IRS Wins Lien Priority Fight with Bank

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In Citizens Bank, N.A. v. Nash, No. 2:20-cv-00351 (E.D. Pa. 2021) a lien priority fight occurred between the IRS and the bank holding the taxpayer’s mortgage.  In many ways the bank’s problem reminded me of problems that routinely plague the IRS in lien priority fights.  The bank erroneously recorded a release and that causes it to lose the lien priority fight. 


Mr. and Mrs. Nash borrowed money to buy property in Warrington, PA.  The bank recorded a mortgage to secure the loan in 2006.  After buying the home, the Nash’s ran up a fair amount of federal tax debt causing four notices of federal tax lien to be recorded against them.  On March 19, 2019 the bank executed a satisfaction of mortgage and had it recorded.  Not too long thereafter the bank realized its mistake and brought an action for erroneous satisfaction. 

Because they had filed liens, the IRS and the state of PA were named as defendants.  The IRS removed the case to federal district court which it has the right to do and which it will do in almost every case in which it is named.  In their answer the Nashes conceded the mortgage had not been paid in full and consented to the relief sought by the bank.  The IRS meanwhile moved for judgment on the pleadings. 

The bank asks the court to strike the erroneous recording of the release nunc pro tunc and declare it void ab initio to restore it to its place before the filing of the erroneous release.  The court cited state precedent which had held “a satisfaction “entered by accident or inadvertence . . . may be set aside and the mortgage reinstated, except as the rights of third persons may prevent.”  Because the Nashes admitted the recordation was a mistake, the court set aside the release and reinstated the mortgage.  The court, however, refused to declare that the release was void ab initio. 

The court then addressed the priorities between the lienholders.  The court noted the state law which returned the bank to its former position with the proviso for the rights of third parties.  It then briefly discussed federal lien law citing to the seminal cases of Aquilino v. United States, 363 U.S. 509, 514 (1960) which holds that federal law governs priority after state law establishes property rights and then United States v. New Britain, 347 U.S. 81, 85-86 (1954)) and United States v. McDermott, 507 U.S. 447, 449 (1993) which hold that the lien arising first will take priority.

Here, the federal tax liens were filed between 2012 and 2016.  The IRS argued that although the bank’s 2006 mortgage had priority over the federal tax liens prior to its release, the release of the bank’s mortgage made its lien interest inchoate and only the decision to reinstate the mortgage rendered the mortgage lien choate again.  Since the reinstatement occurred in 2021 after the filing of the notices of federal tax lien, the IRS argued that its lien had priority over the mortgage at this point.  The court agreed.  As a result, the mistake in releasing the mortgage causes the bank to lose priority. 

Depending on the value of the house, the action the IRS takes to enforce its lien and the remaining balance on the mortgage, the bank may or may not lose actual dollars from the loss of its priority status.  The IRS does not foreclose on many homes.  If it does not take action against this home, and assuming the Nashes do not otherwise pay the tax liability, it’s possible that their tax liability could fall off of the books due to the statute of limitations. 

In addition to the bank losing, it’s also possible that the Nashes are losers here if the mortgage is a recourse mortgage.  Should the IRS get paid out of the equity in the house, the bank could obtain a personal judgement against the Nashes.  It is much more likely to do so than the IRS would have been had the IRS remained in the second position.  While it’s easy to think of the bank as the loser here, the Nashes might be the real losers.  You see this type of loss sometimes in bankruptcy cases where the IRS fails to properly file a claim but has a nondischargeable debt.  In those cases it might have been paid out of estate assets but instead the estate assets go to pay creditors who might have been discharged.

The lien issue that causes the bank to lose here regularly causes the IRS to lose.  If the IRS fails to refile its lien as the time for refiling expires, the IRS loses its priority and other creditors move up in priority in the same fashion that the IRS has done here.  The case shows the importance of preserving a lien once it exists.  The court does not discuss how the bank came to make the erroneous release, but I expect that a thorough scrub of its procedures has resulted because of this case.  


  1. Bob Kamman says

    Zillow values this home at $563,871. “This 2317 square foot single family home has 4 bedrooms and 2.5 bathrooms.” Here’s a photo:

    The Nashes bought the place in 2000 for $239,571, and Citizens Bank also holds that first mortgage, which they did not release erroneously. However, Zillow tells us:

    3/25/21 The owner of this property has been served a Notice of Sale. $235,618 unpaid balance. This property was scheduled to be sold at a foreclosure auction. Because auction dates often change or are postponed, it is unknown at this time if this auction was held. Please confirm with a foreclosure specialist.

    Pennsylvania keeps its recorded deeds in one place, and its recorded tax liens in another. The liens go to the Office of the Prothonotary. A search there reveals these four federal tax liens and dates:

    3/28/11 $106,759
    7/10/12 $168,477
    5/19/14 $10,604
    1/5/16 $10,312

    I couldn’t find copies of the liens themselves, so I’m not sure if these are income tax or some other tax. Two of them name both spouses, but two apparently name only the husband. Another FTL for $26,093 was recorded after the erroneous mortgage release was recorded.

    There are also liens from the Commonwealth of Pennsylvania, for $3,423 and $18,649.

    The mortgage involved here was a second mortgage from 2006. Its amount was only $40,000. It was a 20-year “Closed-End Mortgage” with a final payment date of 3/1/2026.

  2. Steve Kassel, EA says

    I would be very surprised if this purchase money loan is a recourse mortgage. I don’t know that I have seen one in my 34 years as a tax professional.

  3. Steve Kassel, EA says

    Thank you, Bob. When I read the statement “Mr. and Mrs. Nash borrowed money to buy property in Warrington, PA. The bank recorded a mortgage to secure the loan in 2006”, I erroneously assumed the home was purchased in 2006 and that it was a first deed of trust.

    As you clearly pointed out, reading the Court documents makes things clear although it’s easy to miss the fact that it the loan in question is a 2nd. It’s found in a footnote.

    It’s possible or even probable that after the Nash’s realized they were going to lose their case in the Eastern District of Pennsylvania they were so upside down that they decided to let the property go.

    And I learned a new word. Prothonotary. And of course, if there is a state where something is done completely out of the norm, it will be the Commonwealth of Pennsylvania. Wikipedia states the following:

    The word prothonotary is recorded in English since 1447, as “principal clerk of a court,” from L.L. prothonotarius (c. 400), from Greek protonotarios “first scribe,” originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek πρῶτος protos “first” + Latin notarius (“notary”); the -h- appeared in Medieval Latin. The title was awarded to certain high-ranking notaries.

    PS- I LOVE, LOVE, LOVE Federal tax lien issues. Aren’t too many people that own the book FEDERAL TAX LIENS, by William T Plumb Jr. Third Edition 1972, published by ALI ABA 1988. I successfully handled redemption cases while a Revenue Officer and have creatively resolved many lien issues over the past 34 years.

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