dissenting.
,1 regret that I am unable to join in the majority opinion. In my view, the majority’s analysis is based on a faulty legal premise which in effect nullifies the carefully integrated provisions of the Bankruptcy Code governing avoidable transfers. The majority states that because Simons received the property from the state rather than directly from the debtor, the trustee must seek recovery only from the state and cannot proceed against Simons even if the
transfer is avoidable under 11 U.S.C. § 548 (1988). See maj. op. at 580. Under the majority’s view, the trustee’s ability to recover an avoidable transfer could always be defeated simply by a transfer from the initial transferee to another. The Code, however, specifically provides to the contrary. If the transfer is avoidable under the criteria set out in section 548, section 550 permits the trustee to seek recovery from Simons without proceeding against the state.1 Because the majority’s position renders section 550 meaningless, I must respectfully dissent.
I.
The underlying undisputed facts are briefly as follows. Prior to December 1, 1983, debtor Slack-Horner Foundries owned real property in Boulder County, Colorado, upon which its foundry is situated. On.December 1, 1983, the Boulder County Treasurer conducted a tax sale of the property for unpaid 1982 taxes, at which Simons made a successful bid of $8,638.34. On December 10, 1987, after the applicable redemption periods had expired, Simons obtained a treasurer’s deed to the property, which he recorded on December 11. During the period between the tax sale in 1983 and conveyance of the treasurer’s deed in 1987, Simons paid taxes on the property in a total amount of $66,-134.61. In 1988, Simons sold the property for $170,000 to a third party not involved in these proceedings. When the purchaser defaulted, Simons regained title in 1989 through foreclosure.
The debtor filed a petition for bankruptcy on September 23, 1988. The trustee *582sought to recover the property from Si-mons, asserting that the tax sale proceedings resulted in an avoidable transfer under 11 U.S.C. § 548(a)(2). That section allows the trustee to avoid any transfer of a debtor’s interest in property made within one year of the bankruptcy filing if the debtor received less than reasonably equivalent value and was insolvent at the time of the transfer. The bankruptcy court determined that the transfer occurred upon rec-ordation of the treasurer’s deed on December 11, 1987, at which time the debtor was insolvent. The court further ruled that because under Colorado law the debtor’s right to redeem the property had expired upon the issuance of the treasurer’s deed on December 10, the transfer on December 11 did not convey any interest of the debtor in the property as required by section 548. Accordingly, the bankruptcy court held that the transfer was not avoidable. The trustee appealed to the district court which substantially adopted the bankruptcy court’s analysis and conclusions.
II.
The Bankruptcy Code defines “transfer” to include “foreclosure of the debtor’s equity of redemption.” 11 U.S.C. § 101(54). The extinguishment of an equity of redemption is thus deemed a transfer for purposes of the Code even though the right is cut off by foreclosure rather than actually transferred.2 This foreclosure constitutes the transfer with which we are concerned in evaluating the trustee’s claim under section 548. The majority confuses assessing the avoidability of a transfer under section 548 with determining those transferees liable under section 550.
The bankruptcy estate under 11 U.S.C. § 541(a) is comprised of all the debtor’s legal or equitable interests in property as of the commencement of the case. The estate also includes any interest in property that the trustee recovers under section 550, see id. § 541(a)(3), which includes property fraudulently transferred under section 548, see id. § 550(a). Thus, the trustee can use section 548 to recover property in which the debtor has lost his interest if that loss occurred within one year of the filing of the bankruptcy action and otherwise meets the test of section 548.
To establish an avoidable transfer under section 548, the trustee must show: (1) transfer of an interest of the debtor; (2) within one year of the bankruptcy filing; (3) for less than equivalent value; (4) when the debtor is insolvent. Here, the debtor’s equity of redemption was foreclosed by the issuance of the treasurer’s deed, and this foreclosure is a transfer within the meaning of section 548. This foreclosure-transfer occurred within one year of the bankruptcy filing, and the debtor was insolvent at the time of the transfer. Under section 548(a), therefore, the trustee can avoid the transfer if the debtor received less than equivalent value, an issue not resolved below.
Significantly, section 550 provides that if a transfer is avoidable under section 548, the trustee may recover from the initial transferee or from “any immediate or mediate transferee of such initial transferee,” 11 U.S.C. § 550(a)(2). Even adopting the majority’s view that all of the debtor’s interest in the property passed to the state as the initial transferee3 and then to Simons as the immediate transferee of the initial transferee, section 550 nonetheless authorizes the trustee to recover the property from Simons if the transfer is avoidable.
