
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1600                               IN RE: JURAJ J. BAJGAR,                                       Debtor,                                _____________________            CAROL B. MARTIN, ADMINISTRATOR OF ESTATE OF FRANCIS A. MARTIN,                            Plaintiff/Creditor, Appellant,                                          v.                                   JURAJ J. BAJGAR,                             Defendant/Debtor, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Morris E. Lasker, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Arthur J. Carakatsane for appellant.            _____________________            Richard S. Hackel for appellee.            _________________                                 ____________________                                   January 17, 1997                                 ____________________                      STAHL, Circuit Judge.  Creditor-Appellant Carol B.                      STAHL, Circuit Judge.                             _____________            Martin appeals the district court's affirmance of the            bankruptcy court's decision to grant Debtor-Appellee Juraj J.            Bajgar a discharge pursuant to 11 U.S.C.   727(a)(2)(A) with            respect to property that Bajgar fraudulently transferred            within one year before the filing of his voluntary petition            for relief under Chapter 7 of the Bankruptcy Code.  We            reverse.                                       Background                                      Background                                      __________                      Bajgar and his wife jointly owned a vacant parcel            of land in Port St. Lucie, Florida ("the Florida property").             On November 10, 1993, Bajgar conveyed his interest in the            land to his wife, purportedly as a belated engagement gift,            delayed twenty-three years.  In return, Bajgar received "love            and affection."  The conveyance was recorded on December 2,            1993.  At the time of the conveyance, Bajgar faced a            collection action and several foreclosures.  He conceded at            trial that the transfer was fraudulent within the meaning of            the Bankruptcy Code, admitting that the transfer was            completed with actual intent to hinder, delay, or defraud his            creditors.                      On May 16, 1994, less than one year after the            conveyance of the Florida property, Bajgar filed a petition            for relief under Chapter 7 of the Bankruptcy Code.  In his            petition, Bajgar disclosed the fraudulent transfer by                                         -3-                                          3            attaching a copy of the deed to the statement of affairs            filed pursuant to 11 U.S.C.   521(1).  At a June 20, 1994,            mandatory creditors meeting, Bajgar and his wife volunteered            to reconvey the Florida property.                        On August 19, 1994, Martin, one of Bajgar's            creditors, filed a Complaint to Object to Discharge, which            she amended on September 21, 1994.  Martin's amended            complaint alleged a violation of 11 U.S.C.   727(a)(2)(A),            which precludes discharge for a debtor who transfers property            within one year of the filing of a bankruptcy petition if he            acts with the intent to hinder, delay, or defraud a creditor.             On September 30, 1994, at Bajgar's request and on the advice            of counsel, Bajgar's wife reconveyed the Florida property to            herself and Bajgar jointly by quitclaim deed.  Bajgar's wife            completed the retransfer more than four months after Bajgar            filed his voluntary bankruptcy petition, more than three            months after the meeting with creditors, and more than one            month after Martin first objected to discharge.                      The bankruptcy court (Hillman, J.) held that the            conveyance of the Florida property did not constitute grounds            to deny Bajgar's discharge under Section 727(a)(2)(A).             Martin appealed this decision to the United States District            Court for the District of Massachusetts.  The district court            (Lasker, J.) affirmed, determining that the re-transfer of            the Florida property to Bajgar cured Bajgar's admittedly                                         -4-                                          4            fraudulent initial transfer.  This appeal ensued.                                  Standard of Review                                  Standard of Review                                  __________________                      "In an appeal from the district court's review of a            bankruptcy court order, we independently review the            bankruptcy court's decision, applying the 'clearly erroneous'            standard to findings of fact and de novo review to                                             _______            conclusions of law."  Grella v. Salem Five Cent Sav. Bank, 42                                  ______    _________________________            F.3d 26, 30 (1st Cir. 1994); see also In re G.S.F. Corp., 938                                         ___ ____ __________________            F.2d 1467, 1474 (1st Cir. 1991).  The district court's            determination that the re-transfer justified discharging            Bajgar pursuant to Section 727(a)(2)(A) constitutes a            conclusion of law that we subject to plenary review.  See                                                                  ___            Century 21 Balfour Real Estate v. Menna (In re Menna), 16            ______________________________    _____  ___________            F.3d 7, 10 (1st Cir. 1994); In re Erin Food Servs., Inc., 980                                        ____________________________            F.2d 792, 799 (1st Cir. 1992).                                      