In Re Cherry

37 B.R. 893, 1984 Bankr. LEXIS 6057

• Court: United States Bankruptcy Court, E.D. Pennsylvania
• Decided: March 20, 1984
• Docket: 19-11796
• Status: Published

Opinion

OPINION

EMIL F. GOLDHABER, Bankruptcy Judge:

The question before us is whether the property of the estate of an individual debt- or includes a piece of real estate titled in the name of the debtor as executrix of a decedent’s estate. We hold that it does not.

The undisputed facts are as follows: 1 Brenda Cherry (“the debtor”) filed a petition under chapter 13, listing as one of her assets, the premises located at 5035 Greene Street, Philadelphia, Pa. Incongruously, she describes this realty as being owned by her “solely, in trust.” 2 The conceded fact is that title to this property is in the name of the debtor as “Executrix of the Estate of Virginia Cherry, deceased.” When the monthly mortgage payments on said premises fell in arrears, the mortgagee, Federal National Mortgage Association, filed a “motion for relief from the automatic stay under § 362(e)” (sic) of the Bankruptcy Code (“the Code”) [The motioner really means § 362(a)].

The realty at issue is not the property of the debtor’s estate. Section 541(b) of the Code states succinctly that:

Property of the estate does not include any power that the debtor may only exercise solely for the benefit of an entity other than the debtor.

The realty at issue doesn’t belong to the debtor’s estate. Hence there is nothing in § 362(a) which creates a stay of

(4) any act to ... enforce any lien against property of the estate.

Accordingly, we will enter an order granting the motion for relief from the automatic stay.

1 . This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052 (effective August 1, 1983).

2 . See Answer No. 13 of her Chapter 13 Statement.