*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this opinion should not be published and is not precedent except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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United States Court of Appeals

Fifth Circuit

FILED

August 11, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

_____________________

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
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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
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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”.