Case law

DeAngelis v. Laskey (In Re DeAngelis)

239 B.R. 426 · United States Bankruptcy Court, D. Massachusetts · Sep 28, 1999

Recognizing that the Plaintiff has amended her complaint to qualify for the exception to Eleventh Amendment immunity carved-out in Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908) (Eleventh Amendment immunity … enacted pursuant to one of Congress’s Article I powers, the power granted in the Bankruptcy Clause to establish uniform laws on the subject of bankruptcies (U.S.

Gray v. Florida State University (In Re Dehon, Inc.)

327 B.R. 38 · United States Bankruptcy Court, D. Massachusetts · Jun 27, 2005

entitled to claim such immunity. 10 *45 Second, the proceeding must qualify as a “suit” for purposes of the Eleventh Amendment. … qualify as suits under the Eleventh Amendment.

Juniper Development Group v. Kahn (In Re Hemingway Transport, Inc.)

70 B.R. 549 · United States Bankruptcy Court, D. Massachusetts · Mar 2, 1987

Cleanups may be financed through the Hazardous Substance Response Trust Fund established by section 221(a) of CERCLA. Id. at § 9631(a). … In its memorandum, the United States clearly and unequivocally sets forth the parameters of the doctrine of sovereign immunity.

Lassman v. Reilly (In Re Feeley)

393 B.R. 43 · United States Bankruptcy Court, D. Massachusetts · Aug 21, 2008

First, it should be clearly noted that Lassman is being charged with NOT performing his duties as he should have. … In doing so, it outlined the genesis of derivative judicial immunity.

King v. United States (In Re King)

396 B.R. 242 · United States Bankruptcy Court, D. Massachusetts · Nov 3, 2008

Notwithstanding this technical argument that tax liens are created and perfected upon demand, the case law has clearly established that filing a tax lien is an act to create or perfect a lien in violation of the automatic … The statutory waiver of sovereign immunity for willful violations of the automatic stay actions appears in 11 U.S.C. § 106 . A waiver of sovereign immunity must be “unequivocally expressed,” Dep’t of the Army v.

Brookwood Court Nursing Home v. Spirito (In Re Bolton Hall Nursing Home, Inc.)

31 B.R. 765 · United States Bankruptcy Court, D. Massachusetts · Jun 28, 1983

Fisher, Jr., are the duly appointed, qualified, and surviving trustees/receivers (“Trustees”) of plaintiff Bolton Hall Nursing Home, Inc., (“Debtor”), debtor in a proceeding pending before the Court under Chapter XII of the … Although the defendant has not waived his claim of immunity under the Eleventh Amendment, there is no longer an occasion to consider it.

Spookyworld, Inc. v. Town of Berlin (In Re Spookyworld, Inc.)

266 B.R. 1 · United States Bankruptcy Court, D. Massachusetts · Aug 2, 2001

And next, “the court must proceed to ‘determine whether that right was clearly established at the time of the alleged violation’ ”. See Abreu-Guzman v. Ford, 241 F.3d 69 (1st Cir.2001)(quoting Wilson v. … The Individual Defendants argue that they enjoy a qualified immunity. However, under the facts here, the Court need not reach that issue. 9 . The Court dismisses this argument out of hand.

Mohawk Industries, Inc. v. United States (In Re Mohawk Industries, Inc.)

55 B.R. 284 · United States Bankruptcy Court, D. Massachusetts · Nov 26, 1985

The Court agrees with the IRS to the extent that “[i]t is a well established principal of law that the United States is immune from suit except in those instances where it has specifically waived its sovereign immunity.” … Under either the Enochs exception or the traditional standards for invoking equitable jurisdiction, Mohawk must establish a likelihood of success on the merits. This it has failed to do.

Graham v. United States (In Re Malmart Mortgage Co.)

109 B.R. 1 · United States Bankruptcy Court, D. Massachusetts · Dec 15, 1989

its immunity to suit by filing a proof of claim against the estate. … But Randall itself does not clearly set forth its own rationale, so its bearing on the present case is unclear.

In Re NSCO, Inc.

