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OPINION
MatteR Before the Court
Before the Court is Trustee’s Motion to Reclassify Alleged Secured Claim of RELM, LLC to a general unsecured claim.
Statement of Facts and Procedural BaCkground
1. Factual Background
Prior to its bankruptcy filing Debtor had operated a restaurant under the name Margarita’s in Livingston, New Jersey. Motion to Reclassify, at 3. On May 23, 2012, Debtor and its principles, Matthew Stadtmauer and Neal Erman, executed -a Loan Agreement, Time Note and Unlimited Guaranty, with Northern Bank and Trust Company (“Northern Bank”) for a $375,000 loan. See id. On the same day, Debtor entered into a Loan and Security Agreement with Northern Bank which granted Northern Bank a security interest in all of Debtor’s rights to all of its personal property, present and after-acquired, explicitly including accounts, chattel paper, goods, inventory, equipment, instruments, documents, and general intangibles. See id. On May 22, 2013, Northern Bank assigned to RELM, LLC (“RELM”) all its rights and obligations in the' loan note, guaranty, and security agreement. Id. On June 13, 2013, RELM filed a proof of claim, # 22, in the amount of $378,779.59, asserting a secured claim based on its rights as Northern Bank’s assignee. Id.
2. Procedural Background
On March 8, 2013, Debtor filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. On March 11, 2013, Jay L. Lubetkin was appointed as Chapter 7 Trustee by the Office of the United States Trustee. ECF # 4.
On April 11, 2013, the Trustee filed a Motion for an Order approving bidding and sale noticing procedures and scheduling a hearing on the sale of Debtor’s Class C retail plenary consumption liquor license (the “Liquor License”) to Onyx Equities III, LLC (“Onyx”) for $500,000 free and clear of all liens and encumbrances, subject to a higher and better offer (the “Sale Motion”). See ECF # 18, at 1.
On April 17, 2013, Debtor’s former landlord and present creditor Lim Chew Corp. (“Lim Chew”) filed an Objection to the Sale Motion (“First Objection”) on the grounds that the proposed break-up fee and overbid requirements were unreasonable and impermissible, Trustee’s request
This Court held a hearing on the Sale Motion and Lim Chew’s Objection on April 18, 2013.
On April 28, 2013, this Court entered an Amended Order Approving Bidding Procedures, Approving Sale Noticing Procedures, and Scheduling Subsequent Hearing to consider the Sale of the Debtor’s Liquor License. ECF # 28.
On May 16, 2013, Lim Chew filed an Objection to Trustee’s Motion to Sell Debt- or’s Liquor License (“Second Objection”), arguing inter alia that Trustee lacked authority to sell the Liquor License free and clear of Lim Chew’s rights under its pre-petition agreement, to wit, the Lease, Promissory Note and Right of First Refusal dated October 20, 2010. See ECF # 33, at 2.
On May 20, 2013 Trustee filed a Response to Lim Chew’s Second Objection, asserting that Debtor held absolute, unfettered title to the Liquor License; therefore, Trustee may sell the Liquor License free and clear of Lim Chew’s rights under the agreement. See ECF #35, at 1-2. Further, Trustee argued that Lim Chew’s right of first refusal under the agreement was an executory contract that could be rejected by Trustee or alternatively rejection of the right of the Integrated Lease Agreement, the Right of First Refusal Agreement and other agreements arising out of the October 20, 2010 transactions between the Debtor and Landlord. See id. at 2-3.
On the same date, Trustee filed a separate Motion for an Order Confirming Rejection by operation of law of Lim Chew’s Right of First Refusal Agreement by operation of law, sixty days after the commencement of the Debtor’s case. Alternatively, the Trustee argued that to the extent the Right of First Refusal is part of the Lease as an integrated component of the October 20, 2010 transactions between the Debtor and the Landlord, it may be rejected by the Trustee pursuant to 11 U.S.C. § 365(d)(1). ECF # 46. Numerous filings followed.
On May 21, 2010 Onyx Equities III LLC, the stalking horse bidder, filed a response to the Landlord’s objection to the sale, asserting that the Liquor License could be sold to the highest bidder free and clear of the rejected Right of First Refusal. On May 23 and 24, 2013, this Court held the auction for sale of the Liquor License.
