                                   United States Court of Appeals,

                                           Eleventh Circuit.

                                             No. 96-2803.

In Re: Myron LEVINE, a.k.a. Mike Levine; Jacquelyn P. Levine, a.k.a. Jackie Levine, Debtors.

   Myron LEVINE, a.k.a. Mike Levine; Jacquelyn Levine, a.k.a. Jackie Levine, Plaintiffs-
Appellants,

                                                   v.

                        Charles WEISSING, Trustee, Defendant-Appellee.

                                             Feb. 3, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 96-60-CIV-T-
23B), Steven D. Merryday, Judge.

Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and O'KELLEY*, Senior District
Judge.

        BIRCH, Circuit Judge:

        This appeal requires that we examine and resolve several issues relating to bankruptcy law

as applied in Florida. Specifically, we must decide whether (1) the conversion of funds from

non-exempt to exempt status through the purchase of annuities constitutes a "transfer" for purposes

of state law pertaining to fraudulent transfers; (2) the act of converting or "transferring" funds from

non-exempt to exempt status can be isolated analytically from the result of that transfer; and (3)

Florida law provided for an action to set aside fraudulent conveyances otherwise deemed exempt

from the reach of creditors prior to 1993. In addition, we must decide whether, under the facts of

this particular case, the trustee's action to set aside a fraudulent transfer is barred by the Bankruptcy

Code's statute of limitations and whether the bankruptcy court's factual determinations are clearly


   *
   Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of
Georgia, sitting by designation.
erroneous. For the reasons that follow, we conclude that the district court properly affirmed the

bankruptcy court's order.

                                         I. BACKGROUND

       The debtors in this action, Myron and Jacquelyn Levine (the "Levines"), filed a voluntary

petition for relief under Chapter 7 of the United States Bankruptcy Code in 1991. Charles Weissing

(the "trustee") was appointed trustee of the bankruptcy estate and, shortly thereafter, filed a

complaint pursuant to Fla. Stat. § 726.105 to set aside as fraudulent the transfer of approximately

$440,000.00 of non-exempt assets to several insurance companies for the purchase of annuities

which are exempt from the claims of creditors under Florida law. The trustee alleged that these

transfers were effected with the intent to hinder, delay, or defraud a known creditor, James A. Miller.

It is undisputed that, several years prior to the Levines' declaration of bankruptcy, Miller had

instituted an action for fraud against the Levines in the state of California relating to the sale of

property by the Levines to Miller. The precise request for relief as articulated in the trustee's

complaint is critical to our disposition of this case and, therefore, is reproduced in relevant part:

               Pursuant to the provisions of Florida Statute Section 726.108 entitled remedies of
       creditors, the Court may avoid a transfer found to be fraudulent pursuant to the provisions
       of Florida Statutes Section 726.105 to the extent necessary to satisfy a creditor's claim. In
       addition, subject to applicable principles of equity and in accordance with applicable Rules
       of Civil Procedure, a creditor may obtain an injunction against further disposition by the
       Debtor or a transferee, or both, of the assets transferred, or may obtain any other relief the
       circumstances may require....

       ....

       WHEREFORE, the Trustee prays that this Court enter a preliminary and permanent
       injunction preventing FINANCIAL BENEFIT LIFE INSURANCE COMPANY ... [et al.]
       from making further distributions to or for the Debtors, and further preventing the Debtors
       from accepting any distributions from FINANCIAL BENEFIT LIFE INSURANCE
       COMPANY ... [et al.].

Exh. A at 3-4 and 7.
       The bankruptcy court initially dismissed the complaint on the ground that, in defining the

parameters of a "transfer" of funds, both the Bankruptcy Code and Florida law contemplated that

the transferor and the transferee necessarily be two distinct, identifiable parties; as a result,

according to the bankruptcy court's reasoning, there had been no transfer of funds that could be set

aside as fraudulent in this instance. More specifically, the bankruptcy court determined that a

transfer had not occurred "because the Debtors still retain control and ownership of the assets

acquired with funds they obtained from disposition of their nonexempt assets, and the fact that this

conversion effectively removed the former assets from the reach of the creditors is of no

consequence." In re Levine, 139 B.R. 551, 553 (Bankr.M.D.Fla.1992). The district court, however,

reversed the bankruptcy court's order dismissing the case and concluded not only that there had been

a transfer but, in addition, that the trustee had stated a cause of action for fraudulent transfer of

funds. See R1-13 at Exh. 1.

