MEMORANDUM OF DECISION
This matter came before the Court for hearing on the Motion of the Debtor, 201 Forest Street LLC (“201 Forest”), requesting the entry of an order discharging a mortgage that LBM Financial LLC (“LBM”) holds on 201 Forest’s real property pursuant to M.G.L. ch. 260, § 33 (the “Obsolete Mortgages Statute”) [Docket # 170], LBM’s opposition thereto [Docket # 175], and 201 Forest’s reply to LBM’s opposition [Docket # 177]. At the conclusion of the hearing, the Court took the matter under advisement and the parties have since submitted supplemental memo-randa. [Docket ## 183,187].
FACTS
The relevant facts are few and are not in dispute. 201 Forest granted LBM a mortgage on its real property in 2002 (the “Mortgage”). The Mortgage is dated December 4, 2002 and it has a stated “Term” of “One (1) Year.” 1 As such, the term of the Mortgage expired on December 4, 2003. The Mortgage was recorded on December 31, 2002. On June 19, 2007, 201 Forest filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code.
On January 14, 2009, 201 Forest sent a letter to LBM requesting that it execute a discharge of the Mortgage, citing the Obsolete Mortgages Statute as grounds therefore. Two days later, on January 16, 2009, LBM recorded an “affidavit,” purporting to extеnd the Term of the Mortgage in compliance with the Obsolete Mortgages Statute. LBM has rebuffed 201 Forest’s request that it execute a discharge of the Mortgage.
POSITIONS OF THE PARTIES
201 Forest argues that a plain reading of the Obsolete Mortgages Statute compels the conclusion that the Mortgage was discharged on December 5, 2008 by operation of law. 201 Forest accurately states that the Obsolete Mortgages Statute provides that a mortgage with a stated term “shall be considered discharged for all purposes” unless “an extension of the mortgage, or an acknowledgement or affidavit that the mortgage is not satisfied” is recorded with *9 in 5 years after the expiration of the “stated” term. M.G.L. ch. 260, § 33 (emphasis added). As such, 201 Forest asserts that the Mortgage was discharged by operation of the Obsolete Mortgages Statute on December 5, 2008 2 because LBM failed to record an extension, acknowledgment, or affidavit within five years after the expiration of the stated Term.
LBM makes five arguments in opposition to 201 Forest’s motion. First, LBM argues that the Obsolete Mortgages Statute is only intended to apply to defunct or inactive mortgages, and is thus inapplicable to the instant facts because LBM “sought” to foreclose on the Mortgage and 201 Fоrest was aware of that fact. Second, LBM argues that 201 Forest is es-topped from claiming that the Mortgage is discharged under the Obsolete Mortgages Statute. Third, LBM argues that its affidavit, recorded on January 16, 2009, was timely under the requirements set forth in the Obsolete Mortgages Statute. Next, LBM argues that section 108(c) of the Bankruptcy Code preserves the Mortgage and suspends its right to foreclose on the real property until 30 days after the termination of the automatic stay. Finally, LBM argues that 201 Forest’s bankruptcy petition “fixed” the Mortgage and LBM’s rights thereunder.
DISCUSSION
The Obsolete Mоrtgages statute provides, in relevant part, that
A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of, ... in the ease of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded beforе the expiration of such period .... The period shall not be extended by reason of non-residence or disability of any person interested in the mortgage or the real estate, or by any partial payment, agreement, extension, acknowledgment, affidavit or other action not meeting the requirements of this section and sections 34 and 35. Upon the expiration of the period provided herein, the mortgage shall be considered discharged for all purposes without the necessity of further action by the owner of the equity of redemption or аny other persons having an interest in the mortgaged property and, in the case of registered land, upon the payment of the fee for the recording of a discharge, the mortgage shall be marked as discharged on the relevant memorandum of encumbrances in the same manner as for any other mortgage duly discharged.
M.G.L. ch. 260, § 33 (emphasis added).
The Court must interpret the Obsolete Mortgages Statute according to its plain terms unless doing so would produce an absurd result.
In re Rudler,
The instant Mortgage is dated December 4, 2002 and has a stated term of one year. Accordingly, the term of the Mortgage expired on December 4, 2003. Pursuant to the Obsolete Mortgages Statute, LBM had five years from December 4, 2003, that is until December 4, 2008, to record an extension, acknowledgment, or affidavit if it wished to preserve the Mortgage and could have recorded such an extension, acknowledgment, or affidavit at anytime within that five year period. It is undisputed that LBM’s January 16, 2009 affidavit was not recorded within five years after the expiration of the term stated in the Mortgage. Consequently, a straightforward application of the Obsolete Mortgages Statute compels the Court to initially conclude that the Mortgage has been “discharged for all purposes” by operation of law. Before so ruling, however, the Court will first consider each of LBM’s arguments in turn.
