*

Honorable William C. O’Kelley, Senior U.S. District Judge for

the Northern District of Georgia, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-2803 _______________ D. C. Docket No. 96-60-CIV-T-23B

 Bankr. No. 91-327-8P7

IN RE: MYRON LEVINE, a.k.a. Mike Levine; JACQUELINE P. LEVINE,

a.k.a. Jackie Levine,

 Debtors.

MYRON LEVINE, a.k.a. Mike Levine; JACQUELINE LEVINE, a.k.a.

Jackie Levine,

Plaintiffs-Appellants,

versus

CHARLES WEISSING, Trustee,

Defendant-Appellee.

______________________________

Appeal from the United States District Court

for the Middle District of Florida

______________________________

(February 3, 1998)

Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and

O’KELLEY*

, Senior District Judge.
2

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 nonexempt 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 erroneous. For the reasons that follow,

we conclude that the district court properly affirmed the bankruptcy

court’s order.
3

I. BACKGROUND

The debtors in this action, Myron and Jacqueline 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:
4

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
5

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
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.

6

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
7

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 nonexempt 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
8

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.

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
9

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
10

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,
11

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. Dist. Ct.) (“[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
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. . . . 

. . . .

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, 472-7 (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.

12

purchasing annuities from Financial during the time period identified

by the bankruptcy court.2
13

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
14

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 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, 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, 154
15

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., 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
16

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
17

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
18

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
19

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
20

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
21

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,
22

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
23

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
24

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
25

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. , 117 S. Ct. 1469, 137 L. Ed. 2d 682 (1997), we
26

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
27

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.