       On remand, the bankruptcy court held an evidentiary hearing to ascertain whether the

challenged annuities had been purchased with fraudulent intent. In a memorandum order, the

bankruptcy court found that three of the named insurance companies had actually repaid to the

debtors the full amount of the funds transferred according to the annuity contracts, Exh. B at 16, and

thus could not be held legally liable for the amounts received pursuant to the purchase of those

contracts. In addition, the court rejected any personal liability on behalf of Financial Benefit Life

Insurance Company ("Financial") regarding annuity contracts purchased by the debtors from that

institution. The court further determined, however, that the purchase of annuities from Financial

between June 1990 and September 1990 was motivated by "the specific intent to remove

non-exempt properties from the reach of creditors by converting the proceeds of the sale to exempt

properties." Exh. B at 14. The court noted that the Levines had discussed the exempt status of
annuities with an estate-planning lawyer knowing that Miller likely would obtain a judgment against

them1 and, within a short period of time, liquidated their stock portfolio and purchased an annuity

contract from Financial. Consistent with this determination, the court set aside the annuities

purchased from Financial, ordered that the balance of funds in the annuity contracts be transferred

back into the bankruptcy estate, and enjoined any further distributions to the Levines from these

particular transferred funds. This decision was affirmed summarily by the district court.

       On appeal, the Levines ask that we reverse the district court's order affirming the bankruptcy

court's decision to set aside as fraudulent those transfers that occurred between June and September

of 1990 to Financial. The Levines base their challenge to the bankruptcy court's decision on several

contentions: First, they reassert their argument, presented previously to the bankruptcy court and

the district court, that the conversion of funds from non-exempt to exempt status does not constitute

a transfer and, thus, cannot be attacked under Florida law. Second, they posit that, even if the

conversion in question was a transfer, the funds currently are exempt under Florida law and Fla. Stat.

726.105 cannot be used to collaterally challenge the exempt status of these annuities. Third, they

suggest that specific non-retroactive statutory amendments to Florida law enacted in 1993 address

precisely the circumstances presented in this case; consequently, we can infer that the Florida

legislature had not provided a remedy for the alleged violation at issue prior to the enactment of

these amendments. Fourth, they contend that the trustee did not contest the exempt status of the

annuities within the applicable statute of limitations time period. Fifth, they argue that the

bankruptcy court's factual determinations are clearly erroneous. We address in turn each of the

Levines' arguments.


   1
    It is undisputed that the bankruptcy court erred in stating that, at the time the Levines
consulted a lawyer regarding the challenged annuities, Miller already had obtained a judgment
against them.
                                          II. DISCUSSION

        We review the bankruptcy court's factual findings under the clearly erroneous standard.

General Trading v. Yale Materials Handling Corp., 119 F.3d 1485, 1494 (11th Cir.1997). We

review determinations of law, whether from the bankruptcy court or the district court, de novo. Id.

A. Was this a transfer?

        As noted, the Levines argue that, because they essentially transferred money to themselves

by altering the status and form of their own assets, there was no transfer for purposes of the

applicable Florida law.

        We disagree. Florida law provides the following definition of a "transfer":

       "Transfer" means every mode, direct or indirect, absolute or conditional, voluntary or
       involuntary, of disposing of or parting with an asset or an interest in an asset, and includes
       payment of money, release, lease, and creation of a lien or other encumbrance.

