Case Summary:
In Chapter 13 case where creditor bank failed to record a mortgage, and trustee did not avoid the mortgage, debtor sought to use trustee's section 544(a)(3) avoiding power.  Held, the Debtor in Chapter 13 may use only the Trustee's powers as enumerated in section 1303.  Because the Trustee's section 544 lien-avoiding power is not one of the enumerated powers available to the Debtor, the Debtor may not avoid a mortgage under section 544.  Further held, equitable subrogation is not a remedy available to a lender who fails to record a mortgage even though the loan was used to consolidate previous mortgage loans.  The mortgage lender gets security in the form of a recordable mortgage, and the Court will not invoke equitable subrogation to cure a lender's negligence.

Statute/Rule References:
11 U.S.C. § 506(c) -- Recovery of Expenses in Disposing or Preserving Property
11 U.S.C. § 544 -- Trustee as Lien Creditor
11 U.S.C. § 545
11 U.S.C. § 548 -- Fraudulent Conveyance
11 U.S.C. § 1303 -- Rights and Powers of Debtor
Wis. Stat. § 706.08(a)
Wis. Stat. § 708.01

Key Terms:
Lien Avoidance
Equitable Subordination
Summary Judgment