Texas Bankruptcy Court Says Surrender Doesn’t Require Delivery

Texas Bankruptcy Court Says Surrender Doesn’t Require Delivery

In 2005 the Debtors purchased a used mobile home with a secured loan from 21st Mortgage Corporation (21st Mortgage). In August 2018 the Debtors filed a chapter 7 bankruptcy petition with the intent of reaffirming the debt to 21st Mortgage. After their 341 Debtors decided to surrender the mobile home to 21st Mortgage.

21st Mortgage filed two motions requesting orders ( i) “delaying Debtors’ discharge until the [Mobile Home] has in fact been surrendered and secured by 21st Mortgage Corporation;” and (ii) “allow[ing] 21st Mortgage Corporation to secure the [Mobile Home].” 21st Mortgage sought this relief because it believed that merely having relief from the automatic stay does not benefit or adequately protect 21st Mortgage. The Debtors were current on all of their monthly payments to 21st Mortgage throughout the proceedings. As a result, 21st Mortgage may be precluded from pursuing a foreclosure until a post-discharge default occurs.

21st Mortgage argues that the Debtors must physically and affirmatively turnover the mobile home based on several arguments. It argues that the Debtors are trying to effectuate a “ride-through” which is prohibited under 11 U.S.C. §§ 521(a)(2) and(6) and In re Johnson, 89 F.3d 248 (5th Cir 1996).

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