               United States Bankruptcy Appellate Panel
                           FOR THE EIGHTH CIRCUIT



                                    No. 11-6068


In re:                                    *
                                          *
Karolyn Joyce Bryan                       *
                                          *
         Debtor.                          *
                                          *
Karolyn Joyce Bryan,                      *        Appeal from the
                                          *        United States
         Debtor - Appellant,              *        Bankruptcy Court for the
                                          *        Western District of Missouri
               v.                         *
                                          *
Janice E. Stanton,                        *
                                          *
         Trustee - Appellee.              *



                             Submitted: February 21, 2012
                                Filed: March 21, 2012
                      (Filing Date Corrected on March 22, 2012)



Before KRESSEL, Chief Judge, SCHERMER and SALADINO, Bankruptcy
Judges

SCHERMER, Bankruptcy Judge
       The debtor, Karolyn Joyce Bryan (the “Debtor”), appeals an order of the United
States Bankruptcy Court for the Western District of Missouri,1 sustaining the
objection of the Chapter 7 trustee, Janice E. Stanton (the “Trustee”), to her claimed
exemption of her interest in an annuity. We have jurisdiction over this appeal from
the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set
forth below, we affirm.

                                      ISSUES
      We consider the threshold issue of whether res judicata barred the Debtor from
seeking an exemption in the Annuity under MO. REV. STAT. §§513.430.1(7), 377.330
and 377.090. Next, we determine whether §§513.430.1(7), 377.330 or 377.090 allow
the Debtor to exempt her interest in an annuity.2 We conclude that: (1) res judicata
applied to the Debtor’s claim of an exemption; and (2) even if res judicata did not
apply, the bankruptcy court properly disallowed the Debtor’s claimed exemption.

                                BACKGROUND
       On January 29, 2010, the Debtor filed a petition for relief under Chapter 13 of
Title 11 of the United States Code (the “Bankruptcy Code”). On August 23, 2010,
the Debtor’s case was converted to a Chapter 7 case and, thereafter, the Trustee was
appointed. In 1993, the Debtor purchased from an insurance company (the




      1
             The Honorable Dennis D. Dow, Chief United States Bankruptcy
Judge for the Western District of Missouri.
      2
            The Debtor does not specifically refer to §513.430.1(7) in her briefs.
However, the Trustee analyzes whether the annuity was exempt under
§513.430.1(7) in her brief in connection with her argument that the annuity was
not insurance. We consider the bankruptcy court’s decisions under
§§513.430.1(7), 377.330 and 377.090.
                                         -2-
“Company”)3 a non-qualified deferred variable annuity (the “Annuity”) for $30,000.
The Debtor has made no contribution to her Annuity since making her $30,000
contribution in 1993. Payments to the Debtor under the Annuity contract begin in
2033.

      The Debtor’s Schedule C, reflecting her claimed exemptions, has been
amended several times since it was originally filed in her Chapter 13 case. The
original order of the bankruptcy court overruling the Debtor’s claim of an exemption
was entered on June 4, 2010. The bankruptcy court entered orders sustaining
objections to the Debtor’s claim of an exemption for her interest in the Annuity under
MO. REV. STAT. §§413.530.1(10)(e) and (f). In February 2011, the Debtor amended
her Schedule C in her Chapter 7 case to claim an exemption for her interest in the
Annuity under “RSMO §513,430.1(10)(e)[,] RSMo §§377.090, 377.330, 376.530,
376.550, 376.560.” The Trustee objected to this claim of an exemption in the
Annuity by the Debtor, making arguments regarding the inapplicability of §§377.090
and 513.430(10)(e). In her response to the Trustee’s objection, the Debtor argued that
the Annuity was exempt under §§513.430.1(7), 513.430.1(10) and 377.090, including
an argument that the Annuity should be governed as life insurance, even though she
had not claimed an exemption under §513.430.1(7) in her Schedule C. The
bankruptcy court held a hearing in April 2011 and entered an order (the “April
Order”), sustaining the Trustee’s objection to the Debtor’s claim of an exemption in
the Annuity. The Debtor did not appeal the bankruptcy court’s April 2011 Order.