On June 27, 2013, the Trustee filed a Notice of Motion for Order Approving Settlement between Trustee and Lim Chew respecting Lim Chew’s objection to Trustee’s proposed sale of the Liquor License to Onyx. See ECF # 61.
In the Motion to Approve Settlement the Trustee sets forth:
In connection with the Debtor’s execution of the Lease Agreement, it also executed a Right of First Refusal Agreement by which it granted the Landlord the right of first refusal to purchase the Liquor License for a sum of $100,000, plus the principals payments paid as of such time by the Debtor on account of a $500,000 promissory note executed in favor of the Landlord arising out of the Debtor’s purchase of the Liquor License from it. According to the Landlord, the purchase price under the right of first refusal would be $135,000.
The Liquor License was independently appraised at the request of the Trustee by A. Atkins Appraisal Corp. for $400,000.
*99 By prior Application to the Court, the Chapter 7 Trustee sought Bankruptcy Court approval of the sale of the Liquor License to Onyx Equities III, LLC (“Onyx”) for a purchase price of $500,000. Pursuant to bidding procedures approved by the Court, an auction for the purchase of the Liquor License premised upon Onyx’s stalking horse bid took place before the Court and ultimately, Onyx submitted the highest and best offer of $835,000 for the purchase of the Liquor License.
Subsequently, the Court entered an Order confirming Onyx’s compliance with In re Abbotts Dairies of Pennsylvania, Inc., 788 F.2d 143 (3d Cir.1986).
At all times from and after the filing of the Trustee’s Application for the sale of the Liquor License, the Landlord objected to the sale of the Liquor License, asserting, inter alia: (i) that pursuant to the Right of First Refusal Agreement, it was entitled to purchase the Liquor License for $135,000; (ii) that the Right of First Refusal Agreement was not an executory contract which could be rejected; and (iii) that even if the Right of First Refusal Agreement constituted an executory contract either rejected by operation of law or intended to be rejected by the Trustee as part of the Lease Agreement pursuant to an independent rejection Motion filed by the Trustee, the Landlord was nonetheless entitled to specific performance under the Right of First Refusal Agreement. See Settlement Motion at ¶¶ 5-9.
On July 9, 2013, Neal Erman, a principal of Debtor, filed a Limited Objection to the Motion for Order Approving Settlement objecting to the Landlord’s reservation of rights with respect to any and all claims it may hold against the Debtor’s members, requesting that Lim Chew be forever barred from bringing any action against Debtor’s members including Mr. Erman. See ECF # 67, at 3.
On July 12, 2013, after a hearing held on July 11, 2013, this Court entered an Order Approving Settlement, Authorizing Sale of Liquor License, and for Other Related Relief. ECF #69.
On July 26, 2013, this Court entered an Amended Order Approving Settlement, Authorizing Sale of Liquor License, and for Other Related Relief. ECF # 71. Among other things, it ordered:
[T]hat the Trustee is authorized and directed to take all actions and execute all documents which may be necessary and appropriate to effectuate the sale of the Debtor’s Liquor License to [Livingston Town Center Liquor License, LLC, assignee of Onyx rights under the April 8, 2013 asset purchase agreement] for the sum of $835,000, free and clear of restrictions, special conditions or limitations, all vendors charges, violations, restrictions, liens, liquor bills, claims, interests, and encumbrances (collectively, the “Encumbrances”), such Encumbrances to attach to the proceeds of sale, excepting from any such encumbrances a $62,500 portion of the proceeds [....]
[T]hat the transfer of the Liquor License to LTC shall be free and clear of all Encumbrances;
[T]hat the Lease Agreement between the Debtor and Landlord is hereby rejected;
[T]hat the Right of First Refusal Agreement between the Debtor and the Landlord is deemed rejected;
[T]hat immediately after closing on the sale of the Liquor License to LTC, $62,500 shall be paid by the Trustee to the Landlord as a consensual “buy out” of any purported first refusal rights Landlord might otherwise hold respecting the Liquor License;
*100 [T]hat Landlord shall have an allowed general unsecured claim herein of $1,624,621.59;
[T]hat Landlord’s objection to the proposed sale by the Trustee of the Liquor License to Onyx (now LTC) is hereby withdrawn [....]
Id. at 3-4.
The Trustee’s sale of the liquor license has been consummated and the trustee is holding the net proceeds thereof.
