Summary:

Judge McAfee held that a Chapter 13 debtor lacks standing to invoke 11 U.S.C. § 363(h) to force the sale of property jointly owned with a non-debtor spouse, because §1303 does not grant the debtor that specific trustee power. That authority rests solely with the Chapter 13 trustee, and the debtor cannot bootstrap it via § 363(b) or similar cross-referenced sections.  



The court emphasized that Congress intentionally excluded § 363(h) from the list of trustee powers extended to debtors under § 1303. Attempts to read § 363(h) as “incorporated” through § 363(b) were rejected as legally unsound. This reiterates that expressio unius est exclusio alterius is not just a maxim—it’s binding when rights to sell co-owned homes are at stake.



Commentary:

While Chapter 13 debtors enjoy expanded powers to use, sell, or lease estate property under § 1303, this decision draws a bright line at § 363(h). Debtors seeking to fund plans through the sale of co-owned assets must either:

• obtain consent from the co-owner,
• proceed under state law partition proceedings, or
• involve the trustee to pursue a § 363(h) sale.

The last could be accomplished, despite a hesitant trustee,  by the debtor first commencing an Adversary Proceeding under Rule 7001(3)  for a sale under § 363(h) and then filing a motion  under Rule 19(a)(2) to join the Trustee as a necessary and even involuntary plaintiff.  The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

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