In Re Eldon S. REED, Debtor. Eldon S. REED, Appellant, v. Victoria C. DRUMMOND, Appellee

The Supreme Court, — U.S. -, 113 S.Ct. 314 , 121 L.Ed.2d 235 , remanded this case for further consideration in light of Patterson v. Shumate, 504 U.S. -, 112 S.Ct. 2242 , 119 L.Ed.2d 519 (1992). We hereby withdraw our previous Opinion in this case, filed December 11, 1991, and substitute this Opinion.

In light of Shumate , we now reverse.

BACKGROUND

Mr. Reed appeals the determination that his bankruptcy estate includes his ERISA-qualified pension plan. In 1988, Reed voluntarily filed for bankruptcy under Chapter 7 of the Bankruptcy Code. Drummond, the appointed bankruptcy Trustee, sought to have Reed’s ERISA-qualified pension plan included in the bankruptcy estate. The bankruptcy court determined that the plan was part of the bankruptcy estate, and the district court affirmed. In Reed v. Drummond, 951 F.2d 1046 (9th Cir.1991), we affirmed the district court, rejecting, inter alia, Reed’s argument that the ERISA pension funds were excluded from the bankruptcy estate under § 541(c)(2) of the Bankruptcy Code.

Soon thereafter, the Supreme Court addressed this very issue in Shumate . Resolving a split among the circuits, the Supreme Court held that a pension plan containing an…