Discussion                                      Discussion                                      __________                      This case presents this Circuit with an issue of            first impression:  whether an admittedly fraudulent transfer            of a debtor's property within one year before the filing of a            voluntary petition for relief under Chapter 7 of the            Bankruptcy Code is cured for purposes of dischargeability            pursuant to Section 727(a)(2)(A) by its re-transfer to the            debtor after the debtor files his petition.  We hold that re-            transfer subsequent to filing a voluntary bankruptcy petition                                         -5-                                          5            does not cure the fraudulent transfer, and, thus, does not            avail the debtor discharge under Section 727.                      Title 11, Section 727(a)(2)(A) states in pertinent            part:                      (a) The court shall grant the debtor a discharge,                       unless--                           (2) The debtor, with intent to hinder,                           delay, or defraud a creditor . . . has                           transferred . . .                                 (A) property of the debtor within                                one year before the date of the                                filing of the petition.            11 U.S.C.   727(a)(2)(A).  Bajgar urges us to interpret the            term "transferred" to mean "transferred and remained            transferred" in the context of a debtor who reconveys            property subsequent to filing a voluntary bankruptcy            petition.                      As we have stated previously, "the task of            interpretation begins with the text of the statute itself,            and statutory language must be accorded its ordinary            meaning."  Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967                       ______________________    ___________________            F.2d 703, 706 (1st Cir. 1992).  "Where, as here, the            statute's language is plain, 'the sole function of the courts            is to enforce it according to its terms.'"  United States v.                                                        _____________            Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting            ______________________            Caminetti v. United States, 242 U.S. 470, 485 (1917)).  "The            _________    _____________            plain meaning of legislation should be conclusive, except in            the 'rare cases [in which] the literal application of a                                         -6-                                          6            statute will produce a result demonstrably at odds with the            intentions of the drafters.'"  Ron Pair, 489 U.S. at 242                                           ________            (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,                     _______    _________________________            571 (1982)).                      The statutory language of Section 727(a)(2)(A) is            sufficiently plain.  The statute specifically authorizes            denial of discharge if the debtor "transferred" property            within one year prior to the date of filing the bankruptcy            petition; it does not qualify this provision with a clause to            the effect that transferred property must remain transferred.             See 11 U.S.C.   727(a)(2)(A).            ___                      The Bankruptcy Code, moreover, defines the term            "transfer" broadly as "every mode, direct or indirect,            absolute or conditional, voluntary or involuntary, of            disposing of or parting with property or with an interest in            property."  11 U.S.C.   101(54).  Although the legislative            history offers no guidance in interpreting "transfer" in the            context of Section 727(a)(2)(A), the legislative history of            Section 101(54), which defines "transfer," explains that            "[t]he definition of transfer is as broad as possible."  S.            Rep. No. 989, 95th Cong. 27 (1978), reprinted in 1978                                                _________ __            U.S.C.C.A.N. 5787, 5813; H.R. Rep. No. 595, 95th Cong. 314            (1977).  Limiting the definition of "transferred" to            "transferred and remained transferred," in fact, would            contradict the drafters' intent.                                         -7-                                          7                      In support of his position, Bajgar recites Justice            Douglas' admonition that courts "do not read . . . statutory            words with the ease of a computer.  There is an overriding            consideration that equitable principles govern the exercise            of bankruptcy jurisdiction."  Bank of Marin v. England, 385                                          _____________    _______            U.S. 99, 103 (1966).  This recitation, however, is misplaced            in this case.  Bank of Marin addressed the issue of whether                           _____________            or not "the payment by the drawee of a drawer bankrupt's            checks after the date of th[e] filing [in bankruptcy] is a            `transfer' within the meaning of [repealed 11 U.S.C.              110(d)(5)]."  Id. at 102.  The Court determined "it would be                          ___            inequitable to hold liable a drawee who pays checks of the            bankrupt duly drawn but presented after bankruptcy, where no            actual revocation of its authority has been made and it has            not notice or knowledge of the bankruptcy."  Id. at 103.                                                          ___            Although Congress "has legislated the exception [that the            Marin Court articulated with respect to the need for notice]            _____            in   542(c)," Poonja v. Charles Schwab & Co. (In re Dominion                          ______    ____________________  ______________            Corp.), 199 B.R. 410, 413 (9th Cir. 1996), the legislative            _____            history makes plain that Congress, in revising the Bankruptcy            Code, did not intend to limit the definition of the term            "transfer."  