WAYNE E. BELL, JR., APPELLANT,
V.
DEBORAH BELL, APPELLEE.
| [1] | UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term,
1998 |
| [2] | Docket No. 98-5047 |
| [3] | Keywords: conversion, Chapter 11, Chapter 7, exemption, object |
| [4] | September 20, 2000 |
| [5] | IN RE: WAYNE E. BELL, JR., DEBTOR. WAYNE E. BELL, JR., APPELLANT, V. DEBORAH BELL, APPELLEE. |
| [6] | Peter H. Banse, Banse & Banse, P.C., Manchester, Vt, for
Appellant. James O'neill (John R. Canney III, on the brief), John R.
Canney III, P.C., Rutland, Vt, for Appellee. |
| [7] | Before: Leval and Sack, Circuit Judges, and Moran, District Judge.
*fn* |
| [8] | The opinion of the court was delivered by: Leval, Circuit Judge |
| [9] | Argued: April 1, 1999 |
| [10] | Appeal from the judgment of the United States District Court for the
District of Vermont (J. Garvan Murtha, C.J.) affirming an order entered
by the United States Bankruptcy Court for the District of Vermont
(Francis G. Conrad, Bankr. J.). The district court held that the
conversion of a bankruptcy case from a Chapter 11 proceeding to a
Chapter 7 proceeding triggers a new period for filing objections to the
debtor's claimed exemptions pursuant to Fed. R. Bankr. P. 4003(b). The
Court of Appeals (Leval, J.), holds that (1) no such renewed period for
objections is triggered; (2) the Chapter 7 trustee's objection was
untimely; and (3) absent timely objection, property claimed as exempt
was exempt pursuant to 11 U.S.C. § 522(l) and revested in debtor. |
| [11] | VACATED and REMANDED. |
| [12] | Judge Moran dissents by separate opinion. |
| [13] | This appeal raises the question whether the conversion of a bankruptcy
case from Chapter 11 to Chapter 7 triggers a new period for filing
objections to property claimed as exempt during the Chapter 11
proceeding. We hold that it does not. This is a question of first
impression in the Courts of Appeals. *fn1 |
| [14] | Wayne E. Bell, Jr. (the debtor) appeals from the judgment of the
United States District Court for the District of Vermont (J. Garvan
Murtha, C.J.) affirming an order of the United States Bankruptcy Court
for the District of Vermont (Francis G. Conrad, Bankr. J.). On
conversion of the debtor's case from Chapter 11 to Chapter 7, the
Chapter 7 trustee filed an objection to certain assets previously
claimed as exempt by the debtor, on the ground that, in claiming the
exemption, the debtor had undervalued them. The bankruptcy court
sustained the trustee's objection, rejecting debtor's argument that,
because the objection was not filed within 30 days after the conclusion
of the meeting of creditors in the Chapter 11 proceeding, it was
untimely under Fed. R. Bankr. P. 4003(b). On review, the district court
affirmed the bankruptcy court's order, holding that the conversion of a
case from Chapter 11 to Chapter 7 triggers a new period for objections
to exemptions, running from the conclusion of the post-conversion
meeting of creditors. We disagree. |
| [15] | Because the Rules require not only that objections be filed within 30
days of the conclusion of the meeting of creditors, see Rule 4003(b); 11
U.S.C. § 522(l), but also that the meeting of creditors itself be
convened within 40 days of the order for relief, see 11 U.S.C. § 341;
Rule 4003(b), Rule 2003(a), and because conversion does not change the
date of the order for relief, see 11 U.S.C. § 348(a), we conclude that
conversion does not reset the limitations period for filing objections
to a debtor's claimed exemptions. A new period for objections
furthermore would be incompatible with the debtor's substantive property
rights in property timely exempted under 11 U.S.C. § 522(l). We,
therefore, hold that the conversion of a case from Chapter 11 to Chapter
7 does not initiate a new period for objections to exemptions claimed
during the Chapter 11 proceeding. *fn2 |
| [16] | Applying this rule of law to the undisputed facts of this case we
conclude: (1) the last date for timely objection to debtor's claimed
exemptions was June 13, 1997; (2) the Chapter 7 trustee's objection to
debtor's exemption, filed on November 19, 1997, was untimely; (3) as of
June 14, 1997, by operation of 11 U.S.C. § 522(l), the property claimed
as exempt was exempt; (4) therefore, it no longer formed part of the 11
U.S.C. § 541 estate and had revested in the debtor, free of claims. |
| [17] | Accordingly, we vacate the district court's judgment and remand. |
| [18] | I. BACKGROUND |
| [19] | A. The Facts and Proceedings Below |
| [20] | The facts are straightforward and not in dispute. On June 13, 1996,
Wayne E. Bell, Jr. (the debtor) filed a petition for bankruptcy under
Chapter 11. The debtor elected to take his state law exemptions pursuant
to 11 U.S.C. § 522(b)(2). Among the assets that he claimed as exempt on
his Schedule C filing were 490 shares in Rockwell's Quality, Inc.
("Rockwell's"), a closely-held Vermont corporation, of which
he is the principal officer and director, and which operates a small
restaurant in Manchester, Vermont, known as The Quality. The debtor
valued these shares at $490 and claimed the whole $490 as exempt under
Vermont's catchall exemption. See Vt. Stat. Ann. tit. 12, § 2740(7). *fn3 |
| [21] | On August 12, 1996, the United States trustee convened a meeting of
creditors pursuant to 11 U.S.C. § 341(a) (the "Original
Meeting"). The representative of the United States trustee examined
the debtor and the meeting was then adjourned to November 6, 1996. The
meeting was never reconvened but on May 14, 1997, when the debtor filed
his Plan and Disclosure Statement the clerk entered on the docket sheet
the notation "Terminate Deadline Re: First Meeting." *fn4
It is undisputed that no objection was raised to the exemptions claimed
by the debtor during these Chapter 11 proceedings. |
| [22] | On September 24, 1997, the case was converted to a Chapter 7
proceeding, pursuant to 11 U.S.C. § 1112(b), and an interim Chapter 7
trustee was appointed, pursuant to 11 U.S.C. § 701. On October 16,
1997, another meeting of creditors was convened (the
"Post-Conversion Meeting"). This meeting was adjourned to
November 13, 1997. |
| [23] | On November 19, 1997-that is, 189 days after the conclusion of the
Original Meeting- the Chapter 7 trustee filed an objection to the
debtor's claimed exemption of the 490 shares of Rockwell's stock on the
ground that the debtor had underestimated their value. At a hearing on
January 6, 1998, the bankruptcy court sustained the trustee's objection
to the exemption; the court rejected the debtor's argument that, because
the objection had not been filed within thirty days of the Original
Meeting of creditors, it was untimely. *fn5
The bankruptcy court entered a written order to this effect on January
26, 1998. On review, the district court affirmed the bankruptcy court,
holding that when a bankruptcy proceeding is converted from a Chapter 11
proceeding to a Chapter 7 proceeding, a new thirty-day objection period
begins to run from the conclusion of the post-conversion meeting of
creditors. See Bell v. Obuchowski (In re Bell), No. 1:98CV111, slip op.
at 3 (D. Vt. June 8, 1998). Debtor appealed. *fn6 |
| [24] | B. Relevant Law |
| [25] | When an individual debtor petitions for bankruptcy he is entitled to
claim certain property as exempt from the estate. See 11 U.S.C. §
522(b) (allowing debtor to elect to take exemptions provided by state or
federal law); id. § 522(l) (requiring debtor to file list of property
claimed as exempt); Fed. R. Bankr. P. 4003(a). Any creditor and the
bankruptcy trustee may file objections to the debtor's list of property
claimed as exempt. See Fed. R. Bankr. P. 4003(b). *fn7
However, absent special circumstances, these objections must be filed
"within 30 days after the conclusion of the meeting of creditors
held pursuant to Rule 2003(a)." Id. If no objections are made, then
"the property claimed as exempt . . . is exempt." 11 U.S.C. §
522(l). |
| [26] | The Bankruptcy Code provides that "[w]ithin a reasonable time
after the order for relief in a case under this title, the United States
trustee shall convene and preside at a meeting of creditors." 11
U.S.C. § 341(a). Rule 2003(a) of the Rules of Bankruptcy Procedure
requires "a meeting of creditors to be held no fewer than 20 and no
more than 40 days after the order for relief." The commencement of
a voluntary case under Chapter 11 constitutes an order for relief. See
11 U.S.C. § 301. The conversion of a case initially brought under one
chapter of the Bankruptcy Code to a case under another chapter also
constitutes "an order for relief under the to which the case is
converted," but generally "does not effect a change in the
date of . . . the order for relief." 11 U.S.C. § 348(a). |
| [27] | On conversion, the Bankruptcy Rules expressly provide that a new time
period shall commence for the filing of claims, pursuant to Fed. R.
Bankr. P. 3002, for the filing of a complaint objecting to discharge,
pursuant to Fed. R. Bankr. P. 4004, and for the filing of a complaint to
obtain a determination of dischargeability, pursuant to Fed. R. Bankr.
P. 4007. See Fed. R. Bankr. P. 1019(2). However, Rule 1019(2) includes
no reference to a new period for the filing of objections to a debtor's
claimed exemptions, pursuant to Fed. R. Bankr. P. 4003(b). |
| [28] | II. DISCUSSION |
| [29] | A. Standard of Review |
| [30] | In an appeal from a district court's review of a bankruptcy court
ruling, our review of the bankruptcy court is independent and plenary.
See FCC v. NextWave Personal Communications, Inc. (In re NextWave
Personal Communications, Inc.), 200 F.3d 43, 50 (2d Cir. 1999) (per
curiam). We accept its factual findings unless clearly erroneous, but
review its conclusions of law de novo. See id. |
| [31] | B. Analysis |
| [32] | The debtor argues that the plain meaning of 11 U.S.C. § 522(l) read
together with Rule 4003(b) controls the outcome of this case: unless
timely objections are filed, property claimed as exempt is exempt. Here,
there is no dispute that (1) no objections were filed within 30 days of
the Original Meeting of creditors and (2) no extension of that time
limit was sought or obtained. See Fed R. Bankr. P. 4003(b). Therefore,
he argues the property was exempt. See 11 U.S.C. § 522(l). |
| [33] | If the case had been in Chapter 7 or Chapter 11 since its inception
and had involved no conversion, this argument would be unassailable. The
Bankruptcy Rules expressly limit a bankruptcy court from extending the
time period for objections, except as provided in Rule 4003(b) itself.
