Skip to main content
Home

Main navigation

  • NC Bankruptcy Cases
    • Eastern District
    • Middle District
    • Western District
  • NC Courts
    • 4th Circuit Court of Appeals
    • NC Court of Appeals
    • NC Business Court
    • NC Supreme Court Cases
  • Federal Cases
  • Law Reviews & Studies
    • Book Reviews
  • NC Legislative History
  • Student Loan Debt
User account menu
  • Log in

Breadcrumb

  1. Home
  2. Blogs

Bankr. E.D.N.C.: Sliwinski v. Sliwinski- Chapter 13 Debtor cannot Use § 363(h) to force the sale of jointly owned property

Profile picture for user Ed Boltz
By Ed Boltz, 17 April, 2025

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.

With proper attribution,  please share this post. 

To read a copy of the transcript, please see:

Blog comments

Attachment
Document
sliwinski_v._sliwinski.pdf (167.18 KB)
Category
Eastern District

About Us

Mountain View The purpose of the NC Bankruptcy Expert blog is to provide legal professionals with a consolidated resource for updates and case summaries about issues and decisions affecting bankruptcy, foreclosures, mortgages, and debt collection.

 
Lawyer Edward Boltz | Top Attorney Chapter 7

NC Bankruptcy Expert FREE Consultation

We Offer A Free Bankruptcy Consultation which has helped over 70,000 North Carolina families. We serve the entire state of North Carolina.

Proud Member of:












Categories

  • 4th Circuit Court of Appeals
  • Book Reviews
  • District Courts
  • Eastern District
  • Ed Boltz: Bankruptcy Attorney
  • Federal Cases
  • Forms
  • Home
  • Law Reviews & Studies
  • Middle District
  • Mortgage Modification Mediation Documents
  • NC Business Court
  • NC Court of Appeals
  • NC Courts
  • NC Supreme Court Cases
  • News
  • North Carolina Bankruptcy Cases
  • North Carolina District Court Cases
  • North Carolina Exemptions Legislative History
  • Student Loan Debt
  • Student Loan Options and Chapter 13 Bankruptcy
  • Western District
RSS feed
v. 1.2.2, © 2013-2025 ncbankruptcyexpert.com, all rights reserved. Follow @edboltz