                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         August 11, 2005
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                            _____________________                Clerk

                                No. 04-61178
                              Summary Calendar
                            ____________________


IN THE MATTER OF: BLONDENA ALLEN WALLER

               Debtor
________________________________________


BLONDENA WALLER,

                Appellant,

                       v.

J. C. BELL, Trustee,

                Appellee.

                             __________________

          Appeal from the United States District Court
            for the Southern District of Mississippi
                           (03-CV-318)
                     _______________________

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

Per Curiam*:

     Appellant Blondena Waller (Waller)appeals the district

court’s judgment disallowing her exemption under Mississippi code

§ 85-3-17. After filing a Chapter 13 bankruptcy, Waller claimed


     *
      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this opinion should not be published and is not precedent except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. R. 47.5.4.

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an exemption of $10,000 due to a pending claim against Gaylor

Chemicals for the release of chemicals which purportedly affected

her. The Trustee objected to this exemption and the Bankruptcy

Court upheld this objection. The district court affirmed the

Bankruptcy Court’s interpretation of the statute and subsequent

denial of the exemption to Waller.

     The only issue on appeal is whether Appellant is entitled to

claim a $10,000 exemption on a personal injury claim based on a

pending class action lawsuit in which no judgment has been

entered or settlement reached. Waller argues that the language of

the Mississippi statute is vague and so should be liberally

construed in her favor. The Bankruptcy Court interpreted § 85-3-

17 as requiring a judgment in order for the exemption to take

effect.

     § 85.3.17 reads as follows:

     The proceeds of any judgment not exceeding ten thousand
     dollars recovered by any person on account of personal
     injuries sustained, shall inure to the party or parties in
     whose favor such judgment may be rendered, free from all
     liabilities for the debts of the person injured.

The district court found that Waller was not entitled to an

exemption under this statute because “[w]hether a particular

property or interest in property of a debtor’s bankruptcy estate

is eligible for an exemption provided by federal or state law is

determined ‘strictly ‘as of’ the date on which the petition in

bankruptcy is filed’.” District Court Opinion 3, citing In re

Orson, 283 F.3d 686, 691 (5th Cir. 2002). See also In re

                               -2-
Peterson, 897 F.2d 935, 937 - 38 (8th Cir. 1990). The district

court concluded that, because as of the date that Waller filed

her petition no judgment had been entered in her personal injury

claim and so no “proceeds” of that judgment existed, Waller was

ineligible for the exemption.

     Additionally, the district court found that any judgment

that is eventually rendered on Waller’s personal injury claim

will not be exempt as after-acquired property because they will

be proceeds that result from a pre-petition cause of action,

which this Court has held belongs to the bankruptcy estate.

See In re Wischan, 77 F.3d 875, 877 (5th Cir. 1996).

     Because it is a settled principle of law that the

applicability of an exemption must be determined on the basis of

the facts as of the day the debtor files her petition, we agree

with the district court’s finding that Appellant cannot prevail

on her statutory arguments and affirm on the basis of the

district court’s November 24, 2004 “Order and Reasons”.




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