakely v. Wards, 738

F.3d 607, 611 (4th Cir. 2013) (en banc) (quoting Nat’l Coal. for
Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152
F.3d 283, 289 (4th Cir. 1998)).
According

to

Black’s

Law

Dictionary,

an

interest

in

property is “[a] legal share in something; all or part of a
legal or equitable claim to or right in property.”
Dictionary 816 (7th ed. 1999).
defines

interest

as

a

The American Heritage Dictionary

“right,

claim,

or

legal

American Heritage Dictionary 914 (5th ed. 2011).
English

Dictionary

Online

Black’s Law

defines

it

as

“legal

share[.]”

And the Oxford
concern

in

a

thing; esp. right or title to property, or to some of the uses
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or benefits pertaining to property.”
Online,

Oxford English Dictionary

available

at

http://www.oed.com/view/Entry/97735?rskey=rk3c1C&result=1&isAdva
nced=false#eid (last visited April 21, 2014).
This

Court

has

already

made

plain

that

the

broad

“interest in property” encompasses more than just liens.

term
In re

Maryland Glass Corp., 723 F.2d at 1141–42 (stating that “section
546(b) speaks of an ‘interest in property’ and does not limit
its

scope

to

‘liens’”

and

holding

that,

under

local

law,

government had an interest in land for tax purposes, the absence
of

perfected

liens

notwithstanding).

circuit court to have done so.
Ltd.

P’ship,

262

F.3d

1,

7

We

are

not

the

only

See, e.g., In re 229 Main St.

(1st

Cir.

2001)

(“We

hold

that

‘interest in property,’ as that term is used in 11 U.S.C. §
362(b)(3),

is

unequivalent

to,

and

broader

than,

the

term

‘lien.’”); In re AR Accessories Grp., Inc., 345 F.3d 454, 459
n.4 (7th Cir. 2003) (calling a wage lien “a mechanism for . . .
enforcement of a preexisting right” that does not “create any
new interest within the meaning of 11 U.S.C. § 546(b)”).
That
“liens”

courts

makes

have

differentiated

sense—because,

while

between

they

are

they are logically distinct from one another.
lien secures an interest that already exists.
AR

Accessories,

345

F.3d

at

458-59
9

“interests”
closely

and

related,

Specifically, a
See, e.g., In re

(describing

lien

as

“a

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mechanism for . . . enforcement of a preexisting right”); 51 Am.
Jur. 2d Liens § 2 (2014) (“A lien is a cause of action, a remedy
. . ., or a method by which to enforce an underlying claim.
That is, a lien is part and parcel of the underlying claim, the
former

existing

omitted)).

only

because

of

the

latter.”

(footnotes

Indeed, BB&T essentially concedes as much when it

notes that “Chapter 44A provide[s] certain remedies . . . to
laborers
toward

and

the

materialmen

improvement

who

of

furnished

real

services

property[,]”

right to obtain a lien on funds . . . .”
We

find

the

Seventh

Circuit’s

or

materials

“includ[ing]

the

Appellant’s Br. at 21.
analysis

in

In

re

AR

Accessories particularly illuminating.

In that case, state law

provided

statutory

a

government

agency

with

a

lien

on

the

property of an employer that failed to pay its employees for
services rendered.

345 F.3d at 458.

effect

the

only

upon

claiming the lien.

agency’s

Per statute, the lien took

filing

Id. at 456-57.

a

verified

petition

Despite the absence of

express statutory language to that effect, the Seventh Circuit
held

that

property

the
was

services.

effective
when

the

date

of

the

employees

Id. at 459 n.4.

lien

performed

in

the

the

employer’s

last

unpaid

The Seventh Circuit noted that the

filing of the lien petition merely provided notice of the claim
on

the

employer’s

property

for

10

unpaid

services

but

did

not

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“create

any

purposes.

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interest”

new

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property

in

for

Section

546(b)

Id.

Similarly,

here,

we

must

determine

whether

the

Subcontractors had an interest in property despite their not yet
having served noticed of, i.e., perfected, liens under North
Carolina law prior to CSS’s filing for bankruptcy.