See Fed. R. Bankr. P. 9006(b)(3) ("The court may enlarge the time
for taking action under Rule[] . . . 4003(b) . . . only to the extent
and under the conditions stated in [that] rule[]."). By its terms
Rule 4003(b) allows an extension of the time period for filing
objections only if the extension is granted within the thirty-day period
itself. *fn8 In Taylor v. Freeland
& Kronz, 503 U.S. 638 (1992), the Supreme Court interpreted 11
U.S.C. § 522(l) and Rule 4003(b) strictly, holding that a Chapter 7
trustee could not contest the validity of a claimed exemption once the
thirty-day period for objections had run and no extension had been
obtained within that period, notwithstanding that the debtor had no
colorable basis for claiming the exemption. The Supreme Court opined:
"Deadlines may lead to unwelcome results, but they prompt parties
to act and they produce finality." Taylor, 503 U.S. at 644. Were
this a simple Chapter 7 case, therefore, the trustee's objections would
be barred as untimely under the Bankruptcy Rules themselves and binding
precedent. |
| [34] | However, the appellee and the dissent argue that conversion from
Chapter 11 to Chapter 7 produces a different result. See Appellee Br. at
6-9. Because Taylor did not concern a conversion between two chapters of
the Bankruptcy Code, they argue that its holding does not compel any
particular result in this case. See dis. op. post at [page 1 & n.1];
see also In re de Kleinman, 172 B.R. 764, 768 (Bankr. S.D.N.Y. 1994)
("The Taylor case, however, did not address the effect of a
conversion . . . and the holding in Taylor does not dictate the outcome
of [this case]."); In re Havanec, 175 B.R. 920, 923 (Bankr. N.D.
Ohio 1994) (Taylor "does not purport to determine" which
meeting of creditors determines the period for objections in a
conversion case). While we concede that Taylor does not directly control
this case, both it and the strictures of Rule 9006 counsel that
"courts should be wary of modifying the operation of Rule 4003(b)
for policy reasons they deem expedient." In re Brown, 178 B.R. 722,
725 (Bankr. E.D. Tenn. 1995). |
| [35] | Appellee contends that conversion gives rise to a new period for
objections. Textually, the argument for a new period for objections
begins with Fed R. Bankr. P. 4003(b), which provides that objections may
be filed "within 30 days after the conclusion of the meeting of
creditors held pursuant to Rule 2003(a)." In turn, Fed. R. Bankr.
P. 2003(a) requires that a meeting of creditors "shall . . . be
held no fewer than 20 and no more than 40 days after the order for
relief." See also 11 U.S.C. § 341(a) (providing that United States
trustee shall convene a meeting of creditors "[w]ithin a reasonable
time after the order for relief"). The conversion of a case from
Chapter 11 to Chapter 7 "constitutes an order for relief." 11
U.S.C. § 348(a). Appellee, therefore, argues that (1) because the
conversion is an "order for relief," it requires the convening
of a new meeting of creditors, and (2) because the time period for
objections is counted from the conclusion of the meeting of creditors,
the text of the Bankruptcy Code and Rules plainly requires a new time
period for objections when a case converts. Put simply, because there is
a new meeting of creditors there is a new period to object. |
| [36] | We do not deny the superficial appeal of this reasoning. It was
adopted by the lower courts and the dissent argues vigorously that we
affirm it on appeal. See dis. op. post at [page 2-3]. The same reasoning
has been endorsed by several bankruptcy courts. See, e.g., In re Havanec,
175 B.R. at 921; In re de Kleinman, 172 B.R. at 768-69; Matter of
Bergen, 163 B.R. 377, 379 (Bankr. M.D. Fla. 1994); LaRossa v. Leydet (In
re Leydet), 150 B.R. 641, 643-44 (Bankr. E.D. Va. 1993). We reject it
because we find it incompatible with both the language and the purposes
of the Code. |
| [37] | The Bankruptcy Code presents three significant bars to appellee's
reading: (1) the Post-Conversion Meeting was not "a meeting of
creditors held pursuant to Rule 2003(a)," Fed R. Bankr. P. 4003(b),
in that it was not convened within 40 days of the order of relief; (2)
the period for objections is not within the specifically enumerated
exceptions to the general rule that the date of the "order for
relief" is unaffected by conversion, see 11 U.S.C. § 348(a), (b),
therefore this limitations period remains unaffected by conversion; and
(3) allowing a new objections period is incompatible with the previously
effected exemption of the debtor's property under 11 U.S.C. § 522(l)
and impermissibly allows a procedural rule to abridge a substantive
right, see 28 U.S.C. § 2075. We develop each of these arguments below. |
| [38] | We, therefore, cannot agree with the dissent that this case presents a
choice between two policy positions, both with "strong textual
support." Dis. op. post at [page 1]. We hold that when a case is
converted from Chapter 11 to Chapter 7 there is no new period to object
to previously claimed exemptions. While we reach this conclusion on the
basis of statutory construction alone, we also find unpersuasive those
lower courts that have held that our conclusion ignores the policy of
the Code and the "practicalities" of its administration. |
| [39] | C. Statutory Construction |
| [40] | 1. The Post-Conversion Meeting was not a "meeting of creditors
held pursuant to Rule 2003(a)" |
| [41] | Read "[l]iterally," In re Havanec, 175 B.R. at 921, neither
Rule 4003(b) nor Rule 2003(a) supports the appellee's argument. See also
dis. op. post at [page 3]. Although it is true that a conversion
"constitutes an order for relief" under 11 U.S.C. § 348(a),
that very section also states that a conversion "does not effect a
change in the date of . . . the order for relief." Id. (emphasis
added). Here, debtor's voluntary filing of a petition under Chapter 11
on June 13, 1996, constituted an "order for relief." See 11
U.S.C. § 301. The date of that "order for relief" was the
date of the commencement of the voluntary case. See id. Under section
348(a), conversion leaves that date unchanged; accordingly, all
provisions of the Code that are keyed to that date are also unaffected
by conversion. See F & M Marquette Nat'l Bank v. Richards, 780 F.2d
24, 26 (8th Cir. 1985); 3 Collier on Bankruptcy ¶ 348.02, at 348-6
(Lawrence P. King ed., 15th ed. rev. 1999). The time periods for holding
a meeting of creditors established by section 341(a) and Rule 2003(a)
are keyed to "the order for relief." *fn9
Hence, a meeting of creditors convened "pursuant to Rule
2003(a)" is convened within 40 days (subject to extension to 60) *fn10
of the order for relief-in this case, within 40 (or 60) days of the
commencement of the voluntary case under Chapter 11, on June 13, 1996.
The Post-Conversion Meeting of creditors was not convened until October
16, 1997, sixteen months after the order for relief. In this case, the
"meeting of creditors held pursuant to Rule 2003(a)" referred
to in Rule 4003(b) was the Original Meeting, convened on August 12,
1996, shortly after the commencement of the Chapter 11 case, and not the
Post-Conversion Meeting convened over a year later after the conversion
to Chapter 7. |
| [42] | We therefore reject the construction that "[r]ead literally, . .
. Rule 4003 permits two 30-day periods during which objections may be
made to exemptions claimed by a debtor." In re Havanec, 175 B.R. at
921. Because there is one date of the order for relief (regardless of
conversion), see 11 U.S.C. § 348(a), there can be only one deadline 40
(or 60) days from that date for the meeting of creditors held pursuant
to Rule 2003(a). Any appeal to Rule 4003(b) is therefore unavailing,
because Rule 4003(b) allows as timely filed only those objections filed
"within 30 days after the conclusion of the meeting of creditors
held pursuant to Rule 2003(a)." See In re Halbert, 146 B.R. 185,
189 (Bankr. W.D. Tex. 1992) (holding that post-conversion meeting of
creditors required to elect Chapter 7 trustee, pursuant to 11 U.S.C. §
702, is not meeting of creditors pursuant to Rule 2003(a)). Here, the
only meeting convened within that time period was the Original Meeting.
Therefore, Rule 4003(b)'s 30-day time period for objections began to run
from the date of the conclusion of that meeting, i.e., from May 14,
1997. Any objection to exemptions filed after June 13, 1997 was
therefore untimely. Because the Chapter 7 trustee's objection was not
filed until November 19, 1997, it was untimely. *fn11 |
| [43] | 2. Appellee's reading is not authorized by any of the specifically
enumerated exceptions to the general rule that the date of the
"order for relief" is unaffected by conversion |
| [44] | Rule 1019(2) expressly provides that conversion triggers new time
periods for filings under Rules 3002, 4004 and 4007. It does not provide
for a new time period for filing objections to exemptions under Rule
4003(b). Debtor and appellee dispute the significance of this silence.
Debtor argues that the exclusion of Rule 4003(b) from Rule 1019(2)'s
precise listing of new time periods must be taken to be intentional and
to preclude any similar treatment of the time period for objections
under Rule 4003(b). Debtor argues that such an extension would be an
unwarranted expansion of the exclusive list provided in Rule 1019(2).
