Flint Bankruptcy Lawyer 235-1970

A Chapter 13 Bankruptcy sets up a 3 or 5 yr plan to pay certain debts ending with a discharge of remaining unsecured debt like credit cards. A chapter 7 Bankruptcy takes several months and ends with a discharge of your unsecured debt excluding things like taxes and student loans.
If you have Bankruptcy Questioins call Flint Bankruptcy Lawyer Terry R. Bankert 235-1970

BANKRUTPCY Issues: Chapter 13; Whether the bankruptcy court correctly concluded that the debtor has standing to pursue an avoidance action; Debtor’s “derivative” standing to pursue lien avoidance under 11 USC § 544; Countrywide Home Loans v. Dickson (In re Dickson); Realty Portfolio, Inc. v. Hamilton (In re Hamilton)(5th Cir.); Hyundai Translead, Inc. v. Jackson Truck & Trailer Repair, Inc. (In re Trailer Source, Inc.); Adhering to precedent; CSX Transp., Inc. v. McBride; Freedom to seek review in the Court of Appeals; Phar-Mor, Inc. v. McKesson Corp. (In re Phar-Mor, Inc.); Jurisdiction; Midland Asphalt Corp. v. United States; Drown v. National City Bank (In re Ingersoll); Standard of review; International Dairy Foods Ass’n v. Boggs; Perfection of the bank’s lien on debtor’s manufactured home; 11 USC § 541(a)(1); Lyon v. Eiseman (In re Forbes); Butner v. United States; Waiver; Bailey v. Floyd Cnty. Bd. of Educ.

Court: U.S. Bankruptcy Appellate Panel Sixth Circuit
Case Name: In re Barbee
e-Journal Number: 50351
Judge(s): Harris, Boswell, and McIvor

Following the holding in Dickson, the court affirmed the bankruptcy court’s determination that the Chapter 13 debtor had derivative standing to avoid the appellant-Bank’s lien pursuant to § 544. Thus, the court also affirmed the bankruptcy court’s order granting the debtor summary judgment.


The relevant facts were undisputed. On 11/15/99, the debtor and G borrowed $75,558.93 from Countrywide Home Loans, repayment of which was secured by the grant of a mortgage lien in favor of Countrywide.


The mortgage was dated 11/15/99, and was recorded on 12/1/99. The mortgage encumbered the real property and all improvements and fixtures located on it.


On 10/22/09, the note and mortgage were assigned to the Bank. The debtor and G used the proceeds of the loan to acquire the real property. Located on the property is the debtor and G’s manufactured home.

In the record was a letter from a loan officer to Countrywide as to the debtor’s loan from Countrywide advising that “[i]n 1997, this double wide mobile home was gutted and rebuild (sic) as an actual house.”
The debtor and G did not acquire a separate title to the manufactured home and the record was unclear as to whether a certificate of title was ever issued for the manufactured home.
On 11/11/09, the debtor filed a petition for relief under Chapter 13. The debtor later filed his adversary complaint, asserting that as a hypothetical lien creditor, he has superior title to the manufactured home located on the property, and that any interest the Bank has in the home was avoidable pursuant to § 544 because the Bank failed to perfect its lien on the manufactured home pursuant to Kentucky law.

The Bank asserted, inter alia, that the debtor did not have standing to bring the avoidance action. Citing Dickson, the bankruptcy court held that the debtor had derivative standing to pursue the lien avoidance under § 544. The Bank argued that the debtor lacked standing to bring the avoidance action because a debtor cannot be granted derivative standing to exercise the trustee’s strong arm powers as to consensual liens.

The debtor asserted that he had derivative standing to pursue lien avoidance under § 544 pursuant to the decision in Dickson. While acknowledging the holding in Dickson, the Bank argued that the debtor lacked standing to pursue avoidance of the lien based on the plain language of the Bankruptcy Code and the reasoning of courts which have found that a Chapter 13 debtor lacks standing to exercise the trustee’s avoidance powers. When the Bank filed its brief in this appeal, an appeal of the decision in Dickson was pending before the Sixth Circuit Court of Appeals. Thus, the court issued an order holding this appeal in abeyance pending a decision in Dickson. The Sixth Circuit issued a decision in Dickson on 8/26/11. However, the Court of Appeals never reached the issue of derivative standing. Instead, the Sixth Circuit held that the transfer at issue in Dickson was involuntary, so that the debtor had direct, statutory standing to seek avoidance of the creditor’s lien. “Without deciding whether a later panel must always follow the precedent of a prior panel,” the court saw no reason in this case to break with the principles of stare decisis and thus, followed the holding in Dickson. “Adhering to precedent promotes uniformity of case law” in the Circuit and “the goals of ‘stability’ and ‘predictability’ that the doctrine of statutory stare decisis aims to ensure.” The court noted that the Bank was free to seek review of its decision in the Court of Appeals, which is not bound by decisions of Bankruptcy Appellate Panels.

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