representative because of the time and splitting of the time mr cripps is going to address most of the issues on the exemption issue brief which is the breeze that i call blending spree and all address the issues with mr brown against the trustee children with michael brown who were both minors and he moved to florida to file bankruptcy merely to gain an advantage in his divorce he bought property in florida in contra or just a family where the family allowance and the cash in lieu of the homestead as well your honor the bigger part of it is obviously the cash and the family allowance both judge bone and judge atlas judge did not have the authority to make a final decision he entered findings of fact and inclusions law and sent it up to judge outness judge atlas found that miss brown and her children weren't titled to a family allowance but basically applied to texas applied florida state law rather than texas the only two and the only case that really remotely deals with a family allowance is a court texas court of appeals case ch garcia which was cited by judge albus if you read the chapter garcia case the chapiter see it case basically says that you need to look to the restatement second of the conflicts the last to decide which state  and it is our contention that neither judge bo nor judge atlas did that because if you look at the factors under the restatement second of law you clearly see that texas was the overriding state in the texas law should apply  florida when he dismissed the case said if it you know that there had to be a c r of going to the chief restructuring officer the chief restructuring officer was appointed and was operating under texas law to govern mr brown's affairs which means he was still under texas receivership even though he was quote living in our home did you live in florida who were there he moved into florida in two thousand and twelve and in two thousand and fourteen and so f allowance because there's really not been no case decided by the texas supreme court on that issue a part of texas corporeal that there was a case more be more but it did not deal directly with the family allowance issue and so it court in chapter v garcia which was more of a family allowance case and in that case if you read chapter garcia all of the factors in their case there for their case with the facts in tampa garcia were basically the opposite in this case you know if you look at the cases that were cited by warren white upon war which were the allston case in the green case the underlying theme in all of those cases is that we don't reward game and ship because they were all ones where the widows would try to move to texas take advantage of the beggar lanolin rather than the state they were living in you have just the opposite in this case you have a widow and her surviving children who have a husband of a husband who's moved in controversial and bought property in contravention of her temporary orders in the bankruptcy to try to defraud her has moved to florida did in attempt to defraud her and he files bankruptcy the bankruptcy gets refiled here in texas a trustee takes over the bankruptcy case has millions of dollars of it and the widow and the two surviving children are left with nothing and then the bankruptcy court says yes she gets a family allowance but it has to be eighteen thousand under florida instead of the terms in which texas which is the only state she and her children have ever lived in govern the family allowance and so therefore she you know she is left virtually with nothing she was living in the house and under federal ten sixteen the bankruptcy should have continued as if he had not died which meant she was entitled to the support payments that she was getting under the temporary orders though ceased when he died and  brown made the decision that because she thought we thought that there was a family allowance allowed that would compensate her for the year following the bankruptcy she got neither from the bankruptcy court so it flies in the face of the texas state policy to take care of their widow and children here you have a widow and children that were virtually going to be put out on the street because the trustee wasn't paying the principal of the house as the remainder was supposed to he wasn't paying support payments to her and she had no income motion to certify the questions if this court feels like it to the texas supreme court because all you have is one court of appeals decision after the restate was put in that says it applies and that's the chappie garcia case so there is no controlling controlling the line texas because the cases that were cited by more or more were back in the eight hundred ninety s which was before the restatement of second more was before the restatement second of conflicts of law and that appears to be the controlling body of law but the texas supreme court has not spoken on it you're correct your honor and we do have a motion pending that was carried with these briefs for certification of that particular question to the texas supreme court nevertheless minor differences between the relevant local long rule in such instances there is good reason for the part toppling the local law of the land of the state which will best achieve the basic policies of the underlying particular facts involved in the case under this philosophy you have a widow and two children who have never been to florida have never had any nexus with laura have lived a lifestyle in texas in which the texas a state allows her for a year after the bankruptcy i mean the year after the probate or the death to live in the same type of lifestyle that she has been living in yet she doesn't get that because of the bankruptcy and the bankruptcy estate taking all of the absence the lawyers in the bankruptcy trustee get millions and she gets nothing that's not really an equitable or fair result but the bankruptcy code has a motive to get i know that one of the arguments put forward this is where you can only look to the probate state for the assets this court has held that's not correct inside the cell phone chanels i think in this court the fifth you the fifth circuit said it would be unconscionable for a court of a bankruptcy upon the death of the husband to take possession of all those assets without setting aside his exam properties of those entitled to it and without allowing the without a year support in accordance with the state law and the example they came in there is if there's only corporate stuff which is not exam property it can be set aside and sold to pay the family allowance so it could look to the probate court into the bankruptcy court for the family allowance and this is a state that is not insolvent that does not have very little money the creditors would not be really harmed by giving her a five four hundred ninety six thousand dollar allowance we're going to discuss the snap shot rule  allowance in lieu of homestead that was that was there at the time