In Re Patterson
FINAL ORDER
This ease is before the Court on appeal from the- Unitеd States Bankruptcy Court for the Southern District of Texas. The Court has jurisdiction pursuant to 28 U.S.C. 158(a). Appellants, James E. and Shirley J. Patterson, appeal from the Bankruptcy Court’s holding that the exemptions which may be claimed are determined as of the date of the original filing of their Chapter
*85
13 case and not as of the date of conversion to Chapter 7. No opposition to Appellants’ position has been filed. Conclusions of law made by the Bankruptcy Court are subject to
de novo
review by this Court, while factual findings axe reviewed undеr a “clearly erroneous” standard.
In re Missionary Baptist Foundation of America, Inc.,
Initially, the Court feels сompelled to provide a brief procedural bаckground to explain the six-year delay in ruling. This appeаl was filed in August 1988 and dismissed in December 1988 because Appellаnts failed to file a brief. Subsequently, in February 1989, Appellants’ motion for reconsideration was granted but the case errоneously remained listed on the Court’s records as closеd. A request for status report filed in March 1992 was apparently sent directly to the file instead of to the Court. A recent telephone call from Appellants’ counsel has nоw brought this case to the Court’s attention.
The facts involved аre undisputed. Debtors filed a Chapter 13 proceeding and listed their residence as their homestead. There was subsequently a foreclosure and sale of the residence and, when the Chapter 13 proceeding was convertеd to Chapter 7, Debtors amended to claim forty acrеs of rural property as their exempt homestead. This amendment occurred before the Section 341 meeting оf creditors and before the Trustee took any action in reliance on the prior schedules. The Trustee initially оbjected to the amendment, but later withdrew the objectiоn based on
In re Lindberg,
The Bankruptcy Court rejected the Eighth Circuit’s opinion in
Lindberg
and, based on the apрlicable statutory provisions and the Fifth Circuit’s holding in
In re Williamson,
As noted by the Lindberg Court, there are a number of considerations relating to the administration of Chapter 13 cases which override the statutory language. Additionally, the Fifth Circuit in Williamson specifically stated that it was not holding that Lind-berg is wrong, only that it was inapplicable to conversions from Chapter 11 to Chapter 7. This Court finds that, if called upon to do so, the Fifth Circuit would likely reach the same decision as the Eighth Circuit in Lindberg. Accordingly, for the reasons stated by the Lindberg Court, it is hereby
ORDERED that the decision of the United States Bankruptcy Court issued July 12, 1988 is REVERSED and Debtors’ amendment to claim the 40-acre property as exempt homestead is allowed.
THIS IS A FINAL ORDER.