IN RE ROGARIS

LARRY LESSEN, Bankruptcy Judge

This matter is before the Court on the Motion for Relief from the Automatic Stay filed by Countrywide Home Loans, Inc. ("Countrywide") and the Debtors' Objection to said Motion. The question before the Court is whether, in the absence of contractual privity between the debtor and creditor, a debtor/creditor relationship exists between the parties which could be subject to a Chapter 13 plan.

On or about November 1, 2002, Debtors executed as contract buyers a Contract for Deed for purchase of the property commonly known as 101 West 4^th, Golden, Illinois, from Ronald and Kelly Weaver, the legal titleholders and contract for deed sellers. Countrywide is the first mortgagee on said property and, as such, has a claim against the property and against the Weavers. On January 8, 2004, Countrywide commenced mortgage foreclosure proceedings. On April 27, 2004, Debtors filed for Chapter 13 bankruptcy protection. On May 18, 2004, Countrywide filed a Motion for Relief from the Automatic Stay wherein Countrywide seeks relief from the automatic stay for reasons that the Debtors have failed to make mortgage payments and that Debtors have no right to cure the mortgage arrears. In their Objection to Countrywide's Motion, Debtors assert that they have the ability to pay both the mortgage payments and arrearages due to Countrywide and intend to do so pursuant to their Chapter 13 plan.

This Court has previously held that where the debtor is not liable on the mortgage, there is no debtor/creditor relationship which can be subject to a Chapter 13 plan. In re Mitchell, Case No. 93-72087 (Bankr. C.D. Ill. March 11, 1994). In that case, the Debtor's parents executed a mortgage to the bank, then, years later, quitclaimed the property to the debtor. Subsequently, the bank initiated foreclosure proceedings and filed a lis pendens notice. Only thereafter did the debtor record the quitclaim deed. Debtor then filed a Chapter 13 petition in bankruptcy, and the bank moved to lift the automatic stay. The bank asserted, and the Court found, that there was no debtor/creditor relationship between the Debtor and the mortgagee. The Court held that, because the Debtor is not liable on the mortgage, there exists no debt to the mortgagee. Therefore, the Chapter 13 plan may not provide for the curing of the default.

In case at bar, the Debtors have cited several cases which reach a different conclusion. In In re Rutledge, 208 B.R. 624, (Bankr. E.D.N.Y. 1997), the Court held that the debtor could cure a pre-petition mortgage default through the Chapter 13 plan even though the debtor lacked privity with the mortgagee. However, unlike in the case at bar, in Rutledge, the debtor owned the property — he had been deeded the property pre-petition. In In re Curinton, 300 B.R. 78 (Bankr. M.D. Fla. 2003), the court reached the same conclusion but, unlike in the case at bar, the debtor in Curinton also owned the property — he had received title to the property pre-petition from his dissolved corporation.

In the case before the Court, not only are the Debtors not liable on the mortgage, they — as contract buyers — do not have title to the subject property. In that important sense, the cases cited by Debtors and the case at bar are distinguishable. Inasmuch as there does not appear to be persuasive precedent which is on "all fours" factually with the case at bar, this Court reaffirms its ruling in In re Mitchell, supra, that, absent some compelling equitable consideration, there must be contractual privity, i.e. a debtor/creditor relationship between a debtor and a mortgagee, in order for there to be a debt subject to a Chapter 13 plan. Accordingly, the Court finds that the Motion for Relief from the Automatic Stay should be granted.

This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.

See written Order.

For the reasons set forth in an Opinion entered this day,

IT IS HEREBY ORDERED that the Motion for Relief from the Automatic Stay filed by Countrywide Homes Loans, Inc. be and is hereby granted.