* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20305

Summary Calendar

In the Matter of: WILLIAM C BOSSART; MARILYNN W BOSSART

Debtors

WILLIAM C BOSSART; MARILYNN W BOSSART

Appellants

v.

KENNETH R HAVIS, Chapter 7 Trustee

Appellee

Appeal from the United States District Court 

for the Southern District of Texas, Houston Division

USDC No. 4:08-CV-0463

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

William C. and Marilynn W. Bossart appeal from the district court’s

upholding of a bankruptcy court decision that their paying about $108,000 to

United States Court of Appeals

Fifth Circuit

F I L E D

October 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-20305

2

purchase an annuity on the eve of filing for bankruptcy was a fraudulent

transfer. We agree with the decision and AFFIRM.

Two days before filing their Chapter 7 petition in March 2005, the

Bossarts liquidated various nonexempt assets. They used the proceeds to

purchase an annuity from AIG SunAmerica Life Assurance Company. The

Bossarts listed on their bankruptcy court schedules an AIG annuity in the

amount of $108,415.37, claiming it was purchased with exempt funds received

through a relative’s estate. That inheritance had been received four years

earlier. Seventeen months after the bankruptcy was opened, the Trustee filed

a complaint against AIG, seeking to avoid the transfer to AIG. See 11 U.S.C. §

548(a). AIG deposited what the district court called the “accumulated cash

value” of the annuity into the registry of the court. AIG was dismissed from the

action. The Bossarts then intervened, seeking the return of the funds. After

trial, the bankruptcy court found that the transfer had been fraudulent and

allowed the Trustee to recover the funds, with interest.

The Bossarts raise five issues on appeal from the district court’s

affirmance of the bankruptcy court decision. They claim: first, that the Trustee

should be unable to recover the funds paid into the court because they constitute

the annuity itself, an exempt asset, rather than the premium used to purchase

the annuity; second, that the proceedings in bankruptcy court were in fact an

interpleader action, not one for avoidance of a fraudulent transfer, and the

Trustee should therefore be required to meet a higher burden of proof that

applies to recovery of interpleaded funds; third, that the Trustee should be

estopped from making his fraudulent transfer claim because he did not initially

object to the purchase of the annuity; fourth, that the bankruptcy court failed to

make findings of fact and conclusions of law sufficient to support its judgment;

fifth, and finally, that the amount of the judgment was too high because the
No. 08-20305

3

Trustee was able to recover the original annuity premium plus the interest paid

by AIG before the funds were paid into the court.

“We review the bankruptcy court’s decision under the same standards as

the district court: conclusions of law and mixed questions of fact and law are

reviewed de novo, while findings of fact are reviewed for clear error.” In re

McLain, 516 F.3d 301, 307 (5th Cir. 2008).

The district court found no merit to the Bossarts’ issues. It held that the

Trustee had not sought to recover the annuity itself but claimed the funds the

Bossarts had paid as a premium to AIG in order to purchase the annuity. The

courtfound thatthe action was a Section 548 fraudulenttransfer proceeding, not

an interpleader proceeding. 

The court further held that the Trustee’s earlier failure to object to the

exemption ofthe annuity did not estop him from making the fraudulenttransfer

claim. The court found the estoppel theory to be unsupported by caselaw.

Moreover, the court held that at the time of filing bankruptcy, the Bossarts

concealed the origin of some of the funds used to purchase the annuity. That

concealment meant there was no factual basis for an estoppel argument. 

The district court found that the bankruptcy court’s findings of fact and

conclusions of law were sufficient to meet the requirements of Federal Rule of

Civil Procedure 52. 

Finally, the Bossarts argue that the Trustee was paid too much. The

premium for the annuity was about $108,000 in March 2005, but almost

$130,000 was in the registry of the court by the time of the bankruptcy court’s

December 2007 order to pay the money to the Trustee. The district court held

that the amount of the judgment was correct, as the Trustee had requested

recovery of the funds used to purchase the annuity “plus interest.” The district

court found no evidence to dispute that the then-current amount was the

original payment plus accumulated interest. The bankruptcy estate includes
No. 08-20305

4

“[p]roceeds . . . of or from the property of the estate.” 11 U.S.C. § 541(a)(6). The

interest would be proceeds of the property.

We find no error in the district court’s resolution of the same issues that

are brought before us. The judgment is AFFIRMED.