Does the Obsolete Mortgages Statute Apply to the Instant Facts?
LBM argues that the Obsolete Mortgages Statute does not apply to the instant facts because it is only intended to apply in situations wherе mortgages are “defunct or inactive.” LBM states that it “sought” to exercise its power of sale long before the statutory five year period expired but was ultimately stayed from doing so because of 201 Forest’s bankruptcy filing, and posits that the Obsolete Mortgages Statute does not apply in such a situation. Further, LBM states that 201 Forest should not be provided with the protections of the statute because it was aware of LBM’s efforts to exercise its power of sale long before the expiration of the five year period.
The language of the Obsoletе Mortgages Statute is unambiguous and contains no exceptions. A mortgagee’s actions, short of timely recording an appropriate document, are ineffective to extend an expired mortgage. Had the legislature intended the Obsolete Mortgages Statute to have a more narrow application, as LBM argues, it was certainly capable of drafting the statute accordingly. Cf M.G.L. ch. 183, § 4 (recording statute provides that unrecorded conveyances are “not valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it .... ”) (emphasis added); M.G.L. 183, § 58 (“Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless [inter alia ] ... the instrument evidences a different intent by an express exception or reservation and not alone bounding by a side line.”) (emphasis added); M.G.L. ch. 175, § 132 (providing that life insurance policies that have “been in force during the lifetime of the insured for a period of two yeаrs from its date of issue” shall be “incontestable ... except for [inter alia ] nonpayment of premiums or violation of the conditions of the policy ....”) (emphasis added). Rather than including an exception or other limiting language, however, the legislature drafted the Obsolete Mortgages Statute in a manner which reveals that it intended the statute to uniformly apply, without exception, when a mortgagee fails to timely record an extension, acknowledgment or affidavit:
*11 A power of sale in any mortgage of real estate shall not be exercised ... in the case of a mortgage in whiсh the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period.... Upon the expiration of the period provided herein, the mortgage shall be considered discharged for all purposes ....
M.G.L. ch. 260, § 33 (emphasis added).
Notwithstanding the unambiguous language of the Obsolete Mortgages Statute, LBM cites to Housman v. LBM Financial, LLC, No. 09-391252 (Land Ct. Jan. 16, 2009) (transcript of hearing on Pis.’ Motion for Preliminary Injunction), in support of its argument that the Obsoletе Mortgages Statute does not apply to the instant facts. LBM points to the language in Housman where the Land Court stated that the Obsolete Mortgages Statute is not “intended to cover a situation such as this one, in which there is indisputably actual knowledge on the part of the holder of record title here of the recent execution, recording and pendency of a mortgage held by [the mortgagee] at the time of acquisition of title.... ” Housman, at p. 82. LBM asserts that this language compels the conclusion that the Obsolete Mortgages Statute does not apply here because 201 Forest was aware that LBM was seeking to exercise its power of sale prior to the expiration of the time set forth in the statute. The Court disagrees as the quoted language was, at best, dicta as the Land Court based its decision on the fact that
[T]he recording of the order of notice in the chain of title to the report in the Dedham Registry serves as a sufficient compliance with the requirements of [the Obsolete Mortgages Statute], to constitute the statutory equivalent of the affidavit which has the effect under that statute of deferring the cessation of the right to exercisе the power of sale and other remedies under the mortgage.
Housman, at p. 83.
Here, it is undisputed that LBM failed to record anything that could be deemed the “statutory equivalent” of an affidavit by the December 4, 2008 deadline. Furthermore, the Court is hesitant to rely on Housman as it was not a final decision on the merits, but merely a preliminary oral decision denying a request for an injunction. Housman is neither precedent for the proposition cited by LBM nor convincing in its analysis.
To the extent that LBM believes that the Mortgage should not be discharged by operation of the statute because it “sought” to exеrcise its power of sale, the Land Court had previously rejected a similar argument.
See Wolfberg v. Spitz,
Estoppel
LBM argues that 201 Forest should be estopped from arguing that the Obsolete Mortgages Statute discharged the Mortgage becausе 201 Forest did not include this argument in the adversary proceeding 3 wherein 201 Forest argued that the guaranty secured by the Mort *12 gage was void on the grounds of misrepresentation, fraud, etc. LBM avers that 201 Forest’s claims regarding the Mortgage were “fixed and litigated” in the adversary proceeding ar.d the Court should rule that 201 Forest is now estopped from raising the Obsolete Mortgages Statute. The Court disagrees with LBM’s argument for one very significant reason: the Obsolete Mortgages Statute argument did not ripen until December 5, 2008 which was twenty-eight days after the trial of the adversary proceeding was completed. 4 As the Obsolete Mortgages Statute argument was not ripe by the time the trial of the adversary proceeding was completed, much less the time that the adversary complaint was filed, the Court concludes that 201 Forest is not estopped from bringing the instant motion.