Appellee responds that not to allow the extension is an unwarranted
restriction of the plain meaning of Rule 4003(b), in that disallowing
the extension limits the meaning of "meeting of creditors" to
only the first meeting of creditors in a converted case. See In re
Leydet, 150 B.R. at 643. According to this argument, Rule 1019(2) makes
no reference to extending the time periods under Rule 4003(b) because
the meaning of "meeting of creditors" so plainly embraces any
meeting of creditors that the reference was "unnecessary." In
re Leydet, 150 B.R. at 643; see also In re Havanec, 175 B.R. at 924
("For all that appears[,] the draftsmen of Rule 1019(2) might well
have concluded that the language of Rule 4003(b) was sufficiently clear
to assure that the trustee could object to claims following the
conclusion of the chapter 7 creditors meeting after the case had been
converted."); accord dis. op. post at [page 5]. |
| [45] | We reject appellee's argument. First, as noted above, the text of Rule
4003(b) does not refer to any "meeting of creditors" but
rather "the meeting of creditors held pursuant to Rule
2003(a)." As explained above, that restriction limits the time
period for objections to 30 days following the conclusion of a meeting
of creditors convened within 40 (or 60) days of the "order for
relief." Second, Rule 1019 is intended to implement 11 U.S.C. §
348 and cannot be construed independently of that section. To understand
Rule 1019 we must look to section 348. |
| [46] | The purpose of section 348 is to preserve actions already taken in the
case before conversion. See Kepler v. Independence Bank (Matter of
Ford), 61 B.R. 913, 916 (Bankr. W.D. Wis. 1986) ("The express
intent of Bankruptcy Rule 1019 which implements section 348 is to
preserve any action taken in the case prior to conversion"); 3
Collier on Bankruptcy ¶ 348.08, at 348-22 & n.2; 9 id. App. 1019,
at 1019-29 (reproducing 1983 Advisory Committee Note to Rule 1019
("This rule . . . implements § 348 of the Code. . . . The rule is
not intended to invalidate any action taken in the superseded case
before its conversion to chapter 7." *fn12
)). |
| [47] | In short, section 348 is designed to avoid precisely the resetting of
deadlines and the reopening of limitations periods that the appellee
advocates. To effect this purpose, section 348(a) establishes the
general rule that, in a converted case, the dates of the filing, the
commencement of the case and the order for relief remain unchanged by
the conversion, except as expressly provided in subsections (b) and (c).
As to "the order for relief," subsections 348(b) and 348(c)
enumerate specific exceptions to the general rule, setting out those
sections where in a converted case the date of the conversion shall
serve as the date of the "order for relief under this
chapter." *fn13 In turn, Rule
1019(2) can give effect only to these enumerated exceptions to the
general rule. *fn14 Neither section
341 nor section 702(b) (providing for the election of the Chapter 7
trustee "[a]t the meeting of creditors held under section
341") is among these enumerated exceptions. Moreover, subsection
348(c)-set out in the margin-clearly shows that Congress knew how to
draft precisely the language necessary to apply a general administrative
rule (section 341) in the special context of a converted case, such that
deadlines keyed to the meeting of creditors were reset to run from the
date of conversion. We cannot regard it as accidental or unintentional
that Congress omitted section 341 from its precisely drafted list of
circumstances as to which conversion triggers a new date for the order
for relief. Unable to point to a provision that supports her position,
the appellee implicitly asks us to redraft the Code to include a
provision that is conspicuously absent. It would be inappropriate to do
so. *fn15 |
| [48] | The reach of Rule 1019(2) is circumscribed by 11 U.S.C. § 348. Rule
1019(2) fails to mention Rule 4003(b) not because the language of Rule
4003(b) is so clear that it need not be expressly listed among the rules
with deadlines extended on conversion, see dis. op. post at [page 5],
but because there is no statutory authorization under section 348 for
extending the time to object to claimed exemptions. *fn16 |
| [49] | 3. A new objections period is incompatible with the substantive effect
of 11 U.S.C. § 522(l) and impermissibly allows a procedural rule to
abridge a substantive right |
| [50] | United Savings Ass'n v. Timbers of Inwood Forest Associates, Ltd., 484
U.S. 365, 371 (1988), teaches that "[s]tatutory construction . . .
is a holistic endeavor." Even if the Code and Rules left it
ambiguous (as they do not) whether conversion resets the deadline for
objections under Rule 4003(b), only the conclusion that it does not
"produces a substantive effect that is compatible with the rest of
the law." Timbers of Inwood Forest Assocs., 484 U.S. at 371.
Because the result advocated by the appellee and the dissent conflicts
with well-settled law on the effect of 11 U.S.C. § 522(l) on the
debtor's property rights, we must reject it. *fn17 |
| [51] | The voluntary, joint, or involuntary filing of a petition under an
applicable chapter of the Code constitutes a commencement of the case
and "creates an estate . . . [comprised, except as otherwise
provided, of] all legal or equitable interests of the debtor in property
as of the commencement of the case." 11 U.S.C. § 541(a)(1).
Thereafter, the property of the estate is distinct from the property of
the debtor. Property acquired by the estate after the commencement of
the case, see 11 U.S.C. § 541(a)(7), together with "[p]roceeds,
product, offspring, rents, or profits of or from property of the
estate," id. § 541(a)(6), is property of the estate. But property
acquired post-petition by the debtor does not enter the estate; it
remains the separate property of the debtor. See Casey v. Hochman, 963
F.2d 1347, 1351 (10th Cir. 1992) (stating "general rule that
post-petition acquisitions are property of the debtor"); accord In
re Winom Tool & Die, Inc., 173 B.R. 613, 624 (Bankr. E.D. Mich.
1994); see also 5 Collier on Bankruptcy ¶ 541.03, at 541-9 to 10
("In general, property . . . subsequently acquired by the debtor
does not become property of the estate, but, rather, becomes the
debtor's personal property, clear of all claims that are discharged in
the bankruptcy case."). |
| [52] | Such after-acquired property includes property that exits the estate
and revests in the debtor through the exemption process. As already
noted, the Code provides that "[u]nless a party in interest objects
[to the debtor's claim], the property claimed as exempt . . . is
exempt." 11 U.S.C. § 522(l) (emphasis added). It is well-settled
law that the effect of this self-executing exemption is to remove
property from the estate and to vest it in the debtor. See Owen v. Owen,
500 U.S. 305, 308 (1991) (when property becomes exempt, it is
"withdrawn from the estate (and hence from the creditors) for the
benefit of the debtor"); Redfield v. Peat, Marwick, Mitchell &
Co. (In re Robertson), 105 B.R. 440, 446 (Bankr. N.D. Ill. 1989)
("The effect of the automatic allowance of a claim of exemption due
to expiration of the 30-day period is, under well-settled case law, to
revest the property in the Debtor and end its status as property of the
estate") (internal quotation marks and citation omitted); accord In
re Halbert, 146 B.R. at 188-89 (collecting cases); In re Brown, 178 B.R.
at 726-27 (collecting cases); see also Turner v. Ermiger (In re Turner),
724 F.2d 338, 341 (2d Cir. 1983) (Friendly, J.) (where a debtor has
already "reclaimed" exempted property from the estate, a
dispute over such property is not sufficiently "related to"
the bankruptcy case to sustain federal jurisdiction under the identical
predecessor to 28 U.S.C. § 1334(b)). Cf. 11 U.S.C. § 1123(c) (in
Chapter 11, if the debtor does not propose a reorganization plan and the
court approves a plan proposed by a creditor, such plan may not provide
for the "use, sale, or lease" of exempted property unless the
debtor consents). Quite simply, property that has been exempted belongs
to the debtor. The subsequent conversion of the bankruptcy case from
Chapter 11 to Chapter 7 does nothing to disturb the debtor's rights in
that property. |
| [53] | Where property has otherwise left the Chapter 11 estate and revested
in the debtor, courts have had no difficulty in recognizing that
conversion to a Chapter 7 case "does nothing to recapture the
property." In re Brown, 178 B.R. at 727. Under 11 U.S.C. §
1141(b), "the confirmation of a plan vests all of the property of
the estate in the debtor." Once the property has so vested it
"does not re-enter the chapter 7 estate in the event of
conversion." In re Winom Tool & Die, Inc., 173 B.R. at 619; see
also Carter v. Peoples Bank & Trust Co. (In re BNW, Inc.), 201 B.R.
838, 848-50 (Bankr. S.D. Ala. 1996) (once property has vested in
reorganized entity pursuant to 11 U.S.C. § 1141(b) it is beyond the
bankruptcy court's jurisdiction; conversion to Chapter 7 can neither
confer jurisdiction nor vacate the confirmation order and recapture
property within the estate). There is no reason why property that has
left the estate by virtue of being exempted by the operation 11 U.S.C.
§ 522(l) should be treated differently from property that has left the
estate by virtue of confirmation of the plan under 11 U.S.C. § 1141(b).
Both are now the property of the debtor, form no part of the bankruptcy
estate, and are beyond the jurisdiction of the bankruptcy court. |
| [54] | In short, for creditors to have a new opportunity to object upon
conversion, property previously exempted and revested in the debtor must
somehow be restored to the estate. But the appellee identifies no
provision in the Code that effects the recapture by the estate of
previously exempted property upon conversion of a case from Chapter 11
to Chapter 7. Section 348 does not effect such a reversal. See Robb v.
Lybrook (In re Lybrook), 107 B.R. 611, 613 (Bankr. N.D. Ind. 1989)
("[Section 348] should not be read as a nullification act. It is
not designed to change what has gone before but, rather, to leave
matters as they exist on the date of conversion."), aff'd 135 B.R.
321 (N.D. Ind. 1990), aff'd 951 F.2d 136 (7th Cir. 1991); Matter of
Ford, 61 B.R. at 916 ("The express intent of Bankruptcy Rule 1019
which implements section 348 is to preserve any action taken in the case
prior to conversion."); 3 Collier on Bankruptcy ¶ 348.08, at
348-22 & n.2; 9 id. App. 1019, at 1019-29 (reproducing 1983 Advisory
Committee Note to Rule 1019 ("This rule . . . implements § 348 of
the Code. . . . The rule is not intended to invalidate any action taken
in the superseded case before its conversion to chapter 7.")). |
| [55] | While the general rule is that property acquired by the debtor
post-petition belongs to the debtor, not to the estate, Congress has
elsewhere provided exceptions. Under some chapters of the bankruptcy
code-but not Chapter 11-Congress has expressly provided for an expanded
definition of "property of the estate" which includes property
acquired post-petition by the debtor. Thus, Chapter 12 (providing for
family farm reorganizations) defines the "property of the
estate" to include "in addition to the property specified in
section 541 . . . all property of the kind specified in such section
that the debtor acquires after the commencement of the case but before
the case is closed, dismissed, or converted to a case under chapter 7 of
this title." 11 U.S.C. § 1207(a) (emphasis added). Under this
provision, courts held that the post-conversion estate under Chapter 7
included the property acquired by the debtor after filing the petition
under Chapter 12 but before conversion. See, e.g., Phillips v. White (In
re White), 25 F.3d 931, 933 (10th Cir. 1994) (upon conversion of a
Chapter 12 case to a Chapter 7 case, the debtor's after-acquired
property becomes property of the estate in the Chapter 7 case); In re
Mutchler, 95 B.R. 748, 752 (Bankr. D. Mont. 1989); Matter of Brownlee,
93 B.R. 662, 665 (Bankr. S.D. Iowa 1988). Property so acquired would, of
course, include any exempt property revested in the debtor. |
| [56] | Chapter 13 contains a substantively identical provision. See 11 U.S.C.
