Memorandum of Decision Re: Amended Exemptions

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re ANTON GEORGE NOSEK,                                                 No. 91-10164      Debtor. ___________________________/
Memorandum of Decision
     In this case, the debtor claimed his home as exempt when he filed his Chapter 11 petition. After conversion to Chapter 7, the trustee could not sell the home because it was exempt. The debtor lost the home to foreclosure, and now seeks a whole new set of exemptions.      When a debtor files a Chapter 11 petition, he is entitled to exempt a limited amount of assets as exempt. Subsequent conversion to Chapter 7 does not mean that the debtor can claim new exemptions if he has already had the benefits of the assets carved out of his estate when the case was originally filed. It is of no consequence that the debtor lost his home to foreclosure after conversion. He got the benefit of his exemptions, and is not entitled to claim a second set of exemptions just because he has dissipated the assets originally claimed as exempt.      Moreover, if the debtor had not claimed the homestead exemption the trustee may have been able to sell the property and recover something for the estate. This prejudice alone justifies denial of the amended exemptions. In re Calder, 973 F.2d 862, 867 (10th Cir.1992).      Because the court finds that the debtor has already received his claimed exemptions, the court need not delve further into the trustee's allegations that the debtor had an undisclosed slush fund of over $60,000.00 which he used to support himself after his filing. If proved at an appropriate hearing, that would be independent grounds for denial of the claims of exemption.      Finally, the court is by no means swayed by the debtor's argument regarding the lack of a dividend to creditors in the converted case. One of the trustee's statutory duties is to investigate the conduct of the debtor. If this investigation consumes all of the assets in this case, it nonetheless benefits creditors generally by making sure that debtors do not abuse the bankruptcy laws. The debtor's new-found concern for his creditors strikes the court as disingenuous, to say the least.      For the foregoing reasons, the trustee's objections to the debtor's amended claims of exemption will be sustained. The trustee shall submit an appropriate form of order.
Dated: February 22, 1994                                                                                                   _______________________                                                                                                                                                    Alan Jaroslovsky                                                                                                                                                    U.S. Bankruptcy