Amicus Brief Argues That Debtors Should Not Be Required to Obtain Rule 60(b) Relief Before Amending Bankruptcy Exemptions
The National Consumer Bankruptcy Rights Center (NCBRC) and the National Association of Consumer Bankruptcy Attorneys (NACBA) filed an amicus brief on September 23, 2026, in the Ninth Circuit Court of Appeals in Mora v. Aguirre (In re Aguirre), No. 26-2285, urging the court to preserve bankruptcy debtors’ right to amend their exemptions without unnecessary procedural barriers.
The brief, authored by Wayne A. Silver of the Law Office of Wayne A. Silver in Redwood City, California, supports the debtor and asks the Ninth Circuit to affirm a Bankruptcy Appellate Panel (BAP) decision permitting a Chapter 7 debtor to amend his schedules to reclaim California’s more generous homestead exemption.
The appeal raises an important question concerning the interaction between Federal Rule of Bankruptcy Procedure 1009(a), which generally permits debtors to amend their schedules before a bankruptcy case is closed, and California’s statutory provisions governing the election of exemptions by married debtors.
Background
Rodrigo Aguirre filed a Chapter 7 bankruptcy petition in November 2023, initially claiming a homestead exemption under California Code of Civil Procedure § 704.730.
After the Chapter 7 trustee and a creditor’s attorney incorrectly advised Aguirre that he was ineligible for the exemption because he was not residing in the property on the petition date, Aguirre and his estranged wife executed a spousal waiver of California’s regular exemptions. Aguirre then amended his schedules to elect California’s alternative bankruptcy exemptions, leaving approximately $197,478 in nonexempt equity potentially available to creditors.
After retaining new counsel, Aguirre learned that he had been entitled to claim the more generous homestead exemption all along. He again amended his schedules, returning to California’s regular exemptions and claiming a homestead exemption sufficient to protect his interest in the property.
Creditor Mario Montes Mora objected, arguing that the previously executed spousal waiver remained binding unless Aguirre obtained relief under Federal Rule of Civil Procedure 60(b). The bankruptcy court rejected the objection, and the BAP affirmed in an unpublished decision. Mora v. Aguirre (In re Aguirre), 2026 Bankr. LEXIS 807 (9th Cir. BAP Apr. 2, 2026).
Mora appealed to the Ninth Circuit.
The Amicus Brief: Preserving the Right to Amend Exemptions
NCBRC and NACBA argue that requiring debtors to obtain Rule 60(b) relief before amending their exemptions would impose an unnecessary procedural obstacle inconsistent with the Bankruptcy Rules and the fresh-start policy underlying bankruptcy law.
Federal Rule of Bankruptcy Procedure 1009(a) permits a debtor to amend bankruptcy schedules as a matter of course before the case is closed. The Ninth Circuit recently reinforced the importance of that right in Warfield v. Nance (In re Nance), 156 F.4th 961 (9th Cir. 2025), holding that claim preclusion does not categorically bar debtors from claiming amended exemptions merely because an earlier exemption claim was rejected.
The amicus brief advances three principal arguments:
- Rule 1009(a) protects the right to amend schedules. A debtor’s ability to correct or change claimed exemptions should not depend on first satisfying the more restrictive requirements of Rule 60(b).
- California’s spousal waiver requirement is intended to prevent exemption stacking. The statutory election prevents spouses from combining different exemption schemes to obtain duplicative protections. That concern is not implicated when a debtor abandons one exemption scheme and elects the other.
- Rule 60(b) does not ordinarily apply to amended bankruptcy schedules. Rule 60(b) provides relief from final judgments, orders, or proceedings. An amended Schedule C and a statutory spousal waiver are not themselves final court judgments or orders requiring such relief.
Why the Case Matters
Homestead exemptions serve a critical role in protecting financially distressed individuals and families from losing their homes. California’s exemption laws reflect a longstanding policy favoring the protection of a debtor’s residence, and bankruptcy exemptions are essential to providing debtors with a meaningful fresh start.
A ruling requiring Rule 60(b) relief whenever a debtor changes exemption schemes after executing a spousal waiver could make it substantially more difficult for debtors to correct mistaken exemption elections, even where no improper exemption stacking has occurred.
NCBRC and NACBA urge the Ninth Circuit to affirm the BAP and clarify that amendments to bankruptcy exemptions should proceed under the ordinary procedures established by Rules 1009 and 4003, rather than requiring preliminary relief under Rule 60(b).
The appeal provides the Ninth Circuit an opportunity to reinforce the principle that procedural rules should facilitate, rather than unnecessarily obstruct, the substantive protections afforded to consumer debtors.