United States First Circuit

The bankruptcy judge and Bankruptcy Appellate Panel's decisions accepting the view of the bankruptcy trustee that his power to avoid and preserve the debtor's mortgage justifies him in selling the debtor's home as property of the bankruptcy estate because the bank failed to record the mortgage with the appropriate registry, is reversed and remanded, where: 1) the debtor's home is subject to a homestead exemption under Massachusetts law; 2) in these circumstances, the bankruptcy Code would ordinarily allow the debtor to pass through bankruptcy in possession of her home; and 3) the trustee may only sell "property of the estate," and the preserved mortgage in this case carries no immediate ownership rights that might be seen to turn the debtor's home into the property of the estate.

Appellate Information

• Decided 05/23/2014
• Published 05/23/2014

Judges

• HOWARD

Court

• United States First Circuit

Counsel