Florida/Georgia Personal Injury & Workers Compensation

...The Schleins’ Exemptions and the Trustee’s Objections After converting their ease to Chapter 7 of the Bankruptcy Code in December of 1988, the Schleins filed a Schedule B-4 (Property Claimed As Exempt). Property described as follows was included on the schedule: Debtors claim an exemption pursuant to Fla.Stat. § 222.21(2)(a) in all monies on deposit in their respective individual retirement account, (IRA)-simplified employee pension (SEP) bank accounts established pursuant to Section 408 of the Internal Revenue Code, including all monies in such accounts...

...The bankruptcy court’s ruling was based on the following syllogism: The Schleins’ “SEP/IRA account is an employee benefit plan as defined by ERISA”; ERISA, 29 U.S.C. § 1144 (a), preempts “any and all state laws insofar as they may now or hereafter relate to any employment benefit plan”; Florida Statute “§ 222.21(2)(a) directly relates to an employee benefit plan covered by ERISA”; therefore, ERISA preempts Fla. Stat. § 222.21 (2)(a). In re Schlein, 114 B.R. at 782-83 . The district court agreed with the bankruptcy court’s conclusion that Fla.Stat. § 222.21(2)(a) relates to ERISA plans, and is therefore preempted by ERISA....

...has declared that this broad preemption is not restricted to state laws that affect plan terms, conditions, or administration. Finding that “the existence of a pension plan is a critical factor in establishing a debtor’s right to exemption under section 222.21(a),” the court held that section to be preempted by ERISA....

...2 the court found that because “state law exemptions are not necessary to the enforcement of the Bankruptcy Code,” and because “the Bankruptcy Code, as a whole, can operate effectively without any state law ... section [1144(d)] does not save section 222.21(2)(a) from preemption.” 3....

...in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Fla.Stat. § 222.21(2)(a)....

...The Supreme Court had “no difficulty” in concluding that the two New York statutes at issue in Shaw were “ ‘relate[d] to’ employee benefit plans within the meaning of § 514(a),” id., and we reach the same conclusion concerning Fla.Stat. § 222.21(2)(a)....

...2182 , 100 L.Ed.2d 836 (1988), the Supreme Court explained that its decisions after Shaw “reaffirmed” the rule “that state laws which make ‘reference to’ ERISA plans are laws that ‘relate to’ those plans within the meaning of § 514(a).” Id. at 829, 108 S.Ct. at 2185 . The statutory language of Fla.Stat. § 222.21 does not expressly mention ERISA....

..., when faced with an issue identical to the one before this Court, a “reference in [a Texas] state law to ‘stock bonus, pension, profit-sharing or similar plans’ [was] ... a specific reference to ERISA benefit plans”). We hold that Fla.Stat. § 222.21(2)(a) relates to ERISA benefit plans and, absent an applicable exception, is preempted by ERISA § 514(a)....

...r modify the Bankruptcy Code’s provision permitting states to set *754 exemptions and the deliberate policy choices of Congress that underlie that provision. We do not believe that Congress intended that result. Accordingly, we hold that Fla.Stat. § 222.21 (2)(a) is not preempted by ERISA....

...We apply the rule established by the courts of Florida and hold that Dr. Schlein, who concedes that he is an independent contractor, is not entitled to exempt the earnings he has received from MEDS. III. CONCLUSION We REVERSE the judgment of the district court to the extent that it held that ERISA preempts Fla.Stat. § 222.21(2)(a), and we REMAND this case to the district court for further proceedings consistent with this conclusion....

...In each of the above-captioned Chapter 7 cases, the matter under consideration is an objection by the Trustee to each of the Debtors' claims that shares of stock held in a Florida Power & Light Group, Inc., Employee Thrift Plan are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. 222.21....

...It is the Trustee's contention in both cases that the funds currently held on behalf of the Debtors in the employee's Thrift Plan are properties of the estate and subject to the administration, notwithstanding the amendment by the legislature of this State of the exemption statute, Fla.Stat. 222.21 which now purports to exempt from claim of creditors funds in ERISA type accounts....

...In opposition, both Debtors contend first that the funds or the stock held in the plan on their behalf are not property of the estate to begin with because they, in fact, qualify as spendthrift trusts, but in any event, they are exempt by virtue of Fla.Stat. 222.21....

...§ 522(d)) Nothing herein shall affect the exemptions given to residents of this state by the state constitution in the Florida Statutes. Prior to 1987, there was no provision in the constitution or the statutes of this State which dealt with ERISA plans and whether or not they could be claimed as exempt. Fla.Stat. 222.21 entitled, "Exemption of Pension Money and Retirement" or profit-sharing benefits from legal processes provides in pertinent part: (2)(a) Except as provided in Paragraph (b) any money or other assets payable to a participant or beneficiary from...

...creditors of the beneficiary or the participant. It is clear that the Florida legislature intended to provide an exemption for ERISA plans. The Trustee contends, however, that to the extent that the Debtors' claim of exemption is based on Fla.Stat. 222.21, the subject matter dealing with ERISA type of plans has been pre-empted by the federal legislation and, therefore, any statute dealing with the subject matter is invalid and unenforceable....

...has jurisdiction over this proceeding as a core matter under 28 U.S.C. § 157(b)(2)(B). The debtor filed for relief under Chapter 7 of the Bankruptcy Code and listed his interest in a pension plan maintained by his employer as exempt under Fla.Stat. § 222.21(2)(a) in the amount of $4,000.00. The trustee timely filed a motion objecting to the debtor's exemption claiming that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.S. § 1001, et seq. pre-empts Florida state law and that Fla.Stat. § 222.21(2)(a) is unconstitutional as it violates the Florida Constitution....

...d opt out which Florida has done. See FLA.STAT.ANN. § 222.20 (West 1989). Under Fla.Stat. § 222.20 residents of the state of Florida "shall not be entitled to the federal exemptions provided in § 522(d) of the Bankruptcy Code." Instead, Fla.Stat. § 222.21(2)(a) provides a specific exemption for pension money and retirement or profit-sharing benefits from legal claims of creditors. Specifically, Fla. Stat. § 222.21(2)(a) provides: *379 "(2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s.401(a), s.403(a), s.408, or s.409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant." FLA.STAT.ANN. § 222.21(2)(a) (West 1989)....

...Accordingly, the Court accepts for purposes of this opinion that the plan meets the requirements to classify as an ERISA-qualified plan under Florida State law and is exempt under § 522(b)(2)(A) since Florida State law provides for that exemption under Fla.Stat. § 222.21(2)(a). See In re McDonald, 100 B.R. 598 (Bankr.S.D.Fla.1989); In re Gherman, 101 B.R. 369 (Bankr.S.D.Fla.1989). The trustee first argues that Fla. Stat. § 222.21(2)(a) is unconstitutional because it is in conflict with the Florida Constitution....

...The Florida Constitution only grants its citizens two exemptions: (1) Homestead exemption (FLA.CONST. art. VII, § 6) and (2) Personal Property exemption of $1,000.00 (FLA.CONST. art. X, § 4). The Florida legislature, however, has enacted additional exemptions such as Fla. Stat. § 222.21(2)(a)....

...The trustee has failed to join an indispensable party, namely the Attorney General for the State of Florida, to fully ventilate this issue. See 28 U.S.C.S. § 2403(b) (Law. Co-op. 1982 & Supp. 1989). Therefore, the Court will refrain from addressing the issue of the constitutionality of Fla.Stat. § 222.21(2)(a). Secondly, the trustee argues that under the authority of the United States Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA pre-empts Fla.Stat. § 222.21(2)(a)....

...at state-law garnishment procedures are not pre-empted by § 514(a). Mackey, 486 U.S. at 831, 108 S.Ct. at 2186, 100 L.Ed.2d at 845. Furthermore, unlike the state law involved in Mackey which sought to impose a different result that ERISA, Fla.Stat. § 222.21(2)(a) is consistent with ERISA's purpose of protecting pension money from attachment by creditors....

...Franchise Tax Board v. Construction Laborers Vacation Trust, 679 F.2d 1307 (9th Cir.1982); Commercial Mortgage Insurance, Inc. v. Citizens National Bank, 526 F.Supp. 510, 518 (N.D. Tex.1981); In re Komet, 104 B.R. 799 (W.D.Tex.1989). Florida Statute § 222.21(2)(a) only provides its residents with an exemption for profit-sharing benefits and pension plan money, but it does not regulate, directly or indirectly any matters dealing with ERISA's plan reporting, disclosure, participation, funding, vesting, benefit calculation or trustee's fiduciary responsibilities. Fla.Stat. § 222.21(2)(a) covers an area of law traditionally governed by the states and does not interfere with the field of employee pension plans now governed by federal law. Therefore, although ERISA may preempt those state laws which attempt to regulate pension plans or change the underlying purpose of ERISA it does not preempt Fla.Stat. § 222.21(2)(a). Instead, the Court finds that Fla.Stat. § 222.21(2)(a) complements ERISA's purpose in seeking to protect pension money from creditors and, therefore, absent a conflict between the state and federal law there is no need for pre-emption as expressed in In re Volpe, 100 B.R. at 847-848. Based upon the foregoing, the Court finds that Fla.Stat. § 222.21 is not preempted by ERISA. Accordingly, the benefits accruing from the pension plan in question *381 may be retained by the debtor as exempt property under § 522(b)(2)(A) and Fla. Stat. § 222.21(2)(a)....

...In each of the above-captioned Chapter 7 cases, the matter under consideration is an objection by the Trustee to each of the Debtors' claims that funds held in a Martin-Marietta 401K retirement fund are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. 222.21....

...It is the Trustee's contention in both cases that the funds currently held on behalf of the Debtors in the employees' 401K plan are properties of the estate and subject to the administration, notwithstanding the amendment by the legislature of this State that the exemption statute Fla.Stat. 222.21 which now purports to exempt from claim of creditors funds in ERISA type accounts....

...In opposition, both Debtors contend first that the funds or the stock held in the plan on their behalf are not property of the estate to begin with because they, in fact, qualify as spendthrift trusts, but in any event, they are exempt by virtue of Fla.Stat. 222.21....

...§ 522(d)) Nothing herein shall affect the exemptions given to residents of this state by the state constitution in the Florida Statutes. Prior to 1987, there was no provision in the constitution or the statutes of this State which dealt with ERISA plans and whether or not they could be claimed as exempt. Fla.Stat. 222.21 entitled, "Exemption of Pension Money and Retirement" or profit-sharing benefits from legal processes provides in pertinent part: (2)(a) Except as provided in Paragraph (b) any money or other assets payable to a participant or beneficiary from...

...creditors of the beneficiary or the participant. It is clear that the Florida legislature intended to provide an exemption for ERISA plans. The Trustee contends, however, that to the extent that the Debtors' claim of exemption is based on Fla.Stat. 222.21, the subject matter dealing with ERISA plans has been pre-empted by the federal legislation and, therefore, any statute dealing with the subject matter is invalid and unenforceable....

...ORDER ON TRUSTEE'S OBJECTION TO CLAIMED EXEMPTION THOMAS C. BRITTON, Chief Judge. The trustee's objection (CP 9) to the debtor's exemption of his ERISA qualified pension plan was heard on August 17 and September 7. The objection is that the exemption is claimed under an unconstitutional statute. Fla.Stat. § 222.21 and § 222.201....

...The objection is overruled and the claimed exemption is allowed. The trustee does not dispute that the subject plan is in fact: "a retirement or profit-sharing plan that is qualified under S.401(a), S.403(a), S.403(b), S.408, or S.409 of the Internal Revenue Code of 1986, as amended. . . ." Fla.Stat. § 222.21(2)(a)....

...The objection raises three points: (1) preemption by ERISA; (2) impermissible expansion of Florida constitutional exemption; and (3) impermissible partial "opting in" to federal bankruptcy exemption. Pre-emption It is undisputed that the applicable Florida Statute § 222.21(2)(a) makes reference to ERISA qualified plans, and that ERISA § 514(a) contains specific pre-emptive language over: "any and all state laws insofar as they may now or hereafter relate to any employee benefit plans." The trustee's argument relies on Mackey v....

...Expansion of Constitutional Exemption The trustee relies on In re Hudspeth, 92 B.R. 827 (Bankr.W.D.Ark.1988) and the general principle that a state legislature is not empowered to enact laws which violate the state constitution, to assert that Fla.Stat. § 222.21 is an impermissible expansion of the constitutional exemption for personal property....

...Relying on the second exception to the general rule, First Florida contends that this Debtor has only one meaningful asset, the Debtor's 401-K Employee Retirement Income Security Act (ERISA) plan, which could be used to satisfy First Florida's claim, and because of Fla.Stat. § 222.21(2)(a), it would not be able to reach the Debtor's interest in his ERISA plan in the state court. Fla.Stat. § 222.21(2)(a) provides as follows: § 222.21 Exemption of Pension Money and Retirement or Profit-Sharing Benefits from Legal Processes....

...It is contended by First Florida that the result would be different in bankruptcy court because this Court and other bankruptcy courts have held that by virtue of the Supreme Court decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), Fla.Stat. § 222.21(2)(a) is preempted by federal legislation, thus, the Debtor's interest in the ERISA plan would be included in his bankruptcy estate and subject to the claims of creditors, including the claim of First Florida. It is true that this Court, and other bankruptcy courts, have, in fact, held that ERISA preempts any other legislation on the subject, and a debtor's interest in an ERISA plan cannot be exempted pursuant to Fla.Stat. § 222.21(2)(a)....

...rdner, In re Parrish, In re Palmer, supra ; In re Martin, In re Langford, supra, that the Federal legislation set forth in ERISA preempts the subject, and therefore, Florida was not competent to exempt ERISA from the reach of creditors in Fla. Stat. § 222.21(2)(a). To that extent, this Court is satisfied that the Debtor cannot claim his ERISA plan as exempt by virtue of Fla.Stat. § 222.21(2)(a)....

...e when a debtor claims his interest in the ERISA plan as exempt in a pending bankruptcy case; it would not come into the picture outside of bankruptcy. Outside of bankruptcy, the debtor could only claim an ERISA plan as exempt pursuant to Fla. Stat. § 222.21, which in turn would bring into play the question whether or not the exemption under § 222.21 is enforceable in light of the preemption doctrine. See generally, Mackey, supra . This Court, of *428 course, is not in an position to prognosticate to what extent a state court would recognize that Mackey precludes any claim of exemption under § 222.21....

...Specifically, the Debtors claimed the following assets as exempt for the first time in the amended schedules filed on September 8, 2000: Market Exemption Exemption Asset Value Claimed Value Interests in Checking, Savings, or Other Financial Accounts, Certificates of Deposit T. Rowe Price $ 91.64 FSA § 222.21(2) $ 91.64 Account No....

...LL6019592 Jackson National Life $ 5,000.00 FSA § 222.14 $ 5,000.00 Policy No. 0022652360 Annuities Prudential Annuity Contract $ 713.15 FSA § 222.14 $ 713.15 # 005233 Interests in Individual Retirement Accounts Jackson National Life Insurance $141,786.90 FSA § 222.21(2) $141,786.90 IRA Account No. 36748810 Jackson National Life Insurance $ 42,707.97 FSA § 222.21(2) $ 42,707.97 IRA Account No. 35530030 Jackson National Life Insurance $ 47,832.24 FSA § 222.21(2) $ 47,832.24 IRA Account No. 36735960 Canada Life Assurance Company $202,228.54 FSA § 222.21(2) $202,228.54 *641 IRA Account No. B403930 All America Financial $201,887.96 FSA § 222.21(2) $201,887.96 IRA Account No. VQ402154 Smith-Barney $ 22,096.78 FSA § 222.21(2) $ 22,096.78 IRA Account No. XXX-XXXXX-XX 130 Smith Barney $ 12,921.71 FSA § 222.21(2) $ 12,921.71 IRA Account No. XXX-XXXXX-XX-XXX T. Rowe Price $ 2,436.77 FSA § 222.21(2) $ 2,436.77 IRA Account No. XXXXXXXXX-X T. Rowe Price $ 25,576.44 FSA § 222.21(2) $ 25,576.44 IRA Account No....

...imed their annuity, life insurance policies, and IRAs as exempt under Florida law. The Debtors claim exemptions for their life insurance policies and annuity under Florida Statute § 222.14 and claim an exemption for their IRAs under Florida Statute § 222.21....

...itor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. Fla. Stat. § 222.14 (2000). 222.21....

...irement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Fla. Stat. § 222.21 (2000)....

...§ 222.20; In re Valone, 784 F.3d 1398, 1400 n.1 (11th Cir. 2015). One of those exemptions applies to “pension money and certain tax-exempt funds or accounts”—including IRAs—so long as a debtor meets certain statutory requirements. Fla. Stat. § 222.21....

...ion cannot be claimed. Id. (citing Fed. R. Bankr. P. 4003(c)). It is therefore the Trustee’s burden to prove that Yerian was not entitled to shield his IRA under Florida law. III. Yerian contends that section 222.21(2)(a)(2) of the Florida Statutes places his IRA beyond the reach of his creditors....

...trument is not 5  Case: 18-10944 Date Filed: 06/26/2019 Page: 6 of 16 exempt from taxation in a proceeding that has become final and nonappealable. Fla. Stat. § 222.21(2)(a)(2) (footnote omitted). Section 408 of the Internal Revenue Code is the relevant provision in this case....

...in prohibited transactions—for instance, taking title to the IRA’s car and staying in the IRA’s condominium—and that when he did so, his IRA lost its tax-exempt status under § 408. Nevertheless, Yerian argues that his IRA is still creditor exempt under section 222.21(2)(a)(2)....

...In his view, the Florida exemption statute shields even an IRA operated in violation of the federal tax code, so long as the form of the IRA’s governing instrument satisfies the requirements of § 408(a) on paper. The Trustee disagrees, and so do we. And because we have not had occasion to interpret section 222.21(2)(a)(2) since it was amended to include the language at issue, we take this opportunity to explain the mechanics of the statute in some detail. We start with an observation about the statute’s structure. Section 222.21 of the Florida Statutes imposes different exemption requirements on different IRAs, depending on whether and how the Internal Revenue Service has signed off on the IRA’s terms. Section 222.21(2)(a)(1) applies if the IRA’s terms have been “preapproved by the Internal Revenue Service as exempt from taxation.” Section 222.21(2)(a)(2) applies if the IRA’s terms have been “determined by the Internal Revenue Service to be exempt from taxation.” And if the IRS has neither preapproved nor determined that the IRA’s terms comply with the tax code, the debtor must seek an exemption under section 222.21(2)(a)(3). Fla. Stat. § 222.21(2)(a)(1)–(3) (emphases added). 26 U.S.C. § 4975(c)(1). 8  Case: 18-10944 Date Filed: 06/26/2019 Page: 9 of 16 We are tasked with interpreting only section 222.21(2)(a)(2), the second of these three provisions. Under Florida law, Yerian would be entitled to claim an exemption for his IRA under section 222.21(2)(a)(2) if three requirements were met: (1) The IRA’s plan or governing instrument was initially “determined by the [IRS] to be exempt from taxation” under § 408; (2) Over time, the IRA has been “maint...

