MEMORANDUM OF DECISION
JIM D. PAPPAS, Bankruptcy Judge.
In this action, Plaintiffs-Debtors seek to avoid as a preferential transfer a judgment lien recorded against their real property within 90 days of the filing of the bankruptcy petition. At the trial, the Defendant-Creditor moved to dismiss the action at the conclusion of Plaintiffs’ evidence, B.R. 7041, and because of the legal issue presented, the Court took the motion under advisement. The motion raises essentially two issues. The first question concerns whether a Chapter 13 debtor has standing, pursuant to Bankruptcy Code Section 1303, to pursue this lien avoidance action under Section 547(b).
Secondly, Defendant argues that Plaintiffs were actually solvent at the time the judgment lien was recorded, and therefore an element of Plaintiffs’ case is missing as a matter of law. 11 U.S.C. § 547(b)(3).
Defendant obtained a judgment lien against Debtors' real property when it recorded its judgment on the real property records on October 23, 1989. See Idaho Code § 10-1110. Plaintiffs filed their bankruptcy petition on December 18, 1989, and seek to avoid the judgment lien as against their residential real estate.
DISCUSSION
A.
Standing
The Court is presented with an opportunity to examine a Chapter 13 debtor’s standing to avoid a preference, an issue that has generated some debate in this district. The answer to the question remains uncertain in light of two quite recent decisions of the Court expressing divergent points of
view
—In
re Groanvelt,
89 I.B.C.R. 237, and
In re McMann,
89 I.B.C.R. 152.
As will be seen, this Court prefers the position adopted in
Groanvelt.
In
Groanvelt,
Judge Hagan held that a Chapter 13 debtor may use the trustee’s avoiding powers under Section 545(2),
but
only to a limited extent.
Relying upon the language of Section 522(h)
, the debtor was held to have standing to avoid a lien under Section 545, “but only to the extent the debtor could exempt the property involved.” 89 I.B.C.R. at 239.
In the opinion of this Court, the statutory framework of the Code requires the limitation expressed in
Groanvelt. Groan-velt
does not explore this aspect of the issue in detail, however. For example, Section 1303 defines the powers that a debtor may exercise
exclusive
of the Chapter 13 trustee, and avoidance powers are not mentioned in the provision. The legislative history to Section 1303 instructs, though, that a Chapter 13 debtor holds other powers in addition to those enumerated in Section 1303 or in Section 363. But, those other powers are held
concurrently
with the trustee.
There is no reference in either the Code or legislative history to other rights and powers that a Chapter 13 debtor may exercise without the cooperation of the trustee
except
in Section 522(f) and Section 522(h), both of which specifically deal with the debtor’s power to avoid liens and transfers of exempt property. Section 522(f) gives the debtor the right to avoid certain kinds of liens on certain types of property, but only to the extent the lien impairs a potential exemption.
Likewise, Section 522(h) allows the debtor to utilize the trustee’s traditional avoiding powers, but again only to the extent the property would be exempt, the trustee has not acted to avoid the transfer, and the transfer was involuntary.
The approach of the statutes is therefore intelligible. When Congress desired a debtor to have rights and powers independent of those of the Chapter 13 trustee, it expressly provided those rights and powers
such as through Section 1303, Section 522(f), and Section 522(h). This is not to say that the debtor does not have other powers that are concurrent with the trustee. However, it strains interpretation of the Code to find that other implied exclusive debtor powers exist. If Congress intended the debtor to have unfettered avoidance powers, what was the need for the limitations contained in Section 522(f) or Section 522(h)? In Chapter 13, a debtor and trustee have clearly defined and distinct roles, as compared to Chapter 11 where there is normally no trustee, and the debtor is legislatively given a much broader responsibility on behalf of the estate and authorized to exercise many of the trustee’s usual powers.
Practicality dictates that the trustee control the right to assault transfers of property. The trustee’s discretion stands as a buffer against any potential for abuse of the avoidance powers. That is, except where the property is exempt, the trustee’s broader perspective as to the Chapter 13 estate will temper decisions to attack transfers of property where to do so would result in little good to the estate in general, as opposed to the debtor’s personal or strategic motivations. Case law indicates that if a trustee refuses to act, the Court may authorize another interested party to pursue an action on behalf of the estate.