See S. Rep. No. 989, at 27; H.R. Rep. No 595, at                         ___            314; see also Dominion Corp., 199 B.R. at 413 (explaining                 ___ ____ ______________            that changes made to the Code following Marin pertained to                                                    _____            the definition of "transferee" not "transfer").  In fact,                                         -8-                                          8            "[t]he word 'transfer' has always had a most comprehensive            meaning under the bankruptcy laws and has been construed to            include every method of disposing of or parting with property            or its possession."  4 Collier on Bankruptcy   727.02[5]                                   _____________________            (15th ed. 1996).  And, "[w]hatever force the assertion in            Bank of Marin v. England, that 'equitable principles govern            _____________    _______            the exercise of bankruptcy jurisdiction' may have had under            the 1898 Act, this approach has no place under the Code to            the extent the statute addresses the question."  Levit v.                                                             _____            Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1189 (7th Cir.            _________________________            1989); see also In re Taubman, 160 B.R. 964, 980 (S.D. Ohio                   ___ ____ _____________            1993) ("It must [] be recognized that the exercise of []            equitable principles     . . . 'cannot contravene specific            provisions of the Bankruptcy Code.'") (quoting Terex Corp. v.                                                           ___________            Metropolitan Life Ins. Co., 984 F.2d 170, 173 (6th Cir. 1993)).1            __________________________                                            ____________________            1.  The district court reasoned that "`the statutory right to            a discharge should ordinarily be construed liberally in favor            of  the debtor.'"  Martin v. Bajgar  (In re Bajgar), C.A. No.                               ______    ______   ____________            95-12562-MEL,  slip op. at 2-3 (quoting In re Tully, 818 F.2d                                            _______ ___________            106, 110 (1st  Cir. 1987)).   Although Tully  did posit  that                                                   _____            "`[t]he reasons for denying a discharge to a bankrupt must be            real and substantial, not merely technical and conjectural,'"            it also directed that, "[o]n the other hand, the very purpose            of certain sections of the law, like 11 U.S.C.   727(a)[], is            to  make certain  that  those who  seek  the shelter  of  the            bankruptcy  code do not play fast and loose with their assets            or with the reality  of their affairs."   Tully, 818 F.2d  at                                                      _____            110  (quoting Dilworth v. Booth,  69 F.2d 621,  624 (5th Cir.                  _______ ________    _____            1934)).  In a  more recent case, moreover, we  explained that            "[e]xceptions   to  discharge   are  narrowly   construed  in            furtherance of the Bankruptcy Code's `fresh start' policy and            the  claimant must show that its  claim comes squarely within            _____________________________________________________________            an exception  enumerated in Bankruptcy  Code    [727(a)(2)]."            ___________________________________________________________            Menna, 16 F.3d at 9 (emphasis added).  In this case, Martin's            _____                                         -9-                                          9                      Without delving into the murky realm of legislative            purpose and equitable principles, the Eleventh Circuit, one            of the two other courts of appeals to address this issue,            reached the same conclusion we reach today.  See Davis v.                                                         ___ _____            Davis (In re Davis), 911 F.2d 560 (11th Cir. 1990) (per            _____  ___________            curiam).  In Davis, the Eleventh Circuit considered the case                         _____            of a debtor ("Davis") who transferred a one-half interest in            his home to his wife.  See id. at 561.  Upon the advice of a                                   ___ ___            bankruptcy lawyer, Davis re-transferred the property.  The            day following recordation of the deed formalizing this            retransfer, and less than one year after the initial            transfer, Davis filed for bankruptcy protection under Chapter            7.  Despite the fact that Davis disclosed the existence of            the fraudulent transfers, a creditor filed an adversary            proceeding to deny discharge under Section 727(a)(2)(A).                        Like Bajgar, Davis argued that "the word            'transferred' should be read to mean 'transferred and            remained transferred' at the time a debtor files his            bankruptcy petition."  Id. at 562.  Refusing to discharge                                   ___            Davis, the Eleventh Circuit reasoned:                      Normally, a court should interpret a                      statute in a manner consistent with the                                            ____________________            claim that  Bajgar should be denied  discharge because Bajgar            fraudulently transferred  property within one year before the            filing of  the bankruptcy petition falls  squarely within the            exception  that  Section  727(a)(2)(A) enumerates.    See  11                                                                  ___            U.S.C.     727(a)(2)(A).    The  Tully  court's  instruction,                                             _____            therefore, does not control this case.                                         -10-                                          10                      plain meaning of the language used in the                      statute.  The statutory language of                      section 727(a)(2)(A) is plain and                      unambiguous.  