IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ANTON GEORGE NOSEK, No. 91-10164
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
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 _______________________