BOULDEN, Bankruptcy Judge.
Green Tree Financial Servicing Corporation (Green Tree) sought a court order to require the debtors to execute and deliver a Special Warranty Deed and Estoppel Affidavit in order to effectuate the debtors' intention to surrender a mobile home. The Bankruptcy Court denied the motion. For the reasons set forth below, we affirm.
Carl Richard Theobald and Connie Louise Theobald (Debtors) filed a chapter 7 petition,
We have jurisdiction over this appeal. The Order ends the dispute between the parties on the merits and is a "final" order, subject to appeal under 28 U.S.C. § 158(a)(1). See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710-12, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996). Green Tree's notice of appeal was timely filed. Fed.R.Bankr.P. 8002. The parties have consented to this Court's jurisdiction by failing to elect to have the appeal heard by the District Court. 28 U.S.C. § 158(c)(1); Fed.R.Bankr.P. 8001; 10th Cir. L.R. 8001-1.
There are no facts in dispute. We review the Order de novo to determine if the Bankruptcy Court erred as a matter of law in denying the Motion. Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988) (questions of law are reviewable de novo); Lilly v. Fieldstone, 876 F.2d 857, 858 (10th Cir.1989) (standard of review is the same as that which was applied by the trial court in making its ruling.)
Green Tree suggests we define "surrender" as used in § 521(2)
11 U.S.C. § 521(2)(A) — (C).
The language of the statute does not require a debtor to transfer title by executing and delivering a deed in order to effectuate surrender, much less the Special Warranty Deed and Estoppel Affidavit referenced by Green Tree. However, Green Tree argues that to give effect to the language of the statute relating to the surrender of collateral, the Bankruptcy Court must impose these additional duties upon the Debtors to ameliorate the expenses Green Tree would incur by exercising its state court foreclosure remedies.
The Tenth Circuit has ruled that a debtor's failure to comply with the mandatory requirements of § 521(2) does not create an automatic benefit for a secured creditor by establishing a right to repossess collateral. Lowry Fed. Credit Union v. West, 882 F.2d 1543, 1544-46 (10th Cir.1989) (within discretion of bankruptcy court debtor may retain property without reaffirming or redeeming).
Section 521 was not designed to provide a mechanism by which creditors may avoid obligations imposed by state law. See Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (in bankruptcy, property interests are determined by state law unless expressly stated otherwise) (specific holding superseded by statute); see also Barnhill v. Johnson, 503 U.S. 393, 398, 112 S.Ct. 1386, 1389, 118 L.Ed.2d 39 (1992) (stating while interpreting the Bankruptcy Code that, in the absence of controlling federal law, statutory terms "property" and "interest in property" are "creatures of state law"). What Green Tree seeks from this Court is an order voiding any and all rights to which the Debtors, a trustee, or other creditors may be entitled under state law. Green Tree is not at liberty to use the Bankruptcy Code to enable it to more expeditiously obtain relief provided for under state law, or to obtain relief wholly unavailable under state law. As stated by the Ninth Circuit Bankruptcy Appellate Panel: "In view of the language of § 521(2)(C), there is no reason to believe that Congress intended that the secured creditor would be in a better position because of the happenstance of bankruptcy than would be the case under state law." Mayton, 208 B.R. at 67; see Taylor v. AGE Fed. Credit Union (In re Taylor), 3 F.3d 1512, 1514 n. 2 (11th Cir.1993) (stating in a footnote addressing § 521(2) that "[s]urrender provides that a debtor surrender the collateral to the lienholder who then disposes of it pursuant to the requirements of state law"); In re Ogando, 203 B.R. 14, 16 (Bankr. D.Mass.1996) ("In sum, section 521(2) is merely a procedural statute which by its own terms is not intended to infringe upon any rights the debtor otherwise has with respect to secured consumer debt or the underlying collateral.").
Green Tree's broad interpretation of "surrender" under § 521(2) would eviscerate state law. It would leave all parties except Green Tree in an untenable and inequitable position, and create a host of problems and additional duties not required by the Bankruptcy Code. Under Green Tree's view, a debtor surrendering property would be forced to sign a special warranty deed conveying title to the property to the creditor. This special warranty deed could create
Green Tree's interpretation of the law, while beneficial to Green Tree, is at odds with the plain language of § 521(2) and interferes with underlying state law foreclosure policies and procedures. Green Tree argues that the problem with state law remedies is that they are time-consuming and expensive. That complaint would be best directed to the New Mexico legislature. We will not create a substantive right in § 521(2) where none exists.
For the reasons set forth above, the Bankruptcy Court's Order is affirmed.
Two additional cases relied upon by Green Tree relate to real property but also have different facts that distinguish them from this case. See In re Williams, 70 B.R. 441, 442-43 (Bankr. D.Colo.1987) (chapter 13 debtor sought to abandon/surrender real property but failed to vacate the residence and turn over possession to the creditor); In re Stone, 166 B.R. 621, 623 (Bankr.S.D.Texas 1993) (chapter 13 debtor's attempt to surrender residence solely to the Internal Revenue Service when senior liens existed did not constitute a surrender under § 1325(a)(5)(C), it being "preferable for property which is subject to the claims of several lienholders to be surrendered to all the various lienholders at once and for foreclosure of all liens concurrently" (citing In re Toth, 61 B.R. 160 (Bankr. N.D.Ill.1986))). Green Tree has not cited any case that holds that surrender under § 521(2) requires a debtor to transfer title to the surrendered property.