of the filing of the bankruptcy which is a substitution i believe from the snapshot where you can substitute the collateral and it was a substitution they have affectively denied miss brown and her two children the right to her homestead she did not get any type of homestead allowance the homestead was underwater because of the trustees failure to pay the principal balance on the remainder man when he passed away you basically in this case other than the question of the conflicts of law i don't think there's a fact issues to the amount she would be allowed under the under texas law for her family allowance judge boehm in his findings of fact found she was a credible witness and found that her proof of her four hundred ninety six thousand dollars an eighty cents as a family allowance was reasonable under texas law but found just that texas law did not apply so it boils down i think mainly to the one issue is whether or not you apply the conflicts of lot restatement of laws laws which i think you have to after chapel garcia or else at least allow the texas supreme court to rule on that issue and less or more questions and no doubt or f we elected a property on own memorial drive in houston texas for his example homestead we learned later that there was no equity in the property it was posted to foreclosure and ultimately foreclosed we we amended our schedules to provide that that we elect the potential alternative to the homestead because he had no homestead left and because he had died now we take the position stand in the shoes of the debtor and to determine whether your entire out exemptions you've got to look to see whether the debtor was in time to the exemption at the time of file and no question about that our position is that we did file an exemption for a real property and this because there was no equity in it because it was foreclosed we're entitled to and i have in our view the the cash alternative to that real property homes there because it in our in our view it grows out of the real property it's just an extension of it's it's part and parcel of it you have a look in your that well and the courts that it's simply unfair to allow an exemption to exist where in bankruptcy where you wouldn't get it out of bankruptcy and i think we have just the opposite here here the debtor is not getting an exemption whereas if he had not been in bankruptcy he would get an exemption that that i didn't see a case that had pac in our case there was a homestead there was a death in the homestead got foreclosed and so i don't see it as being any different then the proceeds situation i  understand the necessity for a snapshot really but in the strange kind of bizarre circumstances that exist in this case to begin with maybe maybe what we're asking is is a very narrow rule but that's that's what we believe and i can't in all honesty i can't  a case i don't know there's been a case anywhere in the country there are some states that do have casualties to homestead but i'm not aware of one that came out of a bankruptcy strong indication of favor adopted the restatement of conflict so rude so why do you say that i disagree with that argument i'll read a quote directly from chappell which is from the corpus christi court of appeals in texas about the restatement of torque being rude i mean restating a conflict me in the room not that i've found in the case i think we just disagree on the ruling i think my recollection of the case there may have been a discussion of factors but as far as what controls the disposition of probate estate assets it is uniform and has been uniform in texas since the mid nineteenth century and that is the law of it is s hopkins's from i believe the eight hundred fifty s and their number of other cases around this time and the facts are pretty much the same with different iterations but it is a person is domiciled in a state and then moves either into or out of texas situation is very longstanding it predates constitution it goes back to made eighteenth century british common law there are a long line of cases and it's due to this old principle that the  location of a person's personal property follows his or her domicile and the out the effect of that is that when someone dies for the last two hundred fifty years the law of their domicile has govern the disposition certification is whether there was such a supreme court authority it's not conditioned on the age of the authority or whether there are reasons to reconsider it the rule is whether there is existing authority there is and as the garcia chapatis points out that none of the assets of the bankruptcy estate can be used to pay this family allowance client no one ever filed a notice of appeal from that water so the only issue that was placed before the district court is whether the claim can be made against probate estate therefore the of the judgment that the district court entered your honor the district court was very clear on the final order to enter it said the assets it said that the claim is allowed in the amount of eighteen thousand and may be paid from the probate estate it made no mention under the independent judgment test there's a number of factors such as the needs of the interstate and international system which again goes back to this very old line of cases which the u s supreme court has called part of the law of nations that it's so uniform is so well accepted that pretty the family allowance climate eighteen thousand that is a decision made by the florida state legislature they have weighed the equities and they have decided that eighteen thousand is a sufficient cap for the purpose of the statu was discussing earlier which is the position taken by this one it's the second way to view this relief is under section five of two of the bankruptcy code is a traditional claim which is the analysis of the bankruptcy court engaged in as an exemption  whether relief request as a claim or an exemption it seems that most of the time parties can agree the saying about exemptions though is if we look at exemptions statutes whether state law or federal law they are all dependent on the existence of some assets within the bankruptcy state so for example the traditional homestead exemption requires a home to be in this state the traditional exemption for a car requires a vehicle to be in the estate this is different because this is linux's making is not an exemption as five twenty two contemplates she's not pointing out identify with property within the bankruptcy of state and trying to accept that from the claims of creditors under section five of two i also don't think it's a sound argument because we be subject to the snapshot rule which would preclude the use of probate exemptions in the alternative that that's a claimant or five to them or not subject to the five twenty two statutory choice a law provision and instead we're back to are we going to apply independent that it had statutory authority over the whole dispute but