Trustee’s Motion to Reclassify Alleged Secured Claim of RELM, LLC
On February 27, 2014, the Trustee filed the instant Motion to Reclassify Alleged Secured Claim of RELM, LLC. ECF # 92. Trustee asserts that the Liquor License is Debtor’s only asset that has more than de minimus value and that the only other asset in the bankruptcy estate is Trustee’s right to bring avoidance actions. See id. at 4. Therefore, Trustee contends these are the only sources of funds for distribution to creditors. See id.
First, Trustee argues that RELM’s security interest never attached to the Liquor License. Id. at 5. Trustee first concedes that RELM had made a prima facie demonstration that it holds a security interest in all of Debtor’s personal property. Id. at 5. However, Trustee contends that under New Jersey’s Alcoholic Beverage Control Act (the “ABC Act”), liquor licenses cannot be deemed property subject to pledge, lien or any other transfer except for payment of taxes, and therefore, security interests cannot attach to liquor licenses or any proceeds arising from their sale. See id. (citing N.J.S.A. § 33:1-26; In re Chris-Don, Inc. (Chris-Don II), 367 F.Supp.2d 696, 701 (D.N.J.2005)). Trustee asserts that this is because “liquor licenses do not constitute property to which security interests can attach.” Motion to Reclassify at 5 (citing Chris-Don II, 367 F.Supp.2d at 701). Moreover, Trustee asserts that the “liquor license [¶]... ] is not deemed to be property of the Debtor under New Jersey law.” Motion to Reclassify at 5 (citing N.J.S.A § 33:1-26).
Second, Trustee argues that a Chapter 7 Trustee’s avoidance powers cannot be assigned and therefore RELM’s lien does not attach to any funds recovered pursuant to Trustee’s avoidance actions. Motion to Reclassify at 5-6 (citing In re Integrated Testing Prods. Corp., 69 B.R. 901, 904-05 (D.N.J.1987)).
Third, Trustee argues that RELM’s claim is not entitled to secured status. Motion to Reclassify at 6. Trustee asserts that since the Liquor License and Trustee’s right to prosecute avoidance actions are the only assets in Debtor’s estate, and relying on his previous arguments, RELM does not have a lien “secured by a lien on property in which the estate has an interest.” See id. at 6 (quoting 11 U.S.C. § 506(a)(1)). For these reasons, Trustee requests entry of an order reclassifying RELM’s alleged secured claim as a general unsecured claim. See Motion to Reclassify at 7.
RELM’s Opposition
On March 25,'2014, RELM filed Opposition to the Trustee’s Motion to Reclassify. ECF # 97. As an initial matter, RELM acknowledges that its lien does not attach to avoidance actions. Id. at 2 n. 1. RELM asserts that Trustee is essentially arguing that the estate does not have any assets upon which RELM’s perfected security interest could attach, because the Liquor License, which the Trustee sold, does not constitute “property” upon which RELM’s security interest can attach. See id. at 1-2.
First, RELM argues that the bankruptcy court in In re Chris-Don, Inc. (Chris-Don I), though overturned on appeal by
RELM contends that the District Court’s decision in Chris-Don II was incorrect for a number of reasons. Opposition at 8. RELM asserts that the Court’s acknowledgment that liquor licenses may be “property” in certain specific contexts, such as for purposes of federal due process analysis and the purposes of attachment of a federal tax lien, was inconsistent with its holding that a liquor license is not “property” as a matter of law. Id. (citing Chris-Don II, 367 F.Supp.2d at 700). Next, RELM submits that its security interest be considered “property” in light of its position that, by virtue of its security interest in the Debtor’s liquor license, its sole remedy was to await liquidation of the Liquor License and then exercise its rights against the proceeds under the UCC. See Opposition at 8. RELM contends that this position is not inconsistent with the state’s regulatory power. See id.
Next, RELM argues that this Court already determined that the Liquor License was “property,” either implicitly or explicitly, in authorizing the sale of the liquor license under 11 U.S.C. § 363 since that provision only allows the trustee to sell “property of the estate.” See Opposition at 8-9 (quoting 11 U.S.C. § 363(b)). RELM continued that § 541(a) specifically provides that “property of the estate” must be “property.” Opposition at 9 (citing 11 U.S.C. § 541). RELM asserts that whether something is “property” for the purposes of § 541 must be determined by state law under Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Opposition at 9 (also citing Krebs Chrysler-Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 497 (3d Cir.1998)). RELM contends then that Trustee must have taken the position, and this Court must have found, that Debtor’s Liquor License constituted “property” under New Jersey law in order for the sale to go forward. See Opposition at 10.