      Instead, the Debtor amended her Schedule C again in April 2011, this time
claiming an exemption for her interest in the Annuity pursuant to “RSMo §




      3
           The Debtor has referred to the insurance company using different
names, some of which are different from the name listed on the Annuity contract.
                                         -3-
513.430(7). . . RSMo §§377.090, 377.330, RSMo [§§]377.090 & 377. 335. . . .”4 In
its September 2, 2011 Memorandum Opinion and Order that is the subject of this
appeal (the “September Order”), the bankruptcy court described the Debtor’s claim
as one in which “the Annuity is exempt as life insurance under §513.430.1(7) of the
Missouri Revised Statutes and that the Annuity cannot be seized under §§377.090 and
377.330.”

       In June 2011, the bankruptcy court conducted a hearing on the Debtor’s April
2011 claim of an exemption in the Annuity. At the June 2011 hearing, the bankruptcy
court stated that at the April hearing it “did say that life insurance is life insurance and
an annuity is an annuity. . . .” The bankruptcy court also stated that §513.430.1(7)
was not relevant. It identified as the questions that remained unanswered whether the
Annuity is exempt under §§377.330 and 377.090. The court then identified open
issues with respect to these questions: (1) whether the Annuity is the kind of policy
described in §§377.330 and 377.090 and whether the Company was authorized to do
business as one of the companies identified under these statutes; and (2) whether
§§377.330 and 377.090 are exemption statutes after Benn v. Cole (In re Benn), 491
F.3d 811 (8th Cir. 2007). The court allowed the parties additional time to submit
briefs and evidence, and a copy of the Annuity was provided to the bankruptcy court
as an exhibit to the Trustee’s brief. On September 2, 2011, the bankruptcy court
entered the September Order, sustaining the Trustee’s objection to the Debtor’s claim
of an exemption for her interest in the Annuity.

                          STANDARD OF REVIEW
      We review findings of fact for clear error and conclusions of law de novo.
Grimlie v. Georgen–Running (In re Grimlie), 439 B.R. 710, 715 (B.A.P. 8th Cir.
2010) (citation omitted).


       4
           The reference to MO. REV. STAT. §377.335 appears to be an error
because §377.335 is not a part of the Missouri Revised Statutes.
                                            -4-
                                    DISCUSSION
       “[M]ost assets become property of the estate upon the commencement of the
bankruptcy case, see 11 U.S.C. §541, and exemptions represent the debtor's attempt
to reclaim those assets or, more often, certain interests in those assets, to the creditors'
detriment.” Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi), 432 B.R. 812, 820
(9th Cir. BAP 2010)(quoting Schwab v. Reilly, 130 S.Ct. 2652 (2010)). Claims of
exemptions are to be construed liberally in favor of the exemption. Norwest Bank
Neb., N.A. v. Tveten (In re Tveten), 848 F.2d 871, 875 (8th Cir.1988). The Trustee
bears the burden of proving that the Debtor did not properly claim the exemption.
See Fed. R. Bankr.P. 4003(c). Therefore, “[i]f the Trustee meets his burden to
produce evidence in support of the objection, the burden of production shifts to the
debtor to show that the claimed objection is proper.” Danduran v. Kaler (In re
Danduran), 657 F.3d 749, 754 (8th Cir. 2011) (citations omitted). “[I]f the objecting
party fails to produce evidence in support of the objection, any factual issue must be
resolved in favor of the debtor.” Id. (citations omitted). The Trustee has the burden
of persuasion. Id.

      The Bankruptcy Code allows a debtor to exempt: (1) property listed in
Bankruptcy Code §522(d); or (2) property which is exempt under applicable state law
and federal law other than §522(d). 11 U.S.C. §522(b)(1). A state may opt out of the
§522(d) federal bankruptcy law exemptions. 11 U.S.C. § 522(b)(2). Pursuant to MO.
REV. STAT. §523.427, Missouri has opted out of the federal bankruptcy law
exemption scheme. The Debtor claimed an exemption under three Missouri statutes,
MO. REV. STAT. §§513.430.1(7), 377.330 and 377.090.

      We, therefore, consider the bankruptcy court’s decision sustaining the
Trustee’s objection to the Debtor’s claim of an exemption for her interest in the
Annuity pursuant to the three Missouri statutes cited by the Debtor. Section
513.430.1(7) provides a list of property that “shall be exempt from attachment and
execution” including “[a]ny one or more unmatured life insurance contracts owned

                                            -5-
by such person, other than a credit life insurance contract.” MO. REV. STAT.
§513.430.1(7).