§ 1306(a). *fn18 Accordingly,
before 1994 most courts of appeals also held that upon conversion from
Chapter 13 to Chapter 7 all property of the Chapter 13 estate-including
after-acquired property that is part of the Chapter 13 estate pursuant
to § 1306(a)-was included in the Chapter 7 estate. See Calder v. Job
(In re Calder), 973 F.2d 862, 865-66 (10th Cir. 1992); Matter of Lybrook,
951 F.2d 136 (7th Cir. 1991) (Posner, J.); Armstrong v. Lindberg (In re
Lindberg), 735 F.2d 1087, 1090 (8th Cir. 1984). But see Bobroff v.
Continental Bank (In re Bobroff), 766 F.2d 797, 803 (3d Cir. 1985)
(suggesting in dicta that after-acquired property should not be part of
the post-conversion Chapter 7 estate because that would deter the use of
Chapter 13). In the Bankruptcy Reform Act of 1994, Congress resolved
this circuit split, but greatly mitigated the potential impact of 11
U.S.C. § 1306, by enacting 11 U.S.C. § 348(f). Under 11 U.S.C. §
348(f), on conversion of the Chapter 13 proceeding, after-acquired
property does not form part of the converted estate-unless the case was
converted in bad faith, see 11 U.S.C. § 348(f)(2). In cases of bad
faith conversion, the converted estate includes all Chapter 13 estate
property, as defined in 11 U.S.C. § 1306-i.e., the bad faith converter
receives pre-Reform Act treatment. *fn19 |
| [57] | Congress has not included in Chapter 11 a provision comparable to
sections 1207(a)(1) and 1306(a)(1) that could include in the estate
property acquired by the debtor after the initial petition. See Koch v.
Myrvold, 784 F.2d 862, 863 (8th Cir. 1986) (property obtained by the
debtor after the original petition in Chapter 11 but before conversion
to Chapter 7 does not belong to the post-conversion estate). While the
provisions of Chapter 12 or those of Chapter 13 may have lent support to
the appellee's position had the debtor's conversion arisen under one of
those chapters, the absence of comparable provisions in Chapter 11
compels the contrary result. *fn20 |
| [58] | Therefore, we conclude not only does the appellee's position have
little foundation in the text of the Code, it advocates a result that
directly conflicts with the substantive effect of 11 U.S.C. § 522(l).
Moreover, inasmuch as it relies on a procedural rule-Rule 4003(b)-in
derogation of the debtor's substantive property rights, her argument is
expressly barred. See 28 U.S.C. § 2075 (Bankruptcy "rules shall
not abridge, enlarge, or modify any substantive right."). |
| [59] | Because Rule 4003(b) requires that objections be filed within 30 days
of the conclusion of the meeting of creditors held pursuant to Rule
2003(a), see Rule 4003(b), and because the meeting of creditors held
under Rule 2003(a) must be held within 40 days of the order for relief,
see Rule 2003(a), objections made six months after the conclusion of
that meeting of creditors are untimely. And because conversion does not
change the date of the order for relief, see 11 U.S.C. § 348(a), that
conversion does not reset the limitations period for filing objections
to a debtor's claimed exemptions. Further, a new period for objections
would derogate a debtor's substantive property rights in property timely
exempted under 11 U.S.C. § 522(l). We therefore hold that: The
conversion of a case from Chapter 11 to Chapter 7 does not give rise to
a new period to object to the debtor's claimed exemptions. *fn21 |
| [60] | Applying this rule of law to the undisputed facts of this case we
conclude: (1) the last date for timely objection to debtor's claimed
exemptions was June 13, 1997; (2) the Chapter 7 trustee's objection to
debtor's exemptions, filed on November 19, 1997, was untimely; (3) as of
June 14, 1997, by operation of 11 U.S.C. § 522(l), the property claimed
as exempt became exempt; it no longer formed part of the 11 U.S.C. §
541 estate but revested in the debtor, clear of all claims that are
discharged in the bankruptcy proceedings. |
| [61] | D. Policy Considerations |
| [62] | While we rest our holding on statutory construction, courts that have
ruled that conversion from Chapter 11 to Chapter 7 gives rise to a new
period for objections have been troubled primarily by their perception
of the adverse policy consequences of our interpretation. *fn22
In their view our holding "urges an impractical and unrealistic
interpretation of the bankruptcy process." In re de Kleinman, 172
B.R. at 769. Because we find that this precisely drafted statute and the
rules promulgated under it unambiguously foreclose a new period for
objections, we may not be governed by policy considerations. *fn23
See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475
(1992) ("In a statutory construction case, the beginning point must
be the language of the statute, and when a statute speaks with clarity
to an issue judicial inquiry into the statute's meaning, in all but the
most extraordinary circumstance, is finished."). Unless it leads to
"absurd or futile" results, United States v. American Trucking
Ass'ns, 310 U.S. 534, 543 (1940), we must enforce what Congress has
commanded whether or not we agree with its policy choices. Nevertheless,
we have considered the policy arguments advanced by the dissent and by
those courts that have reached the contrary result. We do not find their
arguments compelling. |
| [63] | 1. Does our ruling encourage abusive conversions from Chapter 11 to 7? |
| [64] | Courts concluding that policy considerations compel a finding that
conversion gives rise to a new period for objections fear that our
contrary holding invites abusive filings under Chapter 11 solely for the
purpose of claiming baseless exemptions and immunizing them from
post-conversion challenge in the Chapter 7 proceedings. See, e.g., In re
Havanec, 175 B.R. at 924 ("A contrary holding would increase the
potential for abuse . . . ."); Matter of Bergen, 163 B.R. at 380;
dis op. post at [page 7]. Under this scenario-in the words of Judge
Conrad below-"many debtors could . . . file a Chapter 11, have
their 341(a) hearing, claim their exemptions, and then convert to
Chapter 7, and the trustee would be forever barred from objecting."
We find these fears overstated for several reasons. *fn24
First, individual exemptions are rarely at issue in Chapter 11 filings,
because few individuals file under this Chapter. Second, the argument is
premised on a belief that only trustees have the expertise and the
incentive to raise objections. |
| [65] | First, we note that exemptions are only available to individual
debtors. See 11 U.S.C. § 522(b) (stating in pertinent part "an
individual debtor may exempt from property of the estate . . .").
They are not available to partnerships or corporations. See, e.g.,
Matter of SA Auto-Jack, Inc., 380 F. Supp. 99, 100 (N.D. Cal. 1974)
(holding that corporations are not entitled to claim exempt property);
11 U.S.C. § 101(41) (defining "person" to include the
mutually exclusive categories of "individual, partnership and
corporation"). While it is now settled that individuals may file
their petitions under Chapter 11, whether or not they are engaged in
business as sole proprietors, see Toibb v. Radloff, 501 U.S. 157, 161
(1991), Chapter 11 was primarily intended for business reorganizations,
see id. at 162 (citing legislative history). In turn, Chapter 11 is
simply not an attractive vehicle for individual consumer bankruptcies.
Its procedures are complex, requiring greater disclosure and reporting
to court and creditors. See S. Rep. No. 95-989, at 3 (1978) reprinted in
1978 U.S.C.C.A.N. 5787, 5789. Chapter 11 filing fees are higher than
those in Chapters 7 and 13. Compare 28 U.S.C. § 1930(a)(1) (filing fee
of $155 in Chapters 7 and 13) with id. § 1930(a)(3) (filing fee of $800
in non-railroad Chapter 11). And debtors must pay additional fees each
quarter until dismissal or conversion, ranging from $250 to $10,000
depending on size of disbursements. See id. § 1930(a)(6). Further, the
Bankruptcy Reform Act of 1994 significantly increased the limits on the
debts of those eligible to file under Chapter 13, raising the limit on
unsecured debt from $100,000 to $250,000 and the limit on secured debt
from $350,000 to $750,000. See 11 U.S.C. § 109(e). *fn25
As a consequence, many more individual debtors may file under Chapter 13
who previously would have had to file under Chapter 11 if they sought
bankruptcy relief but wished to avoid the liquidation proceedings of
Chapter 7. *fn26 In short,
individuals filing under Chapter 11 are likely to be a small and
shrinking class. |
| [66] | We note that the data confirm the hypothesis that individual,
non-business Chapter 11 filings are an uncommon occurrence. Of the
85,377 bankruptcy petitions filed in this Circuit in the twelve-month
period ending September 30, 1999, only 827 (or less than 1.0%) were
Chapter 11 filings and an insignificant 101 (or less than 0.12%) were
non-business, individual filings under Chapter 11. See 1999 Judicial
Business of the United States Courts: Annual Report of the Director 271
tbl. F-2. *fn27 The number of cases
that subsequently convert to Chapter 7 is necessarily a subset of this
already insignificant group. *fn28 |
| [67] | Because only individuals may claim exemptions and because very few
individuals file Chapter 11 petitions, we do not share the fears of
those courts that have anticipated a rush of abusive filings under
Chapter 11. *fn29 Inasmuch as these
courts have been really concerned about abuse in Chapter 13 to chapter 7
conversions, these concerns are beyond the scope of our holding.
Finally, as the Supreme Court noted in Taylor, the Code and Rules
already provide significant deterrents against such abuse of bankruptcy
proceedings. See Taylor, 503 U.S. at 644; see also 11 U.S.C. §
727(a)(4)(B) (allowing denial of discharge for presentations of
fraudulent claims); Rule 1008 (requiring filings to "be verified or
contain an unsworn declaration" under penalty of perjury); Rule
9011(b) (providing for sanctions for signing certain documents not
"warranted by existing law or by a non-frivolous argument for the
extension, modification, or reversal of existing law" or lacking or
unlikely to have "evidentiary support"); 18 U.S.C. § 152
(imposing criminal penalties for fraud in bankruptcy cases). |
| [68] | Second, the argument that our holding creates the opportunity for
abusive filings is premised on the belief that only trustees will object
to improperly claimed exemptions. While a trustee as a party in interest
is entitled to object to a debtor's claimed exemptions, so too are the
creditors. Unlike the trustee's primary responsibilities under 11 U.S.C.
