In Re Stephen Smith and Marcia Ann Smith, Debtors. Stephen Smith and Marcia Ann Smith v. Kenneth Mather

Tenth Circuit

In Re Stephen Smith and Marcia Ann Smith, Debtors. Stephen Smith and Marcia Ann Smith v. Kenneth Mather

986 F.2d 1429, 1992 U.S. App. LEXIS 37490, 1992 WL 401586

CourtCourt of Appeals for the Tenth Circuit

DecidedDecember 22, 1992

Docket91-7051

StatusPublished

This text of 986 F.2d 1429 (In Re Stephen Smith and Marcia Ann Smith, Debtors. Stephen Smith and Marcia Ann Smith v. Kenneth Mather) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Stephen Smith and Marcia Ann Smith, Debtors. Stephen Smith and Marcia Ann Smith v. Kenneth Mather, 986 F.2d 1429, 1992 U.S. App. LEXIS 37490, 1992 WL 401586 (10th Cir. 1992).

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986 F.2d 1429

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

In re Stephen SMITH and Marcia Ann Smith, Debtors.
Stephen SMITH and Marcia Ann Smith, Appellees,
v.
Kenneth MATHER, Appellant.

No. 91-7051.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1992.

Before McKAY, Chief Judge, and SEYMOUR and PAUL KELLY, Jr., Circuit Judges.*

ORDER AND JUDGMENT**

PAUL KELLY, Jr., Circuit Judge.

Appellant, Kenneth G. M. Mather, trustee for the bankruptcy estate of appellees Stephen Smith and Marcia Ann Smith, appeals the district court's order holding that a qualified ERISA plan may be exempted from the property of the bankruptcy estate under 11 U.S.C. § 522(b)(2)(A). This appeal is controlled by Gladwell v. Harline (In re Harline), 950 F.2d 669, 674 (10th Cir.1991), cert. denied, 112 S.Ct. 2991 (1992), decided after the notice of appeal was filed in this case. Harline holds that a tax-qualified ERISA pension or profit sharing plan is excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2). Id. Because such a plan is not included in the estate created at the commencement of a case in bankruptcy, it is unnecessary to resort to the provisions of § 522 to exempt such a plan from the resulting estate.

The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.

*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

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986 F.2d 1429

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

In re Stephen SMITH and Marcia Ann Smith, Debtors.
Stephen SMITH and Marcia Ann Smith, Appellees,
v.
Kenneth MATHER, Appellant.

No. 91-7051.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1992.

Before McKAY, Chief Judge, and SEYMOUR and PAUL KELLY, Jr., Circuit Judges.*

ORDER AND JUDGMENT**

PAUL KELLY, Jr., Circuit Judge.

Appellant, Kenneth G. M. Mather, trustee for the bankruptcy estate of appellees Stephen Smith and Marcia Ann Smith, appeals the district court's order holding that a qualified ERISA plan may be exempted from the property of the bankruptcy estate under 11 U.S.C. § 522(b)(2)(A). This appeal is controlled by Gladwell v. Harline (In re Harline), 950 F.2d 669, 674 (10th Cir.1991), cert. denied, 112 S.Ct. 2991 (1992), decided after the notice of appeal was filed in this case. Harline holds that a tax-qualified ERISA pension or profit sharing plan is excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2). Id. Because such a plan is not included in the estate created at the commencement of a case in bankruptcy, it is unnecessary to resort to the provisions of § 522 to exempt such a plan from the resulting estate.

The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.

*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

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