Nicholas W. Whittenburg, UNITED STATES BANKRUPTCY JUDGE.
This adversary proceeding is before the court on the Plaintiff's Motion for Summary Judgment filed on February 16, 2016. Having considered the motion, supporting and opposing briefs, and the plaintiff's statement of undisputed material facts and the defendants' responses thereto, the court will grant the motion.
The pertinent facts are simple and undisputed. On March 21, 2003, the plaintiff purchased the property located at 1725 Mitchell Avenue in Chattanooga, Hamilton County, Tennessee. She has used and/or occupied the property since that time.
On June 4, 2015, the plaintiff filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code. No objections to the plaintiff's proposed chapter 13 plan were filed and, on July 15, 2015, the court confirmed the plan, which provides for ongoing mortgage payments to Chattanooga Neighborhood Enterprise, Inc., additional payments to cure the mortgage default, and the full payment of unsecured claims.
On July 31, 2015, CNE sent the county a check for $4,673.10, accompanied by a Statement of Person Redeeming Property Sold at Tax Sale identifying the "Name of Redeeming Person" as CNE and reciting that "I am making this redemption for the use and benefit of the delinquent taxpayer." The check was also accompanied by a letter from CNE's attorney indicating that the check was being "tendered on behalf of Cherilyn E. Bryant to redeem property which she lost at a back tax sale." On August 27, 2015, a Motion to Deny Redemption was filed in the Chancery Court,
Section 67-5-2701(a)(1) of the Tennessee Code Annotated provides, in part:
There is no dispute that the applicable redemption period was one year from entry of the order confirming the tax sale. (Adv. Compl. ¶ 8; Answer of Defs. Hamilton Co. and the State of Tenn. to Pl.'s Adv. Compl., at 1; Answer of Def. Carlton J. Ditto, at 3.) The plaintiff contends, however, that the one-year period was extended by the Bankruptcy Code.
Specifically, the plaintiff relies on 11 U.S.C. § 108(b), which provides:
The tax sale decree constitutes an order entered in a nonbankruptcy proceeding and T.C.A. § 67-5-2701(a)(1) constitutes applicable nonbankruptcy law that fixed a period within which the debtor may "cure a default, or perform any similar act." See, e.g., Dumas v. Sabre Group (In re Dumas), 397 B.R. 883, 887 (Bankr.N.D.Ill. 2008). The one-year redemption period had not expired at the time the plaintiff filed her bankruptcy petition. Accordingly and because the redemption period would have expired less than sixty days after the order for relief, the plaintiff maintains that § 108(b) of the Bankruptcy Code afforded her 60 days after the order for relief — until August 3, 2015 — within which to redeem the property. On the other hand, the defendants take the position that only a trustee and not a creditor or a chapter 13 debtor may take advantage of the extension of time provided in § 108(b).
It is undisputed that the one-year redemption period afforded CNE under Tennessee law expired prior to its tender of the redemption check on July 31, 2015. The plaintiff does not argue that § 108(b) extended CNE's redemption period. Rather, she asserts that CNE was acting as her agent when it tendered the check necessary to redeem the property. Hamilton County asserts that "nothing in the record supports the contention that CNE filed for redemption as an actual agent of either the Plaintiff or the Trustee" and Mr. Ditto similarly asserts that "neither Plaintiff nor CNE submitted any proof that such an agency exists." Those assertions
The only remaining question is whether a chapter 13 debtor has the benefit of § 108(b) or that benefit inures only to the trustee in a chapter 13 case. Neither the Supreme Court nor the Sixth Circuit has addressed the issue.