§ 704(1), which are exclusive to the trustee, see Matter of Perkins,
902 F.2d 1254, 1257 (7th Cir. 1990), the right to object can be
exercised by creditors. Were the right to object to exemptions
exclusively the trustee's, the appellee's fears (if not her textual
argument) would be better founded-and our holding would indeed remove
the debtor's claim of exemptions from any effective scrutiny. But this
is not the case. |
| [69] | We also find unpersuasive the argument that Chapter 11 creditors lack
either the sophistication or the incentives to exercise their right to
object. See, e.g., In re Havanec, 175 B.R. at 924 ("chapter 11
creditors . . . are likely to have neither the interest nor expertise to
[object to claimed exemptions]"); In re Bergen, 163 B.R. at 379
(without a trustee, objections must be made by creditors, and "[i]n
fact, the exemptions may be of little importance to a creditor in the
earlier stages of a Chapter 11 case. . ."). As to lack of
sophistication, Chapter 11 is premised on the assumption that the
parties are sophisticated enough to negotiate freely the terms of the
reorganization plan (subject to the statutory safeguards of 11 U.S.C. §
1129). Whatever the limitations on the sophistication of individual
creditors, creditors form committees to protect their common interests
and frequently hire experienced counsel to advance their common goals.
We are not persuaded by the argument that these same creditor parties
-or their representatives-lack sufficient sophistication to appreciate
the significance of failing to file timely objections. Further, the Code
puts creditors on notice that conversion is in many cases the debtor's
right. See 11 U.S.C. § 1112. As to lack of incentive, because the
reorganization plan may not provide that any creditor (absent consent)
receive a distribution with a present value less than that it would
receive were the debtor liquidated under Chapter 7, see 11 U.S.C. §
1129(a)(7), creditors have a direct financial interest in challenging
objections in the Chapter 11 proceeding. |
| [70] | 2. Does our ruling render the role of the Chapter 7 trustee
purposeless? |
| [71] | We are similarly unpersuaded by the argument that our holding renders
the role of the Chapter 7 trustee meaningless in a case converted from
Chapter 11. This argument is premised on the mistaken assumption that
objecting to a debtor's claimed exemptions is the primary role of the
Chapter 7 trustee. |
| [72] | The duties of a Chapter 7 trustee are set out in detail in the nine
subsections of 11 U.S.C. § 704. The duty to review and, if necessary
object to, claimed exemptions is nowhere specifically mentioned-although
it is subsumed within the general duty to "investigate the
financial affairs of the debtor." 11 U.S.C. § 704(4). Our holding
merely precludes one component of a single duty among nine enumerated
duties of the trustee. It is hard to see how this renders the trustee
purposeless. In fact, of course, the primary purpose of the trustee-to
collect, liquidate and distribute estate property thereby closing the
estate "as expeditiously as is compatible with the best interests
of [the] parties"-clearly survives our holding. 11 U.S.C. §
704(1); see Yadkin Valley Bank & Trust Co v. McGee (In re
Hutchinson), 5 F.3d 750, 753 (4th Cir. 1993) (noting "duty to close
the estate expeditiously is the trustee's 'main duty'" (citation
omitted)); Estes & Hoyt v. Crake (In re Riverside-Linden Inv. Co.),
925 F. 2d 320, 324 (9th Cir. 1991) (describing section 704(1) duty to
close estate expeditiously as "overriding responsibility" of
Chapter 7 trustee). |
| [73] | Having considered the policy objections, we cannot conclude that our
construction of the Code leads to an "impractical" and
"illogical" holding that "ignores the realities of the
bankruptcy process." E.g., In re Leydet, 150 B.R. at 644. For
certain, we cannot conclude that the result we reach through statutory
construction is "absurd or futile." While reasonable people
may disagree over the balance Congress has struck between countervailing
interests under the current statutory scheme, because we find that
statutory directive to be clear and because it does not lead to an
absurd result, under well-established principles of statutory
interpretation we must enforce it. |
| [74] | III. CONCLUSION |
| [75] | For the foregoing reasons, we hold that conversion of a bankruptcy
case from Chapter 11 to Chapter 7 does not create a new period to object
to the debtor's previously claimed exemptions. The judgment of the
District Court is REVERSED and the case is REMANDED with instructions to
VACATE the order of the Bankruptcy Court and REMAND for further
proceedings. |
| [76] | James B. Moran, Senior District Judge (dissenting). |
| [77] | The majority holds today that the trustee and creditors in a Chapter 7
case have fewer rights if the case was initiated by an individual under
Chapter 11 and then converted (voluntarily or involuntarily) to Chapter
7 than they would have if the case had been originally filed under
Chapter 7. Relying on the debatable maxim of statutory construction,
expressio unius est exclusio alterius, the majority concludes that
Congress and the Bankruptcy Advisory Committee have considered the
situation before us and rejected an opportunity for a post-conversion
meeting of creditors and an opportunity for the newly appointed Chapter
7 trustee to object to the debtor's claimed exemptions. |
| [78] | The majority overstates its case. It concludes that the contrary
position - i.e., the position adopted by the majority of bankruptcy
courts and the lower court in this case - has only "superficial
appeal" and rests solely on policy considerations. Maj. op. at
[page 10]. There is, however, a clear ambiguity in the Code with respect
to the procedures appropriate in a Chapter 11 to Chapter 7 conversion.
There is strong textual support for both positions, the closest Supreme
Court decision *fn30 does not compel
either result and there are policy considerations weighing in favor of
both interpretations. The issue is ripe for a clarifying amendment or
decision by the Supreme Court. |
| [79] | I. A Post-Conversion Objections Period is Required. |
| [80] | The argument in favor of a new objections period following a
post-conversion meeting of creditors has been well-stated on numerous
occasions. See, e.g., In re Alexander, 239 B.R. 911, 914-15 (B.A.P. 8th
Cir. 1999) (Chapter 13 to Chapter 7); In re Wolf, 244 B.R. 754 (Bankr.E.D.Mich.
2000) (Chapter 11 to Chapter 7); In re Havanec, 175 B.R. 920, 923-24 (Bankr.N.D.Ohio
1994) (same); In re Bergen, 163 B.R. 377 (Bankr.M.D.Fla. 1994) (same);
In re de Kleinman, 172 B.R. 764, 767-769 (Bankr.S.D.N.Y. 1994) (same);
In re Leydet, 150 B.R. 641 (Bankr.E.D.Va. 1993) (same); Weissman v. Carr
(In re Weissman), 173 B.R. 235 (M.D.Fla. 1994) (Chapter 13 to Chapter
7); In re Jenkins, 162 B.R. 579 (Bankr.M.D.Fla. 1993) (same). |
| [81] | Briefly, the logic is as follows: The conversion of a bankruptcy case
from one chapter to another constitutes an order for relief. 11 U.S.C.
§ 348(a). Within a reasonable time after the order for relief in a
bankruptcy case, the United States trustee must convene and preside at a
meeting of creditors. 11 U.S.C. § 341(a); see also Fed. R. Bankr. P. §
2003(a) (establishing time limits). Thus, when a case brought under
Chapter 11 is converted to a Chapter 7 proceeding, a new meeting of
creditors is convened. This new meeting is not a continuation of the
creditors meeting in the pre-conversion case, but is a separate meeting
for which a new trustee must be selected. F & M Marquette Nat'l Bank
v. Richards, 780 F.2d 24, 25 (8th Cir.1985) (citing 11 U.S.C. §
348(e)). Federal Rule of Bankruptcy Procedure 4003(b) provides that the
"trustee or any creditor may file objections to the list of
property claimed as exempt within 30 days after the conclusion of the
meeting of creditors held pursuant to Rule 2003(a)...." Thus, read
together, the provisions establish that a second objections period
begins following the post-conversion creditors meeting. |
| [82] | This result makes sense. Because the goal of a Chapter 11 proceeding
is reorganization, the trustee generally plays a more limited role than
would a trustee appointed to oversee a Chapter 7 liquidation. The
majority's approach will leave the new Chapter 7 trustee without an
opportunity to object to claimed exemptions which received little or no
scrutiny when reorganization was the focus. As the Havenac court
observed, "[t]hat job will necessarily be left to Chapter 11
creditors who are likely to have neither the interest nor expertise to
do so." 175 B.R. at 923; see also In re Bergen, 163 B.R. at 379; In
re de Kleinman, 172 B.R. at 769. |
| [83] | II. The Alternative Position |
| [84] | The majority has two principal reasons for concluding that a second
objections period is prohibited by the Code: the limited lists of
extended time periods enumerated in 11 U.S.C. § 348 and Bankruptcy Rule
1019(2), and the resulting "recapture" of previously exempted
property if a second objections period is allowed. Although I concede
that neither position is particularly tidy, I do not find the majority's
reasoning sufficiently persuasive to overcome the obvious advantages of
affording the newly-appointed Chapter 7 trustee an opportunity to object
to the debtor's claimed exemptions. |
| [85] | a. Enumerated Exceptions and Extensions |
| [86] | Section 341 of Title 11 provides, in relevant part, that |
| [87] | (a) Within a reasonable time after the order for relief in a case
under this title, the United States trustee shall convene and preside at
a meeting of creditors. |
| [88] | (b) The United States trustee may convene a meeting of any equity
security holders. |
| [89] | Rule 4003(b), calling for the commencement of a 30-day objection
period after the meeting of creditors, does not specify whether it
applies to both meetings in a converted case or just the first one after
the initial order of relief. Rule 1019(2) addresses the extension of
certain time periods upon the conversion of a case, but it does not
mention Rule 4003(b). This intentional omission, the majority argues,
follows from Congress' decision to omit § 341 from the list of
enumerated circumstances in which the date of "the order of
relief" is reset to the date of the conversion order. |
| [90] | The Debtor here filed his petition under Chapter 11 on June 13, 1996.
The commencement of a voluntary case constitutes "an order for
relief under such Chapter." 11 U.S.C. § 301. The case was
converted from Chapter 11 to Chapter 7 on September 24, 1997. According
to 11 U.S.C. § 348(a), that conversion also "constitutes an order
for relief under the chapter to which the case is converted."
