Case law

Monseratt v. Student Loan Finance Corp. (In Re Monseratt)

289 B.R. 183 · United States Bankruptcy Court, M.D. Florida · Oct 9, 2002

Florida Statutes Chapter 229 establishes FDOE as an administrative unit of the State of Florida. … “Section 106 clearly expresses congressional intent to abrogate the States’ sovereign immunity.” Id.

In Re Bel-Aire Investments, Inc.

142 B.R. 992 · United States Bankruptcy Court, M.D. Florida · Jul 1, 1992

Addressing first the State’s sovereign immunity argument, it is now well established that this Court may not grant a money judgment against a State without the State’s expressed or implied waiver of the sovereign immunity … State also relies on In re Eastmet Corporation, 907 F.2d 1487 (4th Cir.1990), where the court of appeals held that a *996 purchase money deed of trust executed by a purchaser of a Chapter 11 debtor’s real property did not qualify

In Re Wincek

202 B.R. 161 · United States Bankruptcy Court, M.D. Florida · Apr 8, 1996

The Debtor further asserts that the Trustee should consider seeking an order of immunity. … Clearly, “Chapter 13 was intended to enable an individual with regular income to develop and perform under a plan for the repayment of his debts over an extended term under court supervision and protection.”

Drivas v. Intuition, Inc. (In Re Drivas)

266 B.R. 515 · United States Bankruptcy Court, M.D. Florida · Aug 28, 2001

“Section 106 clearly expresses congressional intent to abrogate the States’ sovereign immunity.” Id. … The Burke court stated: The Supreme Court’s decision in Gardner establishes that, by filing a proof of claim in the debtors’ respective bankruptcy proceedings, the State waived its sovereign immunity for purposes of the adjudication

McAuley v. United States (In Re McAuley)

86 B.R. 695 · United States Bankruptcy Court, M.D. Florida · May 13, 1988

First, it is the Government’s contention that this Court lacks jurisdiction over the United States of America by reason of the doctrine of sovereign immunity; second, this Court is clearly without jurisdiction to consider … Regan, 465 U.S. 367 , 104 S.Ct. 1107 , 79 L.Ed.2d 372 (1984), the Supreme Court, speaking through Justice Blackmun, clearly established that the Anti-Injunction Statute was not intended to operate as an absolute bar to an

Amici v. United States (In re Amici)

187 B.R. 1004 · United States Bankruptcy Court, M.D. Florida · Jul 14, 1995

fees for the services of attorneys, “except that such fees shall not be in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified … It is undisputed that the Debtor substantially prevailed with respect to the amount or issues in controversy, so that this element of the “prevailing party” test is clearly satisfied.

McGuire v. Manufacturers & Traders Trust Co. (In re McGuire)

37 B.R. 365 · United States Bankruptcy Court, M.D. Florida · Jan 20, 1984

Const, which provision immunizes the residence of a debtor from the claim of creditors provided that the property qualifies for homestead treatment. … Stat. (1981), that status, which qualifies the owner’s property for homestead exemption, inures to the benefit of his survivirig spouse who also enjoys the right to assert this complaint.

Venable v. Acosta (In Re Venable)

280 B.R. 916 · United States Bankruptcy Court, M.D. Florida · Jul 25, 2002

In this case, the Defendant police officers’ activities are clearly discretionary. The police officers did nothing more than follow the long standing St. … Kazarian, 481 So.2d 506 (Fla. 5th DCA 1985) (city resident could not recover from city damages that allegedly arose from the city’s handling of a dispute with neighbor, where the record failed to establish that city owed

MATTER OF McGUIRE

37 B.R. 365 · United States Bankruptcy Court, M.D. Florida · Jan 20, 1984

Const. which provision immunizes the residence of a debtor from the claim of creditors provided that the property qualifies for homestead treatment. … Stat. (1981), that status, which qualifies the owner's property for homestead exemption, inures to the benefit of his surviving spouse who also enjoys the right to assert this complaint.