it only had constitutional authority to enter a final order with respect to the claim made against the bankruptcy estate or one of the district court and the district court order to be paid certain documents from the record was important to that issue the relevance of the i don't know that it's really relevant to the merits of the decision of the trustee and this promise let's all try this case with great vigor everybody thought very hard over what was included in the record the trustee moved to strike certain items from the appellate record because they were part of the evidentiary record and his thought was to keep the appeal is manageable as possible even if those additional items come in it does not change the substance merits of the underlying decisions with court of the case of those documents potentially  those documents would be relevant to the homestead exemption appeal or that allowed some of homesteads that would be to miss when its appeal the district court denied a similar motion so that issue is not relevant to the you know i don't know how i will tell the court and i think we're venturing outside of what was brief but we did challenge the bankruptcy court statutory jurisdiction to make any rulings as to what happened with the probate of state assets or as major concern is that the bankruptcy courts final order or as major concern with respect to the family allowance claim is that the bankruptcy courts order stand tacked that none of the bankruptcy estate assets be used to pay the family allowance client beyond that adversaries pending this appeal is pending and there are some claim resolution issues but it's really difficult to predict how long these cases last it is probable that this case will be going on for another twelve months give  i want to dress i don't believe there was a final order saying that the assets could only be paid out of the probate stuart case from the from the bankruptcy court up to the district court on the family allowance she took the entire case up because it was referred up to her because he could not make remember it but you remember differently there there is yeah we remember it differently but in this case i think you hit on the nose there is no probate court there is no probate case there was no money to open a probate case you had so many competing wills that none of the executors under any of those competing wills wanted to file any competing will win this case when he died this case proceeded under federal rule to have sixteen the marshall the marshall saying that the district court of the bankruptcy court could do everything basically the probate court could do so there are no assets in a probate in a state there are some exempt assets that were set aside them at the trustee agreed to the cash allowance and lieu of the personal property by allowing trustee basically talks out of both sides of his mouth the district court was very clear in that she did evaluate whether they were going out of the probate estate and or that the bankruptcy estate which means she put it at issue which means it is properly on appeal fear this court does have jurisdiction over those issues and that's just a red herring that the trustee is attempting to throw up to this court were part of the road here in part about whether it can order the decision was fine with the bankruptcy court not credit no i think it's all part and parcel as to where it can be paid especially undersigned because science says it's unconscionable that you can't pay it out the bank will say especially if there is no probate estate to take take it and i don't think you can have a final order on a partial part of a case without it being in of tory as to the whole decision it was all part and parcel of the same motion and the same of hill your other questions which i do he basically tried to say that there was texas supreme court law if you look at the austin in the green cases they are not family allowance cases so there are cases which involve some type of allowance under probate but not the family allowance as it sits in its present state and in most cases in allston the family moved back to texas after the guy's death and another after the husband's death in another state to gain advantage of texas exemptions and they said texas exemptions were to let you know you can't get in the system in the green case was whether or not the widow had planned to stay in texas after she was allowed her her homestead allowance and the court in that case said that the critical question was where the homestead was situated it didn't matter whether she left after she was given her exemption or not they were not family allowance cases nor was hopkins hopkins involved a case where it dealt with a virginia the interpretation of virginia for shared provisions for the surviving spouse it was not an family allowance and all of those cases including more predated chpa and the real statement of second of conflicts in law and chapter if anything would be the most controlling and if you really look at the facts of taffeta chappel that texas law applied in our face because in that case it really boiled down to not so much a determination of the family allowance but whether or not there was a procedural question as to whether or not the choice of law had been raised properly if you look on page three of our brief we've outlined what the does have a reply brief the banks of the district court clearly reviewed the everything that he challenges the jurisdiction in and so the review before this court is proper asked about the failure to include certain documents he the trustee objected because they were not evidentiary that is not the standard and they should have been included we did allege that it was there how does it affect our room when we need those documents  which you brought in front of me your honor i think most of those documents are actually in the record on the exemption appeal which were semi consolidated for that i don't believe that those documents really affect my issue of family allowance ok thank you very much has all the same authorities that a a probate court could have with the exception of admitting will to probate and administering assets that already exist so the so the bankruptcy court has all  authority necessary to deal with matters that might arise in probate or matters that might not arise in probate so particularly with regard to the homestead cas to we would argue that that even if it's a probate something that needs to be filed in probate court the bankruptcy court has every authority to consider it is an greater homestead exemption scheme in state of texas you can file a law and in the the state constitution on the homestead exemption you find it in the property code you find it in the in the estate co and in determining exemptions you can look at all sorts of codes the insurance co has exemptions and there are provisions in the property code that relate to retirement plans and all sorts of other things