668 B.R. 841
Bankr. E.D.N.C.2025Background
- Stephen J. Sliwinski (debtor) filed for Chapter 13 bankruptcy and sought court approval to sell real property co-owned with estranged spouse Julie Anne Sliwinski.
- The property was held as tenants by the entirety and was claimed as exempt by Mr. Sliwinski while encumbered by multiple liens and subject to additional tax claims.
- Mr. Sliwinski initiated an adversary proceeding for authorization to sell the property free and clear of co-owner interest under 11 U.S.C. § 363(h).
- Ms. Sliwinski filed a motion to dismiss, arguing the debtor lacked statutory authority to use § 363(h), which is only granted to the trustee.
- The legal dispute focused on whether a Chapter 13 debtor has standing to compel a forced sale of co-owned property under § 363(h) without the trustee's action.
- The court determined the case could be decided on the pleadings, granting the motion to dismiss for lack of standing and rendering the debtor’s summary judgment motion moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a Ch. 13 debtor sell co-owned property under § 363(h)? | Debtor can exercise trustee's rights per § 363(b), so § 363(h) is also available to him | § 1303 does not extend § 363(h) to debtor; only trustees can use § 363(h) | Standing lacking: § 363(h) not included in § 1303 powers |
| Is § 363(h) incorporated into debtor's rights by reference to § 363(b)? | Reference to § 363(b) in § 363(h) should allow debtor to use § 363(h) | Incorporation does not expand debtor’s powers beyond plain language of § 1303 | Court found persuasive the majority view rejecting this theory |
| Does exclusion of § 363(h) from § 1303 powers control? | Exclusion not dispositive; rights would be meaningless otherwise | Expressio unius est exclusio alterius— omission is intentional | Exclusion controls; debtor lacks this statutory authority |
| Would summary judgment be available if standing existed? | Factual issues (e.g., detriment to co-owner) are not disputed | Substantial factual disputes regarding harm to co-owner must be heard | Summary judgment would not be proper due to factual disputes |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (Standing is a threshold jurisdictional question in federal court)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Standing doctrine; plaintiff must demonstrate standing for court to have jurisdiction)
- In re Alvarez, 733 F.3d 136 (4th Cir. 2013) (Section 363(h) permits only a trustee to sell a non-debtor spouse’s interest in entireties property under limited circumstances)