Was LBM’s Affidavit Timely ?
LBM contends that even if the Obsolete Mortgages Statute applies, its January 16, 2009 affidavit was timely recorded. First, LBM argues that, for purposes of the Obsolete Mortgages Statute, the expiration date of the Mortgage is December 20, 2003 or December 31, 2003. LBM asserts that December 20, 2003 or December 31, 2003 is the controlling date because the parties’ testimony in the adversary proceeding revealed that the maturity dаte of the note secured by the Mortgage was actually somewhere between December 20, 2003 and December 31, 2003. The Court disagrees with LBM’s argument that the maturity date of the note controls as the Obsolete Mortgages Statute clearly states that an extension, acknowledgment, or affidavit must be filed within five years from the expiration of “the term or maturity date of the mortgage.’ ” M.G.L. ch. 260, § 33 (emphasis added). Nowhere does the statute mention the term or maturity date of the note. The statute’s utility of discharging mortgages automatically “without the necessity of further action,” would be significantly frustratеd if parties were permitted to corns forward with collateral evidence purporting to show that the term or maturity date of the mortgage was something other than what is set forth in the recorded instrument.
Assuming, arguendo, that LBM is correct on its point that the maturity date of the underlying note is what controls the application of the Obsolete Mortgages Statute, its deadline to file the extension, acknowledgement, or affidavit would be, using LBM’s dates, at the latest, December 31, 2008. As such, the January 16, 2009 affidavit would still be untimely. To get over this hurdle, LBM argues that section 362(b)(3) of the Bankruptcy Codе gave it an additional 30 days, or until January 31, 2009, to file the extension, acknowledgment, or affidavit.
Section 362(b)(3) provides, in relevant part, that the automatic stay does not apply to “any act to perfect, or to maintain or continue the perfection of, an interest in property ... to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title.” Section 547(e)(2)(A) provides that “for purposes of this [Preferences] section ... a transfer is made(A) at the time such transfer takes effect between the transferor аnd the transferee, if such transfer is perfected at, or within 30 days after, such time.... ” LBM posits that section 362(b)(3)’s reference to section 547(e)(2)(A) gave it an additional 30 days to record an extension, acknowledgment, or affidavit required by the Obsolete Mortgages Statute. LBM did not cite to a single case that supports this interpretation of section 362(b)(3) nor is *13 the Court aware of any case that supports LBM’s interpretation.
Reading the two sections together, section 362(b)(3)’s reference to section 547(e)(2)(A) sets forth a thirty day window within which a creditor may perfect, maintain, оr continue the perfection of a security interest in property
without violating the automatic stay;
it does not, however, provide an extension of time to otherwise comply with a nonbankruptcy statutory deadline to record a continuation of a security interest or mortgage.
See In re Chase,
Does section 108(c) preserve the Mortgage аnd suspend LBM’s right to foreclose?
Section 108(c) of the Bankruptcy Code provides that
Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the lаter of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.
11 U.S.C. § 108(c) (emphasis added).
The purpose of section 108(c) is to prevent a debtor from gaining an “unfair
*14
advantage over a claimant by ... remaining] under the protection of the automatic stay until the limitation period governing the claimant’s action had expired. ...”
In re Morton,
First, LBM states that several cases have interpreted section 108(c) to preserve enforcement rights against a debtor and the debtor’s рroperty under liens even when the applicable state law required the lienholder to take some action to renew or continue perfection of its lien during the pendency of the bankruptcy case. Each of the cases that LBM cites are distinguishable from the instant facts. In
In re Morton,
LBM also cites
In re Hunters Run Ltd. P’ship, 875
F.2d 1425, 1427 (9th Cir.1989), and
In re WorldCom, Inc.,
Did 201 Forest’s bankruptcy petition “fix” the Mortgage?
Finally, LBM asserts that the Obsolete Mortgages Statute does not affect the validity of the Mortgage because 201 Forest’s bankruptcy petition “fixed” the Mortgage and LBM’s rights thereunder. The Court notes that section 362(b)(3) of the Bankruptcy Code expressly excepts acts to “perfect, or to maintain or continue the perfection of an interest in property” from the automatic stay. The extension, acknowledgment, or affidavit required to be recorded by the Obsolete Mortgages Statute unquestionably falls into this category. If LBM’s аrgument that 201 Forest’s bankruptcy petition “fixed” the Mortgage, exempting it from complying with the Obsolete Mortgages Statute, were correct, section 362(b)(3) would be superfluous because lienholders and mortgagees would not need to comply with certain nonbankruptcy laws that require the recordation of documents to “continue the perfection of [ ] interest[s] in property.” The Court is required to interpret the Bankruptcy Code in a manner that “gives meaning and effect” to all of the “statutory words [and] phrases.”
