IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60895
(Summary Calender)
In The Matter Of: LENA JORDAN,
Debtor,
------------------------------------
LENA JORDAN,
Appellant,
v.
UNION PLANTERS BANK & EQUITABLE LIFE ASSURANCE CO.,
Appellee.
Appeal from the United States Bankruptcy Court
for the Northern District of Mississippi
(3:00-CV-112-B)
July 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant Lena Jordan and her husband filed for relief under
Chapter 7 bankruptcy in 1991. At the time, their outstanding loans
to Appellee Union Planters Bank (“Union Planters”) totaled
*
Pursuant to 5TH Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH Cir. Rule 47.5.4.
approximately $360,000.1 These loans were secured by an assignment
to Union Planters of three life insurance policies (“the
policies”). When the bankruptcy petition was filed, the cash
surrender values of the three policies totaled $14,046.43, and
their face values were $25,000, $50,000, and $100,000,
respectively. For reasons irrelevant to our considerations today,
the $25,000 policy is not at issue.2 Fortunately for the Jordans,
they failed to include these policies in their statement of
exemptions filed in conjunction with their Chapter 7 bankruptcy
petition.3
1
After liquidation of all collateral other than the policies,
the Jordans owed approximately $186,000 in outstanding loans to
Union Planters as of the date of their Chapter 7 discharge.
2
The bankruptcy court expressly rejected Union Planters’s
efforts to obtain a $32,491.98 credit against the $50,000 exemption
amount the court ultimately allowed to Mrs. Jordan from more than
$100,000 in life insurance proceeds that the insurance company had
deposited into the registry of the court. Union Planters claimed
that the $32,491.98 paid by the insurer on policy #83-111-676 on
November 3, 1998, long after the closing of the bankruptcy and only
after Union Planters had represented that it was making no claim as
assignee or otherwise to policy #83-111-676, should be deducted
from Mrs. Jordan’s $50,000. The bankruptcy court concluded that
Union Planters had not properly raised the issue of that payment;
Union Planters made no mention of the proceeds or the policy in the
appeal to the district court; and Union Planters filed no cross-
appeal of the bankruptcy court’s or the district court’s treatment
(or non-treatment) of that matter. Union Planters has abandoned
the issue as a matter of law, foreclosing any consideration of it
in this appeal and thereby making the bankruptcy court’s
disposition of that claim final between the parties and no longer
appealable.
3
Had the Jordans listed the policies in their statement of
exemption while Mr. Jordan was still living, they could have
rescued only the then-current cash value of approximately $14,000
rather than at least $50,000 of the proceeds allowed to Mrs. Jordan
2
Following Mr. Jordan’s death in 1998, Mrs. Jordan, as the
named beneficiary of the policies, sought to collect the proceeds;
Union Planters also claimed the proceeds on the ground that the
policies had been assigned to them as collateral on the defaulted
loan, urging that the assignment primes the beneficiary provisions
of the policies. This prompted Mrs. Jordan to petition the
bankruptcy court for permission to amend her filed statement of
exemptions to include the policies, which petition the bankruptcy
court granted.
Mrs. Jordan argues on appeal, as she did before the bankruptcy
and district courts, that only the cash surrender value of the
policies (and not the entire proceeds) should be considered as
assets of the Jordan’s bankruptcy estate for purposes of applying
the applicable $50,000 exemption on life insurance policies,4
freeing the balance of the proceeds to be paid to her as named
beneficiary. The bankruptcy court concluded, however, that the
$50,000 exemption applies to the proceeds of the policies, rather
than to their cash values on the date of the filing of the
bankruptcy petition as urged by Mrs. Jordan, because (1) the
policies had fully matured, i.e., became due and payable, prior to
by the bankruptcy court.
4
Miss. Code Ann. § 85-3-11 (1972). 1994 amendments to this
statute do not allow for such an exemption in cases such as that
before us. The bankruptcy court applied the earlier version of
this statute because it was the applicable law when the Jordans (1)
took out the loans with Union Planters, (2) offered the policies as
collateral to secure those loans, and (3) filed for bankruptcy.
3
Mrs. Jordan’s filing of the amended exemption, and (2) even if the
cash surrender values were captured in the bankruptcy estate, the
proceeds of the matured policies, less Mrs. Jordan’s $50,000
exemption, would still be subject to the claim of Union Planters as
assignee. The district court affirmed.
Having carefully and fully considered the record and the
parties’ briefs as well as the comprehensive and well-reasoned
opinion of the bankruptcy court, we are persuaded by that opinion’s
legal and factual conclusions. We therefore affirm for essentially
the same reasons set forth in the bankruptcy court’s opinion.
AFFIRMED.
4