Section 348(a), however, goes on to state that "except as provided
in subsections (b) and (c) of this section, [the conversion] does not
effect a change in the date of the filing of the petition, the
commencement of the case, or the order for relief." Id. (emphasis
added). Therefore, according to the majority, for the purpose of the
objections deadline, the "meeting of creditors" convened
pursuant to section 341 and Rule 2003(a) was solely the meeting convened
within 40 or 60 days of the commencement of the voluntary case, i.e.
within 40 or 60 days of June 13, 1996. See maj. op. at [page 11]. |
| [91] | F & M Marquette Nat'l Bank v. Richards, 780 F.2d 24 (8th Cir.
1985), cited by the majority in support of this position, actually
rejected an analogous argument while considering the time period for
dischargeability complaints. *fn31
The court held that a new meeting of creditors is required upon
conversion from Chapter 11 to Chapter 7. F&M, 780 F.2d at 25 (citing
11 U.S.C. § 348(e) and the Advisory Committee Note to Rule 1019(2)
("A meeting of creditors may have been held in the superseded case
as required by § 341(a) of the Code but that would not dispense with
the need to hold one in the ensuing liquidation case.")). *fn32 |
| [92] | F & M is also instructive as to the soundness of the majority's
reliance on a questionable canon of construction. Paragraph (2) of Rule
1019 used to be paragraph (3), until (2) was deleted in 1991 to
eliminate redundancy. The Advisory Committee note to the 1987 amendments
indicates that |
| [93] | "paragraph (3) of the rule is expanded to include the effect of
conversion of a Chapter 11 or 13 case to a Chapter 7 case. On conversion
of a case from Chapter 11 or 13 to a Chapter 7 case, parties have a new
period within which to file claims or complaints relating to the
granting of the discharge or the dischargeability of a debt. This
amendment is consistent with the holding and reasoning of the court in F
& M Marquette Nat'l Bank v. Richards, 780 F.2d 24 (8th Cir. 1985). |
| [94] | The note suggests that the Committee simply approved of the F&M
decision regarding dischargeability and sought to codify it in the
rules. Nothing in the advisory notes indicates that the Committee
considered and rejected provisions to deal with a host of other possible
effects of conversion. See In re Leydet, 150 B.R. at 643; In re Havanec,
175 B.R. at 924 ("[T]his omission is not compelling.... For all
that appears, the draftsmen of Rule 1019(2) might well have concluded
that the language of Rule 4003(b) was sufficiently clear to assure that
the trustee could object to claims following the conclusion of the
Chapter 7 creditors meeting after the case had been converted."). |
| [95] | There are other logical problems with the majority's reliance on the
enumerated exceptions in 348(b) and (c). For example, section 1102(a)
(calling for a meeting of creditors holding unsecured claims and
allowing a meeting of equity security holders) is on the list in section
348(b), but does not contain the phrase "the order for relief under
this Chapter." It does say that "[a]s soon as practicable
after the order for relief under Chapter 11 of this title, the United
States trustee shall appoint a committee of creditors...."
Presumably (and notwithstanding inexact drafting), the inclusion of this
section in 348(b) intends that a meeting of creditors be called as soon
as practicable after conversion to Chapter 11. For cases converted to
Chapter 7, the majority argues, there is to be no meeting because an
analogous provision did not make the list. *fn33 |
| [96] | That in turn creates further problems. Section 701(a) is included
among the enumerated provisions and provides, in those circumstances,
that promptly after conversion the U.S. trustee shall appoint "an
interim trustee." That is all well and good until one tries to
replace the interim trustee in the converted case. Section 701(b)
provides that the services of the interim trustee conclude when the
trustee duly elected under § 702 qualifies under § 322. Section 702,
however, provides that the creditors may elect one person to serve as
trustee at the meeting convened pursuant to § 341. And as the majority
repeatedly insists, there is no § 341 meeting after conversion. The
result under the majority's logic is that the interim trustee appointed
in cases converted to Chapter 7 may not be replaced by one elected by
the creditors. The term "interim" is now meaningless. |
| [97] | Or consider the application of the majority's rule to 11 U.S.C. §
303(g), which allows the court in an involuntary liquidation case to
appoint an interim trustee to take possession of the debtor's property
and to operate any business of the debtor pending trial on the
involuntary petition. The provision is keyed to the first order of
relief and is not included in the list of enumerated exceptions. It
reads |
| [98] | At any time after the commencement of an involuntary case under
Chapter 7 of this title but before an order for relief in the case, the
court, on request of a party in interest, after notice to the debtor and
a hearing, and if necessary to preserve the property of the estate or to
prevent loss to the estate, may order the United States trustee to
appoint an interim trustee under section 701 of this title to take
possession of the property of the estate and to operate any business of
the debtor. Before an order for relief, the debtor may regain possession
of property in the possession of a trustee ordered appointed under this
subsection if the debtor files such bond as the court requires,
conditioned on the debtor's accounting for and delivering to the
trustee, if there is an order for relief in the case, such property, or
the value, as of the date the debtor regains possession, of such
property. 11 U.S.C. § 303(g). |
| [99] | Without the time period being reset by conversion, the court in a case
involuntarily converted to Chapter 7 from Chapter 11 would not have the
authority to preserve certain fragile assets. |
| [100] | From these few examples, it is clear that expressio unius is simply
not a trustworthy guide through this tangle. *fn34 |
| [101] | b. Practicalities of the 11 to 7 conversion |
| [102] | Thus, it becomes necessary to set aside the competing Code
interpretations and focus on the crux of the dispute: what rights do the
trustee and creditors have after learning that the estate will now be
liquidated, and, more difficult, what is the status after conversion of
property successfully exempted during an earlier phase of the bankruptcy
case? |
| [103] | One commentator has concluded that the argument for a new objections
period is strongest when the conversion is from Chapter 12 to Chapter 7
or from Chapter 13 to Chapter 7, because property acquired by the debtor
post-petition now explicitly becomes property of the estate in the
ongoing case pursuant to 11 U.S.C. § 1207(a)(1) and § 1306(a)(1). See
Thomas Ray, The Effects of Conversion to Chapter 7 on Selected Time
Periods, 14-May Am. Bankr. Inst. J. 16 (1995). Because there is no
analogous augmentation provision for a case converted from Chapter 11,
the commentator, like the majority, believes a post-conversion
objections period is prohibited. The bankruptcy courts considering this
result, however, point to the potential for abuse under such a regime
because it would "encourag[e] debtors to increase their exemptions
simply by filing Chapter 11 and converting to Chapter 7 after the 30-day
period." In re Havanec, 175 B.R. at 924. |
| [104] | The abstract procedural debate comes sharply into focus when there is
property successfully exempted during the first phase of the case and,
after conversion, the trustee seeks the opportunity to object. The
Bankruptcy Appellate Panel for the Eighth Circuit in Alexander v.
Jensen-Carter (In re Alexander), 239 B.R. 911 (B.A.P. 8th Cir. 1999),
had no problem requiring a post-conversion meeting of creditors and a
corresponding objections period in light of the fact that the Chapter 13
trustee had successfully objected to the same homestead exemption claim
prior to conversion. The court gave no indication whether it would have
allowed the second objection if the first had been unsuccessful or had
there been no objection at all. |
| [105] | In the context of the more frequent 13 to 7 conversion, Congress has
considered an analogous question to the one presented here. Two lines of
thought had developed on the appropriate date for determining what would
be considered property of the estate when a case is converted. Several
circuits held that the filing date of the original petition should be
the date for measuring the contents of the estate, see, e.g., In re
Bobroff, 766 F.2d 797 (3d Cir. 1985), while another held that the date
of conversion would be used, see In re Lybrook, 951 F.2d 136 (7th Cir.
1991). Congress resolved the split when it passed the Bankruptcy Reform
Act on October 22, 1994, which specified that the converted estate
consists only "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) (emphasis added). Congress' purpose in enacting this
section was to eliminate the disincentive that section 1306(a)(1) placed
on a party that wanted to file under Chapter 13 but also wanted the
option to convert to Chapter 7. See 140 Cong.Rec. H10752-01, at H10765,
H10770, and H10772. Without the 1994 amendment, the converted Chapter 7
estate would include property acquired by the debtor after he filed the
original Chapter 13 petition, even though the after-acquired property
rule did not apply to cases originally filed under Chapter 7. |
| [106] | Under that section's second clause, however, property owned by the
debtor at the time the petition is filed, even if previously listed as
exempt, would be part of the converted estate, provided that it remains
in the debtor's possession on the date of conversion. Congress
reasonably chose to distinguish between after-acquired and exempt
property in 13 to 7 cases, and the distinction makes just as much sense
if the case begins under Chapter 11. *fn35
If the debtor chooses to alienate exempt property before conversion, so
be it. But for the purpose of overseeing the liquidation of an estate
once the case has been converted to Chapter 7, the trustee and creditors
should have the opportunity to evaluate and object to previously claimed
exemptions if the property remains in the debtor's possession. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [107] | *fn* The Honorable James B. Moran, Senior United States District Judge
for the Northern District of Illinois, sitting by designation. |
| [108] | *fn1 We note that the Bankruptcy
Appellate Panel for the Eighth Circuit has recently held that where a
case was converted from Chapter 13 to Chapter 7, the Chapter 7 trustee
had a new 30 day period to object to debtor's claimed exemptions. See
Alexander v. Jensen-Carter (In re Alexander), 239 B.R. 911 (B.A.P. 8th
Cir. 1999). Quite apart from the differences between a Chapter 13 to
Chapter 7 and a Chapter 11 to Chapter 7 conversion, we find that case
factually distinct in that an objection to the exemption had been timely
raised in the Chapter 13 proceeding and previously sustained by the
bankruptcy court. We underscore that our ruling applies only to
conversions from Chapter 11 to Chapter 7. See note 18, infra, and
accompanying text. |
| [109] | *fn2 Leading bankruptcy commentators
support this holding. See 9 Collier on Bankruptcy ¶ 4003.03[1], at
4003-8 (Lawrence P. King ed., 15th ed. rev. 1999); 2 William L. Norton,
Jr., Norton Bankruptcy Law & Practice 2d § 46:33 n.9 (Supp. 2000). |
| [110] | *fn3 Vt. Stat. Ann. tit. 12, §
2740(7) provides an exemption for "the debtor's aggregate interest
in any property, not to exceed $400.00 in value, plus up to $7,000.00 of
any unused amount of [certain other specified exemptions]." |
| [111] | *fn4 It is settled law that a
bankruptcy court has the authority to conclude an indefinitely adjourned
meeting. See, e.g., In re Havanec, 175 B.R. 920, 922-23 (Bankr. N.D.