In re Kibbe,
LBM states that many courts have held that secured claims that expire after the commencement of a bankruptcy case maintain their secured status vis-á-vis the trustee or debtor in possession. LBM principally relies on
Gen. Elec. Credit Corp. v. Nardulli & Sons, Inc.,
In
Nardulli
after the debtor filed a voluntary Chapter 11 petition, it moved its place of business to a new county in Pennsylvania and moved some of its equipment to Indiana. Under Pennsylvania’s and Indiana’s respective versions of the Uniform Commercial Code (the “UCC”), when collateral subject to a security interest perfected in another jurisdiction is moved into Pennsylvania of Indiana new financing statements must be filed within four months.
Nardulli,
The Third Circuit disagreed with the debtor and pointed out that the purpose of the UCC’s filing requirement is “to put future creditors and subsequent purchasers of the collateral on notice of the lien.” Id. at 190. The Third Circuit held that since the debtor is “not a subsequent purchaser or creditor ... it may not take *16 advantage of [the claimants’] failure to file.” Id. The fact that the debtor was not a subsequent purchaser or creditor, however, was not the sole basis for the Third Circuit’s decision as the court went on to state that “[i]n reaching this decision we rely on the fact that Nardulli entered into court-approved stipulations with both [claimants] that affirmed the validity of their perfected security interests in certain equipment and authorized granting security interests in other equipment.” Id. (emphasis added). The Third Circuit concluded that the claimants’ security interests were valid as between themselves and the debtor because the UCC’s filing requirements “were enacted to protect future creditors or purchasers,” and not the debt- or. Id. at 191.
The instant facts are distinguishable from
Nardulli.
First, while the UCC was the applicable law in
Nardulli,
the Court is bound by the Obsolete Mortgages Statute in this matter. In
Nardulli,
the Third Circuit primarily based its decision on its statement that the UCC’s filing requirements are only intended to protect subsequent purchasers or future creditors. Unlike the limited purpose behind the UCC’s filing requirements, however, it appears that the Obsolete Mortgages Statute at issue here has a broader purpose. The statute reads that upon the expiration of certain deadlines set forth in the statute,
“the mortgage shall be considered discharged for all purposes without the necessity of further action by the owner of the equity of redemption or any other persons having an interest in the mortgaged property
...” M.G.L. ch. 260 § 33 (emphasis added). The Court believes that the legislature included this broad-sweeping language because it intended the Obsolete Mortgages Statute to
automatically
discharge mortgages after the expiration of certain deadlines irrespective of who invokes the protections of the statute. The Land Court has confirmed this interpretation as it has found for an original mortgagor on his count seeking a discharge of his mortgage brought pursuant to the Obsolete Mortgages Statute.
Wolfberg v. Spitz,
The Third Circuit also based its decision, in part, on the fact that the debtor “affirmed the validity” of the claimants’ “perfected security interests” and “authorized granting security interests in other equipment.” Here, there has been no allegation by LBM that 201 Forest has affirmed the validity of the Mortgage. In fact, 201 Forest has affirmatively stated that it is challenging the validity of the Mortgage in previous pleadings filed with this Court.
See
Cash Collateral Order, ¶ F, Docket # 126 (“201 Forest, with its affiliate, 219 Forest LLC (“219 Forest”), have challenged the liens asserted by LBM against the Property.”);
see also
Chapter 11 Plan of Reorganization, § 3.1, Docket # 82 (“Class 2 — LBM Secured Claim. Class 2 shall consist of the Secured Claim of LBM,
if any,
against 201 Forest.”) (emphasis added);
Veg-Mix, Inc. v. U.S. Dep’t of Agric.,
As the Court interprets the Obsolete Mortgages Statute to be a self-executing statute,
see Edmond v. Draymore,
Therefore, the Court finds for the Debt- or, 201 Forest, and determines that the Mortgage is discharged.
A separate order will issue.
Notes
. See 201 Forest’s Ex. A.
. See infra pp. 11-14.
. See 201 Forest Street, LLC, et al. v. LBM Financial LLC, et al., Adversary Proceeding Case No. 07-4097. [Docket # 1, Pis.’ Obj. to Claim and Counterclaims, Count VIII],
. The final day of trial was held on November 7, 2008.
. Chase was a Pre-BAPCA сase when the grace period set forth in section 547(e)(2)(A) was ten days. BAPCA amended section 547(e)(2)(A) to increase the grace period to thirty days.
. LBM also cites
In re Mills,
.
See also In re Premier Hotel Dev. Group,