Armstrong v. Lindberg

735 F.2d 1087, 10 Collier Bankr. Cas. 2d 1255
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 6, 1984
DocketNo. 83-1310
StatusPublished
Cited by18 cases

This text of 735 F.2d 1087 (Armstrong v. Lindberg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Lindberg, 735 F.2d 1087, 10 Collier Bankr. Cas. 2d 1255 (8th Cir. 1984).

Opinion

JOHN R. GIBSON, Circuit Judge.

The issue presented in this appeal is whether debtors whose bankruptcy cases are converted from chapter 13 to chapter 7 may claim a different homestead exemption at the time of conversion than the one they originally designated at the commencement of their chapter 13 proceeding.

On July 3, 1980, Layne and Barbara Jean Lindberg filed a joint petition for relief under chapter 13. At that time the Lind-bergs owned a home in New Town, North Dakota, where they resided, and a farm in Burke County, North Dakota. When they filed their chapter 13 petition, the Lind-bergs were required to submit a “chapter 13 statement” listing their assets and liabilities, and designating what exemptions they would claim if their assets had to be liquidated. The Lindbergs listed both their home and farm as assets, and designated a homestead exemption in their home.

Thereafter, the bankruptcy court1 confirmed a plan requiring the Lindbergs to pay their creditors $1,000 a month. The Lindbergs failed to make their monthly payments, and Westlie Motor Company, a creditor from whom the Lindbergs had purchased two automobiles, which had been returned to Westlie, moved to convert their case to a chapter 7 liquidation. The Lind-bergs agreed, and on March 2, 1982 the court ordered the case converted.

After they filed their chapter 13 petition but before the date of conversion, the Lind-bergs left their New Town home and began residing at the Burke .County farm. On March 15, 1982, they filed an amended schedule changing their homestead exemption from the $20,000 equity they had in their New Town house to the $80,000 equity they had in the farm.2 ■ The chapter 7 trustee and Westlie Motor Company objected, arguing that the Lindbergs were bound by their original homestead designation. The bankruptcy court denied the objection and allowed the change, reasoning that since chapter 13 debtors are not allowed exemptions, the Lindbergs were free to claim what exemptions they desired at the time of conversion.

The trustee appealed to the district court,3 arguing that when a chapter 13 case is converted to a chapter 7 case, the date of filing the chapter 13 petition determines what exemptions may be claimed. The trustee further argued that since the Lind-bergs resided at their New Town home when they filed their chapter 13 petition, only that home could be claimed as a homestead. The district court first agreed with the trustee and reversed the bankruptcy court. Rehearing was granted, however, and the district court found that the bankruptcy judge did not abuse his discretion in granting an amendment to the Lindbergs’ schedule under Bankruptcy Rule 110, which allows amendments to schedules as a matter of course.4 This appeal followed.

The question of whether the date of filing the chapter 13 petition or the date of conversion to chapter 7 determines what exemptions may be claimed has not been answered by any of the circuit or district courts. The Bankruptcy Court for the District of Oregon has addressed this question and concluded that the date of conversion controls. In re Stinson, 27 B.R. 18 (Bkrtcy.D.Or.1982). We agree with this conclusion.

The trustee argues that pursuant to 11 [1089]*1089U.S.C. § 348(a)5 the date the chapter 13 petition was filed determines what exemptions are available in a converted case. He argues that Bankruptcy Rule 110 cannot be interpreted to permit what § 348(a) prohibits: the use of another date to determine what exemptions are available.

When § 348(a) is examined in conjunction with the code section on exemptions, § 522, these sections do appear to suggest that the date of the chapter 13 petition controls. Section 522(b)(2)(A) states that individual debtors may exempt from property of the estate any property that is exempt under federal, state or local law applicable on the date of filing the petition. And § 348(a) states that when a case is converted from one chapter to another, the conversion does not effect a change in the date of the filing of the petition.

These two sections, however, do not give the complete answer to our problem because other code sections and bankruptcy rules create a tension, if not a conflict, with them. When we consider the other sections and rules that have some bearing on our problem, we must conclude that § 348(a) and § 522(b)(2)(A) do not prohibit the Lindbergs from claiming a homestead exemption in their farm.

We look first at the purpose behind the debtor’s designation of exemptions in the chapter 13 statement. As the bankruptcy court in the instant case correctly observed, debtors list exemptions for a limited purpose in chapter 13 proceedings. Exemptions are listed in the chapter 13 statement only to permit creditors to determine whether the chapter 13 plan should be accepted, and for the court to determine in confirming the plan that the creditors would receive more under the plan than they would in a chapter 7 liquidation. See 11 U.S.C. § 1325(a)(4).6 In contrast to a chapter 7 liquidation, in a chapter 13 case the debtor remains in possession of, his property. 11 U.S.C. § 1327(b) and (c) make clear that when there is confirmation, as in this case, of a chapter 13 plan, the confirmation of the plan vests all of the property of the estate in the debtor free and clear of any claim or interest of any creditor provided for by the plan unless the plan otherwise provides. In the case before us there was no such provision and, accordingly, there was no estate from which property could be exempted. See In re Berry, 30 B.R. 36, 38 (Bkrtcy.E.D.Mich.1983); In re Stinson, 27 B.R. at 20; cf. 5 Collier on Bankruptcy, (15th Ed.), § 1300.81 at 1300-158-59.

In a chapter 7 liquidation, a debtor may exempt from the property of the estate homesteads such as those in issue in this case. 11 U.S.C. § 522(b). For this purpose the debtor files a list he claims exempt and, unless there is objection,7 the property claimed is exempt. 11 U.S.C. § 522(Z). A chapter 7 trustee has the duty of collecting and reducing to money the property of the estate for which he serves. 11 U.S.C. § 704(1). Disposition of the property of the estate is the subject of specific statutory treatment. 11 U.S.C. §§ 725 and 726. [1090]*1090Exemption from the estate in a chapter 7 liquidation thus removes the exempted property from the estate which is to be liquidated by the trustee.

The new Bankruptcy Rules that took effect on August 1, 1983 confirm this distinction. Rule 4003 states that debtors shall list exemptions in a schedule of assets.

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735 F.2d 1087, 10 Collier Bankr. Cas. 2d 1255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-lindberg-ca8-1984.