Section 17.26 Standing in Chapter 13

• Library: Bankruptcy Practice (2007 Ed. + 2015 Cum Supp)

B. (§17.26) Standing in Chapter 13

Unlike a Chapter 7 debtor, a Chapter 13 debtor is the true representative of the estate. Indeed, 11 U.S.C. § 1303 gives a Chapter 13 debtor the power, exclusive of a trustee, to use, sell, or lease property of the estate outside the ordinary course of business. Notably absent from § 1303 powers, however, is any right to assert the trustee’s powers under Chapter 5. In re Hamilton, 125 F.3d 292, 296 (5^th Cir. 1997) (“There is no specific statutory provision generally authorizing Chapter 13 debtors to exercise trustees’ avoidance powers.”); In re Merrifield, 214 B.R. 362, 364–65 (B.A.P. 8^th Cir. 1997) (a Chapter 13 debtor had no standing to assert the powers of the trustee under 11 U.S.C. § 548). Cf. 11 U.S.C. § 1107 (in Chapter 11 “a debtor in possession shall have all the rights . . . and powers, and shall perform all the functions and duties . . . of a trustee serving in a case under this chapter”), and 11 U.S.C. § 1203 (a Chapter 12 debtor “shall have all the rights . . . and powers . . . of a trustee serving in a case under chapter 11”). The fact that Congress specifically granted avoiding powers to Chapter 11...