In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-1949

IN RE:

DIANA HOLLAND,

Debtor-Appellee.

APPEAL OF:

ROY SAFANDA,

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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ARGUED FEBRUARY 11, 2008—DECIDED AUGUST 19, 2008

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Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. When a debtor files for bankruptcy 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 bankruptcy 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 bankruptcy 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 bankruptcy 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 proceedings 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 considered 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 bankruptcy 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 suggested—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 DISMISSED for lack of jurisdiction.

8-19-08