Homestead Post-Petition Sale Proceeds Retain Exempt Status in Chapter 7

Posted by NCBRC - March 19, 2018

Proceeds from the post-petition sale of the chapter 7 debtor’s homestead did not become part of the bankruptcy estate even though the debtor did not reinvest them in another homestead. Lowe v. DeBerry (In re DeBerry), No. 17-50315 (5th Cir. March 7, 2018).

When Curtis DeBerry filed for chapter 7 bankruptcy he exempted his homestead without objection by the trustee. Post-petition he sold the residence and transferred some of the proceeds to his wife and used the rest to pay unrelated criminal attorney fees. The trustee filed an adversary complaint arguing that, because Mr. DeBerry did not reinvest the proceeds in another homestead within six months as required by Texas proceeds law, the proceeds were not exempt. The bankruptcy court found in favor of Mr. DeBerry and the district court reversed.

On appeal, Mr. DeBerry relied on Hawk v. Engelhart (In re Hawk), 871 F.3d 287 (5th Cir. 2017) (blogged here), where the Fifth Circuit held that in chapter 7, an allowed, unconditional, exemption is removed from the bankruptcy estate and the property cannot be distributed to creditors even if the exemption loses its exempt status post-petition under the state proceeds rule. Like the IRA proceeds rule applicable in Hawk, the state homestead proceeds rule, TEX. PROP. CODE § 41.001(c), provides that “proceeds of a sale of a homestead are not subject to seizure for a creditor’s claim for six months after the date of sale.”

The circuit court found that the purpose behind the homestead proceeds rule is to allow the homeowner time to reinvest the proceeds in a new homestead without fear of attachment by creditors. In the bankruptcy context, the proceeds rule protects the debtor who no longer owns the homestead at the time of filing, by preventing the proceeds from the sale of homestead within six months of filing from entering the bankruptcy estate. In this case, however, it was not the debtor seeking the protection of the rule, but the trustee seeking to use the rule to bring the proceeds into the estate.

As it did in Hawk, the court relied on the snapshot rule to fix the debtor’s exemption at the time of the petition. To find otherwise, the court cautioned, would leave the issue of exemptions open through the entire course of the bankruptcy, the length of which would be at least partially controlled by the trustee, since a debtor could sell his homestead at any time. The court distinguished In re Zibman, 268 F.3d 298, 301 (5th Cir. 2001), where it held that a homestead exemption for proceeds of a homestead sold before the bankruptcy petition is merely conditional upon reinvestment in a new homestead. In contrast, Mr. DeBerry owned the homestead when he filed for bankruptcy and, therefore, his exemption was unconditional. The court also distinguished In re Frost, 744 F.3d 384, 389 (5th Cir. 2014), where it found that the proceeds from the post-petition sale of the chapter 13 debtor’s homestead were not exempt unless reinvested according to the Texas proceeds rule. The fact that Frost was a chapter 13 case was dispositive because, under section 1306(a)(1), property acquired post-petition is added to the bankruptcy estate. There is no comparable post-petition asset capture provision in chapter 7.

Based on its reasoning in Hawk, the Fifth Circuit reversed the district court and reinstated the order of the bankruptcy court.

DeBerry 5th Cir. opinion March 2018

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