To determine

when the Subcontractors’ interests in the funds arose, we must
turn to the pertinent North Carolina laws.
B.
The North Carolina Constitution mandates that the General
Assembly

“shall

provide

by

proper

legislation

for

giving

to

mechanics and laborers an adequate lien on the subject-matter of
their labor.”

N.C. Const. art. X, § 3.

To this end, the North

Carolina legislature has enacted laws codified in Chapter 44A of
North Carolina’s General Statutes.
The main statute at issue in this appeal is Section 44A-18,
titled “Grant of lien upon funds; subrogation; perfection[.]”
N.C.

Gen.

Stat.

§ 44A-18

(2012). 1

Under

this

law,

a

subcontractor “is entitled to a lien upon funds owed to the
contractor with whom the . . . subcontractor dealt arising out
1

As discussed in more detail below, Section 44A-18 was
amended in 2012, effective January 2013—hence the specification
of the date.
It is undisputed that the 2012 version of the
statute, and not the 2013 version, is the operative law for this
case.

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of the improvements on which the . . . subcontractor worked or
furnished materials.”

O & M Indus. v. Smith Eng’g Co., 624

S.E.2d 345, 348 (N.C. 2006).

Specifically, the statute states:

Upon compliance with this Article:
(1) A first tier subcontractor who furnished labor,
materials, or rental equipment at the site of the
improvement shall be entitled to a lien upon funds
that are owed to the contractor with whom the first
tier subcontractor dealt and that arise out of the
improvement on which the first tier subcontractor
worked or furnished materials.
(2) A second tier subcontractor who furnished labor,
materials, or rental equipment at the site of the
improvement shall be entitled to a lien upon funds
that are owed to the first tier subcontractor with
whom the second tier subcontractor dealt and that
arise out of the improvement on which the second tier
subcontractor worked or furnished materials. A second
tier subcontractor, to the extent of the second tier
subcontractor’s lien provided in this subdivision,
shall also be entitled to be subrogated to the lien of
the first tier subcontractor with whom the second tier
contractor dealt provided for in subdivision (1) of
this section and shall be entitled to perfect it by
notice of claim of lien upon funds to the extent of
the claim.
* * *
(5) The liens upon funds granted under this section
shall secure amounts earned by the lien claimant as a
result of having furnished labor, materials, or rental
equipment at the site of the improvement under the
contract to improve real property, including interest
at the legal rate provided in G.S. 24-5, whether or
not
such
amounts are
due
and
whether
or
not
performance or delivery is complete.
In the event
insufficient funds are retained to satisfy all lien
claimants, subcontractor lien claimants may recover
the interest due under this subdivision on a pro rata
basis, but in no event shall interest due under this

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subdivision increase
under G.S. 44A-20.

Pg: 13 of 19

the

liability

of

the

obligor

(6) A lien upon funds granted under this section is
perfected upon the giving of notice of claim of lien
upon funds in writing to the obligor as provided in
G.S. 44A-19 and shall be effective upon the obligor’s
receipt of the notice.
The subrogation rights of a
first, second, or third tier subcontractor to the
claim of lien on real property of the contractor
created by Part 1 of Article 2 of this Chapter are
perfected as provided in G.S. 44A-23.
N.C. Gen. Stat. § 44A-18 (emphasis added). 2
Section

44A-18’s

text

makes

interest that already exists.

plain

that

it

secures

an

It states that a lien on funds

created “under this section shall secure amounts earned by the
lien claimant as a result of having furnished labor, materials,
or rental equipment at the site of the improvement under the
contract to improve real property . . . .”

N.C. Gen. Stat.

§ 44A-18(5).
Further, a subcontractor’s entitlement to a lien on funds
arises upon delivery of the materials and equipment:

“For this

entitlement, he need only show that the materials were delivered
to the site of the improvement.”

Contract Steel Sales, Inc. v.

Freedom Const. Co., 362 S.E.2d 547, 551 (N.C. 1987).
N.C.

Gen.

Stat.

§ 44A-18(1)

(“A

.

.

.

See also

subcontractor

who

furnished labor, materials, or rental equipment at the site of
2

Because the Subcontractors in this case are all first or
second tier subcontractors, we need not look further down the
chain.
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the improvement shall be entitled to a lien upon funds that are
owed to the contractor . . . .”).