Fla. Stat. § 726.102(12). Although the Florida legislature has never explicitly defined an "annuity,"

the Florida Supreme Court, in a case certified by our court, has looked to various decisions of

bankruptcy courts to provide a useful definitional guide in the absence of a clear legislative

directive; to this end, that court has defined an annuity as, inter alia, "a form of investment which

pays periodically during the life of the annuitant or during a term fixed by contract rather than on

the occurrence of a future contingency...." In re McCollam, 986 F.2d 436, 438 (11th Cir.1993)

(emphasis added). Borrowing directly from Florida's statutory language regarding the scope of the

term "transfer," we readily conclude that, in purchasing an annuity, the purchaser voluntarily parts

with an interest in an asset in exchange for a guaranteed monetary return on his investment; indeed,

the purchase of an annuity is a contractual arrangement whereby each party is bound by specific

rights and obligations. Although the record does not reveal the precise terms of the annuities at issue

here, virtually all annuity contracts provide that the annuitant will be permitted to withdraw amounts
of money in pre-determined intervals and achieve a measure of return at a fixed interest rate in

exchange for placing his assets in the hands of a financial institution—in this case, an insurance

company—that will invest his money. Similarly, an annuitant generally may not withdraw money

at a greater amount or with greater frequency than what has been specified in the annuity contract

without incurring financial penalties. See Fla. Stat. § 625.121(6)(c) 3 e (establishing permissible

annuity plans under Florida law regarding the rate at which a policyholder may withdraw funds

without incurring penalty); Werner v. Dept. of Ins., 689 So.2d 1211, 1212 (Fla.App. 1 Dist.)

("[agent] did not inform [plaintiff] that certain interest would be forfeited if she withdrew more than

ten per cent of the principal in any one of the first seven years of the annuity's existence."), review

denied, 698 So.2d 849 (1997). Consequently, although an individual who purchases an annuity

remains the technical owner of the asset, he does not retain total control over that asset and does not

have unfettered access to the full amount of his own "property." As a result, the purchase of an

annuity, as in the instant action, does constitute a "transfer" for purposes of Florida law regarding

fraudulent transfers. The Levines, therefore, did transfer assets from non-exempt to exempt status

in purchasing annuities from Financial during the time period identified by the bankruptcy court.2


   2
    It is interesting to note that, in a case involving a trustee's objection to a debtor's claimed
exemption of an annuity purchased prior to the filing of a Chapter 7 bankruptcy petition, the
same bankruptcy court that originally had decided, in the Levines' case, that such a purchase did
not constitute a "transfer" concluded:

                       [W]hen the Debtor's right to exemption is challenged on the grounds that
               the Debtor converted non-exempt property to exempt property, it is appropriate to
               inquire into the circumstances surrounding the transfer, as there is substantial and
               respectable authority to support the denial of the Debtor's right to exemptions
               upon a showing by extrinsic evidence that the Debtor converted non-exempt
               property into exempt property with the specific intent to defraud his or her
               creditors....

               ....
B. Has Fla. Stat. § 726.105 properly been invoked?

        The Levines further argue that, assuming that a transfer did occur in this instance, the

annuities are now exempt and cannot be contested collaterally through § 726.105. That statutory

provision states, in relevant part:

        (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether
        the creditor's claim arose before or after the transfer was made or the obligation was
        incurred, if the debtor made the transfer or incurred the obligation:

        (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or

        (b) Without receiving a reasonably equivalent value in exchange for the transfer or
        obligation, and the debtor:

        1. Was engaged or was about to engage in a business or a transaction for which the
        remaining assets of the debtor were unreasonably small in relation to the business or
        transaction; or

        2. Intended to incur, or believed or reasonably should have believed that he or she would
        incur, debts beyond his or her ability to pay as they became due.

Fla. Stat. § 726.105(1). The Levines posit that, notwithstanding the language of this statutory

provision concerning fraudulent transfers or transactions, Florida law historically has held




                As a final comment, it should be noted that this Court is receding in part from its
                holding in In re Levine, supra, that converting non-exempt property to exempt
                property is not per se fraudulent and conversion of such property for the purpose
                of placing such property out of the reach of creditors will not deprive a debtor of
                an exemption to which the debtor would otherwise be entitled. After further
                research and consideration, this Court is satisfied that a showing that the
                conversion of a non-exempt asset into an exempt asset for the specific purpose of
                placing the asset out of the reach of creditors is sufficient to deprive a debtor of
                his right to claim that property as exempt.