The majority believes it unnecessary to determine whether the transfer is avoidable, stating “the trustee has not shown that any interest of the debtor in property was transferred to the appellee Simons and has not demonstrated any basis for recovering the property from him.” Maj. op. at 580. Both of these propositions are incorrect. First, Simons now holds property that once belonged to the debtor. Thus he *583is clearly a transferee, albeit not an initial transferee, of that property. The majority assumes that the trustee can only recover from a transferee who receives property directly from the debtor. However, section 548 does not set out such a requirement as an element of an avoidable transfer; that section simply does not address transferee liability. Indeed, as I have pointed out, section 548 includes as a “transfer” the foreclosure of an equity of redemption. Second, section 550, which is directed to those transferees from whom a trustee may recover, specifically authorizes a trustee to proceed against a transferee who does not receive the property directly from the debtor.4 This specific authorization, together with the fact that section 548 simply does not speak to the issue of those transferees from whom a trustee may recover, leaves the majority’s position not only legally unsupported but directly contrary to the applicable bankruptcy provisions.
Indeed, I have found no case adopting the majority’s analysis.5 In other cases where a debtor-in-possession or a trustee has brought an adversary proceeding to set aside a transfer after a tax sale, the plaintiff, as here, did not seek recovery from the governmental entity that had sold the property for taxes. See, e.g., Hall v. Quigley (In re Hall), 131 B.R. 213 (Bankr.N.D.Fla. 1991); Allegheny Int’l Credit Corp. v. De-Bois Inv. Group (In re Allegheny Int’l Credit Corp.), 128 B.R. 125 [Bankr. W.D.Pa.1991); War Eagle Floats, Inc. v. Travis (In re War Eagle Floats), 104 B.R. 398 (Bankr.E.D.Okl.1989); Louis L. Lasser & Stanley M. Kahn v. Robins Nest Dev. Corp. (In re Louis L. Lasser & Stanley M. Kahn), 68 B.R. 492 (Bankr.E.D.N.Y.1986). Although the analysis employed in those cases varies, none of them holds that recovery against the subsequent transferee is precluded because the trustee did not go against the initial transferee, the state.
The basic flaw in the majority’s analysis is its failure to distinguish between section 548 avoidability and section 550 recovera-bility. “The Code specifically ‘separates the identification of avoidable transfers ... from the identification of those who must pay_’” Harrison v. Brent Towing Co., Inc. (In re H & S Transp. Co., Inc.), 939 F.2d 355, 358 (6th Cir. 1991) (quoting Levit v. Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1196 (7th Cir.1989)). Section 548 describes those transfers of the debtor’s property interests which the trustee may avoid, while section 550 sets out those transferees from whom the trustee may recover the property or its value. “Section 550 prescribes the liability of a transferee of an avoided transfer, and enunciates the separation between the concepts of avoiding a transfer and recovering from the transferee.” Sen.Rep. No. 989, 95th Cong., 2d Sess. 90, reprinted in 1978 U.S.C.C.A.N. 5787, 5876. If the'transfer is avoidable under section 548, “we then look to section 550(a) to determine to whom the trustee may look for recovery of the property.” Harrison, 939 F.2d at 358 (footnote omitted).
*584Accordingly, I must reject the majority’s conclusion that we need not address whether the transfer is avoidable. The issues raised on appeal require that we consider it. The bankruptcy court’s opinion, adopted in essence by the district court, concludes that section 548 is not satisfied. As the majority describes, maj. op. at 579, the bankruptcy court ruled that the transfer for purposes of section 548 occurred when the treasurer’s deed was recorded. That court held that because the debtor’s interest had previously passed to Simons when the treasurer’s deed was issued, the “transfer” accomplished by recordation of the deed was not of an interest of the debtor. This holding is wrong in two respects. First, the execution of a deed and its recordation cannot be split into two separate transfers. There was only one transfer of an interest of the debtor, which occurred in stages, beginning when issuance of the treasurer’s deed extinguished the debtor’s right of redemption and ending when the deed was recorded. This result is required by section 548(d)(1), which provides that
a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee.
11 U.S.C. § 548(d)(1). Contrary to the view of the bankruptcy court, issuance of the treasurer’s deed alone is not a completed transfer under this provision, because until recordation a person wishing to buy the equity of redemption does not have notice that the right to redeem has been cut off by the treasurer’s deed. Second, even if it were a completed transfer, as I discuss above, section 550 nonetheless authorizes recovery from a second transferee. Indeed, both the bankruptcy court and the majority make essentially the same mistake in failing to recognize that under section 550, the trustee may in certain circumstances recover property subject to an avoidable transfer even if that property has been subsequently transferred again.
