One of the basic tenets of representing a creditor is taking any steps available to establish and maintain the creditor's priority over the debtor's other creditors. Doing this often requires filing documents with clerks or government offices to notify third parties of the creditor's interest. For example, a money judgment becomes a perfected lien on any New York real property owned by a judgment debtor only if the judgment is "docketed" with the clerk in the county where the real property is located. Though practitioners may understandably believe that they can rely on receipts from the clerk's office or a filing service as proof that the client's lien was perfected, this may not be sufficient if the clerk's office makes an error. Therefore, when filings are critical to establishing a client's priority, practitioners should conduct a search to confirm that those filings are properly included in the public record and effective.

The consequences of skipping a confirmatory search were illustrated by Pereira v. 397 Realty LLC (In re Heavey), 549 B.R. 1 (Bankr. E.D.N.Y. 2016), in which the court allowed a bankruptcy trustee to avoid a judgment lien because of an apparent error made by the county clerk. The court ruled against the judgment creditor notwithstanding the creditor's timely delivery of a filing to the clerk that, if docketed correctly, would have insulated the lien from attack.

The key facts of Heavey began in March 2004, when the New York Supreme Court, New York County, rendered a $1,165,704.11 judgment against Mr. Heavey (the judgment debtor) and others. The New York County Clerk entered and docketed the judgment and filed the "judgment-roll," which is a compilation of certain case documents. The judgment creditor also had the judgment docketed in Kings County because the judgment debtor co-owned multifamily real estate in Park Slope, Brooklyn. Under New York law, this docketing creates a lien in favor of the judgment creditor on any real property that the judgment debtor owns or subsequently acquires in that county. See CPLR §5203(a). Once the lien is perfected, it remains enforceable for a period of 10 years measured from the date that the county clerk who entered the judgment files the judgment-roll. Id. And under certain circumstances, a judgment lien may be extended by court order. Id. §5203(b).