        In re Schwarb, 150 B.R. 470, 472-73 (Bankr.M.D.Fla.1992). Although Schwarb
        concerns the validity of a claimed exemption rather than the transfer that gave rise to the
        exempt asset, it nonetheless provides valuable insight into the bankruptcy court's striking
        shift in perspective regarding a critical question in this case—that is, whether the
        Levines' purchase of annuities could be characterized as a "transfer" for purposes of
        bankruptcy law prohibiting fraudulent transfers.
legally-created exemptions to be sacrosanct and has declined to place an exempt financial instrument

or arrangement—regardless of the motivation of the debtor—within the reach of creditors. The

Levines are correct that such a body of decisional law has evolved in Florida, although within the

context of the constitutionally-protected homestead exemption rather than the statutorily-created

exemption for annuities. In Hill v. First Nat'l. Bank of Marianna, 79 Fla. 391, 84 So. 190, 193

(1920), for example, the Florida Supreme Court refused to subject property protected by the

homestead exemption to the payment of debts, noting that to do so "would permit defendants to do

indirectly what they are enjoined from doing directly, and thereby defeat the beneficial purpose of

the law." Similarly, in Heddon v. Jones, 115 Fla. 19, 154 So. 891, 891-92 (1934), the Florida

Supreme Court again declined to interfere with the homestead exemption regardless of the debtor's

intent:

                  The fact that the appellee may have moved on the homestead property prior to
          judgment for the express purpose of "homesteading" it is not legal fraud which per se affords
          ground for holding the homestead claim subordinate to the lien of a judgment rendered in
          a suit pending prior to the time the homestead character attached. Nor is it material that the
          property later claimed as a homestead was held out as a possible asset upon which credit was
          obtained before the homestead attempt was perfected.

See also West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 212 (1917)

(stating that the homestead exemption "applies not only to formal and technical process, but to any

judicial proceedings, of law or in equity, which seek the appropriation of the property to the payment

of debts.").

          The trustee, on the other hand, points to more recent decisional law applying § 726.105

specifically to bankruptcy cases analogous to this one:                In re Gefen, 35 B.R. 368

(Bankr.S.D.Fla.1984), for instance, concerned a finding by the bankruptcy court that the debtor had

transferred money from an individual retirement account into an annuity for the purpose of

defrauding a creditor. In upholding the bankruptcy court's application of § 726.105, the district court
in Gefen noted that

       [t]he debtor could have chosen numerous investment vehicles with high rates of return for
       the proceeds of his I.R.A., or he could have applied them toward payment of the Final
       Judgment, but instead he chose a rollover into a deferred annuity....

       ....

               The Court finds that the aforementioned transfer of funds made by the debtor had the
       legal effect and result of hindering, delaying, or defrauding creditors ...

              Accordingly, the transfer of funds is void and of no effect and the trustee may
       withdraw the cash value of the debtors' I.R.A....

Gefen, 35 B.R. at 372; see also In re Marks, 131 B.R. 220, 222 (S.D.Fla.1991) (rejecting as lacking

merit debtor's contention that debtor's "termination of his Keogh accounts and his subsequent use

of liquidated funds to purchase the two annuity contracts" did not constitute a transfer subject to

Florida prohibition on fraudulent transfers.), aff'd, 976 F.2d 743 (11th Cir.1992).

       We note that the sources of authority cited by the Levines and the trustee are, to a degree,

in tension: Florida law appears to view exemptions (or more specifically, the homestead exemption,

not at issue in this case) as inviolable, regardless of their provenance; Florida courts also, however,

have refused to countenance the purchase of an exempt instrument such as an annuity for the

purpose—or with the result—of defrauding creditors to a bankruptcy estate.