      Section 377.330 states that:

      The money or other benefit, charity, relief or aid to be paid, provided or
      rendered by any corporation authorized to do business under sections
      377.200 to 377.460, shall not be liable to attachment or other process,
      and shall not be seized, taken or appropriated or applied by any legal or
      equitable process, nor by operation of law, to pay any debt or liability of
      a policy of a certificate holder, or of any beneficiary named in a policy
      or certificate.

MO. REV. STAT. §377.330. It applies to money and benefits from a “stipulated
premium” life insurance company.

       Section 377.090 contains language identical to §377.330, except that it pertains
to money and benefits from an “assessment plan” life insurance company, rather than
a “stipulated premium” life insurance company. MO. REV. STAT. §377.090.

I.    Res Judicata

       “We may affirm the bankruptcy court's order on any basis supported by the
record, even if that ground was not considered by the trial court.” Cawley v. Celeste
(In re Athens/Alpha Gas Corp.), 463 B.R. 883,886-87 (B.A.P. 8th Cir. 2012) (quoting
Mid–City Bank v. Skyline Woods Homeowners Assoc. (In re Skyline Woods Country
Club, LLC), 431 B.R. 830, 836 n. 16 (B.A.P. 8th Cir. 2010) (citation therein), aff'd,
636 F.3d 467 (8th Cir. 2011)). We affirm the decision of the bankruptcy court based
on application of res judicata.




                                          -6-
       Res judicata prevents “the relitigation of a claim on grounds that were raised
or could have been raised in the prior suit.” Banks v. Int’l Union Elec., 390 F.3d
1049, 1052 (8th Cir. 2004) (quoting Lane v. Peterson, 899 F.2d 737, 741 (8th Cir.
1990) (citation omitted)). Relitigation of a claim is barred under res judicata where
“a final judgment was entered by a court of competent jurisdiction, if the same parties
(or their privies) and the same cause of action are involved.” Ladd v. Ries (In re
Ladd), 450 F.3d 751, 753 (8th Cir. 2006) (citation omitted). A claim is barred “if it
arises out of the same nucleus of operative facts as the prior claim.” Banks, 390 F.3d
at 1052 (quoting Lane, 899 F.2d at 742 (citations omitted)). “[W]here a plaintiff
fashions a new theory of recovery or cites a new body of law that was arguably
violated by a defendant’s conduct, res judicata will still bar the second claim if it is
based on the same nucleus of operative facts as the prior claim.” Banks, 390 F.3dat
1052-53 (quoting Lane, 899 F.2d at 744).

      Res judicata barred the Debtor from claiming exemptions under
§§413.520.1(7), 377.330 and 377.090. Before the bankruptcy court entered the
September Order, it entered final orders, including the April Order, sustaining the
Trustee’s objections to the Debtor’s claim of an exemption for her interest in the
Annuity under various Missouri statutes. The parties to the September Order are the
same parties to the bankruptcy court’s April Order and the prior orders denying the
Debtor’s request for an exemption in the Annuity. The Debtor could have, and
should have, litigated the issues related to her claim of exemptions under all of the
Missouri statutes that she alleges are exemption statutes before the bankruptcy court
entered its previous orders. These claims share a common nucleus of operative fact
in that they involve an interpretation of the Annuity and the Debtor’s rights
thereunder.

      Moreover, at the June 2011 hearing that led to the September Order, the
bankruptcy court rejected the Debtor’s claim of an exemption under §513.430.1(7),
noting that at the April 2011 hearing it already “did say that life insurance is life

                                          -7-
insurance and an annuity is an annuity. . . .,” which was one of the bases for the
bankruptcy court’s September Order and an issue that we consider in this case. We
also note that two of the statutes upon which the Debtor relied for her April 2011
claim of an exemption that led to the bankruptcy court’s September Order, §§ 377.330
and 377.090, were already listed by the Debtor in her February 2011 Schedule C as
bases for an exemption.5

       We acknowledge the decision in Ladd v. Ries (In re Ladd), 450 F.3d 751 (8th
Cir. 2006), in which the Eighth Circuit ruled that res judicata did not bar the debtors
from amending their bankruptcy schedules to claim their farm as exempt property
under Minnesota law, after the bankruptcy court had disallowed the debtors’ claim
of an exemption in the farm under bankruptcy law. The Ladd decision is
distinguishable because that case concerned the debtors’ claim of a state homestead
exemption after the debtors had been denied an exemption under bankruptcy law by
default, and the issues of fact to be determined in Ladd were different under the state
and federal exemptions. Here, the Debtor cites to similar, and sometimes the same,
state statutes, trying to claim the Annuity as exempt. The Annuity has not changed
since the Debtor’s first attempt to claim it as exempt. We also note that even though
a party could not claim the same property as exempt under state law and Bankruptcy
Code exemptions at the same time, the Debtor could (and did) claim the Annuity as
exempt under multiple state statutes at once. See 11 U.S.C. §522(b)(1).