And North Carolina’s Section

44A-18 is, apparently, no anomaly with such timing:
Under most mechanics lien statutes, a supplier of
labor or materials to a construction site enjoys an
inchoate lien which arises at the commencement of work
on the project. To preserve their lien rights, unpaid
mechanics and materialmen must file a notice of lien .
. . . When these perfection steps are taken, the
claimant’s lien rights ‘vest’ and relate back to the
commencement of work.
By Section 546(b), the trustee
has no right to avoid what would otherwise be an
unperfected lien.
Thomas G. Kelch & Michael K. Slattery, Real Property Issues In
Bankruptcy 4-17-18 (West 1999).
In

2012,

the

North

Carolina

legislature

amended

Section

44A-18 with language intended to make clear that a subcontractor
is entitled to a lien on funds as soon as construction materials
are delivered:

“A lien upon funds granted under this section

arises, attaches, and is effective immediately upon the first
furnishing of labor, materials, or rental equipment at the site
of the improvement by a subcontractor.”
18(f) (2013).
does

not

N.C. Gen. Stat. § 44A-

This amendment, effective as of January 2013,

control

here.

But

because

the

North

Carolina

legislature deemed it a clarifying amendment, we nevertheless
find it instructive.

Cf. Brown v. Thompson, 374 F.3d 253, 259-

60 (4th Cir. 2004) (recognizing that a legislature may amend a
statute

“to

clarify

existing

14

law,

to

correct

a

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misinterpretation,
noting

that

to

or

to

Pg: 15 of 19

overrule

determine

wrongly

whether

an

decided

amendment

cases”

clarifies

and
or

changes existing law, courts “look[] to statements of intent
made by the legislature that enacted the amendment” and “accord
great weight” to “subsequent legislation declaring the intent of
an earlier statute” (quotation marks and citations omitted)).
With the amendment, the North Carolina legislature sought to
“[c]larif[y]

when

certain

subcontractor

lien

claims

arise

to

prevent loss of subcontractor lien rights under bankruptcy court
interpretation of [the] current statutory language.”
Div.

of

the

N.C.

Gen.

Assembly,

Ratified Legislation 25 (2012).

Summaries

of

Research

Substantive

See also Legislative Research

Commission’s Mechanics Lien on Real Property Committee, Report
to

the

2012

Session

of

the

2011

General

Assembly

of

North

Carolina 11 (2012) (“The Committee recommends the changes . . .
to

address

subcontractor

problems
claims

under
of

lien

the

current

upon

funds

law,

being

including

impaired

by

decisions of federal bankruptcy courts interpreting current law
. . . .”).
The

bankruptcy

court

decisions

that

the

North

Carolina

legislature sought to neuter with its clarifying amendment were
In re Mammoth Grading, Inc., No. 09-01286-8-ATS (Bankr. E.D.N.C.
July 31, 2009); In re Harrelson Utilities, Inc., No. 09–02815–8–
ATS, 2009 WL 2382570 (Bankr. E.D.N.C. July 30, 2009); and In re
15

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Shearin

Family

1076818

(Bankr.

Filed: 05/22/2014

Investments,
E.D.N.C.

Pg: 16 of 19

LLC,

Apr.

No.

17,

08–07082–8–JRL,

2009).

“Prior

2009
to

WL

these

decisions, it was . . . commonly accepted practice that a lien
on funds was an inchoate right, arising at the time funds became
owed to the obligee.”
(2013).

North Carolina Construction Law § 3:78

But in those decisions, the bankruptcy court appears to

have conflated the lien with the underlying interest it secures.
See, e.g., In re Shearin Family Invs., 2009 WL 1076818, at *2.
The bankruptcy court somehow read the future tense into the word
“shall.”
18(1),

Id. (“[T]he statute creating the lien, N.C.G.S. § 44A–
is

written

in

the

future

tense:

‘A

first

lien

subcontractor . . . shall be entitled to a lien upon funds which
are owed to the contractor. . . .’”).

And then the bankruptcy

court held that the notice of claim of lien not only perfects
but actually creates the interest.