       While acknowledging this tension, we conclude that the Gefen case more closely resembles

the circumstances with which we are confronted in the instant action and effectively should govern

our resolution of this issue. Although we must respect the reluctance of Florida courts to interfere

with exempt assets, we also must be guided by those courts that have relied on the unambiguous

language of § 726.105 to set aside transfers from non-exempt to exempt status when such transfers

were effected in order to defraud creditors. The Levines' citation to precedent regarding the sacred

nature of the homestead exemption, while noteworthy, ultimately has little bearing on this case. As
is apparent from the complaint, the trustee does not challenge the exempt status of the annuities and

does not seek to reverse any rulings as to the exemption; rather, as articulated repeatedly by the

trustee, the thrust of this action is to set aside the transfer itself and return the transferred funds to

the bankruptcy estate. Although the Levines correctly observe that the distinction between setting

aside a transfer as fraudulent and declaring an otherwise exempt asset to be non-exempt achieves,

from their perspective, the same outcome, it is also a very real distinction that is provided for by

Florida law, as embodied in § 726.105, and that has been applied by both Florida bankruptcy courts

and federal district courts. We similarly find that there exists an arguable distinction between the

act of transferring funds from non-exempt to exempt status and the exempt nature of the transferred

funds. Where, as in this case, there is an allegation that the transfer itself was fraudulent and should

therefore be set aside (as opposed to an allegation that the transfer was fraudulent and the assets

therefore should be declared non-exempt), § 726.105 may properly be invoked.

C. Legislative amendments

        The Levines next argue that, because a 1993 amendment to the Florida Code anticipates

precisely the circumstance present in this case, we necessarily must infer that, prior to the enactment

of this amendment, the legislature had not provided a remedy for this type of fraud. The amendment

to which the Levines refer indeed addresses the conversion of an asset from non-exempt to exempt

status and states, in pertinent part:

                Any conversion by a debtor of an asset that results in the proceeds of the asset
        becoming exempt by law from the claims of a creditor of the debtor is a fraudulent asset
        conversion as to the creditor, whether the creditor's claim to the asset arose before or after
        the conversion of the asset, if the debtor made the conversion with the intent to hinder, delay,
        or defraud the creditor.

Fla. Stat. § 222.30(2).

        Although the language of this provision, enacted after the events giving rise to this action
occurred, embraces the allegations set forth in the trustee's complaint, we decline to assume or infer

from this fact alone that, prior to the amendment's enactment, the Florida legislature did not intend

a remedy to exist for fraudulent transfer of funds from non-exempt to exempt status; in fact, at least

one court has held that, prior to the adoption of § 222.30, the statutory provision at issue in this case,

§ 726.105, governed any type of fraudulent transfer including those transfers resulting in exempt

funds. In re Davidson, 178 B.R. 544 (S.D.Fla.1995), involved the debtors' transfer of funds held in

a non-exempt joint bank account to an exempt annuity one day before final judgment entered against

the debtors in a pending lawsuit. In reversing the bankruptcy court's order overruling the trustee's

objection to the debtors' claimed annuity exemption, the district court noted:

        Because Section 222.30 only applies to a transfer or conversion occurring on or after
        October 1, 1993, and the Annuity purchase in this case occurred prior to this date, the
        Bankruptcy Court concluded that:

                At the time this case was initiated, there was no Florida law providing that a debtor
                forfeits her right to an exemption as a consequence for fraudulent conduct.

               This legal conclusion is incorrect in light of the following statutes. Florida Statutes
        § 726.105 and § 726.108, effective at the time of the Annuity purchase, would appear to
        enable Ameritrust to avoid the transfer or Annuity purchase.

Id. at 552 (internal citation omitted).

        We conclude, as did the district court in Davidson, that prior to the adoption of § 222.30, §

726.105 governed allegations of fraudulent transfers regardless of whether the challenged transfers

resulted in exempt assets. Given the tension in the decisional law, identified earlier, concerning the

absolute nature of exemptions and the possibility of distinguishing the act of transferring funds from

their eventual exempt status, thereby avoiding transfers that create exemptions we construe § 222.30

to be an effort by the legislature to provide a clearer, more direct remedy to fraudulent transfers of

the sort alleged in this case. Moreover, § 222.30 expressly adopts the definitional section from §

726 "unless the application of a definition would be unreasonable." Fla. Stat. § 222.30(1). This
explicit cross-referencing of the two statutory provisions further suggests not only that they are to

be read in tandem but, more importantly, that § 222.30 is a subset of the causes of action outlined

in § 726. We determine that the legislative amendment embodied in § 222.30 does not preclude

reliance on § 726.105 regarding causes of action that accrued prior to the amendment's enactment.

