Debtor Larry Kenneth Alexander appeals from the bankruptcy court’s 1 June 30, 1999, order sustaining the chapter 7 trustee’s objection to Alexander’s claimed homestead exemption. 2 We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we affirm.
BACKGROUND
On June 18, 1998, debtor Larry Kenneth Alexander filed a chapter 13 bankruptcy petition which listed his address as 175 N. Lexington Parkway, St. Paul, Minnesota. The debtor then filed Schedule C on July 6, 1998, claiming a homestead exemption for property located at 875 Laurel Avenue, St. Paul, Minnesota. The chapter 13 trustee filed a timely objection to the debtor’s homestead exemption, asserting that as the debtor was living at the Lexington Parkway residence at the time of petition filing, he could not claim the Laurel Avenue residence for a homestead exemption. On November 30, 1998, an evidentiary hearing was held wherein the debtor admitted that at the time he filed his chapter 13 petition, he was living at the Lexington Parkway residence but that his family was living at the Laurel Avenue residence. By an order dated December 3, 1998, the bankruptcy court sustained the chapter 13 trustee’s objection and involuntarily converted the case to chapter 7. At the time of conversion, the debtor was living at the Laurel Avenue residence. The debtor appealed the bankruptcy court’s order of December 3, 1998, to the district court, asserting, inter alia, that the bankruptcy court erred in (1) denying confirmation of the debtor’s chapter 13 plan; (2) sustaining the chapter 13 trustee’s objection to the debtor’s homestead exemption; and (3) converting the case to chapter 7. By an order dated August 4, 1999, the district court affirmed the bankruptcy court’s, order of December 3, 1998, in all respects.
On December 21, 1998, the debtor filed a Schedule C in the converted chapter 7 case, claiming a homestead exemption for his Laurel Avenue residence. The section 341 creditors’ meeting in the converted chapter 7 case was held on January 25, 1999. On February 22, 1999, the chapter 7 trustee filed an objection to the debtor’s homestead exemption on the same basis that was asserted by the chapter 13 trustee; namely, that the debtor’s Laurel Avenue residence did not qualify for a homestead exemption in the converted chapter 7 case because the debtor was living elsewhere at the time he filed his chapter 13 petition. On March 17, 1999, the bankruptcy court conducted a hearing to determine whether the debtor could exempt his Laurel Avenue residence as a homestead in the converted chapter 7 case and thereafter issued the order now on appeal,
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which sustained the trustee’s objection to the debtor’s homestead exemption for the Laurel Avenue residence. The debtor now argues, inter alia, that his entitlement to a homestead exemption for the Laurel Avenue residence in the converted chapter 7 case is governed by
Armstrong v. Lindberg (In re Lindberg),
STANDARD OF REVIEW
On appeal, we review the bankruptcy court’s findings of fact for clear error and its conclusions of law
de novo.
Fed. R. Bankr.P. 8013;
In re Usery,
DISCUSSION
I. Debtor’s “Motion to Strike”
By a letter dated August 16, 1999, the chapter 7 trustee (the appellee in this case) submitted to this Court a copy of the U.S. District Court’s opinion and order of August 4, 1999. The debtor responded by filing a “motion to strike,” seeking to bar this Court from taking into consideration the district court’s opinion and order of August 4, 1999. The debtor asserts that the district court’s opinion should be excluded from our consideration because it is prejudicial and because it was not a part of the record developed before the bankruptcy court when it issued its order of June 30, 1999 — the order from which the present appeal was taken.
“Ordinarily an appellate court should base its decision on the facts as they existed at the time the trial court made its decision.”
Frankfurth v. Cummins (In re Cummins),
In
Cummins,
a real estate broker brought an adversary proceeding against the debtors to recover his real estate commission.
Cummins,
In the present case, the debtor’s argument closely resembles the argument made by the debtors in Cummins, and a similar result is appropriate. The debtor has not demonstrated how his present ap *914 peal to this Court would be prejudiced by our taking notice of the district court’s opinion and order of August 4, 1999. Accordingly, we take judicial notice of the aforementioned decision, and the debtor’s “motion to strike” is denied. Moreover, although our inquiry regarding the homestead exemption issue may be similar to that of the district court, our procedural context is different. The district court was concerned with the chapter IS trustee’s objection to the debtor’s homestead exemption. Thus, the district court was not squarely faced with the issue of whether a debtor may claim a homestead exemption in a converted chapter 7 case based on residency at the time of conversion. Because the district court did not address this issue, its opinion need not be given preclusive effect and should not impede this Court’s determination of the issue now presented. The present appeal arises in the context of the converted chapter 7 case wherein the debtor has attempted to exempt the homestead where he resided at the time of conversion. Therefore, this Court is in a proper procedural context to address the debtor’s argument that homestead exemption eligibility is determined according to the date of conversion. First, however, we will dispose of the debtor’s argument that the chapter 7 trustee’s objection was untimely filed.