II.   Debtor’s claim of an exemption for her interest in the Annuity pursuant
      to MO. REV. STAT.§§513.430.1(7), 377.330 and 377.090

      We also affirm the bankruptcy court’s decision on the bases that: (1) the
bankruptcy court properly determined that the record does not show that the Company
was “authorized to do business” as a stipulated premium” or “assessment plan”


      5
            The bankruptcy court’s April Order states that “the issues were tried
and the Court announced its decision on the record.”
                                          -8-
insurance company, as is required for §§377.330 and 377.090 to apply to the Annuity;
and (2) the Annuity is not insurance, as is required for any of the three statutes.

      A.     Sections 377.330 and 377.090 do not apply to the Annuity because
             the record does not show that the Company is “authorized to do
             business” under §§377.200 to 377.460 or §§377.010 to 377.190

       The bankruptcy court properly sustained the Trustee’s objection to the Debtor’s
claim of an exemption in the Annuity under §§377.330 and 377.090 because those
statutes do not apply to the Annuity. Specifically, we agree with the bankruptcy
court’s determination that there was no evidence that the Company that would make
payment on the Annuity is “authorized to do business” as a “stipulated premium”
insurance company under §§ 377.200 to 377.460 or as an “assessment plan”
insurance company under§§377.010 to 377.190, as is required by §§377.330 or
377.090, respectively.

      To support her position that the Company was authorized to do business under
§377.200 to 377.460 as a stipulated premium company (and, therefore, that §377.330
applies), the Debtor refers to the public records of the National Association of
Insurance Commissioners. According to the Debtor, these records show that the
Company is authorized to issue all types of annuity policies in Missouri and,
therefore, the Company (and presumably the Annuity) is “protected by Section
377.330. . . .” As the bankruptcy court correctly found when it assigned “little, if any,
probative value” to the public records to which the Debtor refers, these records could
show only that the Company is actively licensed to “sell ‘Life and Health’ insurance
products under ‘Ch 376 & 377, RSMo.’” It does not follow from these records that
the Company was authorized to do business as a stipulated premium insurance
company. The Debtor argues further that, based on her comparison of the Annuity’s
terms to the statutory requirements for a policy issued by a stipulated premium
insurance company, the Annuity is a policy issued by a stipulated premium insurance



                                           -9-
company. But it does not appear that the Debtor presented this argument to the
bankruptcy court and, in any event, the Debtor’s argument is unconvincing.

       Our decision is further supported by commentary regarding §§377.330 and
377.090 in the Journal of the Missouri Bar. See Keith A. Herman, Using Life
Insurance for Asset Protection. What is Really Protected?, 68 J. MO.BAR, 14, 16
(2012). This article points out that §§377.330 and 377.090 “only apply to very
specific types of life insurance . . .” Id. at 18. In addition, the article states that there
are not any domestic stipulated premium plan life insurance companies, and only two
domestic assessment plan insurance companies, that currently conduct business in
Missouri.6 Id. (citing MO. INSURANCE PRACTICE §3.7 (MoBar Supp. 2010) MO.
INSURANCE PRACTICE §3.8 (Mo Bar 5th ed. 2004, 2010)). Likewise, the article points
us to §377.020.4, which states that an insurance company could not be organized “to
do business on the assessment plan under the provisions of sections 377.010 to
377.190” after September 1, 1953. MO. REV. STAT. §377.020.4. And §377.199
provides that stipulated premium plan life insurance company could not be
“organized or incorporated under the provisions of sections 377.200 to 377.460" after
1959. MO. REV. STAT. §377.199. The rarity and specificity of stipulated premium
and assessment plan insurance polices in Missouri, therefore, support our decision
that the Annuity is not within the scope of §§377.330 and 377.090.