Congress certainly was                      capable of drafting a statute which would                      deny a discharge only when assets were                      fraudulently transferred and remained                      transferred at the time of filing of                      bankruptcy proceedings, but it did not.                       We are a court and not a legislative                      body; therefore, we are not free to                      create by interpretation an exception in                      a statute which is plain on its face.            Id. (citations omitted).  According to the Eleventh Circuit,            ___            therefore, if a debtor fraudulently transfers property within            one year before the filing of a bankruptcy petition, he will            not receive a discharge.  See Najjar v. Kablaoui (In re                                      ___ ______    ________  _____            Kablaoui), 196 B.R. 705, 709 (S.D.N.Y. 1996) ("[T]he Eleventh            ________            Circuit wholly rejects the debtor's subsequent reconveyance            of the fraudulently transferred property as a defense to a            section 727(a)(2)(A) action.").                      While the plain language of Section 727(a)(2)(A)            and the applicable legislative history point to the            conclusion that, upon proper objection, any debtor who            fraudulently transfers property within one year before the            filing of a bankruptcy petition is not entitled to receive a            discharge pursuant to Section 727, irrespective of the timing            of a reconveyance, this case presents us with a debtor who            reconveyed property several months subsequent to filing a            voluntary bankruptcy petition.  We need not decide now either            the effect of a reconveyance made prior to the filing of a                                         -11-                                          11            voluntary bankruptcy petition or the question of a re-            transfer effected immediately following the filing of an            involuntary petition.                      Despite Section 727(a)(2)(A)'s plain language and            the Davis court's interpretation, Bajgar seeks solace in a                _____            Ninth Circuit case, First Beverly Bank v. Adeeb (In re                                __________________    _____  _____            Adeeb), 787 F.2d 1339, 1344 (9th Cir. 1986), which            _____            interpreted the term "transferred" to mean "transferred and            remained transferred" in the context of Section 727(a)(2)(A).             Both the bankruptcy court, see Bajgar, 186 B.R. at 8, and the                                       ___ ______            district court, see Martin v. Bajgar (In re Bajgar), C.A. No.                            ___ ______    ______  ____________            95-12562-MEL, slip op. at 2 (D. Mass. March 19, 1996), found            Adeeb persuasive in this case.  We do not.            _____                      In Adeeb, the court considered whether or not to                         _____            discharge an individual ("Adeeb") who transferred property            "with intent to hinder, delay, or defraud a creditor" within            one year of the filing of a petition.  See 787 F.2d at 1342,                                                   ___            1344.  Faced with demands from his creditors, Adeeb consulted            with an attorney who had little bankruptcy experience.             Acting upon his attorney's advice, Adeeb transferred several            properties to third parties.  Adeeb then retained an            experienced bankruptcy attorney, who advised him to re-            transfer the properties and to disclose the initial transfers            to his creditors.  Adeeb followed this advice and immediately            began to reverse the transfers while notifying his creditors                                         -12-                                          12            of his actions.  Before Adeeb could complete the re-transfers            and within one year of the initial fraudulent transfers,            several of his creditors filed an involuntary bankruptcy            petition against him.  Determining not to contest this            petition, several days later Adeeb filed a voluntary            petition, "seeking a discharge of his indebtedness."  Id. at                                                                  ___            1342.                      The Adeeb court determined that "reading                          _____            `transferred' . . . to mean 'transferred and remained            transferred' is most consistent with the legislative purpose            of [Section 727(a)(2)(A)]."  Id. at 1344.  The Adeeb court                                         ___               _____            reasoned:                      First, this reading encourages honest                      debtors to recover property they have                      transferred during the year preceding                      bankruptcy.  Encouraging debtors to                      recover improperly transferred property                      facilitates the equitable distribution of                      assets among creditors by ensuring that                      the trustee has possession of all of the                      debtor's assets.  Second, this reading                      permits the honest debtor to undo his                       mistakes and receive his discharge.            Id. at 1345.  Treating Adeeb as the subject of an involuntary            ___            petition because "[t]he involuntary petition in this case            began the bankruptcy process," id. at 1346 n.4, the court                                           ___            discharged Adeeb.  The court held that "a debtor who has            disclosed his previous transfers to his creditors and is            making a good faith effort to recover the property            transferred at the time an involuntary bankruptcy petition is                                       ___________                                         -13-                                          13            filed is entitled to a discharge of his debts if he is            otherwise qualified."  Id. at 1346 (emphasis added).                                   ___                      The Adeeb court, however, enunciated a different                          _____            rule with respect to a debtor who files a voluntary                                                      _________            bankruptcy petition:  "[A] debtor who transfers property            within one year of bankruptcy with the intent penalized by            section 727(a)(2)(A) may not be denied discharge of his debts            if he reveals the transfers to his creditors, recovers                                                          ________            substantially all of the property before he files his            _____________________________________________________            bankruptcy petition, and is otherwise qualified for a            ___________________            discharge."  Id. at 1345 (emphasis added).  As the Adeeb                         ___                                   _____            court explained, this rule demanding recovery prior to the            filing of a petition "assumes the filing of a voluntary            petition by the debtor.  In that situation, the debtor            controls the time of filing the petition.  He is therefore            able to time the filing to allow recovery of substantially            all of his property."  Id. at 1346.  Adeeb thus makes clear                                   ___           _____            that the test applicable to a debtor subject to an            involuntary bankruptcy petition differs substantially from            the test the court would apply to a debtor filing a voluntary            bankruptcy petition.                      Even were we to adopt Adeeb, its application to the                                            _____            instant case would result in denial of discharge.  Bajgar did            not recover any of the transferred property until well after            he filed his voluntary bankruptcy petition.  Although the                                         -14-                                          14            bankruptcy court noted the fact that Bajgar did not complete            reconveyance of the property "until several months after the            filing of the petition," Bajgar, 186 B.R. at 9, it determined                                     ______            that because Bajgar revealed the transfer at the time of his            filing, "those facts satisfy the Adeeb test that the recovery                                             _____            be 'prior to the time the bankruptcy petition was filed or            within a reasonable time after it was filed.'"  Id. (quoting                                                            ___            Adeeb, 787 F.2d at 1346).  Contrary to the bankruptcy court's            _____            assertion, disclosure constitutes only one component of the            activity necessary to secure discharge under Adeeb.  See                                                         _____   ___            Adeeb, 787 F.2d at 1345-46.  Furthermore, the language that            _____            the bankruptcy court relies on from Adeeb applies to an                                                _____            involuntary petition, rather than a voluntary petition:  "We            emphasize that the debtor [subject] . . . to the filing of            the involuntary petition . . . must actually recover the            property within a reasonable time after the filing of the                                                                  ___            involuntary petition."  Adeeb, 787 F.2d at 1346 (emphasis            ____________________    _____            added).  In the case of a voluntary bankruptcy petition, such            as Bajgar filed, however, "[t]he Ninth Circuit requires            actual reconveyance of the fraudulently transferred property            ____________________________________________________________            before the bankruptcy filing."  Kablaoui, 196 B.R. at 709            ____________________________    ________            (explaining Adeeb) (emphasis added); see also Adeeb, 787 F.2d                        _____                    ___ ____ _____            at 1345-46; March v. Sanders (In re Sanders), 128 B.R. 963,                        _____    _______  _____________            971 (W.D. La. 1991) ("Court of Appeals decisions . . . have            taken the position that mere disclosure of actions prohibited                                         -15-                                          15            by Sec. 727(a)(2)(A) will not prevent denial of discharge.             What may allow discharge is disclosure accompanied by            voluntary prepetition reversal of the prohibited activities .                      ____________________            . . .") (emphasis added).  As the Kablaoui court concluded,                                              ________            "[h]ere the Debtor did not attempt to recover any of the            transferred property before filing for bankruptcy.  Thus,            these transfers were not 'undone' under the Ninth Circuit's            definition of 'transfer.'"  Kablaoui, 196 B.R. at 709.                                        ________                      The bankruptcy court, again relying on Adeeb,                                                             _____            endeavored to buttress its construction of Section            727(a)(2)(A) by insisting that construing "transferred" to            mean "transferred and remained transferred" furthers the            general purpose of the Bankruptcy Code.  See Bajgar, 186 B.R.                                                     ___ ______            at 7-8.  We recognize that reading the term "transferred" to            mean "transferred and remained transferred," could be            construed, in certain instances, to advance the "purpose of            the Bankruptcy Act to [distribute] the assets of the bankrupt            . . . among creditors and then to relieve the honest debtor            from the weight of oppressive indebtedness and permit him to            start afresh free from the obligations and responsibilities            consequent upon business misfortunes."  