# Barkley v. Conner (In Re Conner)

> United States Bankruptcy Appellate Panel for the Ninth Circuit · April 29, 1994 · 165 B.R. 901

URL: https://www.frixlaw.com/law-library/cases/9699387

## Case

- **Full name:** In Re Wilker S. CONNER; Janice M. Conner, Debtors. John BARKLEY, Trustee, Appellant, v. Wilker S. CONNER; Janice M. Conner; Orthopedic Clinic 401K Profit Sharing Plan and Trust Agreement; Puregro Company, Appellees
- **Court:** United States Bankruptcy Appellate Panel for the Ninth Circuit
- **Decided:** April 29, 1994
- **Citations:** 165 B.R. 901; 1994 Bankr. LEXIS 669; 1994 WL 187805
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Russell, Jones, and Hagan, Bankruptcy Judges
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699387

## Opinion text

JONES, Bankruptcy Judge,
concurring:
In Patterson v. Shumate, the Supreme Court established a two-prong test for determining whether pension benefits in an ERISA-qualified plan are excluded from property of the estate under applicable non-bankruptcy law pursuant to 11 U.S.C. § 541 (c)(2). Patterson v. Shumate, 504 U.S. -, -, 112 S.Ct. 2242, 2247-48 , 119 L.Ed.2d 519, 527-28 (1992). First, a court must evaluate whether the ERISA-qualified plan contains an anti-alienation provision which constitutes a restriction on transfer that is enforceable under nonbankruptcy law within the plain meaning of section 541(c)(2). Id. Under this first prong, the Supreme Court in Shumate resolved a conflict in the circuits in holding that “applicable nonbank-ruptcy law” is not limited to state law. 112 S.Ct. at 2246-48 , 119 L.Ed.2d at 526-28 .
The second step in the analysis posited by the Shumate Court is to determine whether the anti-alienation provision contained in an ERISA-qualified plan satisfies the terms of section 541(c)(2). Shumate, 112 S.Ct. at 2248 , 119 L.Ed.2d at 528 . In the instant *904 appeal it is undisputed that the Debtor has access to the funds in the after-tax account at any time and for any reason. Therefore, the Debtor may be unable to satisfy the second prong of the Shumate analysis which entails subjecting the anti-alienation provision to scrutiny under section 541(c)(2).
However, since this panel is obligated to follow controlling authority on this issue, In re Reuter, 11 F.3d 850 (9th Cir.1993), I respectfully concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699387. Public record. Not legal advice.