...nt satisfied § 408. But it is the Trustee who must demonstrate that an exemption is inapplicable, and the Trustee has not challenged the exemption on that ground. See McFarland, 790 F.3d at 1186. We reiterate, however, that different subsections of section 222.21(2)(a) apply to funds that have been “determined by the [IRS] to be exempt from taxation,” Fla. Stat. § 222.21(2)(a)(2), “preapproved by the [IRS] as exempt from taxation,” id. § 222.21(2)(a)(1), or neither, id. § 222.21(2)(a)(3)....

...order to be eligible for a creditor 9  Case: 18-10944 Date Filed: 06/26/2019 Page: 10 of 16 exemption. But again, because the parties here agree that Yerian properly invoked section 222.21(2)(a)(2), we examine the matter no further. The third requirement—that no final and nonappealable proceeding has declared that Yerian’s IRA is no longer tax-exempt—is satisfied as well....

...§ 408(a). 10  Case: 18-10944 Date Filed: 06/26/2019 Page: 11 of 16 instrument that has been determined by the [IRS] to be exempt from taxation under . . . s. 408.” Fla. Stat. § 222.21(2)(a)(2) (emphasis added)....

...The Florida exemption statute would likely allow such a pensioner to shield his retirement fund from creditors, even though the fund was not maintained in compliance with the tax code—at least until it was “subsequently determined” that the governing instrument was not exempt. Fla. Stat. § 222.21(2)(a)(2)....

...ute,” and has “the power to prohibit the purchase and holding of real property” through the terms of the governing instrument. Id. (emphasis added). In other words, IRA governing instruments can impose requirements that go beyond the law—and section 222.21(2)(a)(2) demands compliance with those additional requirements....

...Based on these facts, it is similarly plain that he failed to maintain his IRA in accordance with its governing 7 Because the parties do not dispute that these two documents are the IRA’s governing instruments, we do not attempt to define the term “governing instrument” as used in section 222.21(2)(a)(1)–(3). 13  Case: 18-10944 Date Filed: 06/26/2019 Page: 14 of 16 instrument—and as a consequence forfeited his creditor exemption under section 222.21(2)(a)(2). Yerian tries to avoid the statute’s “maintained in accordance with” requirement, but his efforts are in vain. First, Yerian argues that every section 222.21(2)(a)(2) inquiry should turn on whether an IRA has lost its tax- exempt status in an unfavorable final and nonappealable proceeding....

...erms of a plan or governing instrument established a tax-exempt IRA; (2) maintenance of the IRA in accordance with those terms; and (3) no subsequent determination in a final proceeding that the terms did not establish a lawful exemption. Fla. Stat. § 222.21(2)(a)(2). An unfavorable final proceeding and an owner’s failure to properly maintain his IRA are two different ways to forfeit a section 222.21(2)(a)(2) exemption....

...Yerian failed to maintain his IRA in accordance with its governing instruments, which explicitly prohibited the acts of self-dealing he engaged in with his IRA funds. As a consequence, he is not entitled to claim a creditor exemption for his IRA under section 222.21(2)(a)(2)....

...Annuity Unknown ง 222.14, Fla.Statutes TransAmerica Occidental Life Ins. Annuity Unknown ง 222.14, Fla.Statutes Metropolitan Life Ins. Co. Annuity Unknown ง 222.14, Fla.Statutes Ottis Williams & Michael Felts Annuities Unknown ง 222.14, Fla.Statutes U.S. Navy Disability/Pension Unknown ง 222.21, Fla.Statutes Mass Mutual Annuity IRA $142,068.74 งง 222.14, .21, Fla.Statutes Merrill Lynch CMA Acct....

...ateral estoppel from exempting the IRAs because the West Virginia District Court has already held in the Turnover Order that the IRAs are not exempt. (Doc. 37, at 34-38). It is undisputed that the IRAs qualify for exemption pursuant to Fla.Stat. ง 222.21....

...arlier action. In re Bush, 62 F.3d 1319, 1322 (11th Cir.1995). In this case, however, the prerequisites to applying collateral estoppel cannot be satisfied because the issue in this case is whether the Debtor can claim the IRAs as exempt pursuant to section 222.21 of the Florida Statutes....

...anding. We hold that such an order is not final, and accordingly, dismiss this appeal for lack of jurisdiction. I. BACKGROUND Stuart J. Atlas and Vicki K. Atlas (“the debtors”) filed a Chapter 7 bankruptcy petition, claiming that Florida Statute § 222.21 exempted their interests in certain pension and profit-sharing plans (“the Plans”) from the bankruptcy estate....

...isdiction over this proceeding as a core matter under 28 U.S.C. § 157(b)(2)(B). The debtor filed for relief under Chapter 7 of the Bankruptcy Code and listed as exempt an annuity contract under Fla.Stat. § 222.14 and a pension plan under Fla.Stat. § 222.21(2)(a). The trustee argues that both Florida Statute § 222.14 and § 222.21(2)(a) are unconstitutional because they create exemptions beyond those granted under the Florida Constitution. Furthermore, the trustee argues that Fla. Stat. § 222.21(2)(a) is pre-empted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.S....

...at 962. Therefore, the Court will allow exemption of the debtor's annuity benefits. See In re Benedict, 88 B.R. 390, 392 (Bankr.M.D.Fla. 1988); In re Mart, 88 B.R. 436 (Bankr.S.D. Fla.1988). Secondly, the trustee argues that both Fla.Stat. § 222.14 and § 222.21(2)(a) are unconstitutional because they infringe upon the exclusive jurisdiction of the federal legislature and are beyond those exemptions granted under the Florida Constitution relying on In re Hudspeth, 92 B.R. 827 (Bankr.W.D.Ark.1988). See also FLA. CONST. art. VII, § 6 and FLA. CONST. art. X, § 4. However, the Court has reviewed the case cited by the trustee and is not persuaded that Fla.Stat. § 222.14 and § 222.21(2)(a) are unconstitutional. Additionally, the trustee argues that ERISA pre-empts Fla.Stat. § 222.21(2)(a) and relies on the United States Supreme Court opinion Mackey v....

...Therefore, the Court accepts for purposes of this opinion that the plan meets the requirements to classify as an ERISA-qualified plan under Florida state law and is exempt under § 522(b)(2)(A) since Florida state law provides for that exemption under Fla.Stat. § 222.21(2)(a). See In re McDonald, 100 B.R. 598 (Bankr.S.D.Fla.1989); In re Gherman, 101 B.R. 369 (Bankr.S.D.Fla.1989). Furthermore, although several cases have followed the Mackey decision this Court finds that Fla.Stat. § 222.21 is not pre-empted by ERISA and follows its reasoning in In re Martinez, 107 B.R....

...749 (Bankr.S.D.Fla.1989); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex. 1989). Accordingly, the benefits accruing from the annuity contract and pension plan in question may be retained by the debtor as exempt property under § 522(b)(2)(A) and Fla.Stat. § 222.14 and § 222.21(2)(a)....

...X, § 4, Fla. Const. Books, silver dollars $90 Art. X, § 4, Fla. Const. Wearing Apparel $100 Art. X, § 4, Fla. Const. Watch, Wedding ring $100 Art. X, § 4, Fla. Const. 1986 Honda $1,000 Fla.Stat. § 222.25 Schwab and Peak IRAs $68,996 Fla.Stat. § 222.21 Principal Mutual Annuity Not Stated Fla.Stat....

...Appellant notes, however, an exception to this rule allowing a sole creditor without adequate remedy under nonbankruptcy law to obtain an order of relief. In re 7H Land & Cattle Co., 6 B.R. 29 (Bkrtcy.D.Nev.1980). A. STATUTORY EXCEPTIONS Pursuing this line of reasoning, appellant notes that Florida Statutes § 222.21(2)(a) [2] exempts ERISA qualified pension plans from creditors' claims under state law....

...Appellant further alleges that the exemption will not apply in the federal courts by virtue of the decision in Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). The Supreme Court held that state exemption laws, such as Fla.Stat. § 222.21(2)(a), are preempted by federal legislation rendering ERISA qualified plans subject to bankruptcy claims....

...§ 303(h)(1) reads in relevant part: (h) . . . the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if— (1) the debtor is generally not paying such debtor's debts as such debts become due; . . . [2] Fla.Stat. § 222.21(2)(a) notes in pertinent part: (2)(a) ....

...oom 24 hours daily during the entire week. MEDS is paid a fee for its services, from which it pays physicians and assistants. The profits are divided among the shareholders. DISCUSSION I. Debtor's Claim for Exemption of SEP/IRA Under Florida Statute § 222.21 A....

...§ 404(c)(4). In this case, the debtor, Edward Schlein, acting as his own employer, has made all contributions to his SEP/IRA. The Court concludes that the debtor's SEP/IRA account is an employee benefit plan as defined under ERISA. B. Florida Statute § 222.21 relates to an ERISA Employee Benefit Plan Section 222.21(2)(a) provides in relevant part: ......

...nterest of any participant or beneficiary in, a retirement or profit sharing plan that is qualified under Section ... 408 ... of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Section 222.21(2)(a), Florida Statutes creates an exemption for a SEP retirement plan qualified under I.R.C....

...The primary qualification issue raised in the Internal Revenue Code provision is ERISA qualification. A state statute need not specifically identify a plan for it to relate to ERISA. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). This Court concludes that § 222.21(2)(a) directly relates to an employee benefit plan covered by ERISA....

...Shaw, supra .; See also, Mackey v. Lanier Collection Agency and Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988); In re Bryant, 106 B.R. 727 (Bankr.M.D.Fla. 1989); In re Polombo, 106 B.R. 724 (Bankr. M.D.Fla.1989). C. ERISA preempts Florida Statute § 222.21 as it Relates to an Employee Benefit Plan Covered by ERISA ERISA, 29 U.S.C....

...343 (Bankr.S.D.Tex.1989); In re Brown, 95 B.R. 216 (Bankr.N.D.Okla. 1989); In re Flindall, 105 B.R. 32 (Bankr. D.Ariz.1989); In re McLeod, 102 B.R. 60 (Bankr.S.D.Miss.1989). This Court agrees with the sound reasoning of those cases and concludes that section 222.21(2)(a) is preempted by ERISA § 1144(a)....

...This case is fully analogous to McCafferty, and the Court concludes that the funds in the Barnett Bank account are not exempt as wages. CONCLUSION The SEP/IRA accounts held by the debtors in First Federal Savings and Loan Association and Barnett Bank, are not exempt pursuant to section 222.21(2)(a), Florida Statutes, since this state statute is preempted by ERISA, 29 U.S.C....

...disallowed. Under Florida law, an annuity is exempt from the bankruptcy estate. Fla.Stat. § 222.14. Similarly, Florida law allows the exemption of individual retirement accounts that are qualified as such under the Internal Revenue Code. Fla.Stat. § 222.21(2)(a); see, In re Horath, 116 B.R....

...vorce. (emphasis added). Thus, a QDRO is intended to protect one spouse's right to the other's pension or profit sharing plans by recognizing that spouse's entitlement to a portion of the future payments. The trial court entered the QDRO pursuant to section 222.21(2)(b), Florida Statutes (1997), which excepts pension funds from garnishment unless a qualified domestic relations order has been entered with respect to such fund....

...purchase the two annuity contracts constituted a "transfer" for purposes of 11 U.S.C. § 544 or Fla.Stat. § 726.101. Finally, Marks contends that the bankruptcy court erred by failing to give proper effect to the applicable exemption law, Fla.Stat. § 222.21(2)(a), which he claims was in effect on the petition date and which he contends is controlling in this suit pursuant to 11 U.S.C....

...Accordingly, the Court will reject them without comment. Only the fourth of the appellant's claims warrants discussion. In his fourth point, Marks contends that the bankruptcy court committed reversible error by failing to give proper effect to the applicable exemption law, Fla. Stat. § 222.21(2)(a)....

...Marks's transfer of his assets from a non-exempt form to an exempt form constituted the fraudulent transfer which the trustee sought to set aside. Marks contends here that, pursuant to the amendment to the Florida exemption laws which was codified at Fla.Stat. § 222.21(2)(a), the CD-Keogh accounts were themselves exempt assets on the date of their liquidation....

...This Court rejects Marks's contention. The simple reason why Marks's argument must fail is that the date of the conversion of the Keogh accounts and the date upon which the Hopkins obtained a final judgment against Marks both predate the effective date of Fla.Stat. § 222.21(2)(a)....

...Marks is also quite correct in pointing out that the bankruptcy proceeding commenced after that date. However, this Court will not use a statute which became effective in 1987 to change the nature of a transaction which occurred in 1986. As the bankruptcy court noted, at the time § 222.21(2)(a) *223 became effective, the CD-Keogh accounts had ceased to exist. Another difficulty with the Court applying the new exemption provisions to the 1986 transaction exists because Marks's creditors had a vested interest in the Keogh accounts prior to the effective date of Fla.Stat. § 222.21(2)(a)....

...338, 42 S.Ct. 325, 66 L.Ed. 647 (1922); Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335, 338-39 (11th Cir.1989); Young v. Altenhaus, 472 So.2d 1152 (Fla.1985); State, Dept. of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981). The Court refuses to apply § 222.21(2)(a) retroactively to characterize CD-Keogh account funds as exempt assets where the debtor's creditors obtained a vested interest in the CD-Keogh account funds prior to their liquidation and prior to the effective date of § 222.21(2)(a). Accordingly, the Court will not construe § 222.21(2)(a) as Marks requests. Instead, the Court will uphold the bankruptcy court's finding that the CD-Keogh accounts were at all relevant times nonexempt assets under Florida law, the passage of § 222.21(2)(a) notwithstanding....

...tion, Marine Contract Trust (Bankers Trust), challenged the Debtor's claim of exemption on the grounds that the Profit Sharing Plan is not an ERISA-qualified Plan and, in any event, the claim as asserted did not comply with requirements of Fla.Stat. § 222.21....

...On October 6th, Bankers Trust amended its Objection and challenged the claimed exemption on the additional grounds that "the Profit Sharing Plan is not a Plan eligible under the Debtor's claimed exemptions which include Fla.Stat. § 222.201; Fla.Stat. § 222.21; 29 USC §§ 1056 and 1065 (sic) and Spend Thrift Trust." On October 24, 1994, Diane L....

...rt of this Court's consideration of the Motions For Summary Judgment. UNCONTESTED GENERAL FACTS It is stipulated that the Debtor claimed his interest in the Howard M. Harris M.D.P.A. Profit Sharing Plan (the Plan) pursuant to Fla.Stat. §§ 222.201, 222.21 and 29 U.S.C....

...Having concluded that the Debtor's interest in this Profit Sharing Plan is not excluded from his estate by virtue of § 541(c)(2) based on Patterson, this leaves for consideration whether or not the Debtor may exempt his interest in this Profit Sharing Plan pursuant to Fla.Stat. § 222.21(2), which provides, in pertinent part: § 222.21....

...tatute under consideration. Since it does not, the Debtor cannot rely on this Statute to exempt his interest in the Plan under consideration. As an alternative the Trustee and Banker's Trust contend that even if the plan is ERISA qualified Fla.Stat. § 222.21(2)(a) is invalid because it has been preempted by ERISA....

...o serving a 30-year prison sentence, though both understandable and completely plausible, does nothing to negate his intent of August 8 to abandon permanently his home in Miami. [3] I agree with Gherman that he is entitled to the effect of Fla.Stat. § 222.21(2)(a) (which became effective October 1, 1987) and which provides for the exemption of Erisa retirement plans "qualified under [applicable provisions] of the Internal Revenue Code" from all claims of creditors of the beneficiary)....

...ay between the Pension Plan's statutory anti-alienation provision (Section 8 of the 1937 legislation) and the more recently passed legislation in Chapters 61 and 222, Florida Statutes. This Court expressly concludes that Sections 61.075, 61.076, and 222.21, Florida Statutes, implicitly repealed Section 8 of Chapter 18610 (1937), Special Acts of the Legislature of the State of Florida (the City's pension anti-alienation provision) at least to the extent so as to permit the spouse of the City's re...

...aw in which the QDRO was created. However, she insists that the trial court correctly concluded that the anti-alienation clause contained in the City's Pension Plan was repealed by implication by the subsequent passage of sections 61.075, 61.076 and 222.21, Florida Statutes....

...do so. E.g., Jackson v. Consolidated Government, City of Jacksonville, 225 So.2d 497 (Fla. 1969). Anna argues that the anti-alienation clause of the City's Pension Plan was impliedly repealed by the subsequent adoption of sections 61.075, 61.076 and 222.21, Florida Statutes. We are unable to agree. We fail to see the relevance of section 222.21, Florida Statutes (1991), to the issue involved here. That section is a part of title XV, entitled "Homestead and Exemptions," and of chapter 222 thereunder, entitled "Method of Setting Apart Homestead and Exemptions." Section 222.21(2) provides merely that, while sums payable to a debtor from an ERISA-qualified plan are generally exempt from creditors' claims, they are "not exempt from the claims of an alternate payee under a qualified domestic relations order." § 222.21(2)(b), Fla....

...e Trustee in each case to the Debtors' claims that funds held in their respective ERISA qualified 401-K retirement plans are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to Fla. Stat. § 222.21(2)(a) and 11 U.S.C....

...filed their Chapter 7 voluntary Petition for Relief on April 30, 1990, Case No. 90-4050. On their B-4 Schedule, the Martins claimed Jill Martin's interest in a 401-K retirement plan with J. Byrons/Amcena Corporation as exempt pursuant to Fla. Stat. § 222.21(2)(a)....

...In the case of Charles E. Langford, Case No. 90-2306, the Debtor filed his Chapter 7 voluntary Petition for Relief on March 15, 1990. On his B-4 Schedule of Exemptions, the Debtor claimed his interest in a 401-K retirement plan with Unijax as exempt pursuant to Fla. Stat. § 222.21(2)(a)....

...*299 The Trustees for the respective estates subsequently objected to the Debtors claiming the funds in their ERISA plans as exempt, contending that the funds currently held on behalf of the Debtors in the plans mentioned above are, in fact, property of the estate and subject to administration, notwithstanding Fla. Stat. § 222.21(2)(a), and cannot be claimed as exempt....