Unlike the chapter 11 debtor in possession, the chapter 13 debtor is not vested with substantially all of the rights of the trustee. However, the chapter 13 debtor is granted — exclusive of the chapter 13 trustee — the "rights and powers of a trustee" to use, sell, or lease property of the estate. 11 U.S.C. § 1303. Further, unless otherwise provided in a confirmed plan or order confirming the plan, the chapter 13 debtor "shall remain in possession of all property of the estate." Id. § 1306(b). It is undisputed that the debtor, as the taxpayer and owner of the property prior to
This conclusion is buttressed by case law decided under § 108(a) of the Bankruptcy Code, which grants an extension of time for the trustee to commence litigation on causes of action belonging to the debtor. Although there do not appear to be any Court of Appeals decisions in that regard, a line of bankruptcy court decisions holds that the extension is available to the chapter 13 debtor, e.g., Carpenter v. U.S. Bank, N.A. (In re Carpenter), Bankr.No. 11-20896-TPA, Adv. No. 11-2252-TPA, 2013 WL 1953275, at *13 (Bankr.W.D.Pa. May 7, 2013); Dawson v. Thomas (In re Dawson), 411 B.R. 1, 20-31 (Bankr.D.D.C. 2008); McConnell v. K-2 Mortgage (In re McConnell), 390 B.R. 170 (Bankr.W.D.Pa. 2008); Spence v. Advanta Mortg. Corp. (In re Spence), Bankr.No. 97-19586-SSM, Adv. No. 98-1221, 1999 WL 35108963, at *5-*6 (Bankr.E.D.Va. May 24, 1999), at least where the litigation benefits the bankruptcy estate, e.g., Gaskins v. Metro. Home Improvement Ctr. (In re Gaskins), 98 B.R. 328 (Bankr.E.D.Tenn.1989) (distinguishing the non-application of § 108(a) in Craig v. Barclays Am. Fin., Inc. (In re Craig), 7 B.R. 864 (Bankr.E.D.Tenn.1980), on the ground that litigation did not benefit the estate). Contra, Johnson v. Homecomings Fin., LLC (In re Johnson), Bankr.No. 08-40032, Adv. No. 08-4068, 2009 WL 2259088, at *20-*31 (Bankr. S.D.Ill. July 29, 2009); Carr v. United States, 482 F.Supp.2d 842 (W.D.Tex.2007); Ranasinghe v. Compton (In re Ranasinghe), 341 B.R. 556 (Bankr.E.D.Va.2006). Particularly noteworthy is the McConnell decision, in which the court held, first, that the chapter 13 debtor may pursue prepetition causes of action that have become property of the estate by virtue of the filing of the petition:
McConnell, 390 B.R. at 176-77 (citations omitted). The court next discussed the case law extending § 108 to chapter 11 debtors in possession, and held that the same reasoning applies to chapter 13 debtors:
Id. at 179-81 (citations omitted). The court finds the reasoning of McConnell to be sound and equally applicable to the extension of time afforded by § 108(b).
Mr. Ditto asserts that decisions of the Sixth Circuit and the district court for the Middle District of Tennessee hold that "an extension pursuant to Section 108(b) applies solely to the trustee, not the debtor, in a chapter 13 case where there is no prepetition cause of action and/or no `debtor in possession.'" However, Federal Land Bank v. Glenn (In re Glenn), 760 F.2d 1428, 1439-40 (6th Cir.1985), held only that a chapter 13 plan may not provide for the curing of a mortgage default if the foreclosure sale took place prepetition. Part of the court's reasoning included holdings that the automatic stay of § 362(a) does not indefinitely toll a mortgage redemption period and that a court may not utilize § 105(a) to order an extended redemption period because that would "enlarge the debtor's property rights `beyond those specifically set forth by the [state] legislature and by Congress in § 108(b).'" Id. at 1440. The clear implication is that § 108(b) does "enlarge the debtor's property rights." Likewise, the district court in Dunlap v. Cash America Pawn (In re Dunlap), 158 B.R. 724, 728 (M.D.Tenn.1993), noted that, "[s]ince the automatic stay provision of § 362 has expressly been ruled not to toll the running of a statutory redemption period, the only available protection to this property for the estate was through 11 U.S.C. § 108." While the court spoke of the trustee having 60 days after the petition date to redeem the pawned goods, that language represents dicta since no one redeemed the goods within the 60-day period.
To hold that a chapter 13 debtor enjoys the rights of a trustee to exercise a right of redemption but does not have the benefit of the extension of time to exercise that right provided to a trustee by § 108(b) would be absurd. A trustee's rights and powers to use property of the estate are vested, "exclusive of the trustee," in the chapter 13 debtor. Thus, only the debtor, and not the trustee, may exercise a right of redemption that becomes property of the bankruptcy estate so, to hold that the extension of time afforded by § 108(b) does not inure to the benefit of a chapter 13 debtor would render that provision largely, if not completely, inapplicable in chapter 13 cases. Congress clearly intended that § 108(b) apply in chapter 13 cases. See 11 U.S.C. § 103(a) (provisions of chapter 1 apply in chapter 13 cases); id. § 108(b) (referencing a provision of chapter 13, namely § 1301). Accordingly, § 108(b) is available to chapter 13 debtors exercising the rights and powers of a trustee just as it applies to chapter 11 cases and is available to chapter 11 debtors in possession.
Salta Group, Inc. v. McKinney, 380 B.R. 515, 520 n. 3 (C.D.Ill.2008) (citing In re Murray, 276 B.R. 869, 874 (Bankr.N.D.Ill. 2002)); accord, e.g., In re Richter, 525 B.R. 735, 749 n. 18 (Bankr.C.D.Cal.2015). But see In re Campbell, 82 B.R. 614, 616 n. 3 (Bankr.S.D.Fla.1988) (stating in dicta that the § 108(b) extension does not apply to a chapter 13 debtor because "it is not included among the trustee's powers granted the chapter 13 debtor. § 1303.").
For the foregoing reasons, the court will enter an order granting the plaintiff judgment as a matter of law, declaring that she had the right to redeem the property from the tax sale through CNE as her agent since the redemption right had not expired at the time she commenced her chapter 13 case and since the redemption occurred within sixty days after that date.