Id.

With its clarifying

amendment, the North Carolina legislature expressly sought to
correct what it clearly viewed to be misinterpretations of state
law.
C.
Now turning to the case before us, the parties agree that
the only live issue on appeal is whether the Subcontractors had
an interest in property when CSS filed for bankruptcy.

The

bankruptcy court and district court both held that they did, and
we agree.
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As we have already explained, an interest in property is
broad and covers more than simply liens, which serve to secure a
pre-existing interest.
723

F.2d

at

See, e.g., In re Maryland Glass Corp.,

1141–42.

There

is

no

dispute

that

the

Subcontractors delivered materials and equipment to CSS for its
building

work

before

Carolina

law,

the

securing

the

funds

CSS

filed

for

Subcontractors
earned

“as

a

bankruptcy.

became

entitled

result

of

44A-18(5).

And

the

Subcontractors’

to

having

labor, materials, or rental equipment . . . .”
§

Under

North

a

lien

furnished

N.C. Gen. Stat.

entitlement

arose upon delivery of the materials and equipment.

to

a

lien

See, e.g.,

Contract Steel Sales, 362 S.E.2d at 551 (“For this entitlement,
he need only show that the materials were delivered to the site
of

the

improvement.”).

We

therefore

conclude

that

the

Subcontractors had an interest in property when CSS filed its
bankruptcy petition.
BB&T

counters

Subcontractors

had

that
at

any

the

time

rights
CSS

filed

or

interests

the

petition

were

its

“inchoate” and meaningless until noticed and thereby perfected.
No doubt, an entitlement to a lien under Section 44A-18 may be
lost if not noticed and perfected as prescribed.

BB&T focuses

on the fact that without a perfected lien, the subject funds
could be “extinguished” or “diluted.”

17

Appellant’s Br. at 52.

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But just because an entitlement, right, or “interest” may be
lost does not mean that it therefore fails to exist.
BB&T

also

places

heavy

emphasis

on

the

phrase

“[u]pon

compliance with this Article” set out at the top of Section 44A18 before the statute’s enumerated subsections.

According to

BB&T, that phrase must mean that no interest exists unless the
statutory notice and perfection requirements have been met.

We

freely admit that the purpose of the phrase “[u]pon compliance
with this Article” is less than clear.

But if the law requires

no more than delivery for entitlement to a lien to arise—and
that is precisely what we have just held—then delivery is all
that is required to be in “compliance with this Article” for
purposes of being entitled to a lien.

Further, North Carolina’s

legislature removed the phrase in its 2012 clarifying amendment.
Clearly, it did not view that phrase as important to, much less
determinative of, when interests in property arise under Section
44A-18.
In sum, we hold that the Subcontractors had an interest in
property at the time CSS filed its bankruptcy petition.

The

parties agree that all other conditions for Section 362(b)(3)’s
bankruptcy
maintain
property,”

stay
or
11

exception

continue
U.S.C.

the
§

for

“any

act

perfection

362(b)(3),

are

to

of,
met.

perfect,
an

or

to

interest

in

We,

like

the

bankruptcy court and district court, thus hold that the Section
18

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362(b)(3) exception applies and that the Subcontractors are not
barred by the bankruptcy stay from noticing, i.e., perfecting,
their extant interest in property post-petition. 3

III.
For the foregoing reasons, the district court’s affirmance
of the bankruptcy court’s order is
AFFIRMED.

3

BB&T also claimed that the Subcontractors are precluded
from asserting subrogated lien rights on real property under
N.C. Gen. Stat. § 44A-23.
BB&T noted that these rights are
“contingent on the giving of notice of claim of lien upon funds”
under Section 44A-18, analyzed in detail above. Appellant’s Br.
at 55. BB&T claimed that the Subcontractors “are not permitted
by an exception to the automatic stay to assert, postpetition,
Subrogated Lien Rights against the obligor’s real property
because they are stayed from serving the notice of claim of lien
upon funds.”
Id.
But as we have already held, the
Subcontractors may indeed notice, post-petition, their claim of
lien on funds.
This related argument therefore necessarily
fails.
19