II. Timeliness of the Chapter 7 Trustee’s Objection
On December 21, 1998, the debtor filed an amended Schedule C, claiming his Laurel Avenue homestead as exempt in the converted chapter 7 case. On January 25, 1999, the creditors’ meeting for the converted chapter 7 case was held. On February 22, 1999, the trustee in the converted chapter 7 case
filed
an objection to the debtor’s homestead exemption. The debtor asserts that the chapter '7 trustee’s objection was untimely under Rule 4003(b) because it was not filed within 30 days after the debtor filed his amended schedule. The debtor argues that objections to exemptions must be filed within 30 days after an amendment to Schedule C or within 30 days after the
original creditors’ meeting in the chapter 13 case,
citing
In re Ferretti
The trustee or any creditor may file objections to a debtor’s claimed exemptions within 30 days after the conclusion of the section 341 creditors’ meeting, or within 30 days after the filing of any amended schedules. Fed. R. Bankr.P. 4003(b). A trustee who fails to timely file an objection to an exemption pursuant to Rule 4003(b) is precluded from objecting at a later time, and the disputed asset is exempt.
Taylor v. Freeland & Kronz,
Leydet, Bergen, Kleinman, Weissman,
and
Jenkins
stand for the proposition that the trustee in a converted chapter 7 case may timely file objections to exemptions within 30 days after the creditors’ meeting in the converted case.
Halbert
reached a different conclusion based largely on the idea that once property is successfully exempted by the debtor in possession in the chapter 11 case, it is no longer part of the bankruptcy estate, and an objection in the converted chapter 7 case would not be sufficient to bring the previously exempted property back into the estate.
Halbert,
Furthermore, part of the basis for the
Ferretti
court’s decision was that a different holding would “have the effect of setting aside and emasculating” a previous order by the bankruptcy court in that case.
Ferretti,
Finally, we are unpersuaded by the reasoning of the court in
Beshirs.
As the court observed in
Leydet,
nothing in the Bankruptcy Code or Bankruptcy Rules restricts the term “meeting of creditors” in Rule 4003(b) to refer only to the original meeting of creditors that occurred before conversion.
Leydet,
III. Debtor’s Homestead Exemption
At the time the original chapter 13 petition was filed, the debtor was living at his Lexington Parkway property. At the time of conversion, the debtor was living at his Laurel Avenue property. The debtor asserts that he can claim a homestead exemption for his Laurel Avenue property, citing
Armstrong v. Lindberg (In re Lind-
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berg),
In
Lindberg,
the court ruled that when a case is converted from chapter 13 to chapter 7, the date of conversion controls what exemptions may be claimed in the converted chapter 7 case.
Lindberg,
However, later decisions by the Eighth Circuit cast doubt on the
Lindberg
decision’s continued viability in light of the 1994 amendments to the Bankruptcy Code.
See Armstrong v. Harris (In re Harris),
In 1994; the Bankruptcy Code was amended to include the following provision:
... [W]hen a case under chapter 13 of this title is converted to a case under another chapter of this title—
(A) property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion;
11 U.S.C. § 348(f)(1)(A) (italics added). Moreover, conversion of a case from one chapter to another “does not affect a change in the date of the filing of the petition.” 11 U.S.C. § 348(a). The Bankruptcy Code clearly indicates that in a case converted from chapter 13, property of the estate in the converted case is determined according to the filing date of the original chapter 13 petition. Therefore, exemption eligibility should also be determined as of the original chapter 13 filing date. This principle is consistent with the
Harris
decision, the
Peterson
decision, and the
Lindberg
court’s reasoning that property of the estate and exemption eligibility should be determined as of the same date. Indeed, other courts have concluded that
Lindberg
has been superseded by the 1994 Bankruptcy Code amendments and that exemption eligibility is determined as of the date the original chapter 13 petition was filed.
See Lowe v. Sandoval (In re Sandoval),
CONCLUSION
Based on the foregoing, the debtor’s “motion to strike” is denied, and the bankruptcy court’s order of June 30, 1999, is affirmed.