427 B.R. 165 · United States Bankruptcy Court, D. Massachusetts · Mar 29, 2010

DERIVED JUDICIAL IMMUNITY The DOL alleges that denial of the Proposed Order does not involve the Trustee’s derived judicial immunity and that in any event, he is not entitled to an order conferring judicial immunity in the … In addressing whether the trustee’s derived judicial immunity by acting with the permission of the court established jurisdiction, the AB & C Group court stated: It may be that when the Trustee acts as a Plan administrator

In Re Kellogg

179 B.R. 379 · United States Bankruptcy Court, D. Massachusetts · Mar 27, 1995

.” *381 Gerald established the SEP Plan on or about April 8, 1988. … The Orkin decision clearly held that the debtor/sole proprietor who was an employer, sole employee and participant under the pension plan could not qualify as an “employee” under ERISA. 170 B.R. at 754 .

In RE LeCLAIR

461 B.R. 86 · United States Bankruptcy Court, D. Massachusetts · May 19, 2011

This exclusion itself is qualified by a further exclusion limiting its application when the payment was from a qualified rollover transaction. … Clearly, an evidentiary hearing is needed before a determination can be made as to the appropriate application of Mass. Gen. Laws ch. 235 § 34A to Ms.

In re Remia

503 B.R. 6 · United States Bankruptcy Court, D. Massachusetts · Dec 20, 2013

not qualify as exempt under as 11 U.S.C. § 522 (d)(12). … To qualify as a QDRO, a DRO must "clearly speciffy]” the name and mailing address of the plan participant and the alternate payee, the amount or percentage of the benefits to be paid, the number of payments, and the plan

Houghton v. United States (In Re Szwyd)

444 B.R. 10 · United States Bankruptcy Court, D. Massachusetts · Feb 15, 2011

The District Court similarly rejected the IRS’s arguments founded in sovereign immunity and the Anti-Injunc *15 tion Act. Id. at 551-53 . … Mot. to Dismiss Marshaling Claim (Raising Sovereign Immunity) 2-6, April 21, 2008, ECFNo. 48. 9 .

Maxwell v. Fairbanks Capital Corp. (In Re Maxwell)

281 B.R. 101 · United States Bankruptcy Court, D. Massachusetts · Jul 16, 2002

In support of its position that it is immunized from liability under the FDCPA, Fairbanks makes the following argument: Defendant has relied on the information in its possession in collecting on the note. … Fairbanks also argues that two instances of failing to respond to a qualified written request do not qualify as a pattern and practice on noncompliance.

In Re GHR Companies, Inc.

41 B.R. 655 · United States Bankruptcy Court, D. Massachusetts · Jul 27, 1984

By way of affidavit, he says his files contain only information gathered or prepared for counsel in anticipation of litigation and, therefore, constitute qualified privileged attorney work-product. … [and] establishes a general policy in favor of the confidentiality of tax returns and the information underlying them.

In Re Village Green Realty Trust

113 B.R. 105 · United States Bankruptcy Court, D. Massachusetts · Apr 30, 1990

Clearly, the early cases establish the beginnings of a framework for the analysis of filings by trusts. … Likewise, the Court clearly recognizes and will not tolerate the unfairness of allowing Mr.

In re McCarthy

553 B.R. 459 · United States Bankruptcy Court, D. Massachusetts · Jul 11, 2016

The party seeking to establish that its debt is excepted from discharge bears the burden of proof by a preponderance of the evidence. Grogan v. … Since the statute uses the disjunctive, a tax penalty that does not qualify for discharge under one of the two aforementioned circumstances may still qualify under the other. 1.

Federal Deposit Insurance Corp. v. Bombard (In Re Bombard)

59 B.R. 952 · United States Bankruptcy Court, D. Massachusetts · May 1, 1986

Clearly, he knew what a note was and its effect, not only from his personal borrowings but from his involvement in the purchase and appraisal of cars. … The Debtor testified about his participation in the scheme to circumvent the Bank’s lending limitations only after receiving immunity from prosecution pursuant to an order of United States District Court Judge Frank H.

In re Feliciano

487 B.R. 47 · United States Bankruptcy Court, D. Massachusetts · Feb 20, 2013

Although not articulated clearly, the debtors appear to be arguing that their earlier occupancy of the Yauco property coupled with their ongoing intention to return there should equate with use for the purposes of satisfying … If a residence is uninhabitable it cannot be “used” for purposes of qualifying for the federal exemption.