IN RE:  JEFFREY EUGENE THACKER HELEN MARIE THACKER           CASE NO. 04-61964  ORDER SECURED CLAIM

 

 

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
LONDON

 

IN RE:                                    

 

JEFFREY EUGENE THACKER

HELEN MARIE THACKER                                                  CASE NO. 04-61964

 

DEBTORS

 

 

                                                                       ORDER

 

This case is submitted for decision (See Document # 34) on objection of Mortgage Electronic Registration Systems, d/b/a Homecomings Financial (“Homecomings Financial”) ( Documents # 15 & 18) to confirmation of the debtors’ chapter 13 Plan (Document # 2) as amended (Documents # 12, 16, & 20).  Following a hearing on April 21, 2005, counsel for Homecomings Financial supplemented the record (Document # 39), and the debtors responded (Document # 41).

Homecomings Financial objects to the debtors’ classification of it as a secured creditor whose claim has no value, thus treating its secured claim as unsecured.  The creditor asserts that by virtue of this treatment these chapter 13 debtors are attempting to avoid its mortgage, which admittedly was filed in the wrong county, using the so-called “strong-arm powers” granted by 11 U.S.C. § 544, which Homecomings Financial argues are available only to the trustee.

This case concerns a consensual mortgage on the debtors’ principal residence.  In Schedule A to the Petition, the debtors valued the property at $80,000.  Homecomings Financial filed Proof of Claim # 3 in the amount of $67,108.04.


The issue of standing by chapter 13 debtors to avoid a mortgage has been addressed recently by this court.  Mark Anthony Roberts and Dawn Renee Roberts, Case No. 04-10526, Memorandum Opinion entered January 4, 2005 (Document # 47), Judge William S. Howard, U. S. Bankruptcy Court, Eastern District of Kentucky.  In his opinion Judge Howard quoted a case out of the Sixth Circuit which discussed the interplay of Section 522(h) and (g):

Thus, taken together these provisions provide a debtor with the standing to avoid a transfer of property under § 544 if four conditions are met: (1) the bankruptcy trustee does not attempt to avoid the transfer; (2) the debtor could have exempted the property; (3) the debtor did not conceal the property; and (4) the debtor did not voluntarily transfer the property.

Trentman v. Meritech Mortgage Serv. (In re Trentman), 278 B.R. 133, 135 (Bankr. N. D. Ohio 2002).

 

Clearly such is not the case here.

 

IT IS HEREBY ORDERED that the objection of Homecomings Financial to the debtors’ Plan as amended is sustained, without prejudice to the right of the chapter 13 trustee to seek to avoid the mortgage of Homecomings Financial if deemed appropriate.

 

Copy to :

 

Charles M. Johnson, Esq.

Chris Carter, Esq.

John P. Brice, Esq.

Beverly M. Burden, Esq.