By the statute's own terms, only the trustee has standing to exercise the strong-arm avoidance powers . . . Legislative history, especially floor comments, may augment but may not amend the statute's straightforward language. Section 1303 simply does not confer standing on the debtor to pursue avoidance actions. As the bankruptcy court pointed out In re Mast [ 79 B.R. 981 (Bankr.W.D.Mich. 1987)], there does not exist any statutory authority for a Chapter 13 debtor to utilize avoidance powers granted to the trustee. . . . If Congress intended to grant avoidance powers to a Chapter 13 debtor, it could have explicitly done so . . .In re Mast, 79 B.R. at 982, n. 3.
Bankruptcy court decisions in this circuit have long held that a chapter 13 debtor lacks standing to pursue avoidance and recovery of transfers; only the trustee normally possesses the requisite standing. Hill v. Fidelity Fin. Servs. (In re Hill), 152 B.R. 204 (Bankr.S.D.Ohio 1993); Mast v. Borgess Med. Ctr. (In re Mast), 79 B.R. 981 (Bankr.W.D.Mich.1987). However, it is properly recognized that, under certain circumstances, the Bankruptcy Code permits a debtor to avoid transfers under § 522(g)(1) and (h).
11 U.S.C.A. § 547(b) (West 1979 Supp. 1989). 79 B.R. 981 (Bankr.W.D.Mich. 1987). The Court has carefully reviewed all provisions contained in Chapter 13 and there does not exist any statutory authority for a Chapter 13 debtor to utilize avoidance powers granted to the trustee, including those powers listed in Sections 544, 545, 547 and 548 of the Bankruptcy Code. If Congress intended to grant avoidance powers to a Chapter 13 debtor, it could have explicitly done so.
1986); In re Weaver, 69 B.R. 554 (Bankr.W.D.Ky. 1987) (holding in general that the debtor can employ the avoidance powers) with In re Carter, 2 B.R. 321 (Bankr.D.Colo. 1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W.V. 1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis. 1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich. 1987) (holding in general that the debtor in Chapter 13 lacks standing to bring avoidance actions). ANALYSIS
See In re Redditt, 146 B.R. 693, 696-701 (Bankr.S.D.Miss. 1992); In re Henderson, 133 B.R. 813, 816-17 (Bankr.W.D.Tex. 1991); In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla. 1991); In re Coan, 134 B.R. 670 (Bankr.M.D.Fla. 1991); In re Driver, 133 B.R. 476 (Bankr.S.D.Ind. 1991); Bruce v. Republicbank-South Austin (In re Bruce), 96 B.R. 717, 720-23 (Bankr.W.D.Tex. 1989); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich. 1987). These courts have acknowledged the "realities" of Chapter 13 bankruptcies and the trustees' limited role, the factors emphasized by earlier courts.
In re Carter, 2 B.R. 321 (Bankr. C. Colo. 1980); In re Walls, 17 B.R. 701 (Bankr.S.D.W. Va. 1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wisc. 1986); In re Mast, 70 B.R. 981 (Bankr.W.D.Mich. 1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex. 1989). The Court continues to be unpersuaded by this line of cases.
In re Carter, 2 B.R. 321 (Bankr.D.Colo. 1980); In re Walls, 17 B.R. 701 (Bankr. S.D.W.Va. 1982); In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis. 1986); In re Mast, 79 B.R. 981 (Bankr.W.D.Mich. 1987); In re Bruce, 96 B.R. 717 (Bankr.W.D.Tex. 1989). The Court continues to be unpersuaded by this line of cases.
This Court agrees with those courts which have held that there is no statutory authority in Chapter 13 which grants a Chapter 13 debtor independent standing to sue under the trustee's section 548 avoidance power. See, In re Driscoll, 57 B.R. 322 (Bankr.W.D.Wis. 1986) (Section 1303 does not grant avoidance powers of Chapter 5 to a Chapter 13 debtor, legislative history does not imply that these powers are concurrently held); In re Mast, 79 B.R. 981 (Bankr. W.D.Mich. 1987) (there is no statutory authority for a Chapter 13 debtor to use the Chapter 5 avoidance powers); In re Perry, 90 B.R. 565 (Bankr.S.D.Fla. 1988) (section 522(h) provides a Chapter 13 debtor's only standing with respect to trustee's avoidance powers); In re Jardine, 120 B.R. 559 (Bankr.D.Idaho 1990) (debtors hold some power concurrently with trustee but the code does not allow a debtor to exercise powers without the cooperation of trustee except in section 522); In re Tillery, 124 B.R. 127 (Bankr.M.D.Fla. 1991) (section 1303 provides the exclusive grant of trustee power to a Chapter 13 debtor); In re Henderson, 133 B.R. 813 (Bankr.W.D.Tex. 1991) (section 1303 does not provide avoidance power and section 522(h) is limited by 522(c)(2)(B) where a tax lien is involved); In re Redditt, 146 B.R. 693 (Bankr.S.D.Miss. 1992) (debtor does not possess power to avoid transactions except to the extent granted under section 522(h)); In re Colandrea, 17 B.R. 568 (Bankr.D.Md. 1982) (Chapter 13 debtor
to chapter 13 debtors does violence to the balance of rights among debtors, trustees and creditors that has been carefully constructed in the statute."); In re Ryker , 315 B.R. 664, 674 (Bankr. D.N.J. 2004) (finding unpersuasive the reasoning given to allow chapter 13 debtors to avoid transfers other than through section 522(h), adding that "a reading of the statute in which only the Chapter 13 trustee has standing to prosecute avoidance actions is not inconsistent with the other rights and responsibilities of a Chapter 13 debtor, and is no real impediment to proposing or performing a Chapter 13 plan."); In re Steck , 298 B.R. at 248 (in declining to read section 1303 "in a manner ... inconsistent with its plain language," stating " ‘the bankruptcy court cannot waive or modify Bankruptcy Code requirements that are plain and unambiguous because it agrees with the policy underlying the debtor's arguments.’ ") (quoting In re Columbia Gas Systems, Inc. , 33 F.3d 294, 302 (3d Cir. 1994) ); Matter of Mast , 79 B.R. 981, 982 (Bankr. W.D. Mich. 1987) (rejecting the reasoning of courts using the " ‘realities of bankruptcy practice’ to justify a strained interpretation of the Bankruptcy Code"). This court also rejects those holdings as ignoring the plain language of the statute.
; In re Steck, 298 B.R. at 248 (in declining to read section 1303 "in a manner . . . inconsistent with its plain language," stating "'the bankruptcy court cannot waive or modify Bankruptcy Code requirements that are plain and unambiguous because it agrees with the policy underlying the debtor's arguments.'") (quoting In re Columbia Gas Systems, Inc., 33 F.3d 294, 302 (3d Cir. 1994)); Matter of Mast, 79 B.R. 981, 982 (Bankr. W.D. Mich. 1987) (rejecting the reasoning of courts using the "'realities of bankruptcy practice' to justify a strained interpretation of the Bankruptcy Code"). This court also rejects those holdings as ignoring the plain language of the statute.