Ohio 1994). In any event, neither party argues that the Original Meeting
was not "concluded" for purposes of commencing the 30-day
objection period under Fed R. Bankr. P. 4003(b). We therefore do not
address this issue, and treat the meeting as properly concluded. See
Fed. R. App. P. 28(a)(8)-(9), 28(b); LoSacco v. City of Middletown, 71
F.3d 88, 92 (2d Cir. 1995). |
| [112] | *fn5 Neither party having argued on
appeal that the trustee's objection should be treated differently
because it was directed only at the value of the exemption, we do not
address that issue, on which commentators appear split. Compare 9
Collier on Bankruptcy ¶ 4003.03[3], at 4003-12 ("[T]he debtor's
valuation of the property for exemption purposes must be accepted once
the deadline for objections has passed. Otherwise, that deadline would
be meaningless.") with 1 Robert E. Ginsberg & Robert D. Martin,
Ginsberg and Martin on Bankruptcy § 6.01[F], at 6-18 (4th ed. 1998
Supp.) ("An objection to the valuation of debtor's property claimed
as exempt differs from an objection to an exemption and need not be
raised within 30 days of the 341 meeting."). |
| [113] | *fn6 During the pendency of this
appeal the Chapter 7 trustee sold all of its interest in the 490 shares
of stock to Deborah Bell, the appellant's former wife, who was
substituted as the appellee on November 2, 1998. |
| [114] | *fn7 In pertinent part, Rule 4003(b)
reads: The trustee or any creditor may file objections to the list of
property claimed as exempt within 30 days after the conclusion of the
meeting of creditors held pursuant to Rule 2003(a) or the filing of any
amendment to the list or supplemental schedules unless, within such
period, further time is granted by the court. |
| [115] | *fn8 Writing for the majority,
Justice Thomas in Taylor v. Freeland & Kronz, 503 U.S. 638 (1992),
did not discuss Rule 9006(b)(3). In expressly and narrowly limiting the
power of courts to extend the period for filing objections, the rule
provides an "identifiable reason" precluding the equitable
arguments advanced by Justice Stevens in dissent. See id. at 647
(Stevens, J., dissenting) ("[T]here is no identifiable reason why
ordinary tolling principles that apply in other contexts should not also
apply in bankruptcy proceedings . . . ."). Cf. Zidell, Inc. v.
Forsch (In re Alaska Coastal Lines, Inc.), 920 F.2d 1428 (9th Cir. 1990)
(no equitable power exists to depart from the mandate of Rule
9006(b)(3)). Further, circuit courts have uniformly construed strictly
the power of courts under Rule 4003(b) to extend the deadline within the
30-day period: motions for the extension must be granted, not merely
filed, within the period. See Clark v. Brayshaw (In re Brayshaw), 912
F.2d 1255, 1257 (10th Cir.1990) ("There simply is no room in the
wording for construing Rule 4003(b) or Rule 9006(b) to permit granting
an extension of time to file objections outside the original thirty-day
time limit."); accord Rogers v. Laurain (In re Laurain), 113 F.3d
595, 598-99 (6th Cir. 1997); Stoulig v. Traina (Matter of Stoulig), 45
F.3d 957 (5th Cir. 1995). |
| [116] | *fn9 In turn, the time periods of
Rule 2003(a) are strictly enforced-"[t]he court may not enlarge the
time for taking action under Rule[] . . . 2003(a)." Fed R. Bankr.
P. 9006(b)(2). In the Bankruptcy Code "'may not' is prohibitive,
and not permissive." 11 U.S.C. § 102(4) ("Rules of
construction"). |
| [117] | *fn10 We note that the Original
Meeting of creditors, on August 12, 1996, was convened 60 days after the
order for relief. Rule 2003(a) allows a meeting to be convened up to 60
days from the order for relief where the place designated for the
meeting is "not regularly staffed by the United States trustee or
an assistant who may preside at the meeting." While the record is
silent on this matter, we infer that this must have occurred in the
present case, because Rule 9006(b)(2) prohibits any extension of the
time periods established under Rule 2003(a). In any event, neither party
argues that the Original Meeting of creditors was itself untimely. |
| [118] | *fn11 We do not hold that
objections first filed at or following a post-conversion meeting can
never be timely. Where the conversion between chapters happens swiftly
after entry of the original order of relief, objections filed in the
converted case may still be timely within the time periods established
by the pre-conversion case. For example, this scenario might happen
where an involuntary proceeding is brought under Chapter 11 and the
debtor voluntarily converts to Chapter 7. Similarly, the Chapter 11
meeting of creditors might be adjourned without being
"concluded," thereby tolling the 30-day objections period. We
hold only that conversion of itself does not give rise to an extension
of the time period to file objections. |
| [119] | *fn12 We note that the language of
Rule 1019 was amended in 1997 to delete the terms "superseded
case" and "original petition." The Advisory Committee
note to the 1997 Amendment clarifies that § 348, as implemented by Rule
1019, intends continuity in conversion cases. "The phrase
'superseded case' is deleted because it creates the erroneous impression
that conversion of a case results in a new case that is distinct from
the original case. Similarly, the phrase 'original petition' is deleted
because it erroneously implies that there is a second petition with
respect to a converted case. See § 348 of the Code." Fed. R.
Bankr. P. 1019 advisory committee's note to 1991 Amendments, reprinted
in 9 Collier on Bankruptcy App. 1019, at 1019-33. |
| [120] | *fn13 The enumeration of these
exceptions under 11 U.S.C. §§ 348(b) and (c) reads in full: (b) Unless
the court for cause orders otherwise, in sections 701(a), 727(a)(10),
727(b), 728(a), 728(b), 1102(a), 1110(a)(1), 1121(b), 1121(c),
1141(d)(4), 1146(a), 1146(b), 1201(a), 1221, 1228(a), 1301(a), and
1305(a) of this title, "the order for relief under this
chapter" in a chapter to which a case has been converted under
section 706, 1112, 1208, or 1307 of this title means the conversion of
such case to such chapter. (c) Sections 342 and 365(d) of this title
apply in a case that has been converted under section 706, 1112, 1208,
or 1307 of this title, as if the conversion order were the order for
relief. Of those sections relevant to a case converting into Chapter 7,
sections 727(a)(10) and 727(b) concern dischargeability; sections 728(a)
and 728(b) are special taxation provisions (and by their own terms are
not applicable where a case converts from Chapter 11); and section
701(a) relates to the appointment of the interim Chapter 7 trustee. None
of these relates to the claim of exemptions or the right to object
thereto. Sections 342 and 365(d) pertain to notice and executory
contracts and unexpired leases. |
| [121] | *fn14 For example, as noted, Rule
1019(2) extends the deadlines of Rules 4004(b) and 4007(c), which rules
govern complaints objecting to discharge and the determination of the
dischargeability of debt. Rule 1019(2) was amended in 1987 to include
reference to these rules to codify the holding in F & M Marquette
Nat'l Bank v. Richards, 780 F.2d 24 (8th Cir. 1985). See Fed R. Bankr.
P. 1019 advisory committee's note to 1987 amendments, reprinted in 9
Collier on Bankruptcy App. 1019[2], at 1019-31. That case held, in the
alternative, that conversion triggered an extension of the sixty-day
period for filing dischargeability complaints because of the operation
of 11 U.S.C. § 348(b), which includes § 727(b) as one of the Code's
provisions specifically excepted from the general rule of section
348(a). See 780 F.2d at 26 ("For purposes of the dischargeability
of debts, the conversion becomes the order for relief in the converted
proceeding." (citing 11 U.S.C. § 348(b)'s reference to 11 U.S.C.
§ 727(b)). No such statutory authorization exists in the present case. |
| [122] | *fn15 See United States v. Smith,
499 U.S. 160, 167 (1991) ("Where Congress explicitly enumerates
certain exceptions . . . additional exceptions are not to be implied . .
.") (internal quotation marks and citation omitted); Commissioner
v. Clark, 489 U.S. 726, 739 (1989) (noting that where "a general
statement of policy is qualified by an exception, we usually read the
exception narrowly in order to preserve the primary operation of the
provision"). Here, unlike Clark, where the Court invoked the
principle favoring narrow reading of exceptions in order to reject an
expansive reading of a "somewhat ambiguous exception," id.,
Congress could not have been clearer in enumerating the exact sections
and subsections of the Code to which the exception applies. None of
those excepted sections authorizes an extension of the time to file
objections. |
| [123] | *fn16 In one respect, the dissent
misperceives our holding. We do not hold that "there is no § 341
meeting after conversion." Dis. op. post at [page 6]; see also id.
at [page 1] ("the majority concludes that Congress . . . rejected
an opportunity for a post-conversion meeting of creditors"). We
hold only that a post-conversion meeting of creditors does not
automatically reset the time periods keyed to the order for relief,
unless section 348 otherwise provides. Not every section 341 meeting of
creditors is a mandatory meeting required by subsection 341(a) and Fed.
R. Bankr. P. 2003(a). And not every meeting of creditors is triggered by
the entry of an order for relief. For example, if a Chapter 7 trustee
dies or resigns, or fails to qualify under section 322 or is removed
under section 324, creditors may vote for a successor trustee at a
meeting of creditors according to the procedures set out in section 702.
See 11 U.S.C. §§ 703(a), 702(b). The election of a trustee requires a
meeting of creditors. See 11 U.S.C. § 702(b). That meeting of creditors
would be "held under section 341," id., but such a meeting is
not a mandatory meeting of creditors under subsection 341(a) and Fed. R.
Bankr. P. 2003(a), has no effect on the date of the order for relief,
and therefore does not reset the time periods keyed to that order for
relief. Clearly, not every meeting of creditors gives rise to a renewed
period for objections to claimed exemptions. The result is no different
in the case of conversion, when the election procedures set out in
section 702 are invoked by operation of section 701 rather than section
703. We do not dispute that a new meeting of creditors may be required
in order to elect a Chapter 7 trustee when a case is converted from
Chapter 11 into Chapter 7. See F&M Marquette Nat'l Bank, 780 F.2d at
25; dis. op. post at [page 4]. We hold only that such a meeting is not
the mandatory meeting required under section 341(a) and Fed. R. Bankr.