RELM continues that in fight of that conclusion, the Court’s determination that the Liquor License was “property” is law of the case and cannot be reconsidered in connection with the instant motion. See id. (citing In re Mercedes-Benz Anti-Trust Litig., 364 F.Supp.2d 468, 475 (D.N.J.2005)). Further, and similarly, RELM asserts that the doctrine of judicial estoppel bars Trustee from now asserting that the Liquor License is not property. See Opposition at 11 (citing Ryan Ops. G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir.1996)).
RELM concludes that if this Court were to adopt the District Court’s reasoning in Chris-Don II, it would be undermining its own order approving the settlement that authorized the sale of the Liquor License and perhaps undoing the protections afforded to the buyer. See Opposition (citing Krebs, 141 F.3d at 497 and 11 U.S.C. § 363(m)). In addition, RELM asserts that this Court would be establishing precedent that would hamper the ability of trustees to sell liquor licenses, often the only property of value available for distribution to creditors. See Opposition at 12.
On March 28, 2014, Trustee filed a Brief in Reply to RELM’s Objection to Trustee’s Motion to Reclassify. EOF # 99. Trustee asserts that RELM’s arguments should be rejected because they ignore controlling New Jersey decisional law, erroneously conflate the definitions of “property” under New Jersey law and the Bankruptcy Code, and fail to take into account relevant Third Circuit precedent. Id. at 1.
Trustee argues that New Jersey law prohibits RELM’s lien from attaching to the Liquor License because it is not property for purposes of state law, even though it may be treated as property for purposes of federal bankruptcy law. See id. at 3. Trustee contends that liquor licenses have long been recognized not to be property under New Jersey law. See id. (citing The Boss Co. v. Bd. of Comm’rs of the City of Atlantic City, 40 N.J. 379, 387-88, 192 A.2d 584 (1963); Butler Oak Tavern v. Div. of Alcoholic Beverage Control, Dep’t of Law & Pub. Safety, 20 N.J. 373, 381, 120 A.2d 24 (1956); Sea Girt Rest. & Tavern Owners Ass’n v. Bor. of Sea Girt, 625 F.Supp. 1482, 1486 (D.N.J.1986) aff'd, 802 F.2d 448 (3d Cir.1986) aff'd sub nom. Appeal of Avon Hotel Corp., 802 F.2d 445 (3d Cir.1986); Chris-Don II, 367 F.Supp.2d at 700; In re Main St. Beverage Corp., 232 B.R. 303, 310-11 (D.N.J.1998)). Trustee also contends that liens and security interests may not attach to liquor licenses except for limited state and federal tax purposes. See Trustee’s Reply at 3. Finally, Trustee contends that while state law creates and defines the incidents of legal interests, whether such interest falls within a category stated by federal statute is a federal question. See id. at 3-4 (citing 21 West Lancaster Corp. v. Main Line Rest., Inc., 790 F.2d 354, 356 (3d Cir.1986)). Trustee continues that the New Jersey Supreme Court has recognized this principal in the context of liquor licenses and federal tax law. See Trustee’s Reply at 4 (citing Boss Co., 40 N.J. at 387-88, 192 A.2d 584). Thus, Trustee asserts that a debtor’s interest in a liquor license may be constrúed as property under federal bankruptcy law while being construed as not property for purposes of state law, as was held in In re Nejberger, 934 F.2d 1300, 1301-02 (3d Cir.1991). See Trustee’s Reply at 4.
Based on these principles, Trustee contends that this Court’s authority to approve the sale of Debtor’s Liquor License does not impact RELM’s attempt to assert a lien on the proceeds of the sale. Id. Trustee summarizes its position as follows: Debtor’s Liquor License and Debtor’s interest in it do not constitute property under New Jersey law and therefore RELM’s security interest, which arises under state law, never attached to the Liquor License; however, Debtor’s interest in the liquor license does constitute property of the estate under the Code’s more expansive definition of property and therefore Trustee had the power to sell the Liquor License and this Court had the authority to approve the sale. See id. at 4-5. Trustee asserts that this position accords with the binding precedent in this jurisdiction. See id. at 5.