Williams v. United                                                    ________    ______            States Fidelity & Guarantee Co., 236 U.S. 549, 554-55 (1915);            _______________________________            Adeeb, 787 F.2d at 1345.  This purpose affords the "honest            _____            but unfortunate debtor who surrenders for distribution the            property which he owns at the time of bankruptcy, a new                                   _________________________                                         -16-                                          16            opportunity in life and a clear field for future effort,            unhampered by the pressure and discouragement of preexisting            debt."  Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).                    ______________    ____                      In this case, however, Bajgar did not reveal his            initial fraudulent transfer until he filed his bankruptcy            petition.  In addition, Bajgar consulted with an experienced            bankruptcy attorney at the time he executed the initial            fraudulent transfer.  It was not until he faced the prospect            of being denied discharge pursuant to Section 727(a)(2)(A)            that Bajgar actually reconveyed the property.                        We are not presented with an "honest but            unfortunate debtor" that the Bankruptcy Code envisions as the            deserving recipient of a fresh start.  Cf. Huckfeldt v.                                                   ___ _________            Huckfeldt (In re Huckfeldt), 39 F.3d 829, 832-33 (8th Cir.            _________  _______________            1994) (describing individual who did not constitute "honest            but unfortunate debtor"); Barclays/American Business Credit,                                      __________________________________            Inc. v. Adams (In re Adams), 31 F.3d 389, 393-94 (6th Cir.            ____    _____  ___________            1994) (refusing to discharge a debtor pursuant to Section            727(a)(2)(A)), cert. denied, 115 S. Ct. 903 (1995).2                            _____ ______                                            ____________________            2.  Adeeb,  by contrast,  did present  such  a picture.   The            Adeeb court explained:              _____                      We  are  .  . .  persuaded  by  practical                      considerations  that  a discharge  should                      not be  denied in the  present situation.                      It is  not uncommon for an uncounseled or                      poorly   counseled   debtor  faced   with                      mounting  debts  and  pressure  from  his                      creditors  to  attempt  to   protect  his                      property  by  transferring it  to others.                                         -17-                                          17            Contrary to the bankruptcy court's determination, therefore,            denying Bajgar discharge actually comports with the "purpose"            of the Bankruptcy Act.  See Grogan v. Garner, 498 U.S 279,                                    ___ ______    ______            286-87 (1991) ("[I]n the same breath that we have invoked            th[e] 'fresh start' policy, we have been careful to explain            that the [Bankruptcy] Act limits the opportunity for a            completely unencumbered new beginning to the 'honest but            unfortunate debtor.'"); Citibank, N.A. v. Eashai (In re                                    ______________    ______  _____            Eashai), 87 F.3d 1082, 1088 (9th Cir. 1996) ("This exception            ______            to discharge furthers the policy that an honest but            unfortunate debtor obtains a fresh start while a dishonest            debtor does not benefit from his wrongdoing."); Mayer v.                                                            _____            Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.) ("Congress            _________________            concluded that preventing fraud is more important than            letting defrauders start over with a clean slate, and we must            respect that judgment."), cert. denied, 116 S. Ct. 563 (1995).3                                      _____ ______                                            ____________________                      Upon later reflection  or upon  obtaining                      advice   from   experienced    bankruptcy                      counsel,  the  debtor  may   realize  his                      original  transfer  of  property   was  a                      mistake.            Adeeb, 787  F.2d at 1345.   At  oral argument in  the instant            _____            case, however, Bajgar's attorney  informed us that Bajgar was            well-counseled by an experienced bankruptcy lawyer throughout            the  period in question,  including the time  he executed the            initial fraudulent transfer.            3.  As for  the Bankruptcy  Code's objective of  guaranteeing            the equitable distribution of a petitioner's estate among his            creditors,  it  is  likely  that  our  decision,  by  denying            discharge,   will  facilitate   this  outcome   by  deterring            petitioners  from  fraudulently transferring  property within                                         -18-                                          18                                      Conclusion                                      Conclusion                                      __________                      Martin's claim "comes squarely within" Section            727(a)(2)(A)'s exception for property fraudulently            transferred within one year of the filing of a bankruptcy            petition.  See Menna, 16 F.3d at 9.  It is for Congress to                       ___ _____            determine whether or not this exception should be recast.  We            REVERSE and REMAND to the district court with instructions to            remand to the bankruptcy court for proceedings consistent            with this opinion.                                            ____________________            one year  of filing  a voluntary bankruptcy  petition in  the            first place.                                           -19-                                          19
