In Re Gordon H. MOFFAT, Debtor. Gordon H. MOFFAT, Appellant, v. David Richard HABERBUSH, Appellee

ORDER

The memorandum disposition filed December 12, 1991, is redesignated as an authored opinion by Judge T.G. Nelson with minor modifications within the text.

OPINION

Debtor Dr. Gordon H. Moffat appeals from the Bankruptcy Appellate Panel’s (BAP’s) affirmance of the bankruptcy court’s determination that the annuity at issue is a matured annuity and not reasonably necessary to support the debtor and his spouse, and therefore not exempt from inclusion in the bankruptcy estate under California Code of Civil Procedure (C.C.P.) § 704.100. We affirm.

On February 28, 1988, debtor borrowed $300,000 against his home and used $190,-000 of the proceeds to purchase a single premium immediate annuity, naming himself as the annuitant and his wife as the contingent beneficiary. The issue date of the annuity was June 28, 1988, and the effective date was July 1, 1988. Debtor chose to have the payout period for the 40 quarterly payments of $4,370.00 commence on October 1, 1988, following the filing date of his Chapter 7 bankruptcy petition on September 21, 1988.

After independent review, we agree with the BAP that the payout date chosen by the debtor cannot rationally be deemed to make the…