...1990); In re Bryant and In re Partsch, 106 B.R. 727 (Bankr.M.D.Fla.1989); and In re Sheppard and In re Polombo, 106 B.R. 724 (Bankr.M.D.Fla.1989), the Trustees' Objections should be overruled and the Debtors' claims of the ERISA qualified plans as exempt should be allowed based on Fla.Stat. § 222.21(2)(a) and 11 U.S.C....

...Langford may reach his interests in the plan not only upon death or retirement, but in the event of hardship. It is urged by the Debtors that even assuming their interests in the plans are property of the estate, they are exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...at 724, where this Court held that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), § 514(a) of ERISA [29 U.S.C. § 1144(a)] preempts Fla.Stat. § 222.21(2)(a) and thus, the exemption provided by this Statute is not available to Debtors, and Fla.Stat. § 222.21(2)(a) is void....

...ny and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (emphasis added). *301 It follows that because Fla.Stat. § 222.21(2)(a) "relates to" ERISA and specifically incorporates its provisions by reference, the statute is therefore preempted and the Debtors may not exempt the funds in question under this statute. To escape the inescapable conclusion that the funds in the ERISA plans may not be claimed and allowed as exempt pursuant to Fla.Stat. § 222.21(2)(a), the Debtors also rely on 11 U.S.C....

...14 $ 4,130.05 # 65 6500 370773 MFS/Sun Life of Canada FSA § 222.14 $ 17,376.98 # 65 6500 370648 MFS/Sun Life of Canada FSA § 222.14 $ 52,646.03 # 65 6500 370345 *660 North Brook Life FSA § 222.14 $150,000.00 Account # XXXXXXXXXXXXX Prudential FSA § 222.21 $ 33,103.49 Securities Account # OWD-R01661-22 Prudential FSA § 222.21 $ 14,161.00 [1] Securities Account # OWD-R01637-22 Various Household Art....

...ard, or the "disposable income" standard if an objection to confirmation is timely brought. Indeed, every Chapter 13 debtor before this Court must sacrifice some exempt income, because, under Florida law, wages are essentially exempt. See FLA. STAT. § 222.21....

...On August 10, 2004, the Debtor filed Amended Schedules and Statement of Financial Affairs, within which the Debtor claimed his home (the "Real Property") exempt as homestead property, certain personal property exempt as tenancy by the entireties, and his 401(k) Plan exempt under Florida Statute § 222.21....

...on those stipulated facts. On December 3, 1990, Judge Proctor issued a memorandum opinion and order sustaining the objections of the FDIC. In so doing, Judge Proctor found that the Debtor's contentions that his Plan was exempt under Florida Statute Section 222.21 or as a spendthrift trust were without merit....

...plan is not subject to Title I of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Second, Debtor contends that even if his plan is subject to Title I of ERISA, it is nevertheless exempt under Florida Statute Section 222.21(2)....

...THESE are Chapter 7 liquidation cases, and the matters under consideration are Objections filed by the Trustees in each of the above captioned cases to the Debtors' claims that funds held in their respective ERISA qualified retirement plans are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. § 222.21(2)(a), 11 U.S.C....

...89-9833-8P7, the Debtors filed their Chapter 7 voluntary Petition on December 29, 1989. On their B-4 Schedule of Exemptions, the Debtors claimed as exempt Barbara Gardner's interest in a 401-K retirement plan with NMC Employees Savings Trust pursuant to Fla.Stat. § 222.21(2)(a)....

...In the case of Berl Leon Parrish, Case No. 90-0249-8P7, the Debtor filed his Chapter 7 voluntary Petition on January 11, 1990. On his B-4 Schedule of Exemptions, the Debtor claimed his interest in a retirement plan with National Enterprises, Inc., as exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...In the case of Dallas Wayne Palmer, Case No. 90-0502-8P7, the Debtor filed his Chapter 7 voluntary Petition on January 18, 1990. On his B-4 Schedule of Exemptions, the Debtor claimed his interest in two profit-sharing plans with Times Publishing Company as exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...The Trustees for the respective estates subsequently objected to the Debtors claiming the funds in the ERISA plans as exempt, contending that the funds currently held on behalf of the Debtors in the plans mentioned above are property of the estate and subject to administration, notwithstanding Fla.Stat. § 222.21(2)(a)....

...alt with ERISA plans and whether or not they could be claimed as exempt. See In re Bryant and In re Partsch, supra, 106 B.R. at 727; In re Sheppard and In re Polombo, supra, 106 B.R. at 724. However, in 1987 the Florida legislature enacted Fla.Stat. § 222.21 entitled "exemption of pension money and retirement or profit-sharing benefits from legal processes" which attempts, albeit unsuccessfully, to provide citizens of the State of Florida with an exemption for ERISA-type plans and provides in p...

...der s. 401(a) s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. It is clear that the Florida legislature's intent in enacting Fla.Stat. § 222.21(2)(a) was to provide an exemption for ERISA plans. The Trustees contend, however, that to the extent the Debtors' claims of exemptions are based on Fla.Stat. § 222.21, the subject matter dealing with ERISA plans has been preempted by federal legislation set forth in ERISA and, therefore, any statute dealing with the subject matter is invalid and unenforceable....

...(a) displace[s] all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirements." Therefore, the Court determined that the Georgia law had to fail. It should be noted that the Fla.Stat. § 222.21(2)(a), like the Georgia Statute in Mackey, is intended to help effectuate one of ERISA's underlying purposes, to protect retirement funds from claims of creditors. Therefore, this Court is constrained to find that ERISA preempts Fla.Stat. § 222.21(2)(a)....

...The Debtors recognize, as they must, that under the cases cited, their exemption claims cannot be sustained, but request this Court to rely on cases such as In re Martinez, 107 B.R. 378 (Bkrtcy.S.D.Fla. 1989), holding that regardless of the broad language in Mackey, ERISA does not preempt Fla.Stat. § 222.21(2)(a). In In re Martinez, supra, 107 B.R. at 378, for example, the debtor claimed his interests in an ERISA-qualified pension and profit-sharing plan as exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...which provides that ERISA shall preempt any state law that `relates to' an employee benefit plan even if they are consistent with ERISA's substantive requirements." Id., at 379. Nevertheless, Judge Weaver determined that ERISA does not preempt Fla.Stat. § 222.21(2)(a) because the statute does not attempt to regulate the terms and conditions of ERISA plans. Judge Weaver's reasoning was as follows: Florida Statute § 222.21(2)(a) only provides its residents with an exemption for profit-sharing benefits and pension plan money, but it does not regulate, directly or indirectly any matters dealing with ERISA's plan reporting, disclosure, participation, funding, vesting, benefit calculation or trustee's fiduciary responsibilities. Fla.Stat. § 222.21(2)(a) covers an area of law traditionally governed by the states and does not interfere with the field of employee pension plans now governing federal law. Therefore, although ERISA may preempt those state laws which attempt to regulate pension plans or change the underlying purpose of ERISA, it does not preempt Fla.Stat. § 222.21(2)(a). Instead, the court finds that Fla.Stat. § 222.21(2)(a) complements ERISA's purpose in seeking to protect pension money from creditors and, therefore, absent a conflict between the state and federal law, there is no need for preemption ....

...Debtors' support or the support of their dependents. Therefore, the Debtors' final argument in this regard must fail. Finally, it should be noted at this juncture that a question exists whether or not Florida may, through the enactment of Fla. Stat. § 222.21, opt to have selectively both the federal bankruptcy exemptions provided by § 522(d) of the Bankruptcy Code....

...The Pension Plan The debtor has claimed the pension plan as exempt under Florida law. Pursuant to § 522(b)(1) of the Bankruptcy Code, Florida has exercised its right to opt out of the federal exemptions. With regard to the exempt status of retirement or pension plan benefits, Florida Statute § 222.21(2)(a) provides as follows: Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended is exempt from all claims of creditors of the beneficiary or participant. Fla.Stat.Ann. § 222.21(2)(a) (West 1991)....

...da law. The trustee argues that even if the plan is qualified under the Internal Revenue Code, the plan is not entitled to the exemption under Florida law in that the Employee Retirement Income Security Act of 1974 ("ERISA") preempts Florida Statute § 222.21(2)(a)....

...meaning of § 514(a) of ERISA. Mackey, 486 U.S. at 829-30, 108 S.Ct. at 2184-85, 100 L.Ed.2d at 843 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 95 L.Ed.2d 39, 107 S.Ct. 1549 (1987)). The trustee argues that the reference to ERISA in § 222.21(2)(a) mandates preemption of the state statute because of the broad language of § 514(a) of ERISA. In re Sheppard, 106 B.R. 724 (Bankr.M.D.Fla.1989); In re Schlein, 114 B.R. 780 (Bankr.M.D.Fla.1990). This Court has previously addressed the issue of ERISA's preemption of Florida Statute § 222.21(2)(a)....

...90-22721-BKC-SMW, slip op.; See also In re Bryan, 106 B.R. 749 (Bankr.S.D.Fla.1989) (Britton, J.); In re Guervich, No. 90-12037-BKC-AJC, slip op. (Bankr.S.D.Fla. November 1, 1990) (Cristol, J.). In Martinez, this Court specifically stated that: Florida Statute § 222.21(2)(a) only provides its residents with an exemption for profit-sharing benefits and pension plan money, but it does not regulate, directly or indirectly any matters dealing with ERISA's plan reporting, disclosure, participation, funding, vesting, benefit calculation or trustee's fiduciary responsibilities. Fla.Stat. § 222.21(2)(a) covers an area of law traditionally governed by the states and does not interfere with the field of employee pension plans now governed by federal law. Martinez, 107 B.R. at 380. It is the view of this Court that § 222.21(2)(a) compliments ERISA's purpose of protecting pension money from attachment of creditors and therefore, absent a conflict between the state and federal law, there is no need for preemption. Because this Court is of the opinion that the two statutory provisions do not conflict, the Court finds that Fla.Stat. § 222.21(2)(a) is not preempted by ERISA and the debtor may properly claim the plan as exempt under Florida law....

...In the first transfer, on April 10, 1987, the debtor used the funds of a then-existing IRA account to purchase a North American Life Insurance Company IRA account. The State of Florida has legislated that funds held in an IRA account are exempt from the claims of creditors. Fla. Stat.Ann. § 222.21(1) (West 1991); In re Horath, 116 B.R. 835 (Bankr.M.D.Fla. 1990). This exemption applies in any proceeding commenced on or after October 1, 1987. Fla.Stat.Ann. § 222.21(2)(c) (West 1991)....

...d been filed against him and that this transfer evinces the debtor's intent to place his assets beyond the reach of creditors. The trustee relies on this Court's opinion in In re Gefen, 35 B.R. 368, a case decided prior to the enactment of Fla.Stat. § 222.21(1), wherein this Court held that the trustee could avoid the debtor's transfer of $28,000.00 from an IRA account to a deferred annuity contract. Because § 222.21(1) had not yet been enacted by the legislature, the Court was first called upon to *230 determine whether the debtor's IRA account qualified as an exempt annuity under Fla.Stat....

...ection to Exemptions Claimed by Debtors. The undisputed facts are essentially as follows: The Debtors filed a voluntary Chapter 7 Petition and claimed an individual retirement account (IRA) in the amount of $15,127.76 as exempt pursuant to Fla.Stat. § 222.21 (1987)....

...The Debtors filed a Response to the Objection and, on July 11, 1989, a hearing was held and arguments were heard. It is the Trustee's contention first that the funds in the IRA account are properties of the bankruptcy estate; second, that notwithstanding the provisions of Fla.Stat. 222.21, they are not exempt....

...From all these, it follows that the funds in the IRA account set up by the Debtors are properties of the estate, thus subject to administration by the trustee, unless the claim of exemption amended by the Debtors can be recognized. This claim is based on a recent change in the exemption laws of this State, § 222.21 Fla.Stat., which governs the right of debtors in this state by virtue of § 522(b)(1) which permits states to opt-out of the specific federal bankruptcy exemptions set forth in § 522(d), which are otherwise available to debtors. This Statute relied on by the Debtors provides as follows: § 222.21....

...Martin, 102 B.R. 653 (Bankr.E.D.Tenn.1989). There, the bankruptcy court considered whether the debtor could claim his IRA as exempt pursuant to § 26-2-112, Tenn.Code Annot. (1980). The Tennessee statute is identical in material part with Fla.Stat. § 222.21....

...Based upon the numerous distinctions between IRAs and the express intention of Congress to exclude IRAs from ERISA regulation, this Court holds that IRAs established under § 408(a) of the Internal Revenue Code of 1986 are outside of the pre-emptive scope of ERISA. Thus, Fla.Stat. § 222.21 is not preempted by ERISA as it relates to IRAs....

...Since PaineWebber reduced their claim to judgment, and in fact filed a claim based only on the judgment, PaineWebber is precluded by the merger doctrine from arguing a differing underlying transaction to avoid § 547(b). 1. The court takes judicial notice of Florida Statutes § 222.21 (1987), and Florida Statutes Ch....

...However, considering only Florida law, the ultimate result would remain the same, for as the Florida legislature gave creditors the right to reach securities in the hands of financial intermediaries, it took away their rights to reach retirement plans with the passage of Florida Statutes § 222.21....

...no set off was accomplished prior to the confirmation of the Chapter 13 plan. The waiver was a passive one: TMSI failed to assert its right of set off, they did not waive it by filing a Proof of Claim. THE BENEFITS OF CHAPTER 13 8. Florida Statutes § 222.21 became effective on October 1, 1987, and is not applicable to the case at bar....

...Consequently, the Creditor argues that the Debtor's interest in the Plan is property of the bankruptcy estate. It is not clear whether the Creditor is seeking to reach the Debtor's interest in the Plan in the state court proceeding. [2] Previously, the Debtor argued that the Plan was also exempt under Fla.Stat. § 222.21 ("Exemption of pension money and retirement or profit-sharing benefits from legal processes")....

...The matter under consideration in this Chapter 7 case is the Trustee's Objection to Debtor's Claim of Exemptions, specifically, the objection to the Debtor's claim that the funds in his IRA and Profit Sharing Plan are exempt property pursuant to Florida Statute § 222.21....

...unds Service Company. The Debtor filed his voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code on October 3, 1997. The Debtor's Schedules, as amended, reflect that the Debtor claims as exempt (1) the IRA, pursuant to Florida Statute § 222.21; and (2) the Profit Sharing Plan with an approximate scheduled value of $174,568, pursuant to 11 U.S.C....

...the estate. This is so because a property which is not property of the estate cannot be claimed as exempt. It is simply not subject to administration by the Trustee. This leaves for consideration the Debtor's exemption claim based on Florida Statute § 222.21(2)(a), which provides, any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408 or s. 409 of the Internal Revenue code, as amended, is exempt from the claims of creditors of the participant or beneficiary. Florida Statute § 222.21(2)(a) applies to individual retirement accounts and has not been preempted by ERISA § 514(a)....

...The Trustee contends that the Defined Benefit Plan and the Profit Sharing Plan which was funded by the Defined Benefit Plan were not qualified plans under the Internal Revenue Code and that, therefore, the IRA, whose funding was derived from the Profit Sharing Plan, lost its exemption status granted by Florida Statute § 222.21....

...Based on the foregoing, this Court finds that the assets of the IRA and the assets of the Profit Sharing Plan, if any, are property of the estate which are not exempt because the funds in the IRA and the assets in the Profit Sharing Plan are not qualified for a tax exemption under IRC § 401, and in turn, by Florida Statute § 222.21(2)(a)....

...In accordance with the holding in In re Lichstrahl, 750 F.2d 1488, 1490 (11th Cir.1985), this *600 plan clearly would not qualify as a spend-thrift trust excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2). However, the State exemptions available to the debtor include the recently enacted Fla. Stat. § 222.21(2)(a) (1987) exemption for retirement or profit-sharing benefits, if the requirements of that statute are met....

...The trustee has not yet addressed that issue. I do not decide it here. Under B.R. 4003(c), the trustee has the burden of proof that the exemption is not properly claimed. This burden has been met by the trustee with respect to the claimed Fla.Stat. § 222.21 exemption....

...Accordingly, the Court finds that the Debtor's SEP/IRA complies with all applicable requirements of the Internal Revenue Code and is therefore a qualified plan under Internal Revenue Code § 408. CONCLUSIONS OF LAW The Debtor claims that his Paine Webber SEP/IRA is exempt pursuant to Florida Statute § 222.21 which provides in relevant part: ....

...a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Fla.Stat. ch. 222.21(2)(a) (1996)....

...der to remain tax qualified. 29 U.S.C. § 1103(c). Thus, the Trustee's argument that the Debtor's SEP/IRA must be ERISA qualified fails because no such requirement exists for this type of plan. Finally, it is clear under a plain reading of Fla.Stat. § 222.21 that any plan qualified under sections 401(a), 403(a), 403(b), 408, or 409 of the Internal Revenue Code is entitled to be claimed as exempt property. In addition, there is no justification under either the case law or legislative history of Fla.Stat. § 222.21 which suggests that the exemption is limited only to retirement, pension, or other plans which must be qualified under ERISA. Thus, in the event that a plan does not qualify as retirement plan under ERISA, it may nevertheless be exempt under Fla. Stat. § 222.21 so long as it complies with the applicable provisions of the Internal Revenue Code....

...ld cause this Court to find otherwise. In re McDonald, 100 B.R. 598 (Bankr.S.D.Fla. 1989). Thus, the Debtor's SEP/IRA is a tax qualified plan under the Internal Revenue Code and the Debtor may successfully claim it as exempt property under Fla.Stat. § 222.21....

...The Debtor is entitled to claim the property located at 6221 N.W. 23rd Way, Boca Raton, Florida, as exempt homestead property pursuant to Article X, section 4, of the Florida Constitution. 3. The Debtor is entitled to claim the Paine Webber SEP/IRA account as exempt property pursuant to Fla.Stat. ch. 222.21(2)(a)....

...No appearance for Appellee RBC Wealth Management. SILBERMAN, Judge. Richard A. Robertson appeals an order denying his claim of exemption from garnishment with respect to an inherited IRA. We affirm based on our determination that inherited IRAs are not entitled to the exemption set forth in section 222.21(2)(a), Florida Statutes (2008), because that section is limited to the original "fund or account." Kevin J....

...Harold Robertson Decedent RBC Capital Markets Custodial IRA" that contained $75,372 in cash and securities. Robertson filed a claim of exemption and argued that the IRA, which he had inherited from his father, was exempt from garnishment pursuant to section 222.21(2)(a)....