       B.     Sections 513.430.1(7), 377.330 and 377.090 do not apply to the
              Annuity because the Annuity is not insurance

      For many of the same reasons set forth by the bankruptcy court, we hold that
none of the three statutes cited by the Debtor in her Schedule C, §§513.430.1(7),
377.330 and 377.090, apply to the Annuity because these statutes apply to insurance
and the Annuity is not insurance.


       6
            The Debtor identified the Annuity’s issuer as a foreign company
doing business in Missouri. Even if the issuer is a foreign, rather than a domestic,
company, the article supports a position that these policies are specific and rare.
                                            -10-
        By its terms, §513.430.1(7) applies only to “unmatured life insurance
contracts.” As the bankruptcy court aptly noted, “the term ‘annuity’ is conspicuously
missing.” Likewise, §§377.300 and 377.090 apply to insurance. Even though the
text of neither §377.330 nor §377.090 specifically mentions insurance, these statutes
refer to corporations that are authorized to do business under §§377.200 to 377.460
or §§377.010 to 377.190. Section 377.200 sets forth which companies “shall be
deemed to be engaged in the business of life insurance upon the stipulated premium
plan.” MO. REV. STAT. §377.200 (emphasis added). Section 377.010 sets forth which
contracts “shall be deemed a contract of insurance upon the assessment plan.” MO.
REV. STAT. §377.010 (emphasis added). In addition, as the bankruptcy court noted,
the title of the Chapter of the Missouri Statutes where §§377.330 and 377.090 are
found is called “Assessment Plan and Stipulated Premium Plan Life Insurance,” and
the subtitles of these statutes also show that the statutes concern life insurance.

      The Annuity is not insurance under the relevant statutes. We agree with the
bankruptcy court’s determination that, even though there are similarities between life
insurance contracts and annuities, the two are quite different. These differences are
shown by the Annuity at issue here. And the record simply does not show that the
annuity is insurance. The bankruptcy court correctly pointed out that whereas a life
insurance contract is normally funded in regular intervals and is payable at death, the
Annuity was funded only at its inception and it is payable at a pre-determined date.
The mere fact that the Annuity was issued by an insurance company was insufficient
to make the Annuity life insurance.

       We find persuasive the bankruptcy court’s reference to the Supreme Court’s
analysis in Nationsbank of North Carolina, N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251 (1995). Even though the holding in Nationsbank was limited to the
facts of that case, Nationsbank supports the position that annuity and a life insurance
contract are not presumed to be the same. As part of its analysis of whether annuities
are classified as insurance under a separate statutory regime, the Court in


                                         -11-
Nationsbank rejected arguments that annuities could be classified as insurance
because they are often regulated as insurance and have been sold by insurance
companies. Id. at 260. It recognized that even though “[s]tates generally classify
annuities as insurance when defining the powers of insurance companies and state
insurance regulators[,] . . . in diverse settings, States have resisted lump
classifications of annuities as insurance.” Id. In addition, the Court noted that “the
sale of a product by an insurance company does not inevitably render the product
insurance.” Id.

       The bankruptcy court provided a thorough analysis of why case law cited by
the Debtor does not support a determination that annuities are life insurance contracts.
It also stated why policy considerations and principles of statutory construction
support the Trustee’s position that §§377.330 and 377.090 do not apply to annuities.
We agree with the bankruptcy court’s analyses in these respects.

         C.    Whether §§377.330 and 377.090 are exemption statutes is not
               relevant to our decision

       The bankruptcy court and the parties devoted a significant portion of their
analyses to the issue of whether §§377.330 or 377.090 is an exemption statute. In
light of our determination that §§377.330 and 377.090 do not apply to the Annuity,
we do not address whether they are exemption statutes. However, in response to an
argument by the Debtor that the Missouri Court of Appeals’s decision in Russell v.
Healthmont of Missouri, LLC, 348 S.W.3d 784 (Mo.Ct. App. W.D. 2011), “negates
application of stare decisis” to the holding in the Eighth Circuit case, Benn v. Cole
(In re Benn), 491 F.3d 811 (8th Cir. 2007), we note that the precedential effect of
Benn on this Court was not affected by the Russell decision.

                                     CONCLUSION
         For the reasons set forth herein, we AFFIRM the decision of the bankruptcy
court.



                                          -12-
