                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-14540                ELEVENTH CIRCUIT
                        Non-Argument Calendar              JANUARY 5, 2009
                      ________________________           THOMAS K. KAHN
                                                              CLERK
                  D. C. Docket No. 08-00527-CV-J-32
                     BKCY No. 05-BK-11050-JAF

In Re: ROBERT L. MATHEWS,

                                                              Debtor.
________________________________________________

AARON R. COHEN, Trustee,

                                                          Plaintiff-Appellant,

                                 versus

ROBERT L. MATHEWS,

                                                         Defendant-Appellee.
                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                           (January 5, 2009)

Before ANDERSON, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Trustee Aaron Cohen (the “Trustee”) appeals the district court’s order

affirming the bankruptcy court’s determination that the First National Banc Stock

issued to Debtor Robert L. Mathews (the “Debtor”) and his wife was exempt from

the Debtor’s bankruptcy estate. On appeal, the Trustee argues that: (1) the lower

courts erred in applying a presumption under Florida law that the Debtor’s First

National Banc Stock was owned as a tenancy by the entireties; (2) the bankruptcy

court clearly erred in finding that the Trustee failed to rebut this presumption by

proving by a preponderance of the evidence that the Debtor and his wife did not

intend to hold the First National Banc Stock as tenants by the entireties; and (3) the

bankruptcy court clearly erred in finding that the Trustee failed to prove bad faith

in the Debtor’s filing of an amended schedule. After careful review, we affirm.

      In appeals from bankruptcy proceedings, “we review determinations of law

made by either the district or bankruptcy court de novo, while reviewing the

bankruptcy court’s findings of fact for clear error.” In re Int’l Pharmacy & Disc.

II, Inc., 443 F.3d 767, 770 (11th Cir. 2005). We review the bankruptcy court’s

order independently of the district court. Id.

      The relevant facts are as follows. In 1999, the Debtor, who was the director

of First National Bank of Orange Park, Florida (“Orange Park Bank”), purchased

5,000 shares of Orange Park Bank common stock. The stock certificate for these



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shares is titled “ROBERT L. MATHEWS or JOYCE M. MATHEWS (JTWROS).”

In connection with this stock purchase, the Debtor signed a document titled “Stock

Certificate Registration Instructions” which provided Debtor with five ownership

options -- (1) Individual, (2) Tenants in Common, (3) Other, (4) Joint Tenants with

Rights of Survivorship, and (5) Uniform Gift to Minors -- and the blank next to

“Joint Tenants with Rights of Survivorship” was checked. The Debtor testified,

however, that he never filled out any forms associated with the stock, but that

“somebody else” wrote “JT TEN” on the “Election Form and Letter of

Transmittal” and that he merely received these items as they were titled and took

no action to change them. As a result, all the documents related to the stock were

titled to the Debtor and his wife as joint tenants with right of survivorship.

      When Orange Park Bank merged with First National Banc, a new stock

certificate was issued and was titled the same way as the Orange Park Bank shares.

The Debtor did not request the title to the First National Banc Stock be any

different than that of the Orange Park Bank. Then, after the petition date, First

National Banc was acquired by Ameris Bancorp. The Debtor and his wife received

4,250 shares of Ameris Bancorp common stock and $85,595 in cash from the

acquiring entity in exchange for their First National Banc shares. The new stock

issued was titled “ROBERT L MATHEWS & JOYCE M MATHEWS JT TEN.”



                                           3
      Turning to the issues on appeal, the primary question is whether on the

petition date the Debtor and his wife owned the First National Banc Stock as

tenants by the entireties. Section 522(b)(3)(B) of the Bankruptcy Code exempts

from the bankruptcy estate any interest in property held as a tenancy by the

entireties under applicable state law, when only one spouse has filed a bankruptcy

petition. 11 U.S.C. § 522(b)(3)(B); In re Kossow, 325 B.R. 478, 483 (Bankr. S.D.

Fla. 2005). Here, the applicable law is Florida law, see In re Sinnreich, 391 F.3d

1295, 1297 (11th Cir. 2004); In re Hinton, 378 B.R. 371, 376 (Bankr. M.D. Fla.

2007), and the Florida Supreme Court has recently detailed what a court should

consider in determining whether property is owned as a tenancy by the entireties,

as opposed to a joint tenancy with right of survivorship. See Beal Bank, SSB v.

Almand & Assocs., 780 So. 2d 45 (Fla. 2001). The Beal Bank court recognized

that “strong[] policy considerations favor allowing [a] presumption in favor of a

tenancy by the entireties when a married couple jointly owns personal property.”

Id. at 57, 62. Relying on these policy considerations, it reasoned that “a statement

on [a bank account’s] signature card that the bank account titled in the name of a

husband and wife is held as a joint tenancy with right of survivorship does not

alone constitute an express disclaimer that the account is not held as a tenancy by

the entireties.” Id. at 60. Moreover, it held, “if a signature card does not expressly



                                          4
disclaim a tenancy by the entireties form of ownership, a rebuttable presumption

arises that a tenancy by the entireties exists provided that all the other unities

necessary for a tenancy by the entireties are established.” Id. This presumption

“shift[s] the burden to the creditor to prove by a preponderance of evidence that a

tenancy by the entireties was not created.” Id. at 58-59 (footnote omitted).