...His second option was accepting distributions pursuant to the "five year death rule," which would allow him to take discretionary payouts from his father's account as long as he exhausted the funds within five years of his father's death. Robertson elected to transfer the account into an inherited IRA. [1] Section 222.21(2)(a) renders "money or other assets payable to an owner, a participant or a beneficiary" exempt from garnishment if it is in a fund or account that is *938 maintained as an IRA pursuant to a plan or governing instrument that is exempt from taxation under certain provisions of the Internal Revenue Code. The trial court found that section 222.21(2)(a) does not apply to an inherited IRA and denied the claim of exemption....

...The court concluded, "It is not an IRA. It is not like an IRA in terms of taxing and penalty for early withdrawal and things of that nature, so I don't think that's what [the legislature] meant." On appeal, Robertson argues that the court erred in determining that section 222.21(2)(a) does not apply because he is a "beneficiary" of the "fund or account" that qualified as an IRA when his father was alive. Deeb argues that the trial court's ruling should be affirmed because IRAs lose their tax exempt status under section 222.21(2)(a) upon the death of the original owner. We review this question of law regarding the interpretation of section 222.21(2)(a) de novo. See BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003). We conclude that section 222.21(2)(a) does not apply to inherited IRAs because the plain language of that section references only the original "fund or account" and the tax consequences of inherited IRAs render them completely separate funds or accounts. The applicable portion of section 222.21(2)(a) provides as follows: (2)(a) Except as provided in paragraph (d), any money or other assets payable to an owner, a participant, or a beneficiary from, or any interest of any owner, participant, or beneficiary in, a fund or account...

...501(a) of the Internal Revenue Code of 1986, as amended, unless it has been subsequently determined that the plan or governing instrument is not exempt from taxation in a proceeding that has become final and nonappealable; (Emphasis added and footnotes omitted.) Thus, the plain language of section 222.21(2)(a) reflects the legislature's intent to exempt a "fund or account" that is maintained as an IRA in accordance with a plan or governing instrument that is exempt from taxation under certain provisions of the Code. While section 222.21(2)(a) provides for exemption from "all claims of creditors of the ... beneficiary," it does not exempt the money or assets at issue unless they are maintained in one particular "fund or account." Thus, the plain language of section 222.21(2)(a) does not exempt inherited IRAs, such as the one Robertson established in this case, which are separate funds or accounts that are created when the original fund or account *939 passes to a beneficiary upon the death of the participant. Furthermore, the "fund or account" that is exempt from garnishment under section 222.21(2)(a) is identified by its tax exempt status....

...etirement in the ordinary course of the debtor's affairs. Such a purpose would not be served by upholding [the beneficiary's] request to keep his interest in the IRA as exempt." Id. at 471. We find this reasoning persuasive and equally applicable to section 222.21(2)(a). Because the plain language of section 222.21(2)(a) references only the original "fund or account" and the tax consequences of inherited IRAs like the one in this case render them a completely separate "fund or account," such inherited IRAs are not exempt under that section....

...Accordingly, we affirm the order denying *940 Robertson's claim of exemption from garnishment in this case. Affirmed. DAVIS and WALLACE, JJ., Concur. NOTES [1] Because Robertson chose to transfer his father's account into an inherited IRA, our opinion today deals solely with the applicability of section 222.21(2)(a) to this type of IRA account....

...Lee, filed for relief under Chapter 7 of the Bankruptcy Code. In her Schedule B-4, Debtor listed a Publix Super Markets, Inc. Profit Sharing Retirement Fund and *834 Stock Ownership Trust in the amount of $44,000.00 as exempt pursuant to Fla.Stat. § 222.21(a)....

...In that decision, Judge Paskay concluded, as this Court also does, (with one qualification) that ERISA plans are not exempt property under Florida law. The analysis is quite straight forward. Florida has opted out of the federal exemptions in Title 11 U.S.C. § 522(b). Fla.Stat. § 222.20. Fla.Stat. § 222.21 provides an exemption for pension plans such as has been acquired by the Debtors in these cases. The broad language of Mackey engulfs the Florida Statute and thus, ERISA preempts it. Thus, Fla.Stat. § 222.21 exempting an ERISA pension plan must be considered unconstitutional as it relates to bankruptcy exemptions....

...613 (Bankr.N.D.Ill.1990); Fischel, ERISA's Fundamental Contradiction: The Exclusive Benefit Rule, 55 U.Chi.L.Rev. 1105 (1988). [2] Contra, In re Bryan, 106 B.R. 749 (Bankr.S.D. Fla.1989) and In re Martinez, 107 B.R. 378 (Bankr.S.D.Fla.1989) where the Courts held ERISA does not preempt Fla.Stat. § 222.21....

...'s Motion for Summary Judgment, entered on January 20, 1995 (the "Plan Order"). The issue is whether the Bankruptcy Court erred in determining that the Robert E. Blais Profit Sharing Plan and Trust was a "qualified" plan pursuant to Florida Statutes § 222.21 and Internal Revenue Code § 401, without inquiring into the actual operation of the plan....

...was property of the estate. The court, however, reserved ruling on whether such Plan was exempt under Florida law. The Trustee subsequently moved for a final summary judgment claiming that the Profit Sharing Plan was not exempt under Florida Statute § 222.21, since it was not *487 qualified pursuant to Internal Revenue Code § 401....

...rt de novo. In re Chase & Sanborn *488 Corp., 904 F.2d 588 (11th Cir.1990); In re Sublett, 895 F.2d 1381 (11th Cir.1990). Discussion 1. Profit Sharing Plan Appellant argues that in order for the Profit Sharing Plan to be exempt under Florida Statute § 222.21, the plan must be "qualified" under Internal Revenue Code ("IRC") § 401(a)....

...A state may choose, however, to "opt out" of the federal exemption scheme. 11 U.S.C. § 522(b)(1). Florida is one of the states which has opted out of the federal exemption scheme. Fla. Stat. § 222.20. [1] The Debtor has relied upon the exemption provided by Florida Statutes § 222.21, in attempting to exempt the Profit Sharing Plan. Florida Statute § 222.21 provides: (2)(a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Fla. Stat. § 222.21(2)(a)....

...lorida law. The court relied upon a favorable determination letter from the I.R.S. in concluding that it should not make an independent inquiry into the qualification of the Profit Sharing Plan: I am satisfied from a clear reading of Florida Statute Section 222.21 that it is up to the Internal Revenue Service to determine what constitutes a qualified pension plan for purposes of qualification under 222.21....

...levied some sanctions for loans in excess of vested interests and questioned some other transactions, the I.R.S. did not revoke the plan's qualified status. Id. When the Debtor filed bankruptcy, he attempted to exempt his interest in the plan, pursuant to a statute similar to Florida Statute § 222.21....

...Generally speaking, § 541(c) of the Bankruptcy Code, (11 U.S.C.A. § 541), provides that all property of the debtors is includable in their Estate. B. The Debtors, in Schedule B-4, of the Petition for Relief, claimed as exempt property, pursuant to § 522(b)(1) of the Code, and Florida Statute §§ 222.20, and 222.21, the following: 1....

...I.R.A. Accounts with an estimated value of $7,183.00 presently held with Sun Bank/Miami, N.A.; and 2. Keogh Retirement Accounts with an estimated value of $88,642.86 presently *75 held with Sun Trust SEC Inc. — Miami, C. Prior to October 1, 1987, F.S. § 222.21 was not effective to exempt qualified ERISA plans from the claims of creditors....

...724 (Bkrtcy.M.D.Fla.1989), and In re Bryant, 106 B.R. 727 (Bkrtcy.M.D.Fla.1989). In those opinions, Chief Judge Paskay has ruled that because of its express reference to the Internal Revenue Code provisions codifying ERISA, 11 U.S.C.A. § 1144, the Exemption Statute, F.S. § 222.21, "relates to" ERISA and is pre-empted by federal law....

...d in its entirety, even with respect to I.R.A.'s. The Flindall decision stands for the proposition that even I.R.A.'s are included within the pre-emption of our state statutes created for ERISA-qualified plans by Mackey. Before the effective date of 222.21, 10/1/87, even Judges in the Southern District of Florida had ruled these types of plans were not exempt....

...In fact, the Debtors have already applied for a distribution of funds from Kemper, prior to this Court's ruling on our objections. E. As additional ground for Objecting to the Debtors' claim of exempt property, the Creditor claimed that the application of *76 Florida Statute § 222.21 to the following facts of this case constituted an unconstitutional impairment of pre-existing contract rights, under Article 1 § 9 & § 10 of the U.S....

...each Maker to Bank . . . The financial statement given to Sun Bank, Exhibit 8 to the Rule 2004 examination of Mrs. Suarez, which Financial Statement is dated September 22, 1987, (which is eight (8) days prior to the effective date of Florida Statute § 222.21), and signed by both of the Debtors as an inducement to renew the indebtedness at that time provides, inter alia: ACKNOWLEDGEMENT OF SPOUSE I HEREBY ACKNOWLEDGE that the information contained in Schedules A through F to this Personal Financial Statement is true and correct to the best of my knowledge....

...a statute speaks from the time it goes into effect." Dewberry, at page 1080. Florida Statute § 221.21 went into effect on October 1, 1987. Due to the fact the debt at issue was created prior to the effective date of the statute, and because F.S.A. § 222.21 became effective after Sun Bank had loaned the money here at issue to the Debtors based on their financial statement under which the I.R.A....

...Upon consideration of all of the above and foregoing, the Court rejects each of the arguments of Sun Bank, and overrules the Objections to the Debtors' claims of exempt property for the following reasons: I EXEMPTION PREEMPTION 1. The Debtors' I.R.A. and Keogh Retirement Accounts are exempt. a. Florida Statute § 222.21(2)(a) provides that: ....

...he Courts of this District have held that: . . . the plan meets the requirements to classify as an ERISA-qualified plan under Florida State law and is exempt under Section 522(b)(A) since Florida State law provides for that exemption under Fla.Stat. Section 222.21(2)(a)....

...should be liberally construed in favor of a debtor so that he and his family will not become public charges." Seilkop, at 778. Accordingly this Court finds, as in Seilkop and Martinez, that the Debtors' Keogh and I.R.A. benefits are exempt. 2. The Creditor next argues that F.S. § 222.21 is preempted by the Employee Retirement Income Security Act (ERISA) under the authority of Mackey v....

...*78 In the present case however, there is no conflict between state law and ERISA, accordingly, there is no need for the application of the preemption doctrine. Here, as held in Martinez: . . . unlike the State law involved in Mackey which sought to impose a different result than ERISA, F.S. 222.21(2)(a) is consistent with ERISA's purpose of protecting pension money from attachment of creditors. . . . but it does not regulate, directly or indirectly any matters dealing with ERISA's plan reporting, disclosure, participation, funding, vesting, benefit calculation or trustee's fiduciary responsibilities. Fla.Stat. Section 222.21(2)(a) covers an area of law traditionally governed by the states and does not interfere with the field of employee pension plans now governed by federal law. Therefore, although ERISA may preempt those state laws which attempt to regulate pension plans or change the underlying pension plans or change the underlying purpose of ERISA it does not preempt Fla.Stat. Section 222.21(2)(a). Instead, the Court finds that Fla.Stat. Section 222.21(2)(a) complements ERISA's purpose in seeking to protect pension money from creditors and, therefore, absent a conflict between the state and federal law there is no need for pre-emption as expressed in In re Volpe, 100 B.R. [840] at 847-848. [(Bkrtcy.W.D.Tex.1989)] 3. In addition to F.S. § 222.21, Debtors amended their petition to claim the I.R.A....

...In re Ewell 104 B.R. 458 (Bkrtcy. M.D. Fla.1989). In the Ewell case the Middle District of Florida Court held that . . . IRAs established under Section 408(a) of the Internal Revenue Code of 1986 are outside of the preemptive scope of ERISA. Thus, Fla.Stat. Section 222.21 is not preempted by ERISA as it relates to IRAs....

...t the phrase refers exclusively to state law, much less to state spendthrift trust law. 907 F.2d at 1477-1478 (citations omitted). The Fourth District's opinion in Moore has since been followed in In re Majul, 119 B.R. 118 (W.D.Tex.1990). III F.S. §§ 222.21 and 222.201 are Constitutional This Court finds that Florida Statutes §§ 222.21 and 222.201 are constitutional....

...At the outset the Court finds that: a. The Creditor has failed to join an indispensable party, namely the Attorney General for the State of Florida, to fully ventilate this issue as required by 28 U.S.C.A. Section 2403(b); and b. The Creditor's claim that the application of F.S. § 222.21 is an unconstitutional impairment of pre-existing contract rights under Act 119 Article 1 Section 9 and Section 10 of the U.S....

...However, the Debtors renewed the obligation by signing another promissory note, Exhibit 14 of the Rule 2004 examination of Ms. Suarez, which is marked "Modification and Renewal of Line # 52019", on October 15, 1988, one year after Florida Statute §§ 222.21 and 222.201 went into effect....

...retroactive impairment of its contract is unfounded based upon a full review of the facts since the date of the debt, ultimately, *81 does not pre-date the effective date of the statute. The Courts of this district have previously ruled that F.S. §§ 222.21 and 222.201 are constitutional. See In re Seilkop 107 B.R. 776 (Bkrtcy.S.D.Fla.1989) as to § 222.21 and In re Bryan 106 B.R....

...This Court is mindful of the maxim that "exemption statutes are to be liberally construed in favor of the Debtor." See In re Cilek 115 B.R. 974 (Bkrtcy.W.D.Wis.1990) and In re Fisher 63 B.R. 649, 651 (Bkrtcy. W.D.Ky.1986). CONCLUSION 1. The Debtors' Keogh and I.R.A. funds are exempt pursuant to F.S. §§ 222.21, 222.201 and 522(d)(10)(E) of the Bankruptcy Code....

...522(b)(2). Further, 3. The Debtors' interest in the I.R.A. and Keogh funds is excluded from Debtors' Bankruptcy estate as ERISA is applicable non-Bankruptcy law which excludes the debtors' pension plan from the Bankruptcy estate; and 4. Both F.S. §§ 222.21 and 222.201 are constitutional....

...e Entireties 375 shares of Flowers Industries $ 4,545 Tenants by the Entireties Merrill Lynch CMA Acct. No. XXX-XXXXX $ 2,558.01 Tenants by the Entireties Mass Mutual Annuity IRA $142,068.74 §§ 222.14, 21 Fla. Statutes Merrill Lynch IRA $ 2,778.87 § 222.21 Fla....

...The deposits of funds into the IRA account were all made by the Debtor himself. None of those funds were ever held in another retirement plan established by an employer. The Trustee contends that the Objection must be sustained because: (1) Florida Statute § 222.21(2)(a) is preempted by ERISA; (2) an IRA is not a "plan" subject to § 222.21(2)(a); (3) Florida's legislative history does not reflect an intention that § 222.21(2)(a) apply to IRAs; and (4) "the State of Florida may not opt out and selectively opt back in with respect to its exemption scheme." The Debtor does not contend that the funds in his IRA are exempt based on § 222.201 of the Florida Statutes (1995) which incorporates by reference § 522(d)(10)....

...nd contrary to the intention of the drafters. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982); Union Bank v. Wolas (In re ZZZZ Best Co.), 502 U.S. 151, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991). Florida Statute, Section 222.21(2) (1995) provides in relevant part as follows: "any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in a retirement or profit-sharing plan that is qualified under �...

...Considering the second, the Court also concluded that the IRA was deemed to be a "retirement account" and qualified as such under § 408 of the Internal Revenue Code, therefore, it was exempt under the Statute. For this reason, this Court is satisfied that the plain language of § 222.21(a)(2), Florida Statutes, provides that Section 408 of the Internal Revenue Code, in its entirety, could be used as the basis for the Debtor's claim of exemption....

...uled that the Debtor's Individual Retirement Account (IRA) was properly claimed as exempt and was not subject to administration. In her Motion, the Trustee contends that this Court: (1) failed to consider the Legislative history construing Fla.Stat. § 222.21(2)(a) and (2) erred in finding that Fla.Stat. § 222.21(2)(a) is not preempted by ERISA....

...should cover only employer sponsored plans and not self-settled IRAs, thus, this was the reason for deleting any reference to IRAs in the final version ultimately adopted. In support of this proposition, the Trustee cites the Legislative history of § 222.21(2)(a) which expressly provides that: "These retirement plans (identified by reference to the Internal Revenue Code) include pension plans created by the employer for the benefit of the employee; with contribution to the plans made by the employer . . ." (emphasis added). Senate Staff Analysis And Economic Impact Statement S.B. 433, Florida State Archives Series 18, Carton 1627. In support of the second proposition, which involves the contention that ERISA preempts Fla.Stat. § 222.21(2)(a), the Trustee relies on the case of In re Schlein, 8 F.3d 745, 750 (11th Cir.1993). According to the Trustee, the Eleventh Circuit in Schlein considered the exempt status of an interest in a Simplified Employee Pension-Individual Retirement Account (SEP-IRA), and concluded that Fla.Stat. § 222.21(2)(a) was preempted by ERISA....

...islature intentionally deleted any reference to IRA and therefore IRAs cannot be exempted under the Statute, this Court finds the argument unpersuasive. As stated in the Order under consideration, this Court held that the plain language of Fla.Stat. § 222.21(2)(a) clearly provides that § 408 of the Internal Revenue Code could be used, in its entirety, as a basis for the claim of exemption under the Statute....

...lling force of Schlein. If Schlein supports the pre-emption contention of the Trustee, it follows that this Court's reliance on Martin would not be proper. *803 The claim of exemption in Schlein was also asserted by that Debtor pursuant to Fla.Stat. § 222.21(2)(a) which involved an IRA account set up pursuant to 26 U.S.C....

...6 U.S.C. § 408(k). The Bankruptcy Court concluded that (1) the Debtor's IRA/SEP accounts were employee benefit plans as defined by ERISA; (2) ERISA preempts "any and all state laws insofar as they relate to any employee benefit plan;" (3) Fla.Stat. § 222.21(2)(a) directly relates to an employee benefit plan covered by ERISA; and (4) ERISA preempts Fla. Stat. § 222.21(2)(a). In re Schlein, 114 B.R. 780, 782-83 (Bankr.M.D.Fla.1990). The District Court affirmed the Bankruptcy Court's finding that the "existence of a pension plan is a critical factor in establishing a Debtor's right to exemption under § 222.21(2)(a)," In re Schlein, 8 F.3d at 754 and held that the Section was preempted by ERISA....

...er and modify any federal law and, if the preemption would be applied to the Statute involved, it would alter amend and modify the provision of the Bankruptcy Court permitting States to set exemptions. Accordingly, the Court concluded that Fla.Stat. § 222.21(2)(a) is not preempted by ERISA. Thus, it is evident, from the foregoing, that the Trustee's reliance on Schlein furnished no support at all for the Trustee's contention that the Debtor, in this case, is not entitled to claim his IRA accounts exempt under Fla.Stat. § 222.21(2)(a)....