2003(a) and that it has no effect on the limitations period established
by Fed. R. Bankr. 4003(b). See In re Halbert, 146 B.R. at 189. |
| [124] | *fn17 As regards consistency with
the overall statutory scheme, we note that our holding that the
conversion of case from Chapter 11 to Chapter 7 does not trigger a new
period for objections also comports with the rule that the exemptions
that the debtor is entitled to claim are those that were in effect and
to which he was entitled at the time of the original filing and not at
the time of the conversion. See In re Beshirs, 236 B.R. 42, 45 (Bankr.
D. Kan. 1999) (Chapter 13 to Chapter 7 conversion); DiBraccio v.
Ferretti (In re Ferretti), 230 B.R. 883, 889-90 (Bankr. S.D. Fla. 1999)
(Chapter 13 to Chapter 7 conversion) (collecting cases). |
| [125] | *fn18 Section 1306(a) reads in
relevant part: Property of the estate includes, in addition to the
property specified in section 541 of this title . . . all property of
the kind specified in such section that the debtor acquires [and
earnings from services performed by the debtor] after the commencement
of the case but before the case is closed, dismissed, or converted to a
case under chapter 7, 11, or 12 of this title . . . . |
| [126] | *fn19 The dissent reads 11 U.S.C.
§ 348(f)(1) to include in the converted estate property exempted from
the Chapter 13 estate but still in the possession of the debtor at the
time of conversion, even in those cases where the conversion is in good
faith such that other property acquired post-petition is not included in
the converted estate. See dis. op. post at [page 8-9]. This is certainly
a proper reading. What is less clear is how it helps the dissent's
argument in the context of Chapter 11 to Chapter 7 conversions- the
limit of our holding. Before 1994, according to the majority view, the
converted estate would have included all the after-acquired Chapter 13
property (including property acquired by the debtor through the effect
of exemptions). That Congress chose to mitigate the effect of 11 U.S.C.
§ 1306 in the case of good faith filings, but chose not to do so to the
extent of excluding exempted property from the converted estate, does
nothing to undermine our argument that Congress has never in the case of
Chapter 11 enacted a provision that expands the § 541 estate in the
first place. There has never been a provision parallel to §§ 1207 and
1306 within Chapter 11. Our point that Congress consciously designed
Chapter 11 to work differently from Chapter 13 and Chapter 12 is
unaffected by the fact that Congress has subsequently modified the
workings of Chapter 13. |
| [127] | *fn20 Our holding is limited to
conversions from Chapter 11 to Chapter 7. We express no view on the
effect of other conversions, particularly those from Chapter 13 to
Chapter 7, on the time period to file objections. However, because of
the differences in the statutory provisions noted above we disagree with
those courts that decline to distinguish between conversions from
Chapters 11, 12 or 13. See, e.g., Matter of Bergen, 163 B.R. at 379
("In the context of objections to exemptions and conversion to
Chapter 7, there does not appear to be cause to distinguish the right to
object from Chapter 11, 12 or 13 cases."). |
| [128] | *fn21 If the debtor files amended
schedules of exemptions on conversion, then a renewed period for
objections would, of course, be proper because Rule 4003(b) also
provides a thirty-day time period to object running from the date the
debtor files "any amendment to the list or supplemental
schedules." But such a renewed period for objections is triggered
by the debtor's amendment not the conversion itself. Moreover, the scope
of the objections is limited to the amended claims. |
| [129] | *fn22 Finding the statutory
directive inconclusive and ambiguous, these courts turn to policy
rationales to support their holdings. See In re Leydet, 150 B.R. at 644
("When faced with two possible interpretations of the bankruptcy
code and rules I am inclined to choose the interpretation that makes
practical sense."); In re de Kleinman, 172 B.R. at 769 ("The
rule authorizing a new objection period represents the only practical
construction of the law."); In re Havanec, 175 B.R. at 924
("[T]he realities of bankruptcy administration militate in favor of
finding a new objection period . . . ."); see also Matter of
Bergen, 163 B.R. at 379 ("[T]he Court in Leydet, in admitting there
was no authority for its decision, relied upon 'practical sense' and not
any defined rule of law." (emphasis added)). The dissent
"set[s] aside" the text of the Code and the Rules to focus on
"practicalities." Dis. op. post at [page 7]. And both the
district court and the bankruptcy court below stressed the policy
concerns. See Bell v. Obuchowski (In re Bell), No. 1: 98CV111, slip op.
at 3 (Bankr. D. Vt. June 8, 1998). |
| [130] | *fn23 We disagree with those
decisions that find that the Code and the Rules are inconclusive and
allow either the reading advanced by the debtor or the appellee. See,
e.g., In re Havanec, 175 B.R. at 923 ("Nothing in the language of
the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure compels
the choice of one result or the other."); Matter of Bergen, 163
B.R. at 380 ("There is nothing in the Bankruptcy Code or Rules
which forecloses objections to exemptions subsequent to a meeting of
creditors in a converted case."). The dissent adopts this view. See
dis. op. post at [page 1, 7]. |
| [131] | *fn24 These fears are particularly
misplaced in this case, where the conversion was involuntary. |
| [132] | *fn25 From 1998 onward, 11 U.S.C.
§ 104 provides that these statutory limits shall be index-linked to
inflation and adjusted every three years. The current limits for
unsecured and secured debt are $269,250 and $807,750 respectively. See
Revision of Certain Dollar Amounts in The Bankruptcy Code, 63 Fed. Reg.
7179 (1998). |
| [133] | *fn26 Both Chapter 11
(Reorganization) and Chapter 13 (Adjustment of Debts of an Individual
With Regular Income) allow bankruptcy relief without liquidation. In
general, however, it is more advantageous for an individual who is
eligible to file under either chapter to file under Chapter 13. See
generally Craig A. Gargotta, Death, Taxes and the Bankruptcy Reform Act
of 1994, 13 Am. Bankr. Inst. J. 10 (Jan. 1995). |
| [134] | *fn27 The nationwide statistics
are similar. Of 1,354,376 bankruptcy petitions filed in the same period,
8,982 (some 0.66%) were Chapter 11, and only 744 (a mere 0.05%) were
individual. See id. |
| [135] | *fn28 The number of individual
Chapter 13 filings in which claimed exemptions are relevant is
significant. Of the 1,354,376 bankruptcy petitions filed nationally,
385,262 (or 28.4%) were Chapter 13, the vast majority of which, 379,215
(or 28.0%) were individual. See id. |
| [136] | *fn29 The data does not show that
individual Chapter 11 petitions are more common in those districts where
the bankruptcy courts have held that conversion does not trigger a new
period for objections. |
| [137] | *fn30 As the majority concedes,
Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), can be read to
support either position. Broadly considered, the case stands for the
proposition that courts should not tinker with or ignore the plain
language of the Code merely to avoid an unjust result in a particular
case. If the microscope is lowered further, the case stands for the
proposition that the thirty-day objection period prescribed by Rule
4003(b) is absolute, and an untimely objection by the trustee will have
no effect even if the debtor had no colorable basis for claiming the
exemption. In Mr. Bell's case, the Code and Rules of Bankruptcy
Procedure produce an ambiguity which requires judicial interpretation.
Taylor does not resolve the conflict. If a second objections period is
required, Taylor would simply dictate that objections filed more than
30-days after the post-conversion creditors meeting would be untimely. |
| [138] | *fn31 The F & M court
concluded that "debtor, at bottom, interprets section 348(a) for
self-serving purposes in claiming that because a meeting of creditors
was held in the previous Chapter 11 proceeding, his creditors should
have only one opportunity in which to file their dischargeability
complaints, regardless of the fact that his case was converted to
another Chapter. We decline to construe the statutes and rules so
narrowly." 780 F.2d at 26. |
| [139] | *fn32 One bankruptcy court
recently pointed out that unlike a debtor proceeding under Chapter 13,
the Chapter 11 debtor has the exclusive right to file a plan for 120
days after the order for relief. In re Wolf, 244 B.R. at 758. See 11
U.S.C. § 1121(b). "Meanwhile, the section 341 meeting is required
to have been held no later than forty days after the order for
relief." Id. In cases converting from 11 to 7, "the issue of
exemptions does not effectively come into focus or play until after a
plan is filed and a disclosure statement approved, and after that, at
confirmation, and in effectuation of the § 1129(a)(7) `best interest of
creditors' test." Id., 244 B.R. at 759. Considering these
practicalities, the Wolf court concluded that "Not until the second
§ 341 hearing, after conversion, is there a trustee who has the
incentive, focus, interest and awareness of the importance of the
exemption issue...." |
| [140] | *fn33 This goes against what some
have called the "universal" position "that in a
conversion situation a second section 341 hearing is mandated under
Fed.R.Bankr.P. 2003." In the Matter of Wolf, 244 B.R. 754, 756
(Bankr.E.D. Mich. 2000). One wonders, additionally, why Congress would
provide for a second creditors meeting to address a reorganization plan,
but not a liquidation of the estate. |
| [141] | *fn34 Without some indication that
other provisions were considered for the list and rejected, we cannot be
confident that "the expression of one is the exclusion of
others." See Herman & MacLean v. Huddleston, 459 U.S. 375, 387
n.23 (1983) (rejecting application "expressio unius est exclusio
alterius" and noting that such canons "long have been
subordinated to the doctrine that courts will construe the details of an
act in conformity with its dominating general purpose"); SEC v.
Joiner Corp., 320 U.S. 344, 350-351 & n.8 (1943) (citing other cases
"treat[ing] the maxim 'expressio unius est exclusio alterius' as
but an aid to construction"); Ford v. United States, 273 U.S. 593,
612 (1927) ("[The maxim] is often a valuable servant, but a
dangerous master to follow in the construction of statutes or documents.
The 'exclusio' is often the result of inadvertence or accident, and the
maxim ought not to be applied, when its application... leads to
inconsistency or injustice."). The canon "rests on the
assumption that all omissions in legislative drafting are deliberate, an
assumption we know to be false." Custis v. U.S., 511 U.S. 485, 501
(1994) (Souter J., dissenting). |
| [142] | *fn35 The majority argues that the
absence of a similar provision for cases converted from Chapter 11
confirms their position. If the Code and Rules were not ambiguous on the
issue presented here, I might agree. But, as the above discussion
indicates, there are a number of procedural holes to be filled in the
context of 11 to 7 conversions and the best gap-fillers will come from
Congress' explicit instructions on closely analogous problems. |