Where either the trustee agrees to cooperate in pursuing avoidance of an action, or where the Court directs that it be done at the trustee’s refusal, there is high likelihood the action will be pursued in good faith, based upon proper motives.
The contrary holding in
McMann
is too generous to Chapter 13 debtors under the present law. Relying on nonspecific statements in the legislative history,
McMann
is willing to “imply” an avoidance power in favor of the Chapter 13 debtor. Although the holding in
McMann
is representative of a significant line of cases,
this Court feels that the decision interprets the legislative history too broadly and without reading it in conjunction with the express language of Section 1303 and Section 522(h). Arguments such as those enounced in
McMann
are, according to one Court, simply “well-meaning forays into judicial legislation.”
In re Bruce,
96 B.R. 717 (Bankr.W.D.Tex.1989).
In sum, this Court will not extend the Chapter 13 debtor’s powers beyond those provided in Section 522(h). In other words, a Chapter 13 debtor does not have full unilateral avoidance powers except as to involuntary transfers of otherwise exempt property, and then only if the trustee has not acted. In all other cases, other than the limited circumstances described in Section 522(f), the avoidance powers must be exercised by the trustee.
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MEMORANDUM OF DECISION
JIM D. PAPPAS, Bankruptcy Judge.
In this action, Plaintiffs-Debtors seek to avoid as a preferential transfer a judgment lien recorded against their real property within 90 days of the filing of the bankruptcy petition. At the trial, the Defendant-Creditor moved to dismiss the action at the conclusion of Plaintiffs’ evidence, B.R. 7041, and because of the legal issue presented, the Court took the motion under advisement. The motion raises essentially two issues. The first question concerns whether a Chapter 13 debtor has standing, pursuant to Bankruptcy Code Section 1303, to pursue this lien avoidance action under Section 547(b).
Secondly, Defendant argues that Plaintiffs were actually solvent at the time the judgment lien was recorded, and therefore an element of Plaintiffs’ case is missing as a matter of law. 11 U.S.C. § 547(b)(3).
Defendant obtained a judgment lien against Debtors' real property when it recorded its judgment on the real property records on October 23, 1989. See Idaho Code § 10-1110. Plaintiffs filed their bankruptcy petition on December 18, 1989, and seek to avoid the judgment lien as against their residential real estate.
DISCUSSION
A.
Standing
The Court is presented with an opportunity to examine a Chapter 13 debtor’s standing to avoid a preference, an issue that has generated some debate in this district. The answer to the question remains uncertain in light of two quite recent decisions of the Court expressing divergent points of
view
—In
re Groanvelt,
89 I.B.C.R. 237, and
In re McMann,
89 I.B.C.R. 152.
As will be seen, this Court prefers the position adopted in
Groanvelt.
In
Groanvelt,
Judge Hagan held that a Chapter 13 debtor may use the trustee’s avoiding powers under Section 545(2),
but
only to a limited extent.
Relying upon the language of Section 522(h)
, the debtor was held to have standing to avoid a lien under Section 545, “but only to the extent the debtor could exempt the property involved.” 89 I.B.C.R. at 239.
In the opinion of this Court, the statutory framework of the Code requires the limitation expressed in
Groanvelt. Groan-velt
does not explore this aspect of the issue in detail, however. For example, Section 1303 defines the powers that a debtor may exercise
exclusive
of the Chapter 13 trustee, and avoidance powers are not mentioned in the provision. The legislative history to Section 1303 instructs, though, that a Chapter 13 debtor holds other powers in addition to those enumerated in Section 1303 or in Section 363. But, those other powers are held
concurrently
with the trustee.
There is no reference in either the Code or legislative history to other rights and powers that a Chapter 13 debtor may exercise without the cooperation of the trustee
except
in Section 522(f) and Section 522(h), both of which specifically deal with the debtor’s power to avoid liens and transfers of exempt property. Section 522(f) gives the debtor the right to avoid certain kinds of liens on certain types of property, but only to the extent the lien impairs a potential exemption.
Likewise, Section 522(h) allows the debtor to utilize the trustee’s traditional avoiding powers, but again only to the extent the property would be exempt, the trustee has not acted to avoid the transfer, and the transfer was involuntary.