...10)(E), was unconstitutional, and was without any supportive authorities. This Court rejected the contention of the Trustee for the obvious reason that the claim of exemption in this case was not asserted pursuant to § 522(d)(10)(E) but pursuant to § 222.21(2)(a). Therefore, this case does not involve Florida's attempt to authorize its citizens to claim exemptions pursuant to § 522(d)(10)(E) but rather to a claim asserted pursuant to § 222.21(2)(a)....

...unt from the Wage Account was comprised only of exempt funds. Consequently, the Court will sustain the objection. Prudential Securities Account Debtors claim the balance of $ 352,049.06 in Pettit's Prudential Securities Account as exempt pursuant to § 222.21(a) Florida Statutes which provides that any interest in a retirement or profit sharing plan that is qualified under section 403(a), 403(b), 408 or 409 of the Internal Revenue Code is exempt from all claims of creditors of the beneficiary or participant. Fla.Stat.Ann. § 222.21(2)(a) (West 1998)....

...Section 408 of the Internal Revenue Code sets forth six requirements with which a trust instrument or account must comply to qualify as an individual retirement account ("IRA"). [5] 26 U.S.C. § 408 (1998). An account that does not meet all six requirements does not qualify as an IRA, and is thus not exempt pursuant to § 222.21(2)(a)....

...The possibility exists that one of the two documents is the governing trust instrument. The objecting party has not proven by a preponderance of the evidence that Pettit's Prudential Securities Account does not qualify as an IRA pursuant to § 408, and consequently, that it is not exempt pursuant to § 222.21(a)....

...d that the original challenge was vague and unspecific and the only basis which was asserted was that "the Slatkin Trustee, however, has been unable to verify whether these accounts are `qualified' retirement accounts as required by Florida Statutes § 222.21(2)(a)." Clearly, that was legally insufficient to challenge and to overcome the presumptive validity of the Debtor's claim to exempt these items. Moreover, the Slatkin Trustee was unable to present any evidence whatsoever that these accounts were not qualified as retirement accounts required by Fla.Stat. 222.21(2)(a)....

...The debtor has claimed as exempt an annuity which was purchased by his former employer when it terminated a company pension plan upon its bankruptcy. The debtor originally scheduled the property as exempt as "pension disability payments" pursuant to § 222.21, Florida Statutes but, by amendments, has claimed the annuity as exempt under §§ 222.14, 222.18, and 222.201, Florida Statutes. The trustee and a creditor timely objected to the claimed exemption. The creditor objected to the claimed exemption solely on the argument that § 222.21, Florida Statutes, [1] is unconstitutional *789 under Mackey v....

...ave held similar exemption statutes unconstitutional as being preempted by Section 514(a) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1144(a). This Court previously has rejected that argument and upheld § 222.21 in In re Bryan, 106 B.R....

...[2] Furthermore, the debtor has asserted additional, independent grounds for exempting the annuity which, if applicable and valid, would accomplish the result of exempting the annuity without having to decide the more difficult issue of whether an annuity bought when a pension plan described in § 222.21 is terminated is nevertheless entitled to the exemption afforded by § 222.21....

...14, Florida Statutes, as applied to *794 annuities is not violative of the Florida Constitution. It is therefore ORDERED that the trustee's and creditor's objections to the debtor's exemption of the annuity are overruled. DONE and ORDERED. NOTES [1] 222.21 Exemption of pension money and retirement or profit-sharing benefits from legal processes....

...n under federal law available to a debtor pursuant to 11 U.S.C. § 522(b)(2)(A) and suggests that the reasoning in In re Komet, 104 B.R. 799, 808-816 (Bkrtcy. W.D.Tex.1989) will prevail. In that eventuality, the constitutionality of statutes such as § 222.21, Florida Statutes, as applied to ERISA retirement benefits would become irrelevant....

...Not taking into account claimed back payroll from B.L. Jennings and claimed loans owed to him by B.L. Jennings, Jennings claimed approximately *469 $695,000 in non-exempt tangible personal property on Schedule B. On Schedule C Jennings claimed the Allianz Annuity as exempt pursuant to Fla. Stat. § 222.21(2)....

...ated in Florida. Debtor's Schedule B — Personal Property lists assets in the amount of $4,857,054.26. Included in this schedule of assets are two Individual Retirement Accounts ("IRA") that Debtor claims as being fully exempt under Florida Statutes Section 222.21 [1] , one IRA with Commerce Bank in the amount of $2,813,469.26 and the other with Paine Webber in the amount of $30,264.00....

...excluded from his estate by virtue of Section 541(c)(2). This leaves for consideration whether or not the Debtor may exempt his interest in the Plan pursuant to any of the exemptions set forth in Chapter 222 of the Florida Statutes. *806 Fla. Stat. § 222.21 provides as follows: (2)(a) Except as provided in paragraph (b), any money, or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit sharing plan that is qualified under § 401(a) ....

...On August 21, 2002, the Debtor filed his voluntary Petition for Relief under Chapter 7 of the Code. In his Schedules, he claimed as exempt the Schwab IRA account, bearing no. XXXX-XXXX, with the amount of $27,000 in the account. The Debtor claimed the IRA account as exempt pursuant to Fla. Stat. § 222.21....

...§ 408(e)(2)(A), which provides that in any taxable year an individual who engages in a prohibited transaction will disqualify the account as an IRA account. The Trustee concedes, as he must, that absent this transaction just noted, the funds in that IRA account would be exempt by virtue of Fla. Stat. § 222.21....

...The Palmers also contend that the Debtors are not entitled to claim as exempt an annuity purchased by them in 1991, based on the proposition that the Debtors fraudulently converted the equity in their North Carolina property for the purpose of creating an exempt asset in the form of an annuity, based on Florida Statutes § 222.21....

...Kapila, is the duly appointed and qualified trustee in this chapter 7 proceeding (the "Trustee"). 3. The Debtors list on their Bankruptcy Schedules an annuity owned by Dorothy Covino valued at 1.5 million dollars, which they claim as exempt on their Schedule "C" pursuant to Florida Statute § 222.21....

...negative notice legend giving interested parties twenty days to object to the sale. Debtor filed an objection to the Notice to Sell indicating that her rights arising from the Final Judgment were exempt pursuant to 11 U.S.C. § 522(b) and Fla. Stat. § 222.21....

...ns. III. Are Debtor's Rights Arising out of the Final Judgment Exempt? The final issue before the Court is whether Debtor's rights arising out of the Final Judgment are exempt pursuant to Article 10, Section 4 of the Florida Constitution, Fla. Stat. § 222.21(2), Fla. Stat. § 122.15 or Fla. Stat. § 121.131. The Florida Constitution does not have an exemption for retirement benefits. Additionally, Fla. Stat. § 222.21 is limited to ERISA qualified plans....

...[3] In re Fernandez, 236 B.R. 483, 487-488 (Bankr.M.D.Fla.1999); In re Cason, 211 B.R. 72, 73 (Bankr.N.D.Fla.1997). State retirement plans are specifically excluded from ERISA coverage. 29 U.S.C. § 1003(b)(1); 29 U.S.C. § 1002(32) (West 2003). Accordingly, § 222.21 does not apply....

...Because he is a party in interest, Read has standing to object to Debtor's Amended Claim of Exemptions. The interest or right that Debtor acquired as a result of the Final Judgment is not exempt pursuant to Article 10, Section 4 of the Florida Constitution, Fla. Stat. § 222.21(2), Fla....

...It is the Trustee's contention that none of the Debtor's retirement plans are subject to the Employee Retirement Income Security *485 Act (ERISA), that the Debtor's retirement plans are not "qualified" and, therefore, they are not exempt by virtue of Fla.Stat. § 222.21(2)....

...k a determination of the qualification of the Plans; (2) the Plans are "exempt from the claims of creditors in a bankruptcy proceeding" (sic); (3) the Plans are ERISA qualified and, therefore, the funds in the Plans are exempt by virtue of Fla.Stat. § 222.21. Although the matter before this Court is presented by an Objection to a Claim of Exemption by the Debtor and the exemption is claimed under Fla.Stat. § 222.21, it is imperative to consider first whether the *487 property claimed as exempt is or is not property of the estate....

...A the properties in the plan are not excluded from the estate. In that case the question then leads to the ultimate question which is whether the Debtor may exempt the properties in the plan under the applicable local law, in this instance Fla.Stat. § 222.21. The claim of exemption under consideration is based on Fla.Stat. § 222.21 which provides: Any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in a retirement plan or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408 or s. 409 of the Internal Revenue Code, as amended, is exempt from the claims of creditors of the participant or beneficiary. Fla.Stat. § 222.21 does not specifically mention ERISA as a condition precedent for the exemption, it is now uniformly agreed that the reference to the statute in the exemption requires that the plan in question be ERISA qualified before the Debtor can invoke the exemption granted by Fla.Stat. § 222.21. See In re Humbert, 1993 WL 343116 (D.Kan. Aug. 4, 1993) (not reported in F.Supp.). As stated by the Eleventh Circuit Court of Appeals in In re Schlein, 8 F.3d 745 (11th Cir.1993), *488 The statutory language of § Fla.Stat. § 222.21 does not expressly mention ERISA....

...Pruner, supra the defined benefit plan and the profit sharing plan and the money purchase plan lost their qualification to be recognized as ERISA plans for the purpose of determining the Debtor's right to exempt his interest in the Plans pursuant to Section 222.21 Fla.Stat....

...Both Motions for Summary Judgment are filed in a contested matter arising from the Trustee's Objection to the Claim of Exemption by the Debtor of funds in a Deferred Compensation Plan. The Debtor's interest in this Plan was originally claimed as exempt pursuant to section § 222.21(2), Florida Statutes (1992)....

...Durant Bank & Trust Company, 24 F.3d 1199 (10th Cir.1994) (citing In re Brown, 56 B.R. 954, 957-58 (Bankr.E.D.Mich.1986) and Doan supra ). In addition to the foregoing, the Trustee also contends that the Debtor is not entitled to the claimed exemption as a matter of law under Section 222.21(2)(a), Florida *635 Statutes (1992)....

...ticipant or beneficiary." However, here the problem arises because Internal Revenue Code § 457, the provision of the Internal Revenue Code under which the NACo Plan is qualified, is not one of the Sections of the Internal Revenue Code identified in Section 222.21(2)(a). Therefore, this Court is satisfied that the NACo Plan is not properly claimed as exempt under Fla.Stat. 222.21(a)....

...ORDER ON TRUSTEE'S OBJECTION TO EXEMPTIONS LEWIS M. KILLIAN, Jr., Bankruptcy Judge. This matter is before the Court on the Trustee's objection to the Debtors' claim of exemption concerning funds held in a retirement plan. The Debtors claimed as exempt under Section 222.21, Fla.Stat., funds held in a retirement plan with the Hobart Corporation, Kenneth Williams' employer....

...or can receive lump sum payment of his interest in the Plan upon termination of his employment. [4] The Debtors argue the funds held in the Plan are exempt from the bankruptcy estate under Section 541(c)(2) of the Bankruptcy Code, or under Fla.Stat. § 222.21....

...ty of the estate. Id., at 1019 (emphasis in original). The pension plan in this case fails to meet the requirements for a spendthrift trust under state law is not exempt under Section 541(c)(2). The Debtors rely on a state created-exemption found in Section 222.21, Fla....

...Prior to the enactment of this statute there was no statutory provision exempting pension money and retirement or profit-sharing benefits from the legal claims of creditors. Since the Plan in this case is an ERISA retirement plan, as specified by the Fla.Stat. § 222.21, the Debtors claim it is exempt from the bankruptcy estate. The Trustee, relying on the Supreme Court case of Mackey v. Lanier Collections Agency and Service, Inc., 486 U.S. 825, 843, 108 S.Ct. 2182, 2192, 100 L.Ed.2d 836 (1988) argues the exemption created by Fla.Stat. § 222.21 is not available to the Debtors in light of the preemption language contained in ERISA....

...The United States Supreme Court affirmed the Georgia Supreme Court in finding the state law was preempted by ERISA. [7] Although Mackey was not a bankruptcy case, numerous bankruptcy courts have followed this analysis and concluded that state statutes providing an exemption for ERISA pension plans, such as Fla.Stat. § 222.21, are preempted....

...* * * * * * Therefore, absent a conflict between state law and the federal scheme of ERISA there is not need for the application of the pre-emption doctrine. In re Martinez, supra, 107 B.R. at 380. This Court agrees with the reasoning in the above cases in concluding that Fla.Stat. § 222.21 is not in conflict with ERISA and therefore, is not preempted....

...Debtor's claim of exemptions consisted of the following property: Description Value Legal Basis Homestead (837 Ponte $494,000 Art. X, § 4 Fla. Const. Vedra Blvd.) Personal Property $ 1,000 Art. X, § 4 Fla. Const. 1986 Honda $ 1,000 § 222 Fla. Statutes Schwab & Peak IRAs $ 68,996 § 222.21 Fla....

...d by the Trustee to the Debtors' claim that funds held in a Glendale Federal Savings Employees' Sheltered Pay Plan (Plan) are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. § 222.21(2)(a), 11 U.S.C....

...nd noted that the value of Mrs. Morrow's interest in the Plan is $21,000.00. On the Amended B-4 Schedules, the Debtors noted that the Plan was being claimed as exempt pursuant to "29 U.S.C. 1056(d), 11 U.S.C. 522(d)(10), Fla.Stat. 222.201, Fla.Stat. 222.21 and principles of Florida law." The record reveals that Mrs....

...Based on the foregoing, this Court is satisfied that the Plan is not a spendthrift trust, and as such, the funds in the Plan are property of the estate. It is urged by the Debtors that even assuming Mrs. Morrow's interests in the Plan are property of the estate, they are exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...727 (Bankr.M.D.Fla.1989); and In re Sheppard and Polombo, 106 B.R. 724 (Bankr. M.D.Fla.1989), where this Court found that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla.Stat. § 222.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void....

...ede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (emphasis added). It follows that because Fla.Stat. § 222.21(2)(a) "relates to" ERISA and is therefore preempted, the Debtors' argument in this regard must fail. To escape the inescapable conclusion that the funds in the ERISA plans may not be claimed and allowed as exempt pursuant to Fla.Stat. § 222.21(2)(a), the Debtors also rely on 11 U.S.C....

...The trustee's objection will be sustained and the debtor must turn over the inherited IRA to the trustee. BACKGROUND The facts are not in dispute. The debtor filed a voluntary Chapter 7 petition on September 30, 2009. On Schedule C, she claimed as exempt a Morgan Stanley Smith Barney account pursuant to Section 222.21(2), Florida Statutes (2010)....

...article X, § 4(a)(2) of the Florida Constitution and Sections 222.25(1) and (4), Florida Statutes. The trustee then filed a motion for clarification (Document No. 25), specifically as to debtor's claim that the inherited IRA is exempt under Section § 222.21(2), Florida Statutes, with a motion for the turnover of the IRA (Document No. 28). [2] DISCUSSION Section 222.21(2), Florida Statutes, provides for an exemption from creditors' claims of funds and accounts maintained "in accordance with a plan or governing instrument that has been determined ......

...tatus after being used to purchase the annuity. Id. at *4. The trustee here argues that the issue is governed by the recent decision by Florida's Second District Court of Appeals in Robertson v. Deeb, 16 So.3d 936 (Fla. 2d DCA 2009), which held that Section 222.21(2)(a), Florida Statutes, does not exempt an "inherited" IRA from the claims of a garnishing creditor of the non-spouse beneficiary. The exemption of a "fund or account," under Section 222.21(2)(a) is determined by its tax exempt status....

...no longer qualified for the same exemptions from taxation enjoyed by the original IRA. Id. The court concluded that the tax consequences of an inherited IRA make it a different "fund or account" from the original, and therefore outside the scope of Section 222.21(2)(a), Florida Statutes....

...istributed to Ms. Ard. The tax consequences of this inherited IRA have nothing to do with her age or retirement status; she cannot contribute additional funds to the account. As a result, the inherited IRA does not qualify as an exempt account under Section 222.21(2) as claimed by the debtor....

...empt). Debtor-Husband claimed entitlement to exemption in three of the newly-acquired property interests: the two annuities ($11,708.18 and $11,372.58 respectively) under Florida Statute § 222.14; and the IRA Account ($471.56) under Florida Statute § 222.21(2)....

...Debtor-Husband did not claim entitlement to an exemption in any of the other property interests, the approximate value of which totals over $37,000.00. The Trustee does not dispute that Florida Statue § 222.14 permits the beneficiary of an annuity to claim the proceeds as exempt, nor that § 222.21(2) allows a beneficiary to claim the proceeds of an IRA as exempt....

...On January 30, 1990, the debtor filed his Statement of Financial Affairs and Schedule of Assets and Liabilities. No amendments have been filed. 3. In Schedule B-4, the debtor claimed the following property as exempt: Property Authority Value claimed exemption Interest in MAPA II Fla.Stat. § 222.21 n/a (entireties) 4....

...Creditor, Mayport Riverview Associates, filed an Objection to Claim of Exemption on August 14, 1990. 11. Creditor, D.G. Granger, filed an Objection to Claim of Exemption on August 20, 1990. 12. Debtor admits that he wrongfully on Schedule B-4 showed Fla.Stat. § 222.21 as the authority for Debtor's Claimed Exemption....

...claims that funds held in their respective ERISA qualified pension, employee stock ownership and/or profit-sharing plans are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. § 222.21(2)(a), 11 U.S.C....

...On their B-4 Schedule of Exemptions, the Debtors claimed Mrs. Spears' interests in a profit-sharing plan *898 and an employee stock ownership plan (ESOP) with Delchamps, Inc., and Mr. Spears' interest in an ESOP with Avondale Industries, Inc., as exempt pursuant to Fla. Stat. § 222.21(2)(a)....

...Spears' interest is 100% vested in both plans with Delchamps for a total value of $6,488.50. (Debtors' Composite Exh. No. 1). However, the terms of these plans are not part of this record. The Debtors now claim that in addition to being exempt pursuant to Fla.Stat. § 222.21(2)(a), the plans "are exempt property, pursuant to 11 U.S.C....

..., 1990. On their B-4 Schedule of Exemptions, the Debtors claimed Mrs. Braswell's interest in a 401-K retirement plan with George C. Winn, P.A., and Mr. Braswell's interests in a 401-K retirement plan with Miles, Inc., as exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...nefit trust for the plan (Debtors' Composite Exh. No. 1), none of these documents disclose the conditions under which Mrs. Braswell may reach her interests in the plan. These Debtors now contend that in addition to being exempt pursuant to Fla.Stat. § 222.21(2)(a), the plans "are exempt pursuant to 11 U.S.C....

