In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-1949
IN R E:
D IANA H OLLAND,
Debtor-Appellee.
A PPEAL OF:
R OY S AFANDA,
Trustee.
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Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 06 C 5424—Ronald A. Guzman, Judge.
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A RGUED F EBRUARY 11, 2008—D ECIDED A UGUST 19, 2008
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Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. When a debtor files for bank-
ruptcy in Illinois but owns real property in Florida, which
state’s law applies in determining whether the property
is exempt from the debtor’s bankruptcy estate? That’s
the central question raised on appeal here and the
answer turns on 11 U.S.C. § 522(b)(2)(B) (2005) (which
has since been renumbered as § 522(b)(3)(B)). Debtor
2 No. 07-1949
Diana Holland believes this provision points us to Florida
law; the trustee of her bankruptcy estate prefers Illinois
law. The district court agreed with Holland but never
decided whether she was entitled to an exemption under
Florida law; it instead remanded the matter to the bank-
ruptcy court. Because the district court’s decision was not
a final appealable order, we dismiss this appeal for lack
of jurisdiction.
I. BACKGROUND
On October 15, 2005, Holland filed for Chapter 7 bank-
ruptcy in the Northern District of Illinois. Although
domiciled in Illinois, Holland sought to exempt $350,000
worth of uninhabited real property that she owns as a
tenant by the entirety in Florida, claiming that Florida
law (as incorporated by 11 U.S.C. § 522(b)(2)) exempts
the land from the bankruptcy estate. The Chapter 7 bank-
ruptcy trustee disagreed, arguing that section 522 instead
required the court to apply Illinois law, which (unlike
Florida law) would not exempt the property.
Without addressing which state’s exemptions applied,
the bankruptcy court applied Illinois law and ruled in the
trustee’s favor. On appeal, the district court reversed and
concluded the bankruptcy court should have applied
Florida law. However, the district court did not decide
whether Florida law actually entitled Holland to the
exemption. The trustee then appealed the district court’s
order to this court, and the district court stayed proceed-
ings pending this appeal.
No. 07-1949 3
II. ANALYSIS
Unfortunately for everyone, the parties have given
little thought to whether we have appellate jurisdiction
in this case. In his “Jurisdictional Statement,” the trustee
characterizes the district court’s order that reversed and
remanded the bankruptcy court’s decision as a “final
judgment” that “den[ied] the Trustee’s objection to the
Debtor’s claimed exemption in Florida real estate.” The
trustee believes that “[t]he District Court’s order is con-
sidered a final judgment because it determined the
Debtor’s entitlement to a bankruptcy exemption.”
The trustee is mistaken. The district court’s docket
reveals there has been no “final judgment” in this case.
While the district court’s order could have taken the
place of a formal Rule 58 judgment, such an order would
have constituted a final judgment only if the court was
actually “finished with the case.” See, e.g., Taylor-Holmes
v. Office of the Cook County Pub. Guardian, 503 F.3d 607,
609 (7th Cir. 2007). And that’s not what happened here.
Although the district court’s order held that the bank-
ruptcy court should have applied Florida law, it never
addressed whether Holland was actually entitled to a
bankruptcy exemption. Indeed, the order stated, “The
Court expresses no opinion on whether Holland has a
valid exemption under Florida law.” Cf. In re Yonikus,
996 F.2d 866, 868 (7th Cir. 1993) (“Orders granting or
denying exemptions are appealable as final judgments
under 28 U.S.C. § 158(d).”). If anything, the order sug-
gested—as the trustee himself concedes in his opening
brief—that the matter has been remanded for further
4 No. 07-1949
proceedings before the bankruptcy court. See Appellant’s
Br. at 11-12 (“The District Court reversed the ruling of the
bankruptcy judge and remanded for determination of the
validity of Ms. Holland’s exemption under Florida law.”).
As far as we know, those proceedings have yet to take
place and the matter remains stayed.
Circuit courts remain split on which test to apply in
determining whether a district court order that remands a
case to a bankruptcy court is appealable. See, e.g., In re
Lopez, 116 F.3d 1191, 1192 (7th Cir. 1997) (cataloging cases).
Most circuits have held that such an order is not final
and appealable unless the remand is for “ministerial”
proceedings. See, e.g., In re Pratt, 524 F.3d 580, 584-85 (5th
Cir. 2008), cert. denied, 128 S. Ct. 2445 (2008); In re Penn
Traffic Co., 466 F.3d 75, 78-79 (2d Cir. 2006) (per curiam);
In re Torres, 432 F.3d 20, 22-23 (1st Cir. 2005); In re Popkin
& Stern, 289 F.3d 554, 556 (8th Cir. 2002); In re Overland
Park Fin. Corp., 236 F.3d 1246, 1251 (10th Cir. 2001); In re
Alvarez, 224 F.3d 1273, 1275 (11th Cir. 2000); Jove Eng’g v.
IRS, 92 F.3d 1539, 1547-48 (11th Cir. 1996); In re St. Charles
Preservation Investors, Ltd., 916 F.2d 727, 728-29 (D.C. Cir.
1990) (per curiam); see also In re Wallace & Gale Co., 72 F.3d
21, 24 (4th Cir. 1995) (“District court orders remanding
cases to the bankruptcy court for further consideration
are not, ordinarily, final orders.”). The Sixth Circuit “will
not deem final a district court’s decision remanding to
a bankruptcy court for further proceedings if the district
court has not certified the decision pursuant to Fed. R. Civ.
P. 54(b).” In re Brown, 248 F.3d 484, 485 (6th Cir. 2001); see
also In re Yousif, 201 F.3d 774, 781 (6th Cir. 2000) (Moore, J.,
concurring). And the Third and Ninth Circuits apply
No. 07-1949 5
multi-factor balancing tests to determine whether an
order is final and appealable in this context. See In re
Fowler, 394 F.3d 1208, 1211 (9th Cir. 2005); In re Pransky, 318
F.3d 536, 540-41 (3d Cir. 2003).
Our circuit precedent accords with the majority view:
“[E]ven if the decision of the bankruptcy court is final, a
decision by the district court on appeal remanding the
bankruptcy court’s decision for further proceedings in
the bankruptcy court is not final, and so is not appealable
to this court, unless the further proceedings contemplated
are of a purely ministerial character . . . .” In re Lopez, 116
F.3d at 1192. What remains to be decided here is hardly
ministerial: the bankruptcy court still has to answer the
$350,000 question whether Holland is entitled to an
exemption under Florida law. See In re A.G. Fin. Serv. Ctr.,
Inc., 395 F.3d 410, 413 (7th Cir. 2005) (“To say that the
remand is for a ministerial act is to say that the district
judge has fully resolved the litigation: there is no legal
decision for a bankruptcy judge to make, no fact to find, no
discretion to exercise.”). Only then—after the bankruptcy
court has made its final ruling, the district court has
revisited the case, and a fresh notice of appeal to our
court has been filed—can we exercise jurisdiction over
the matter. See In re Fox, 762 F.2d 54, 55-56 (7th Cir. 1985).
III. CONCLUSION
The appeal is D ISMISSED for lack of jurisdiction.
8-19-08