Trustee argues that Chñs-Don I and RELM erred by concluding that if an interest is treated as property under federal law, it must also be treated as property under state law. Id. Trustee continues that Chñs-Don I followed this reasoning to conclude that because a liquor license is treated as property for purposes of federal tax law, it should be treated as property for purposes of state law, and therefore it is subject to New Jersey’s UCC and may be used as collateral in secured transactions. Id. Trustee asserts that this conclusion ignores the principle that federal laws
Trustee contends that a ruling in RELM’s favor would be a “monumental shift” in the state law exempting liquor licenses from consensual liens. See Trustee’s Reply at 6. Trustee continues that liquor license holders have granted creditors consensual liens in their general intangibles in reliance on this settled law that their liquor licenses wrere exempt from consensual liens. See id. Therefore, Trustee argues that a ruling in RELM’s favor would betray the holders’ reliance on the ABC Act’s explicit statutory protections, create a windfall for secured creditors who did not bargain for a security interest in the liquor license, and severely prejudice the interests of general unsecured creditors. See id.
In addition, Trustee argues that a ruling in RELM’s favor would create a split between New Jersey state and federal courts on a question of state law. Id. Trustee contends that while state courts will continue to deem liquor licenses non-property outside the scope of .Article 9 and exempt from creditors’ security interests under the ABC Act and state case law, this Court would deem liquor licenses to be general intangible personal property subject to the UCC for purposes of state law. See id. Trustee contends that such an outcome would violate the long-standing rule that federal courts must follow state court interpretations of state law and are not free to impose their own views of what state law should be. See id. at 6-7 (citing Horsehead Indus., Inc. v. Paramount Comms., Inc., 258 F.3d 132, 140-41 (3d Cir.2001); Koppers Co, Inc. v. Aetna Cas. And Sur. Co., 98 F.3d 1440, 1445 (3d Cir.1996); Kowalsky v. Long Beach Twp., 72 F.3d 385, 388 (3d Cir.1995)).
Trustee concludes that this Court should preserve the well-settled status of liquor licenses as exempt from creditors’ security interests under New Jersey law and follow the New Jersey Supreme Court’s interpretation of the ABC Act by granting Trustee’s Motion and refusing to recognize RELM’s asserted security interest in Debtor’s Liquor License. Trustee’s Reply at 7.
New Jersey Division of Taxation Brief in Support of Motion
On April 14, 2014, the New Jersey Division of Taxation (“Division of Taxation”) filed a Brief in Support of Trustee’s Motion to Reclassify. ECF # 104. The Division of Taxation asserts that RELM’s security interest' cannot attach to Debtor’s Liquor License because, pursuant to state law and long-standing case law, only taxing authorities may attach a lien to a liquor license. See id. at 1.
First, the Division of Taxation argues that pursuant to state law, only taxing authorities may attach a lien to a liquor license sale proceeds. Id. at 2 (citing Chris-Don II, 367 F.Supp.2d at 701.) The
[t]he liquor license, although transferable, is still to be considered a temporary permit or privilege, and not property, as it always has been, even before our Legislature so declared by statute, ... and this consideration is to continue to govern the relationship between state and local government and the licensee. Likewise, the vitality of N.J.S.A. 33:1-26 is in no way diminished ...
Division of Taxation Brief in Supp. of Mot. at 3-4. Further, the Division of Taxation asserts that a liquor license does not give the licensee any property rights, nor is it a contract. Id. at 4 (citing Butler Oak Tavern, 20 N.J. at 381, 120 A.2d 24). Instead, it is a personal right in the licensee to conduct a business otherwise illegal, merely a temporary permit or privilege. See Division of Taxation Brief in Supp. of Mot. at 4 (citing Boss Co., 40 N.J. at 384, 192 A.2d 584). Further, the Division of Taxation asserts that N.J.S.A. § 33:1-26 specifically prohibits the licensee from transferring the liquor license or granting a creditor a security interest in it. See Division of Taxation Brief in Supp. of Mot. at 4. Therefore, the Division of Taxation contends that only taxing authorities are entitled to the proceeds of the sale of a liquor license. See id.