...90-1718, the Debtors filed their Chapter 7 voluntary Petition for Relief on February 28, 1990. On their Amended B-4 Schedule of Exemptions, the Debtors claimed Arnold Atzkatz's interest in a 401-K retirement plan with US Air, *899 Inc., as exempt pursuant to Fla.Stat. § 222.21(2)(a) and 11 U.S.C....

...90-2827, the Debtors filed their Chapter 7 voluntary Petition for Relief on March 28, 1990. On their B-4 Schedule of Exemptions, the Debtors claimed Velma Oxner's interest in a profit-sharing plan with Winn-Dixie Stores, Inc., as exempt pursuant to Fla.Stat. § 222.21(2)(a) and 11 U.S.C....

...n their ERISA plans as exempt, contending that the funds currently held on behalf of the Debtors in the plans mentioned above are, in fact, property of the estate, subject to administration, and cannot be claimed as exempt, notwithstanding Fla.Stat. § 222.21(2)(a), 11 U.S.C....

...860 (M.D.Fla.1990); In re Bryant and In re Partsch, 106 B.R. 727 (Bankr.M.D.Fla. 1989); and In re Sheppard and In re Polombo, 106 B.R. 724 (Bankr.M.D.Fla.1989), the Trustees' Objections should be overruled and the Debtors' claims of the ERISA qualified plans as exempt should be allowed based on Fla.Stat. § 222.21(2)(a)....

...Based on the foregoing, the alternative arguments advanced by Mr. Braswell and Mr. Atzkatz that their interests in their respective plans are exempt are moot. However, for purposes of discussion, this *901 Court will nevertheless address the merits of those arguments below. Fla.Stat. § 222.21(2)(a) It is urged by the Debtors that even assuming their interests in the plans are property of the estate, they are exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...at 727; and In re Sheppard and Polombo, supra, 106 B.R. at 724, where this Court ordered that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla. Stat. § 222.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void....

...ede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (emphasis added). It follows that because Fla.Stat. § 222.21(2)(a) "relates to" ERISA and is therefore preempted, the Debtors' argument in this regard must fail. 11 U.S.C. § 522(b)(2)(A) To escape the inescapable conclusion that the funds in the ERISA plans may not be claimed and allowed as exempt pursuant to Fla.Stat. § 222.21(2)(a), the Debtors also rely on 11 U.S.C....

...The Trustee argues that the IRA Accounts and the Payments are assets of the Chapter 7 bankruptcy estate and are subject to the Trustee's turnover power under 11 U.S.C. § 542. Debtor contends that the IRA Accounts are exempt pursuant to Fla.Stat. chs. 222.201 and 222.21 and 11 U.S.C....

...In so doing, Florida has enhanced the exemption privileges ordinarily offered to debtors by the Bankruptcy Code. Consequently, a Florida debtor may exempt property that is qualified under § 522(d)(10) as well as any "pension money and retirement or profit-sharing benefits." Fla.Stat. ch. 222.21(2)(a) (2000)....

...fect of the claim of exemption. Such a rebuttal shifts the burden to the debtor to demonstrate that the exemption is proper." Lester v. Storey (In re Lester), 141 B.R. 157, 161 (S.D.Ohio 1991) (citations omitted). The plain language of Fla.Stat. ch. 222.21 clearly provides that it can be used to exempt a plan qualified under §§ 401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code. Fla.Stat. ch. 222.21(2)(a) (2000); In re Ewell, 104 B.R. 458, 460 (Bankr.M.D.Fla.1989). Where the plan belongs to an alternate payee, however, the property is exempt only if a QDRO has first been entered. Fla.Stat. ch. 222.21(2)(b) (2000). A review of the relevant case law indicates, however, that ch. 222.21(2)(b) requires a QDRO only where an ERISA-qualified plan is at issue....

...l property rights to a spouse, former spouse, child or other dependent of a participant in an ERISA plan. ") (emphasis added); Bd. of Pension Trustees of the City Gen. Employees Pension Plan v. Vizcaino, 635 So.2d 1012, 1014 (Fla.Dist.Ct.App.1994) ("Section 222.21(2) provides merely that, while sums payable to a debtor from an ERISA-qualified plan are generally exempt from creditors' claims, they are `not exempt from the claims of an alternate payee under a qualified domestic relations order.'") (emphasis added)....

...ore a property settlement. CONCLUSION The Court finds that the Trustee has not carried his burden in showing that the IRA Accounts are non-exempt property and Debtor has therefore properly claimed the IRA Accounts as exempt pursuant to Fla.Stat. ch. 222.21....

...right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan. 29 U.S.C. § 1056(d)(3)(B). [2] Additionally, the exemptions that are provided under Fla.Stat. ch. 222.21 are not limited to ERISA-qualified plans. Consequently, where a plan does not qualify as a retirement plan under ERISA, it may still be exempt under Fla.Stat. ch. 222.21 as long as it meets the requirements established by the Internal Revenue Code....

...the Bankruptcy Code, [3] the trustee's objection is overruled. The debtors filed a petition for relief under Chapter 7 of the Bankruptcy Code on July 29, 2010. In their Amendment to Schedule C, the debtors claimed an exemption under Florida Statutes § 222.21(2) and Bankruptcy Code §§ 522(b)(3)(C)/522(d)(12) for funds held in the "Raymond James Financial Services, Inc....

...The issue is whether an inherited IRA loses its tax exempt status so that beneficiaries, such as these debtors, are precluded from exempting funds held in an inherited IRA. The trustee argues that an inherited IRA does not qualify for exemption under Florida Statutes § 222.21(2) or Bankruptcy Code §§ 522(b)(3)(C)/522(d)(12)....

...469, 475 (Bankr. M.D.Pa.2010). [14] In re Nessa, 426 B.R. 312, 314 (8th Cir. BAP 2010). [15] Id. [16] Id. [17] Id. at 315. [18] Id. [19] 11 U.S.C. § 522(b)(4)(C). [20] The debtors, however, arguably cannot exempt the inherited IRA under Florida Statute § 222.21(2), at least according to two recent decisions: In re Ard, 435 B.R....

...estate. In opposition to the Trustee's Objection, the Debtor claims that the compensation represents unemployment compensation benefits payable under a pension plan of Tropicana based on the Debtor's age and length of service, and, that pursuant to § 222.21 Fla....

...tablished by Paul M. Horath and Donna Faye Horath (Debtors) were established by the Debtors with the specific intent to defraud creditors thus notwithstanding the fact that IRA accounts are specifically immunized from claim of creditors by Fla.Stat. 222.21, their claim to exempt the IRA accounts should be rejected....

...As the result the right of the Debtors to claim exemptions in this State is governed by the Constitution, Article X Section 4, and by the Statute granting exemptions. The particular property in the matter under consideration is specifically exempted from claim of creditors by Fla.Stat. 222.21....

...3). Debtor made contributions to the pension plan totaling $258,152, between August 15, 1985, and September 15, 1987. Debtor listed the pension plan as an asset valued at $337,873.71 in Schedule B-2. He claimed the property as exempt under Fla.Stat. § 222.21 in Schedule B-4. On January 26, 1990, FDIC filed an objection to the claim of exemption. Debtor contends that the pension is exempt under Florida statute § 222.21 or as a spendthrift trust. DISCUSSION I. Debtor's Claim for Exemption Under Florida Statute § 222.21 A....

...ERISA further provides that the United States Secretary of Labor may promulgate such regulations as is necessary or appropriate to carry out the provisions of ERISA. The Court concludes that the debtor's pension plan is an employee benefit plan as defined under ERISA. Fla.Stat. § 222.21(2)(a). Debtor claims that his pension plan, qualified under I.R.C. § 401(a), falls within the protection of Florida exemption statute, Fla.Stat. § 222.21(2)(a). Many cases, including a recent one from this Court ( In re Schlein, 114 B.R. 780 (Bankr.M.D.Fla.1990)), establish that state exemptions offer debtors no such protection due to preemption by ERISA. B. Florida Statute § 222.21 relates to an ERISA Employee Benefit Plan Section 222.21(2)(a) provides in relevant part: ....

...ny participant or beneficiary in, a retirement or profit sharing plan that is qualified under Section . . . 401(a) . . . of the Internal Revenue Code of *461 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. Section 222.21(2)(a), Florida Statutes creates an exemption for a pension plan qualified under I.R.C....

...The paramount qualification issue raised in the Internal Revenue Code provision is ERISA qualification. A state statute need not specifically identify a plan for it to relate to ERISA. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). This Court concludes that § 222.21(2)(a) directly relates to a pension plan covered by ERISA....

...Shaw, supra .; See also, Mackey v. Lanier Collection Agency and Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988); In re Bryant, 106 B.R. 727 (Bankr.M.D.Fla.1989); In re Polombo, 106 B.R. 724 (Bankr.M.D.Fla.1989). C. ERISA preempts Florida Statute § 222.21 as it Relates to an Pension Plan Covered by ERISA ERISA, 29 U.S.C....

...780 (Bankr.M.D.Fla. 1990). In Schlein, the debtor claimed exemption for his interest in a simplified employee pension qualified under I.R.C. § 408(k). This fund was an employee benefit plan as defined by ERISA. This Court held that despite its salutary purposes, § 222.21(2)(a) was preempted by ERISA and denied the debtor's claim of exemption. Id. at 782-84. This Court concludes that § 222.21(2)(a) is preempted by ERISA § 1144(a)....

...See, In re Witlin, 640 F.2d 661, 663 (5th Cir.1981) (citing Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (Fla.1947)). Debtor's pension plan is property of the bankruptcy estate. 11 U.S.C. § 541(a)(1); Lichstrahl at 1490; Witlin at 663. CONCLUSION The pension plan is not exempt pursuant to section 222.21(2)(a), Florida Statutes, since this state statute is preempted by ERISA, 29 U.S.C....

...The bank filed an answer stating that it had two accounts titled jointly in the name of debtor and Sue M. Beardsley. [1] The two accounts held approximately $5,000. Debtor filed a motion to dissolve the writ of garnishment. He filed an affidavit stating that the money in the accounts was entitled to exemption under section 222.21, Florida Statutes (1993). Section 222.21 provides in part: Money received by any debtor as pensioner of the United States within 3 months next preceding the issuing of an execution, attachment, or garnishment process may not be applied to the payment of the debts of the pensioner when it is made to appear by the affidavit of the debtor or otherwise that the pension money is necessary for the maintenance of the debtor's support or a family supported wholly or in part by the pension money. Id. § 222.21(1)....

...ssue regarding the identity of the funds in the accounts which could not be resolved as a matter of law, but instead created a factual issue which must be set for trial. See generally § 77.07, Fla. Stat. (1993). In construing another subdivision of section 222.21, Florida Statutes, this court has said: [T]he terms of the statute must be interpreted in light of its intended aim....

...of this circuit. This court is bound to conclude, therefore, that ERISA does not itself provide a federal law exemption for the debtors' accounts. B Turning then to exemptions provided by state law, the Harris Plan plainly falls within the scope of Section 222.21(2)(a), Florida Statutes 1989....

...that are consistent with ERISA's substantive requirements. Id.; Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985). Using these principles, it is plain that 29 U.S.C. § 1144(a) preempts Section 222.21(2)(a), Florida Statutes 1989; the provisions of this Florida exemption are therefore not available to the debtors here to protect their Plan accounts....

...plan qualifies under Section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a). Clearly, if Section 222.201 is determined to be a state law that permits Florida residents to exempt their ERISA plans, that statute is preempted by ERISA just as Section 222.21 is preempted as discussed above....

...arris Plan is non-exempt property because it might later be used to compel Harris to turn over the account funds. Such a result, Rosenquist contends, would occur solely in the bankruptcy context and would not occur in any other context. For example, Section 222.21 would immunize these assets from levy or execution under Florida law....

...Clearly, the Code provides protection to debtors and, in return, imposes numerous requirements on them that do not exist in non-bankruptcy settings. Debtors are not a suspect class accorded protection from discrimination under the Constitution of the United States. In addition, the same preemption analysis would apply to Section 222.21 whether or not the protection was sought in bankruptcy court or in state court. See Mackey, supra, 486 U.S. at 835, 108 S.Ct. at 2188. Finally, Rosenquist also argues that his interest in the Harris Plan is exempt as wages pursuant to Section 222.11, Florida Statutes 1989, despite the fact that Sections 222.21 and 222.201 have been preempted by ERISA, as the court has now held....

...'s share of the retirement fund be paid directly to him. [1] No QDRO had been entered as of October 12, 1996, the date the debtor filed his chapter 7 petition. *73 Initially, the debtor claimed the retirement fund was exempt based on Florida Statute 222.21(2)(b): Any [ERISA-qualified] plan or arrangement described in paragraph (a) is not exempt for the claims of an alternate payee under a qualified domestic relations order. However, the interest of any alternate payee under a qualified domestic relations order is exempt from all claims of any creditor, other than the Department of Health and Rehabilitative Services, of the alternate payee. Fla.Stat. Ch. 222.21(2)(b) (1995)....

...The plain language of section 121.131 protects his interest in the retirement fund from any legal process whatsoever. This statute is sufficient to exempt from the bankruptcy estate the debtor's interest in the State-sponsored retirement fund. The original objections to the exemptions claim under § 222.21 Fla.Stat....

...Thus, both schemes make an exception to the prohibition against assignment when done pursuant to a division of marital property. If this were an ERISA-qualified plan and a QDRO had been entered, the debtor's share of benefits would clearly be exempt. Fla. Stat. ch. 222.21(2)(b) (1995)....

...In a Chapter 61 contempt proceeding a trial court may properly look to a former spouse's individual retirement account to determine whether that spouse has the ability to pay a purge amount in a contempt order. Contrary to appellant's argument, the section 222.21(2)(a), Florida Statutes (1995), exemption of an IRA account from "all claims of creditors" does not shield IRA assets from a court order to pay Chapter 61 obligations....

...m its benefit against the very persons to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise would, at least in part, defeat its avowed object. Id. at 655. For these reasons, the statutory exemption in section 222.21(2)(a), Florida Statutes (1995), does not apply in this case....

...P.A., M.D. Money Purchase Pension Plan ("the Pension Plan"), in which the Debtor asserted an interest in the amount of $567,310.94. The Debtor listed this interest in his Section B-4 Schedule, *977 claiming an exemption under Florida law, Fla.Stat. Section 222.21 (F.S. Section 222.21), as well as various applicable federal and Florida case law....

...lan are not held in a spendthrift trust; and 3) the Florida Constitution makes no provision for exempting an interest in a pension plan. On August 9, 1990, the Trustee filed his Objection to the Debtor's Claimed Exemption on the grounds that 1) F.S. Section 222.21 was preempted by ERISA; 2) the Pension Plan does not constitute a spendthrift trust; and 3) funds placed into the Pension Plan prior to October 1, 1987 are not exempt pursuant to F.S. Section 222.21, as the said statute did not become effective until October 1, 1987....

...The unrebutted testimony and documentary evidence presented by the Debtor at the hearing demonstrated that the Pension Plan was qualified, having met the necessary qualifications under Section 401(a) of the Internal Revenue Code of 1986, as amended, within the meaning of Florida Statute Section 222.21....

...The Court allowed the trustee and creditor additional time after trial to conduct discovery and produce contrary evidence in this regard. Both declined to do so and submitted no further evidence to rebut the said qualification of the Pension Plan. II. ISSUES A. Does F.S. Section 222.21 "relate" to ERISA so that it is preempted in whole or in part? B. Are the funds contained in the Pension Plan exempt pursuant to F.S. Section 222.21? III. DISCUSSION A. The Trustee and the objecting creditor base their primary objection to the Debtor's claimed exemption on the argument that Florida Statute Section 222.21, the statute upon which the Debtor relies to exempt the Pension Plan, is preempted by the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C....

...Indeed, "state laws which make `reference to' ERISA plans are laws that `relate to' those plans within the meaning of Section 514(a)." Id. The objecting parties in this matter presumably rely on this section of the Mackey ruling to argue that ERISA preempts F.S. Section 222.21 on the grounds that the said Florida Statute arguably makes reference to ERISA because the statute contains the language necessary to include ERISA qualified plans among those which F.S. Section 222.21 purports to exempt....

...ion doctrine when the said law does not purport to regulate the terms and conditions of an employee benefit plan. Volpe, 100 B.R. 840, at pp. 846-855, declining to follow Mackey, op. cit. The Florida Statute in question in the instant matter — F.S. Section 222.21 — does not regulate or refer, directly or indirectly, to ERISA or any matters pertaining to ERISA or its requirements regarding plan reporting, disclosure, participation, funding, vesting, benefit calculation, or trustee's fiduciary responsibilities. Fla.Stat. Section 222.21 covers an area of law traditionally under state, rather than federal auspices, and therefore does not interfere with the field of employee pension plans now governed by federal law. In ruling that ERISA does not pre-empt F.S. Section 222.21, this Court follows similar decisions entered in this district....

...See In re Wines, 113 B.R. 787 (Bkrtcy.S.D.Fla.1990); In re Seilkop, 107 B.R. 776 (Bkrtcy.S.D.Fla. 1989); In re Bryan, 106 B.R. 749 (Bkrtcy S.D.Fla.1989); In re Martinez, 107 B.R. 378 (Bkrtcy.S.D.Fla.1989). Therefore, having found that ERISA does not pre-empt F.S. Section 222.21, this Court finds that the Steiner, Munach, Gurvich & Capati, M.D., P.A. Money Purchase Pension Plan is exempt pursuant to Fla.Stat. Section 222.21; consequently, there is no need to address whether the Pension Plan is a spendthrift trust under Florida law. Additionally, the objecting parties did not argue or present evidence on the constitutionality of F.S. Section 222.21 and, therefore, are deemed to have abandoned that argument....

...Accordingly, no decision is necessary with respect thereto. B. The Trustee has also objected to the exemption of any funds paid into the Pension Plan prior to October 1, 1987, on the grounds that such funds are not exempt pursuant to Florida Statute Section 222.21(2), in that said funds, representing pension or profit-sharing contributions, were not exempt under Florida or Federal statutory provisions prior to October 1, 1987, the effective date of Florida Statute Section 222.21(2). A careful reading of F.S. Section 222.21 reveals, however, that the said statute applies to any proceeding that is filed on or after October 1, 1987. See Fla.Stat. Section 222.21(2)(c). Therefore, although funds were contributed by the Debtor to the Pension Plan prior to October 1, 1987, these funds are exempt pursuant to F.S. Section 222.21, in accordance with this proceeding being filed on March 29, 1990, well after the said statute became effective. IV. CONCLUSION Based upon the foregoing, the Court finds that Fla.Stat. Section 222.21 is not pre-empted by ERISA. Accordingly, the benefits accruing from the pension plan in question may be retained by the Debtor as exempt property under 11 U.S.C. Section 522(b)(2)(A) and Fla.Stat. Section 222.21(2)(a)....

