MEMORANDUM*

Industrial Indemnity Co. appeals a decision of the Bankruptcy Appellate Panel holding that Industrial's filing of a workers' compensation insurer's lien was invalid under section 362(a)(4) of the Bankruptcy Code as a post-petition lien. The insured, North Side Lumber Co., petitioned for bankruptcy after its insurance premiums were due, but before it had defaulted on the premiums, and before Industrial had filed notice of the lien pursuant to ORS 656.564(3).

Under section 362(a)(4) of the Bankruptcy Code, the filing of a bankruptcy petition stays "any act to create, perfect, or enforce any lien against property of the estate." Under sections 362(b)(3) and 546(b), however, the filing of the bankruptcy petition does not operate as a stay of "any act to perfect an interest in property to the extent that ..." "any generally applicable law ... permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection."

Federal courts have interpreted this language as excepting from Section 362(a)(4)'s automatic stay any act of perfection which relates back to a prior act of creation, and which is therefore effective against an interest in the property acquired in the interim. See, e.g., In re Yobe Electric, Inc, 728 F.2d 207, 208 (3d Cir.1984); In re Cantrup, 38 B.R. 148, 150-51 (Bkrtcy.Colo.1984); In the Matter of Fiorillo & Co., 19 B.R. 21, 22-24 (Bkrtcy.S.D.N.Y.1982). Thus, in order to avail itself of the 546(b) exception, Industrial must establish that its filing served to perfect an already-created property interest. It must show that its lien attached before North Side petitioned for bankruptcy. See In the Matter of Hamlin, 34 B.R. 673, 674 (Bkrtcy.E.D.Mich.1983).

Oregon's workers' compensation insurer's lien provides:

A lien hereby is created in favor of the insurer upon all real property within this state ... upon which labor is performed by the workers of any [covered] employer ... in a sum equal to the amount at any time due from such employer to the insurer on account of labor performed thereon by the workers of such employer, together with interest and penalty. ORS 656.564(1).

Industrial reads this passage as creating a property interest at the time when insurance premiums become due. We reject that interpretation. The underscored language refers to the amount of the insurer's lien. The statute is silent with regard to the date on which the lien attaches. Compare ORS 656.566, which provides that the workers' compensation insurer's lien in favor of Oregon's Industrial Accident Commission "shall attach upon the filing of a notice of claim of lien with the county clerk of the county in which the property is located." (Emphasis added). Compare also the original version of ORS 656.564(1), which provided until 1933 that the workers' compensation insurer's lien "shall attach from the date of commencement of such labor on such property." 1917 Or Laws ch 288 Sec. 24 (emphasis added).

Industrial urges us to construe ORS 656.564 as creating a property interest when premiums become due in order to preserve the integrity of Oregon's workers' compensation insurance system. We decline to do so. Oregon has expressed a policy that the insurer's lien should take precedence over most other liens. See ORS 656.564(5). In the case of the Industrial Accident Commission, however, the legislature determined that the insurance lien should not attach until filing. ORS 656.566. Without any clearer statutory guidance, we are not prepared to hold that Oregon lawmakers intended a directly opposite rule for private insurers.

Industrial also argues that ORS 656.564(1) should be construed in light of interpretations by Oregon courts of analogous lien laws. It contends that Oregon, like the vast majority of the states, has construed the similar mechanic's lien as creating a property interest as soon as labor is performed on the covered property. Appellees sharply dispute this contention, and the issue divided the Bankruptcy Court and the B.A.P. Even assuming that Oregon law was crystal clear with respect to the mechanic's lien, this argument has limited force. The 656.564 lien is not a mechanic's lien. Interpretations of similar laws do not provide a sufficiently reliable basis for overriding the unmistakable silence of the statutory language. Where Oregon lawmakers have determined that a workers' compensation insurer's lien should attach as of a particular date, they have expressed their intention unambiguously. See 1917 Or Laws ch 288 Sec. 24; ORS 656.566.

In order to implicate Section 546(b)'s exception to the Bankruptcy Code's automatic stay, state law must provide that the lien in question is created before filing of the bankruptcy petition. See In re Electric City, 43 B.R. at 339-40 (discussing legislative history of 11 U.S.C. Sec. 546(b)). The plain language of ORS 656.564, however, provides for no distinct date of creation, and Industrial has directed our attention to no prior cases holding that the lien attaches before default or filing. We therefore hold that Industrial has not maintained its burden of demonstrating that its lien attached before North Side petitioned for bankruptcy. We express no opinion as to whether Oregon's workers' compensation insurer's lien attaches upon filing of the lien pursuant to ORS 656.564(3), upon default on the insurance premiums, or at some other time after the premiums become due.

AFFIRMED.