D. Statute of Limitations

        We briefly address the Levines' contention that the trustee is barred from contesting the

exempt status of the annuities by virtue of the applicable statute of limitations. The Federal Rules

of Bankruptcy Procedure mandate that objections to listing of property to be claimed as exempt must

be filed within thirty days after the creditors' meeting. Fed. R. Bank. P. 4003. As previously noted,

however, the trustee in this action does not seek to contest the exemptions per se; rather, this is an

adversary action filed pursuant to 11 U.S.C. § 544, which permits the trustee to "avoid any transfer

of the property of the debtor...." 11 U.S.C. § 544(a). The Bankruptcy Code provides that an

adversary action filed under this provision may be filed within two years after the entry of the order

for relief. See 11 U.S.C. § 546(a)(1)(A). It is undisputed that the trustee has complied with the

two-year limitation on the filing of this action. Having determined that the statute of limitations

governing objections to exemptions does not control this case, we conclude that the trustee's action

to contest the transfer of funds is not time-barred.

E. Factual determinations

        Finally, our independent review of the record indicates that the bankruptcy court did not

clearly err in finding that the Levines purchased the annuities in question with the intent to hinder

or defraud a known creditor. In determining whether a debtor actually intended to hinder, delay, or

defraud a creditor, a bankruptcy judge may consider, inter alia, whether:

       (a) The transfer or obligation was to an insider.
       (b) The debtor retained possession or control of the property transferred after the transfer.

       (c) The transfer or obligation was disclosed or concealed.

       (d) Before the transfer was made or obligation was incurred, the debtor had been sued or
       threatened with suit.

       (e) The transfer was of substantially all the debtor's assets.

       (f) The debtor absconded.

       (g) The debtor removed or concealed assets.

       (h) The value of the consideration received by the debtor was reasonably equivalent to the
       value of the asset transferred or the amount of the obligation incurred.

       (i) The debtor was insolvent or became insolvent shortly after the transfer was made or the
       obligation incurred.

       (j) The transfer occurred shortly before or shortly after a substantial debt was incurred.

       (k) The debtor transferred the essential assets of the business to a lienor who transferred the
       assets to an insider of the debtor.

Fla. Stat. § 726.105(2).

       Based on the record evidence and testimony provided at an evidentiary hearing, there exists

sufficient evidence to affirm that the Levines converted non-exempt assets to annuities that are

exempt under Florida law shortly after learning that such a transfer would be beyond the reach of

Miller, a creditor whom the Levines had reason to believe likely would prevail in a lawsuit filed

against them. Giving due regard to the bankruptcy court's opportunity to observe and evaluate the

credibility and demeanor of the witnesses, see In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996)

(per curiam), cert. denied, U.S. , --- U.S. ----, 117 S.Ct. 1469, 137 L.Ed.2d 682 (1997), we conclude

that the bankruptcy court's factual determinations are supported by the record and, therefore, are not

clearly erroneous.

                                        III. CONCLUSION
       In this bankruptcy action, the Levines contend that the bankruptcy court erred in both

determining that the transfer of funds from non-exempt to exempt status through the purchase of

annuities constituted an attempt to defraud a known creditor and avoiding that transfer; they further

contend that the district court erred in affirming that decision. We hold that (1) the Levines'

purchase of annuities was a "transfer" under the pertinent Florida law; (2) Fla. Stat. § 726.105

properly was invoked and relied upon to challenge the nature of the transfer; (3) the amendment to

Florida's statutory scheme regarding the fraudulent conversion of assets embodied in Fla. Stat. §

222.30 does not necessarily suggest that no remedy for transfer of assets from non-exempt to exempt

status for the purpose of defrauding a creditor existed prior to the enactment of the amendment in

1993; (4) the trustee is not precluded from filing this adversarial action by virtue of the statute of

limitations pertaining to actions to contest claimed exemptions; and (5) the bankruptcy court's

factual determinations are not clearly erroneous. Accordingly, we AFFIRM.