...THE MATTER under consideration in this Chapter 7 case filed by Roger Lee Turner (Debtor) is an Objection to a Claim of Exemption of the Debtor's interest in a Deferred Compensation Account. Diane Jensen (Trustee) challenged the exemption on the basis that the exemption is not allowable pursuant to Florida Statutes §§ 222.21(2), 222.201 or 122.15....

...n for Public Employees, Restated Plan Document." (Deferred Compensation Plan or Plan). This Court has considered this document along with the entire record and finds as follows. The claim of exemption of the Debtor, as noted, is based on Fla.Stat. §§ 222.21(2), 222.201 and 122.15. Section 222.21(2) provides that any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under § 401(a), § 403(a), § 403(b), § 408, § 408(A), or § 409 of the Internal Revenue Code of 1986 as amended, is exempt from all claims of creditors of the beneficiary or participant. Fl.Stat. § 222.21(2)....

...al Revenue Code. 26 U.S.C.A. § 457(g). See Article VII, Section 7.04 of the Deferred Compensation Plan provided by Debtor, and Article X, Section 10.07 of same. Thus, it is evident that the reliance to support the claim of exemption under Fla.Stat. 222.21(2) is misplaced....

...This Court had an occasion to consider the allowance of the exemption based on the Florida statutes in In re Handshaw, 198 B.R. 633 (Bankr.M.D.Fla.1996). The Trustee, in support of her Objection, cites the decision of this Court in Handshaw. The exemption in Handshaw was also claimed under Fla.Stat. § 222.21(2), as well as § 112.215(10)(a)....

...It is evident that this provision would not save the claimed exemption because on its face it clearly indicates that this Plan was established pursuant to IRC § 457(g) which, just like in Handshaw, makes this Plan a non-ERISA qualified plan and, in turn, cannot be excepted under Florida Statutes § 222.21....

...The debtor, on the other hand, contends that the pension is either excluded from the bankruptcy estate pursuant to the dictates of the Supreme Court's decision in Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), or is properly claimed as exempt under Fla. Stat. §§ 222.21(2) and 222.201....

...ven one requirement is not satisfied, a plan is not `ERISA-qualified.'" [emphasis in original]). The Court might be able to stop *509 the analysis at this point were it not for the debtor's claim that the plan is nonetheless exempt under Fla.Stat. §§ 222.21(2) and 222.201....

...The plan payments also relate to age and length of service, especially given the vesting requirements. And finally, as will be discussed below, the plan does not qualify under § 401(a) of the Internal Revenue Code. [13] The debtor also claims that the pension is exempt under FlaStat. § 222.21(2), which provides that: Except to the extent provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit sharing plan that...

...The post-petition attempt to cure the plan deficiencies under the tax laws cannot alter that simple fact. With that in mind, the plan does not qualify under § 401(a) of the Internal Revenue Code. [14] It is therefore not exempt under either Fla.Stat. § 222.21(2) or § 222.201....

...Sawczak concedes that the IRAs were not acquired by Goldenberg with the proceeds of a fraud perpetrated upon her, that the IRAs do not represent the transfer of non-exempt assets into exempt assets on the eve of bankruptcy, and that “on their face” the IRAs fit the description of assets exempted by Fla. Stat. Ann. § 222.21 (West 1998)....

...THESE ARE Chapter 7 liquidation cases and the matters under consideration are Objections filed by the Trustee in each case to the Debtors' claims that funds held in their respective ERISA-qualified retirement plans are exempt from administration by the Trustees pursuant to Florida Statute § 222.21(2)(a), 11 U.S.C....

...222 [sic]. Knowles values her interest in the Plan at $12,174.30. The Debtor also claims that the Plan qualifies as a spendthrift trust and that it is not property of the estate pursuant to 11 U.S.C. § 541(c)(2), Fla.Stat. § 222.201, and Fla.Stat. § 222.21 [sic]....

...ode on July 24, 1990, Case No. 90-7217. On her B-4 Schedule, Johnson claimed her interest in an employee profit sharing Plan with Fuller and Lane, M.D., P.A., (Fuller and Lane) as exempt pursuant to Florida Statutes § 222.14, § 222.18, § 222.201, § 222.21; 29 U.S.C....

...g the funds in their ERISA Plans as exempt, contending that the funds currently held on behalf of the Debtors in their Plans are, in fact, property of the estate, subject to administration, and cannot be claimed as exempt, notwithstanding Fla. Stat. § 222.21(2)(a), 11 U.S.C....

...In the alternative, Johnson claims that the Plan is exempt pursuant to 11 U.S.C. § 522(b)(2)(A). Johnson and Knowles both claim that the Trustees' Objections should be overruled and the Debtors' claims of the Plans as exempt should be allowed based on Fla.Stat. § 222.21(2)(a)....

...Based on the foregoing, this Court is satisfied that the Macfarlane, Ferguson Plan and the Fuller and Lane Plan are not spendthrift trusts, thus, the funds in the Plans are property of the estate. This Court will address the merits of other arguments relied on by the Debtors Knowles and Johnson. Fla.Stat. § 222.21(2)(a) It is urged by the Debtors Knowles and Johnson that even assuming their interests in the Plans are property of the estate, they are exempt pursuant to Fla. Stat. § 222.21(2)(a)....

...1989); and In re Sheppard and In re Polombo, 106 B.R. 724 (Bankr.M.D.Fla.1989), where this Court ordered that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla. Stat. § 222.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void....

...sede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (emphasis added) It follows that because Fla.Stat. § 222.21(2)(a) "relates to" ERISA and is therefore preempted, the Debtors' argument in this regard must fail. 11 U.S.C. § 522(b)(2)(A) To escape the inescapable conclusion that the funds in the ERISA plans may not be claimed and allowed as exempt pursuant to Fla.Stat. § 222.21(2)(a), the Debtor Johnson also relies on 11 U.S.C....

...1, at 36, Chapter 7 Individual Debtor's Statement of Intention. [11] Doc. No. 10. [12] The Debtor's original schedule C claimed that the total value of claimed exempt property was $35,651.53. Because this included a 401(k) retirement plan, which was exempt under section 222.21(2) and valued at $29,651.53, the net value of the Debtor's non-401(k) property claimed as exempt in the original Schedule C was $6000....

COPE, Judge. The question presented for review is the effective date of section 222.21, Florida Statutes (1989), which exempts retirement and profit sharing plans from the claims of creditors. We conclude that the trial court correctly interpreted the statute and affirm the order under review. In 1987 the legislature enacted section 222.21, Florida Statutes....

...ficiary in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant.” § 222.21(2)(a), Fla.Stat. (1989) (emphasis added). The enactment also states, “The provisions of paragraphs (a) and (b) apply to any proceeding that is filed on or after October 1, 1987.” Id. § 222.21(2)(c) (emphasis added)....

...dual retirement accounts (“IRA”) in her name within this jurisdiction. The doctor then moved for issuance of writs of garnishment against the IRA accounts. The trial court concluded that the patient’s IRA’s were entitled to the protection of section 222.21 and denied the motion for issuance of writs of garnishment. This appeal followed. The doctor contends that the patient’s IRA’s are not protected by section 222.21....

...The doctor asserts that his lawsuit was a “proceeding” and was filed before October 1, 1987. He urges that the exemption does not apply to his claim and that he may garnish the IRA’s. In our view that interpretation is incorrect. First, as a textual matter, section 222.21 deals with creditor’s remedies, including garnishment....

...hereby promoting the financial independence of IRA and pension plan beneficiaries in their retirement years — in turn reducing the incidence and amount of requests for public financial assistance. .If the view advanced by the doctor were accepted, section 222.21 would be unavailable for all civil actions filed prior to October 1, 1987, including (presumably) cases which have gone to final judgment....

...Debtor filed a petition under Chapter 7 of the Bankruptcy Code on April 3, 1997. Aaron R. Cohen (Trustee) was appointed Chapter 7 Trustee in the case. 7. Debtor filed her schedules claiming $5000 in the Individual Retirement Account (IRA) as exempt pursuant to Florida Statute § 222.21(2)....

...Once a prima facie case for disallowing the exemption has been shown by the objecting party, the burden then shifts to the debtor to prove that the debtor is legally entitled to claim the exemption. Id. In this case, the Trustee objects to Debtor's claim that her IRA is exempt pursuant to Florida Statute § 222.21(2)....

...hecking account, and when the funds were later placed in an account other than the Debtor's. Contending that the 401(k) funds cannot be properly traced into the IRA, in accordance with the Internal Revenue Code sections enumerated in Florida Statute § 222.21(2), the Trustee maintains that Debtor's claim of exemption is improper. Florida Statute § 222.21(2) provides in relevant part: [A]ny money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s. 401(a), s. 403(a), s. 403(b), s. 408, or s. 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. FLA. STAT. ANN. § 222.21(2)(a) (West 1989). Therefore, a debtor is entitled to an exemption if the retirement or profit-sharing plan qualifies under one of the Internal Revenue Code sections enumerated in Florida Statute § 222.21(2). In the instant case, Internal Revenue Code § 408 is the appropriate section for determining whether Debtor's IRA qualifies for an exemption under Florida Statute § 222.21(2)....

...plan." 26 U.S.C.A. § 402(c)(8)(B)(i) (1997). Using Internal Revenue Code § 402, the Court must determine whether Debtor's IRA was funded by a rollover contribution such that Debtor is entitled to claim the IRA as exempt pursuant to Florida Statute § 222.21(2)....

...Accordingly, the Trustee's objection to Debtor's claim of exemption is overruled. CONCLUSION Debtor is entitled to claim the IRA as exempt because the IRA was funded by a rollover contribution in accordance with § 408 of the Internal Revenue Code as enumerated in Florida Statute § 222.21(2)....

...Therefore, the Trustee's objection to Debtor's claim of exemption is overruled. The Court will enter an Order consistent with these Findings of Fact and Conclusions of Law. NOTES [1] Of all the Internal Revenue Code Sections enumerated in Florida Statute § 222.21(2), only § 408 pertains to IRAs....

...Garrett and his wife filed their voluntary Chapter 7 Petition on August 21, 1991. On their Schedule C they claimed that Mr. Garrett's interest in the Plan was not part of his estate pursuant to § 541(c)(2) of the Code or, in the alternative, exempt pursuant to § 222.21(2)(a), Fla.Stat....

...empt was allowed. In its Order this Court held that Mr. Garrett's interest in the Plan is not excluded from his estate by virtue of § 541(c)(2) and is subject to administration by the Trustee and the interest cannot be claimed as exempt pursuant to § 222.21 of the Florida Statutes by virtue of federal preemption doctrine, enunciated by the Supreme Court in Mackey v....

...a bankruptcy exception to ERISA's anti-alienation provisions; (5) even if ERISA's anti-alienation provisions are applicable in bankruptcy they are not applicable to a terminated Plan; and (6) Debtors are not entitled to any exemption available under § 222.21 Fla.Stat....

...s follows: The Debtors filed their Petition for Relief under Chapter 7 of the Bankruptcy Code on March 9, 1990. The Debtors claimed as exempt property in the amount of $2,000.00 pursuant to § 522(b)(2)(A) of the Bankruptcy Code and Florida Statutes Section 222.21....

...creditors, CC. The Hawser Property is Debtor and Karen’s exempt homestead property. As such, it is immune from the claims of creditors, including the claims of the Trustee. DD. Unless an objection to Debtor’s claim of exemption under Fla. Stat. § 222.21 (2) for his IRA account, Morgan Stanley Account No....

...the trust on the basis that it is a spend thrift trust, thus by virtue of § 541(c)(1)(B), (2) is not part of the estate and not subject to administration or whether or not the funds held by the bank would *733 be exempt under local law by virtue of § 222.21 of the Florida Statutes....

...The facts as appears from the record are without dispute and are as follows: The Debtor filed a Petition for Relief under Chapter 11 on February 27, 1991. In connection with the Petition, the Debtor filed a Schedule B-4, claiming as exempt, pursuant to Art. X, § 4 of the Florida Constitution, and Florida Statutes § 222.21, his interest in a 401(k) Pension Plan....

...The remaining issue concerning exemptions that this Court must address is the objection of the Trustee to the claim of exemption of the Pension Plan from Employment at NVC by Harvey Seslowsky. The Trustee objects to the claim of exemption on the grounds that the statute that establishes the exemption, Florida Statute *693 § 222.21(2)(a), is void as a matter of law because it is pre-empted by 29 U.S.C....

...“In Mackey the Court held that ERISA did not pre-empt a State’s general garnishment statute, even though it was applied to collect judgments against plan participants.” Ingersoll-Rand 111 S.Ct. at 483 . Ingersoll-Rand is not inconsistent with Suarez and Kimmel in that Fla.Stat. Section 222.21(2)(a) does not attempt to regulate any matters dealing with the “internal” functions of ERISA....

...Garlikov (In re Garlikov), 947 F.2d 419 (9th Cir.1991). Accordingly, this Court will follow the pri- or decisions in Suarez and Kimmel, as well as the cases cited therein. It is hereupon ORDERED that the Trustee’s Objection to the Debtors’ Claim of Exemption on the on the basis of Fla.Stat. § 222.21 is OVERRULED....

exemption from creditor claims afforded by section 222.21(2)(a), Florida Statutes. As to Davide’s second

...Florida, under the authority of 11 U.S.C. § 522(b)(1), has opted out of the federal exemptions available under § 522 of the Bankruptcy Code. Fla.Stat. Ann. § 222.20 (West 1991). With respect to the exempt status of pension plan benefits, Florida Statute § 222.21(2)(a) provides as follows: Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s.401(a), s.403(a), s.408, or s.409 of the Internal Revenue Code of 1986, as amended is exempt from all claims of creditors of the beneficiary or participant. Fla. Stat. Ann. § 222.21(2)(a) (West 1991). Because the Court determined that the plan was qualified under the Internal Revenue Code and ERISA, the debtors assert that the plan is exempt under § 222.21. The movants contend that the debtors may not claim the plan as exempt under Florida law in that Florida Statute § 222.21 is preempted by ERISA....

...The Court reasoned that specific reference to ERISA in a state law mandates preemption because of the rule that ERISA preempts any and all state laws in so far as they relate to any employee benefit plan covered by the statute. Mackey, 486 U.S. at 830, 108 S.Ct. at 2185. Because § 222.21(2)(a) "relates to" ERISA, the movants assert that the broad preemption language of ERISA prevents the application of the state law exemption. In re Bryant, 106 B.R. 727 (Bankr.M.D.Fla. 1989); In re Schlein, 114 B.R. 780 (Bankr. M.D.Fla.1990); In re Sheppard, 106 B.R. 724 (Bankr.M.D.Fla.1989). The issue of ERISA's preemption of § 222.21(2)(a) is one that has been previously addressed by the bankruptcy courts of this district....

...ms and conditions of an employee benefit plan. See Martinez, 107 B.R. at 380, citing In re Volpe, *975 100 B.R. 840, 846-55 (Bankr.W.D.Tex. 1989); In re Bryan, 106 B.R. at 750-51; In re Gurvich, 132 B.R. at 978. In Martinez, this Court reasoned that § 222.21(2)(a) is consistent with ERISA's purpose of protecting pension money from attachment by creditors. 107 B.R. at 380. Thus, the Court concluded that § 222.21(2)(a) and ERISA complement each other and absent a conflict between the state and federal law there is no need for preemption. This Court sees no reason to retreat from the reasoning announced in Martinez. Therefore, the Court finds that Florida Statute § 222.21(2)(a) is not preempted by ERISA and the debtors have the right to claim the plan as exempt under Florida law. The trustee also asserts that § 222.21(2)(a) is unconstitutional as violative of Article 10, Section 4 of the Florida Constitution....

...property owned by a natural person: (2) personal property to the value of one thousand dollars. Fla. Const. Art X, Sec. 4 (1985). The trustee contends that the Florida Constitution limits personal property exemptions to a value of $1,000.00 and that § 222.21 by exempting pension benefits in an unlimited amount, violates that constitutional provision. The trustee relies on the decision of In re Hudspeth, 92 B.R. 827 (Bankr. W.D.Ark.1988) which held a statute similar to § 222.21 as invalid under the Arkansas Constitution....

...601, 50 S.Ct. 82, 74 L.Ed. 646 (1929) quoted in In re Wines, 113 B.R. at 792. Similarly, the Court finds that the constitutional provision exempting a stated amount of personalty is not a limitation on the available exemption under Florida Statute § 222.21(2)(a). Based on the foregoing, the Court finds that the debtors may properly claim the plan as exempt pursuant to Florida Statute § 222.21(2)(a)....

...775, 781-82 (Bankr.M.D.Fla.1990). This Court must conclude that ERISA in and of itself does not provide a federal exemption for the profit sharing proceeds. Next, the Court must consider whether the proceeds are exempt under applicable state or local law. Florida Statute 222.21(2)(a) provides: (a) Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit-sharing plan that is qualified under s....

...d not exempt under section 1003(b) of this title. Thus, if a state law “relates to” an employee benefit plan, ERISA preempts that particular law. In a case factually similar to the case at bar, this Court held that ERISA preempts Florida Statute 222.21(2)(a)....

...833 (Bankr.M.D.Fla.1990) (Baynes, J.); and In re Sheppard, 106 B.R. 724 (Bankr.M.D.Fla.1989) (Paskay, C.J.). This Court sees no basis for departing from its past well-reasoned opinion. CONCLUSION Thus, having been preempted by ERISA, Florida Statute 222.21(2)(a) is not a viable basis for exempting the profit sharing proceeds from the bankruptcy estate....

...1941) (explaining that "[i]t is well settled that the declaration of a dividend by a corporation creates between the corporation and a stockholder the relationship of debtor and creditor instanter, regardless of the fact that payment is not to be made until a later date"). § 222.21(2)(a), Fla....

...While this is true, the only basis pled for the objection of these accounts was in Paragraph 37 in which Neilson alleged that: “The Slatkin Trustee, however, has been unable to verify whether these accounts are ‘qualified’ retirement accounts as required by Florida Statutes § 222.21(2)(a)....

...owing reasons: The evidentiary proceeding was focused entirely on the Objections to the Debtor’s homestead claim and there was no evidence presented whatsoever that these accounts were not qualified as retirement accounts as required by Fla. Stat. 222.21(2)(a)....