The Division of Taxation contends that courts have held that a private creditor is not entitled to the proceeds from the sale of a debtor’s liquor license. Id. at 5. It asserts that Chris-Don II rejected the same arguments that RELM makes here: that N.J.S.A. § 12A:9Al08(e) overrides the anti-alienation provision of N.J.S.A. § 33:1-26 and therefore that the creditor is entitled to lien proceeds of the liquor license sale. See Division of Taxation Brief in Supp. of Mot. at 5 (citing Chris-Don II, 367 F.Supp.2d at 699). The Division of Taxation continues that the district court noted that revised UCC did not define “personal property” and that N.J.S.A. § 33:1-26 was the “other law [that] determines whether a debtor has a property interest in the nature of that interest” referenced by the legislative comments to revised UCC. See Division of Taxation Brief in Supp. of Mot. at 5 (citing Chris-Don II, 367 F.Supp.2d at 700-01).
The Division of Taxation asserts that In re Main St. Beverage Corp., 232 B.R. 303, 310-11 (D.N.J.1998) similarly rejected Chrysler Capital Corporation’s argument that it had a valid and perfected security interest in the debtor’s right to receive payment from the proceeds from a liquor license sale with priority over a later-filed IRS tax lien. See Division of Taxation Brief in Supp. of Mot. at 5. There, Chrysler conceded that it could not have a security interest in the license itself in light of N.J.S.A. § 33:1-26, but argued that the debtor’s right to receive payment from the proceeds of sale was a general intangible under the UCC. See Division of Taxation
The Division of Taxation continues that the Third Circuit in 21 West Lancaster Corp. held- that a liquor license is property for purposes of federal laws but not under Pennsylvania law, and therefore it was not subject to a security interest under the UCC. See Division of Taxation Brief in Supp. of Mot. at 6 (citing 790 F.2d at 358). The Division of Taxation notes that the Pennsylvania legislature subsequently amended their statute 47 P.S. § 4-468(d) to permit liquor licenses to be transferred like personal property, but that New Jersey has not so amended the statute relevant here. See Division of Taxation Brief in Supp. of Mot. at 7 n. 1.
The Division of Taxation concludes that because New Jersey’s applicable liquor license statute, N.J.S.A. § 33:1-26, excludes a liquor license from “property” other than for the purposes of attaching a tax lien, these cases establish that a lender may not hold a security interest in a liquor license or the proceeds of its sale. See Division of Taxation Brief in Supp. of Mot. at 7 (citing Main St. Beverage, 232 B.R. at 310). The Division of Taxation adds that the state legislature could not have been clearer in its choice of statutory language. See Division of Taxation Brief in Supp. of Mot. at 7.
Second, the Division of Taxation argues that since the UCC does not apply to state liquor licenses, the UCC may not override the anti-alienation provisions of N.J.S.A. § 33:1-26. Id. The Division of Taxation contends that N.J.S.A. § 12A:9-408(c), (e), and (f) together render state statutes or regulations that prohibit or restrict the creation of a security interest in a general intangible ineffective, except for those statutes governing workers’ compensation claims, state lottery winnings and structured settlement agreements. See Division of Taxation Brief in Supp. of Mot. at 8 (citing N.J.S.A. § 12A:9-408 (c), (e), ©). However, Division of Taxation asserts that under New Jersey’s UCC, a liquor license is not a “general intangible” because only personal property, as defined by state law, can be a general intangible. See Division of Taxation Brief in Supp. of Mot. at 8-9 (citing N.J.S.A. § 12A:9-102(42); N.J.S.A. § 12A:9-408, U.C.C. § 9-408 cmt. 3). The Division of Taxation continues that N.J.S.A. § 33:1-26 is the state law that specifically excludes liquor licenses from being deemed property interests. See Division of Taxation Brief in Supp. of Mot. at 9 (citing Chris-Don II, 367 F.Supp.2d at 700; Sea Girt Rest., 625 F.Supp. at 1486).
Third, the Division of Taxation argues that RELM’s claim that N.J.S.A. § 12A:9-408 supersedes N.J.S.A. § 33:1-26 violates the fundamental rule of statutory construction disfavoring repeals by implication. See Division of Taxation Brief in Supp. of Mot. at 9-10 (citing Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); Mahwah v. Bergen County Bd. of Taxation, 98 N.J. 268, 281, 486 A.2d 818 (1985), cert. denied sub nom. Demarest v. Mahwah Twp., 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 696 (1985)).
The Division of Taxation contends that although the bankruptcy court in Chris-Don I found that the repeal of the anti-alienation provisions of N.J.S.A. § 33:1-26 within N.J.S.A. § 12A:9-408 was specific,