      Based on this law, we find no merit to the Trustee’s claim that the lower

courts erred in applying the Beal Bank presumption to conclude that the Debtor’s

First National Banc Stock was owned as a tenancy by the entireties. As an initial

matter, Beal Bank does not support the argument that the Debtor expressly

disclaimed ownership of the stock as tenants by the entireties by checking the

“Joint Tenants with Rights of Survivorship” blank instead of checking the “Other”

blank and writing in “Tenancy by the Entireties.” As the district court recognized,

selection of another form of ownership on the back of a certificate is not an express

disclaimer unless the documentation affirmatively provides the debtor with an

option to select tenancy by the entireties. Beal Bank, 780 So.2d at 60. The stock

certificate here did not expressly provide the Debtor with an option to select

tenancy by the entireties as a form of ownership; thus, the Debtor did not expressly

disclaim tenancy by the entireties.




                                          5
      Moreover, there is no support for the contention that the Beal Bank

presumption does not apply to personal property other than bank accounts. While

the personal property at issue in Beal Bank was bank accounts, later cases have

applied Beal Bank to other forms of personal property. See Cacciatore v.

Fisherman’s Wharf Realty Ltd. P’ship, 821 So.2d 1251, 1253 (Fla. Dist. Ct. App.

2002) (extending Beal Bank to stock certificates); Kossow, 325 B.R. at 485

(applying Beal Bank to household furnishings). Indeed, in describing the rationale

for its decision, the Beal Bank court spoke broadly, finding strong policy

considerations supporting a tenancy-by-the-entireties presumption when “a married

couple jointly owns personal property.” 780 So. 2d at 57 (emphasis added). See

also In re Daniels, 309 B.R. 54, 59 (Bankr. M.D. Fla. 2004) (“while the court in

Beal Bank explicitly addressed an issue involving only marital bank accounts, the

court also discussed in detail ownership issues surrounding marital personal

property in general and expressly concluded that strong policy reasons exist for

extending the tenancy by the entireties presumption to jointly owned marital

personal property, not just to financial accounts”).

      In addition, to the extent the Trustee relies on Daniels to say that the Beal

Bank presumption applies only when there are ambiguities, Daniels more precisely

said that the presumption applies “only in the absence of any controlling statute,



                                           6
express agreement, account statement, or other governing indicia that explicitly

establishes a form of ownership other than tenancy by the entireties.” 309 B.R. at

59.   Daniels involved a specific statute directed at vehicle ownership; here,

however, there is no such statute, nor, as discussed above, any express disclaimer

of tenancy by the entireties. As a result, the Beal Bank presumption applies.

      We also reject the Trustee’s argument that the bankruptcy court clearly erred

in finding that “the Trustee failed to prove by a preponderance of the evidence that

Debtor and his wife did not intend to create a tenancy by the entireties in the First

National Banc Stock.” As the district court observed, the evidence the Trustee

relies on to overcome the Beal Bank presumption and show that a tenancy by the

entireties was not created was “far from overwhelming.”           First, although the

Debtor was director of Orange Park Bank and had the ability to change the title of

the stock certificate, it is not clear that the Debtor had any obligation to do so or

that failure to do so is evidence of intent not to create a tenancy by the entireties.

Second, that the Debtor failed to have the Ameris Banc stock certificate, which he

received postpetition, changed from joint tenants with right of survivorship to

tenants by the entireties, is not persuasive either, given that making this change

could actually have undermined a showing of the Debtor’s intent to originally

create a tenancy by the entireties.    Likewise, that the Debtor was a successful



                                          7
businessman who had taken a business law course 50 years ago, and after

purchasing the original Orange Park Bank stock, received two parcels of land with

deeds expressly providing ownership as tenancy by the entireties, is also not

helpful.   None of this evidence affirmatively proves the Debtor’s personal

knowledge of tenancy by the entireties, nor his intent to not create one in the First

National Banc Stock, at the time he received the stock. Rather, the testimony at the

hearing showed that the Debtor intended to own the stock jointly with his wife so

that they “owned it together,” and there is no testimony indicating that the Debtor

viewed that ownership as divisible in any way. On this record, we cannot say that

the bankruptcy court clearly erred in makings its finding on the Trustee’s failure to

satisfy his burden of proof. See Int’l Pharm., 443 F.3d at 770 (“The bankruptcy

court’s findings of fact are not clearly erroneous unless, in light of all the evidence,

we are left with the definite and firm conviction that a mistake has been made.”).

      Finally, we are not persuaded that the bankruptcy court clearly erred in

finding that “the Trustee failed to prove bad faith on the part of Debtor or prejudice

to creditors in Debtor’s filing of the [amended schedule].” The Trustee’s argument

to this Court consists of mere conjecture about what Debtor may have

“attempt[ed]” to do and that his explanations are “hard to believe” -- none of which

is sufficient to deem the bankruptcy’s courts finding clear error.



                                           8
AFFIRMED.




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