The approach of the statutes is therefore intelligible. When Congress desired a debtor to have rights and powers independent of those of the Chapter 13 trustee, it expressly provided those rights and powers
such as through Section 1303, Section 522(f), and Section 522(h). This is not to say that the debtor does not have other powers that are concurrent with the trustee. However, it strains interpretation of the Code to find that other implied exclusive debtor powers exist. If Congress intended the debtor to have unfettered avoidance powers, what was the need for the limitations contained in Section 522(f) or Section 522(h)? In Chapter 13, a debtor and trustee have clearly defined and distinct roles, as compared to Chapter 11 where there is normally no trustee, and the debtor is legislatively given a much broader responsibility on behalf of the estate and authorized to exercise many of the trustee’s usual powers.
Practicality dictates that the trustee control the right to assault transfers of property. The trustee’s discretion stands as a buffer against any potential for abuse of the avoidance powers. That is, except where the property is exempt, the trustee’s broader perspective as to the Chapter 13 estate will temper decisions to attack transfers of property where to do so would result in little good to the estate in general, as opposed to the debtor’s personal or strategic motivations. Case law indicates that if a trustee refuses to act, the Court may authorize another interested party to pursue an action on behalf of the estate.
Where either the trustee agrees to cooperate in pursuing avoidance of an action, or where the Court directs that it be done at the trustee’s refusal, there is high likelihood the action will be pursued in good faith, based upon proper motives.
The contrary holding in
McMann
is too generous to Chapter 13 debtors under the present law. Relying on nonspecific statements in the legislative history,
McMann
is willing to “imply” an avoidance power in favor of the Chapter 13 debtor. Although the holding in
McMann
is representative of a significant line of cases,
this Court feels that the decision interprets the legislative history too broadly and without reading it in conjunction with the express language of Section 1303 and Section 522(h). Arguments such as those enounced in
McMann
are, according to one Court, simply “well-meaning forays into judicial legislation.”
In re Bruce,
96 B.R. 717 (Bankr.W.D.Tex.1989).
In sum, this Court will not extend the Chapter 13 debtor’s powers beyond those provided in Section 522(h). In other words, a Chapter 13 debtor does not have full unilateral avoidance powers except as to involuntary transfers of otherwise exempt property, and then only if the trustee has not acted. In all other cases, other than the limited circumstances described in Section 522(f), the avoidance powers must be exercised by the trustee. In a proper case, if a trustee improperly refuses to act, a debtor may seek an order of the Court, after notice and a hearing, allowing commencement of the avoidance action.
As applied to the facts of this case, the above rule provides for mixed results. On the one hand, the property in question is the Plaintiffs’ residence which has been claimed exempt. There is no evidence the trustee has attempted to avoid the Defendant’s lien. Therefore, to the extent it attaches to Plaintiffs’ exemptible interest in the house, Defendant’s lien is subject to avoidance under Section 522(h), assuming that Plaintiffs can prove all the elements required by Section 547(b). To the extent of any equity over and above the home
stead exemption and any prior liens, though, Plaintiffs may not unilaterally seek to avoid the lien as a preference. At this point, the evidence indicates the house is valued at somewhere between $49,000 and $55,000, and there was a mortgage of record to another creditor for about $4,000 when the judgment lien was recorded. Defendant’s lien would therefore be potentially avoidable to the extent of Plaintiffs’ homestead exemption, but not exceeding that amount.
B.
Solvency
Defendant further argues that Plaintiffs were solvent at the time the judgment lien was recorded on October 23, 1989. It is true Plaintiffs have the burden of proving insolvency on that date as an element of the preference claim, 11 U.S.C. § 547(b)(3). Insolvency is defined in the Code as having debts in excess of the value of assets, exclusive of allowable exemptions. At this point, while the evidence suggests that much of the debt listed in Plaintiffs’ schedules was incurred after the judgment lien was recorded, the Court is not convinced the evidence shows that Plaintiffs were solvent. And because Plaintiffs were arguably insolvent, the issue should not be resolved against them at this stage of the proceedings.
CONCLUSION
Defendant’s motion to dismiss will be denied by separate order and Plaintiffs will be allowed to proceed with their action, but only to the extent of Plaintiffs’ homestead exemption in the subject property.