In Re Fodor

339 B.R. 519 · United States Bankruptcy Court, M.D. Florida · Mar 23, 2006

Applicable Burden of Proof Under Federal Rule of Bankruptcy Procedure 4003(c), the objecting party bears the burden of establishing that the exemption is not properly claimed. … It is possible, for example, that a person entitled to the tax exemption may not be immune from the claims of creditors.

Jet 1 Center, Inc. v. City of Naples Airport Authority (In Re Jet 1 Center, Inc.)

322 B.R. 182 · United States Bankruptcy Court, M.D. Florida · Feb 15, 2005

to a clearly expressed state policy. … The Supreme Court in Hallie upheld the immunity claim by the Authority from an antitrust attacked because the “challenged activity was pursuant to a clearly expressed state policy.”

In Re Adell

325 B.R. 883 · United States Bankruptcy Court, M.D. Florida · Mar 22, 2005

The Court stated: “This Court finds that Congress has clearly expressed its intention that the automatic stay not be lifted, and the case not be dismissed, simply because the case is a single asset real estate case. … In the last analysis the real test is whether the debtor had an honest desire and an ability to achieve in the Chapter 11 case, a goal which is consistent with the well established policy aims of Chapter 11.

In Re Lazin

217 B.R. 332 · United States Bankruptcy Court, M.D. Florida · Jan 26, 1998

“Section 222.14 clearly exempts all annuity contracts from creditor claims.” In re McCollam, 612 So.2d 572, 574 (Fla.1993). It also exempts “the proceeds of annuity contracts.” … Taking into consideration that the well established exemption provisions of the law are remedial, and have traditionally been construed liberally in favor of the Debtor, Killian v.

In Re Rosenquist

122 B.R. 775 · United States Bankruptcy Court, M.D. Florida · Dec 18, 1990

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.

In Re Mastrofino

247 B.R. 330 · United States Bankruptcy Court, M.D. Florida · Mar 14, 2000

Section 522(b)(2)(B) recognizes this type of ownership immunity, and provided that the property held under this type of ownership is not subject to administration, it is immune under the applicable local law. … Hepner, 647 So.2d 907 (Fla. 1ST DCA 1994), the First District Court of Appeals of Florida held that an estate by the entirety in a motor vehicle cannot be established by extrinsic evidence when the title is registered in

In Re Turner

261 B.R. 767 · United States Bankruptcy Court, M.D. Florida · Mar 30, 2001

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 … For this reason it is clear that the Plan, which is established pursuant to the Internal Revenue Code § 457(g), is not an ERISA qualified plan.

Matter of Rivera

5 B.R. 313 · United States Bankruptcy Court, M.D. Florida · Jul 23, 1980

all relevant facts of *316 each case warrants the conclusion that the claimant qualifies to be the head of a family. … In order for the Debtor to be able to establish himself as a “head of a family” he must be able to establish a family relationship based on cohabitation with an unmarried woman.

In Re Spears

121 B.R. 896 · United States Bankruptcy Court, M.D. Florida · Nov 1, 1990

The shares of the company are not currently traded on an established securities market. Mr. … In Mackey , the Supreme Court held that a Georgia statute which purported to immunize funds in a 401-K plan from garnishment asserted by a creditor was invalid by virtue of the doctrine of federal preemption, based on § 514

In Re Knowles

123 B.R. 428 · United States Bankruptcy Court, M.D. Florida · Jan 3, 1991

In Mackey , the Supreme Court held that a Georgia statute which purported to immunize funds in a 401-K plan from garnishment asserted by a creditor was invalid by virtue of the doctrine of federal preemption, based on § 514 … Stat. § 222.201 (1), may selectively opt back into the federal exemption scheme provided by § 522(d) of the Bankruptcy Code, which is a proposition with serious doubt, there is nothing in this record to establish that the

In Re Banderas

236 B.R. 837 · United States Bankruptcy Court, M.D. Florida · Sep 23, 1998

The purpose of establishing requirements to qualify profit sharing plans for a tax exemption is to insure that profit sharing plans are operated for the welfare of employees in general. See McClintock-Trunkey Co. v. … Clearly, the Profit Sharing Plan does not qualify for the tax exemption because the Plan was not formed by the PC for the exclusive benefit of the employees since there were no employees.