Because transfer of an interest of the debtor was not completed until recordation of the treasurer’s deed, and because this transfer occurred within one year of the bankruptcy filing and while the debtor was insolvent, the dispositive issue is whether the debtor received less than equivalent value under section 548(a)(2)(A). Neither the bankruptcy court or the district court found it necessary to reach this issue. Courts in general are split on the legal standard to be used to ascertain equivalent value in a foreclosure situation. See, e.g., In re Hall, 131 B.R. at 216 (noting differing lines of cases). The majority of circuits that have addressed the issue adopted a case-by-case consideration of the relevant facts. See Grissom v. Johnson (In re Grissom), 955 F.2d 1440, 1445 (11th Cir. 1992); Barrett v. Commonwealth Fed. Sav. & Loan Ass’n, 939 F.2d 20, 23-24 (3d Cir. 1991); Cooper v. Ashley Communications, Inc. (In re Morris Communications NC, Inc.), 914 F.2d 458, 466-67 (4th Cir. 1990); Bundles v. Baker (In re Bundles), 856 F.2d 815, 824 (7th Cir.1988); but see Durrett v. Washington Nat’l Ins. Co., 621 F.2d 201, 203-04 (5th Cir.1980) (subsequently interpreted as setting reasonably equivalent value at no less than 70% of fair market value);6 Lawyers Title Ins. Co. v. Madrid (In re Madrid), 21 B.R. 424 (Bankr.9th Cir.1982), affd on other grounds, 725 F.2d 1197 (9th Cir.), cert. denied, 469 U.S. 833, 105 S.Ct. 125, 83 L.Ed.2d 66 (1984) (subsequently interpreted as holding that winning bid at regularly conducted, non-collusive sale presumed to be reasonably equivalent value). Such factors include, as well as the fair market value, whether the property was fairly appraised, widely advertised, and bid upon competitively. See, e.g., Bundles, 856 F.2d at 824. In my judgment, the case-by-case approach is persuasive. See id. I would therefore adopt that position and remand *585for further factual inquiry under that standard. I thus respectfully dissent.
. Thus, § 550(b)(2) "is intended to prevent a transferee from whom the trustee could recover from transferring the recoverable property to an innocent transferee ... that is, 'washing' the transaction through an innocent third party." Sen.Rep. No. 989, 95th Cong., 2d Sess. 90 reprinted in 1978 U.S.C.C.A.N. 5787, 5876.
. Foreclosure is legally defined as "[to] shut out, to bar, to destroy an equity of redemption." Black's Law Dictionary 581 (6th ed. 1990).
. In my judgment, the foreclosure of an equity of redemption by the issuance of a treasurer’s deed simply cuts off the debtor’s right of redemption, see n. 2 supra, rather than conveying that right to the state.
. Section 550 does provide a good faith defense to such a transferee. See 11 U.S.C. § 550(b). When a good faith defense is established, the trustee may not be able to recover the property itself even when the property was the subject of an avoidable transfer under section 548. Si-mons makes a general assertion of good faith on appeal. However, the good faith issue was not addressed by the lower courts and obviously presents fact issues precluding our consideration on appeal.
. The majority defends its interpretation of the Bankruptcy Code as necessary to preserve the state’s interest in collecting taxes. However, this interest is already accommodated in other ways. A trustee is barred by the Eleventh Amendment from bringing an action against a state to recover an avoidable transfer. See generally Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96, 104, 109 S.Ct. 2818, 2824, 106 L.Ed.2d 76 (1989) (trustee actions "under §§ 542(b) and 547(b) of the Code are barred by the Eleventh Amendment”). Moreover, tax sales remain a viable means of recovering unpaid taxes because both the state and the tax sale buyer can be protected in an action under section 548 by factoring their interest into whether the transfer is avoidable, see, e.g., War Eagle Floats v. Travis (In re War Eagle Floats, Inc.), 104 B.R. 398, 401 (Bankr. E.D.Okla.1989) (assessing "reasonably equivalent value" in light of need to avoid chilling potential bidding), and by the good faith provisions of section 550.
. Some language in Fifth Circuit opinions subsequent to Durrett could be viewed as a retreat from the 70% rule. See FDIC v. Blanton, 918 F.2d 524, 531 n. 7 (5th Cir.1990); Sandoz v. Bennett (In re Emerald Oil Co.), 807 F.2d 1234, 1238 n. 6 (5th Cir.1987).