...Sawczak concedes that the IRAs were not acquired by Goldenberg with the proceeds of a fraud perpetrated upon her, that the IRAs do not represent the transfer of non-exempt assets into exempt assets on the eve of bankruptcy, and that "on their face" the IRAs fit the description of assets exempted by Fla. Stat. Ann. § 222.21 (West 1998)....

...ty Claimed as Exempt, listed his individual retirement account ("IRA") maintained with SmithBarney citigroup ("SmithBarney") in the amount of $178,000. As his authority supporting his claim of exemption for his IRA, the Debtor cited Florida Statutes § 222.21....

...With regard to the Debtor's claimed exemption relating to his individual retirement account, the Debtor amended Schedule C — Property Claimed as Exempt, again claiming his SmithBarney IRA to be exempt, but providing, as his authority for the claimed exemption: 11 U.S.C. § 541(c)(2) and Fla. Stat. § 222.21....

...Although the Debtor claimed several items as exempt on her Schedule C, the only item in dispute relates to the Debtor's claim of exemption with respect to her interest in a Keogh plan. The Debtor's claim of exemption in her Fidelity Investment—Keogh plan is based on Section 222.21(2)(a)(1) of the Florida Statutes. It is the Debtor's contention that a close reading of the section that she relies upon, leaves no doubt that the literal reading of Fla. Stat. § 222.21(2)(a)(1) permits but one conclusion, that is, that the Keogh plan under consideration is exempt pursuant to Section 222.21(2)(a)(1) of the Fla. Stat. Section 222.21(2)(a)(1) of the Fla. Stat., provides in pertinent part: *501 222.21 Exemption of pension money and certain tax-exempt funds or accounts from legal processes ......

...457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended, unless it has been subsequently determined that the plan or governing instrument is not exempt from taxation in a proceeding that has become final and nonappealable; Fla. Stat. § 222.21(2)(a)(1). In addition to the foregoing, the Debtor contends that Section 222.21(2)(a)(1) of the Fla....

...s from creditors' claims was not unconstitutional *503 as a result of ex-post facto, retroactive impairment with the debtor's contract with the lender. Unlike the question presented to this Court, the matter in Suarez, not only dealt with Fla. Stat: § 222.21, but also dealt with the issue of the debtors amending their petition to claim the I.R.A....

...(This) purpose has not changed.... H.R.Rep. No. 595, 95th Cong., 1st Sess. 126 (1977) reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 5963, 6087. Based on the foregoing, this Court is satisfied that the present issue presented to this Court is governed by the Section 222.21 of the Florida Statutes....

...4th DCA 1998), we reversed a circuit court’s entry of a post-judgment qualified domestic relations order which, as a remedy for the former wife’s failure to make an equalization payment, awarded the former husband an interest in the former wife’s retirement benefits. Id. at 638 . Relying upon then-section 222.21(2), Florida Statutes (1997), which provided that certain pension money, as specified in the statute, is “exempt from all claims of creditors of the beneficiary or participant,” we reasoned: Once the final judgment awarded each part...

...ment benefits. Once the final judgment awarded the former wife an equitable distribution interest in the former husband’s retirement benefits, that interest was no longer marital property but the sole property of the former wife. Thus, pursuant to section 222.21(2), Florida Statutes (2015), which provides that certain pension money, as specified in the statute, is “exempt from all claims of creditors of the owner, beneficiary, or participant...,” it was improper to enforce the former wife�...

...y Code. 2. Non-exempt funds The transferred property originated with Mr. Jones’ pension fund, and may have been entitled to an exemption from the claims of Mr. Jones’ creditors if it had remained in the account at Fidelity Investment. Fla. Stat. § 222.21 (2)....

...After the deposit, Mr. Jones continuously drew down and replenished the account to accommodate his transfers, and the pension funds were never placed in any other investment vehicle. (Trustee’s Exhibit 2). c. The statute Third, the funds are not exempt under § 222.21(2) based on the precise language of the statute....

...��benefits due” in § 443.051 of the Florida Statutes refers to “something owing” rather than “something paid.” Id. at 3(citing Broward v. Jacksonville Medical Center, 690 So.2d 589, 591 (Fla.1997)). In this case, the applicable statute is § 222.21(2) of the Florida Statutes. Section 222.21(2) provides an exemption for “money or other assets payable to an owner, a participant, or a beneficiary” from an account that is maintained in accordance with certain requirements of the Internal Revenue Code. Fla. Stat. § 222.21 (2)(Emphasis supplied)....

...The subsection contrasts with subsection (1) of the same statute, which refers to money “received by” a debtor as a “pensioner of the United States,” and exempts the pension money if the debtor shows that it is necessary to his maintenance and support. Fla. Stat. § 222.21 (1). *774 In other words, § 222.21 expressly distinguishes between funds that have been “received by” a United States pensioner in § 222.21(1), and funds that are “payable to” the beneficiary of a taxqualified plan in § 222.21(2). Similar to the statute in Swetic , therefore, it appears that the exemption under § 222.21(2) is provided only to those funds that are payable or owing to the beneficiary of such a plan, but not to funds that have already been distributed to or received by the beneficiary....

...funds from the debtors’ 401(k) account lost their exempt status when they were transferred into the debtors’ money market account. d. No claim of exemption Fourth, Mr. Jones never claimed an exemption for the withdrawn pension funds pursuant to § 222.21(2) of the Florida Statutes....

...The Debtors were aware of the exemption for tax-qualified pensions, because they claimed the exemption for Mrs. Jones’ separate 401(k) plan. Despite filing an amended SOFA, however, the Debtors never claimed an exemption for any of Mr. Jones’ pension funds pursuant to' § 222.21(2) of the Florida Statutes....

...ules.). Under these circumstances, the property transferred by Mr. Jones was not an asset that was exempt from the claims of his creditors. He voluntarily withdrew the funds from his pension plan, the funds were never placed in a designated account, § 222.21(2) of the Florida Statutes did not provide an exemption for Mr....

...§ 522(d), favoring the state law exemption schedule. However, F.S. § 222.201 permits debtors to claim the exemptions listed in 11 U.S.C. § 522(d)(10). A qualified 401(k) plan is exempt under the Code via section 522(d)(10)(E), and under Florida Statute § 222.21(2)(a) as follows: Except as provided in paragraph (b), any money or other assets payable to a participant or beneficiary from, or any interest of any participant of beneficiary in, a retirement or profit-sharing plan that is qualified under § 401(a), § 403(a), § 403(b), § 408, § 408A, or § 409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. F.S. § 222.21(2)(a)....

...eds with regard to creditors other than the IRS. If the Debtor's plan was qualified, the proceeds were received by the Debtor as a mandatory distribution. Regardless of the tax status of those proceeds, they would be exempt from creditors under F.S. § 222.21(2)(a), and would be exempt from the bankruptcy estate under 11 U.S.C....

...nc. to dis *186 burse benefits from an Individual Retirement Account. We affirm that portion of the order that relieves Charles Schwab of any obligation to show cause why it should not disburse retirement benefits to Church, a judgment creditor. See § 222.21(2)(a), Fla....

...The matter under consideration in this Chapter 7 case is the Trustee's Objection to Debtor's Claim of Exemptions, specifically, the objection to the Debtor's claim that the funds rolled over into his investment retirement account from his Simplified Employee Pension Plan are exempt property pursuant to Florida Statute § 222.21....

...date of the Debtor's filing had a balance of $427,117.56. The many arguments asserted by the Trustee in this matter can essentially be categorized into three main contentions. First, the Trustee argues that the exemption provided by Florida Statute § 222.21(2)(a) does not include individual retirement accounts and, regardless, that § 222.21(2)(a) is preempted by ERISA. However, this Court has already recognized that Florida Statute § 222.21(2)(a) does apply to IRAs and has not been preempted by ERISA. See In re Francisco, 204 B.R. 799 (Bankr.M.D.Fla.1996); In re Schlein, 8 F.3d 745 (11th Cir.1993). Second, the Trustee contends that the Debtor's IRA became nonqualified under Florida Statute § 222.21(2)(a) due to the rollover of funds from the Debtor's allegedly nonqualified SAPSEP. Florida Statute § 222.21(2)(a) states: [A]ny money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan or profit-sharing plan that is qualified under s....

...the requirements listed in § 408(k) as well as the actual plan documents and RMGA records provided by the parties in this matter. In deciding whether an IRA is "qualified" under the IRC, such that a debtor's interest in a plan will be exempt per F.S. 222.21, the court looks at both the form and operation of the plan....

...Based on the foregoing, this Court finds that the assets of the IRA are exempt property of the estate because the funds in the SARSEP that were subsequently rolled over to the IRA Profit Sharing Plan are qualified for a tax exemption under IRC § 408(k), and in turn, by Florida Statute § 222.21(2)(a)....

...w York and Related Agencies and Instrumentalities (457 Plan), in the amount of $49,370.40; (2) a "City of New York Pension" (N.Y. Plan), in the amount of $50,988.27; and (3) an IRA Account, in the amount of $16,062. All were claimed under Fla. Stat. § 222.21(2) and U.S.C....

...at the only issue before this Court, at the present, is the Trustee's challenge of the Debtors' right to claim their interest in the 457 Plan and not their interest in either the IRA Account or the N.Y. Plan. The basis of the exemption is Fla. Stat. 222.21(2)(a) which provides as follows: Any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement or profit sharing plan that is qualified under s....

...ion cannot be allowed because the 457 Plan leaves no doubt that the deferred compensation plan is not an ERISA qualified plan that is established pursuant to the plan itself under Section 457 of the IRC. Since any claim of exemption under Fla. Stat. 222.21 must be ERISA qualified, the claim of exemption of the Debtors must fail....

...PER CURIAM: Sarah Baker appeals the judgment that her Keogh plan is property of her bankruptcy estate. The district court affirmed the decision of the bankruptcy court that Baker’s Keogh plan was not exempt under Florida law. Fla. Stat. § 222.21(2)(a)(1)....

...Baker does not contend that her Keogh plan is maintained in accordance with the Employee Retirement Income Security Act of 1974. 29 U.S.C. § 1001–1461. Baker filed a petition for bankruptcy under Chapter 7, 11 U.S.C. § 701–784, and claimed as exempt her Keogh plan under section 222.21(2)(a)(1). After the bankruptcy court appointed Robert Tardif as trustee of the estate, Tardif objected to Baker’s claim for the exemption. Baker responded that section 222.21(2)(a)(1) exempted from the bankruptcy estate profit-sharing plans that qualify under section 401(a) of the Internal Revenue Code, and Baker’s Keogh plan qualified under section 401(a). 2  The bankruptcy court ruled that the Keogh plan was property of the estate. The court concluded that Baker could not claim the exemption under section 222.21(2)(a)(1) because she was the “sole shareholder and sole ‘participant’ in the Keogh plan.” The court relied on Raymond B....

...Florida elected to opt out and has enacted its own exemptions. Fla. Stat. § 222.20. Florida law shields from the claims of creditors some assets deposited in 3 retirement and profit-sharing plans. Section 222.21 exempts from the bankruptcy estate money, assets, and any interest in a plan in which the debtor is an owner, participant, or beneficiary and that has been preapproved by the Internal Revenue Service as exempt from taxation under se...

...oved by the Internal Revenue Service as exempt from taxation under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended . . . . Fla. Stat. § 222.21(2)(a)(1)....

...An “employee” in section 401(a) includes a “self-employed individual.” Id. § 401(c). The district court ruled that Baker’s Keogh plan had to be maintained under the Employee Retirement Income Security Act for Baker to claim an exemption 4 under section 222.21(2)(a)(1), but we disagree. In 2005, the Florida Legislature amended section 222.21 to provide that an exempt plan does not have to comply with the Employee Retirement Income Security Act: It is not necessary that a fund or account that is described in paragraph (a) be maintained in accordance wit...

...n or governing instrument that is covered by any part of the Employee Retirement Income Security Act for money or assets payable from or any interest in that fund or account to be exempt from claims of creditors . . . . Fla. Stat. § 222.21(2)(b). We reverse the judgment that Baker’s Keogh plan had to comply with the Employee Retirement Income Security Act to qualify for an exemption under section 222.21(2)(a)(1). Section 222.21(2)(a)(1) requires that a profit-sharing plan qualify under section 401(a) of the Internal Revenue Code, not that the plan comply with the Employee Retirement Income Security Act....

...the state exemptions. 16 Florida elected to opt out of the federal exemptions and has established its own set of exemptions applicable to debtors, like this Debtor, domiciled in Florida. 17 Swarup asserts her interest in the Accounts is exempt under Section 222.21(2) of the Florida Statutes. 18 Section 222.21(2) provides “any interest of any owner, participant, or beneficiary in, a fund or account is exempt from all claims of creditors of the owner, beneficiary, or participant if the fund or account is” one of the tax-preferred account types enumerated in the statute....

...19 Courts interpreting Florida exemptions should “begin with the basic proposition that exemptions are to be construed liberally in favor of providing the benefits of the exemptions to debtors.” 20 Here, the Accounts undisputedly are the type of accounts exemptible under Section 222.21(2)....

...erest in the retirement funds — that is, she was not technically a beneficiary of the ERISA plan as of the filing date — she could not claim the exemption under § 522(b)(3)(C). 29 In contrast, the Florida exemption Swarup claims is far broader; § 222.21(2) of the Florida Statutes exempts any interest of any owner of one of the specified account types....

...42 Swarup had an equitable interest in the Accounts at the petition date, which matured upon the entry of the Written Order. Second, Florida’s exemptions do not prohibit Swarup from claiming an exemption in her equitable or contingent interest in the Accounts. Section 222.21(2) states that “any interest of any owner” of one of the enumerated types of accounts is subject to the exemption....

...47 Swarup can claim an *389 exemption in her equitable interest in the Accounts. Swarup held at least a contingent interest or equitable ownership interest in the Accounts at the time of filing her bankruptcy petition. Her interest is exempti-ble under § 222.21(2) of the Florida Statutes....

...is account. . The value of the Fidelity IRA is stated as of ’ February 28, 2014 and reflects the entire value of the IRA, not just the Debtor’s one-half interest. (Trustee’s Exhibits 6, 9.) . (Amended Schedule C, Doc. No. 23.) See Fla. Stat. §§ 222.21 (2), 222.14....

...461, 464 (Bankr.N.D.Fla.2005) (holding that debtor could not be considered a beneficiary to an annuity because she was not the named beneficiary of the annuity). As such, the Debtor cannot claim the Accounts as exempt under Florida Statute Section 222.14. . Fla. Stat. § 222.21 (2) (2014)....

...788, 797 (Bankr.M.D.Fla.2006), and the objecting party bears the burden of proof on an objection to exemptions, Fed. R. Bankr.P. 4003(c), the Court finds the Trustee waived his argument, if any, that the Accounts are not the type of accounts exemptible under § Fla. Stat. 222.21(2)....

...As the Supreme Court recently held, the term “retirement funds’’ created a limitation to claiming an exemption under § 522(b)(3)(C). See Clark v. Rameker, -U.S. -, 134 S.Ct. 2242 , 189 L.Ed.2d 157 (2014). . Burgeson, 504 B.R. at 806-07 . . Fla. Stat. § 222.21 (2)....

...ana, the Court finds that the Debtor's interest in the proceeds from the prenuptial agreement constituted a legal and/or equitable interest in property as of the commencement of the case regardless of when the divorce became final.”). . Fla. Stat. § 222.21 (2)....

...n; and, 3) the Amended Complaint attempts to subject the corpus of the trust to the claims of the Debtor which, even if found to be valid, cannot be recovered to satisfy these claims simply because under the law of this State, by virtue of Fla.Stat. § 222.21, these claims are exempt....

...Based on the foregoing facts, it is the contention of the Defendants, the Murrays, that they are entitled to a judgment in their favor dismissing the Complaint filed by the Debtor with prejudice. In opposing the position of the Debtor, the Murrays contend that the funds in the ERISA Plan are exempt by virtue of Chapter 222.21 Fla....

...rray or defalcation by Murray as a corporate officer, it still would not be able to establish that the monies on deposit held by the Bank in the ERISA accounts would be subject to its claim and could be levied on in light of the exemption created by § 222.21 of Fla.Stat....

...However, 26 U.S.C. § 6334 specifies the assets which are exempt from an IRS levy, and they do not include an IRA established under § 408. See Shanbaum v. United States, 32 F.3d 180 (5th Cir.1994); In re Dunn, 5 B.R. 156 (Bankr.N.D.Tex.1980). Nor can section 222.21, Florida Statutes, exempt the IRA from the levy....

...THIS IS a Chapter 7 liquidation case and the matter under consideration is an Objection *1003 filed by Twin City Federal Bank (the Bank) to the Debtor's claim that funds held in an ERISA-qualified retirement plan maintained by Honeywell, Inc., are exempt from administration by the Trustee pursuant to Florida Statute § 222.21(2)(a)....

...tary Petition for relief under Chapter 11 of the Bankruptcy Code on February 27, 1991. On his B-4 Schedule of Exempt Property, the Debtor claimed his interests in the Honeywell, Inc., pension plan (Plan) as exempt pursuant to "Art. 10, Section 4 and Section 222.21" (sic)....

...1199, 89 L.Ed.2d 313 (1986); In re Graham, 726 F.2d 1268 (8th Cir.1984); In re Goff, 706 F.2d 574 (5th Cir.1983). But see Anderson v. Raine (In re Moore), 907 F.2d 1476 (4th Cir.1990). This leaves for consideration the Debtor's claim that his interests in the Plan are exempt pursuant to Fla.Stat. § 222.21(2)(a)....

...724 (Bankr.M.D.Fla.1989) where this Court determined that based on the decision of the Supreme Court in Mackey v. Lanier Collections Agency & Services, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), ERISA preempts Fla. Stat. § 221.21(2)(a) and thus, Fla.Stat. § 222.21(2)(a) is void....

...sede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan as described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (emphasis added) It follows that because Fla.Stat. § 222.21(2)(a) "relates to" ERISA and is therefore preempted, the Debtor's argument in this regard must fail....

...(Order Granting in Part and Denying in Part Motion to Permit Deposit of Funds into the Registry of the Court, Doc. No. 11, Adv. No. 8:08-ap-451.) The Debtor has claimed the Retirement Assets, the IRA and 401(k) accounts, as exempt under Florida law, Fla. Stat. § 222.21(1), Illinois law, 735 Ill....

...qualify" under the relevant provisions of the Internal Revenue Code. 735 Ill. Comp. Stat. 5/12-1006 (West 2009). Under Florida law, a retirement plan is exempt if the plan is "in substantial compliance" with the same relevant provisions. Fla. Stat. § 222.21(3)(a)....