Case law

Gillman v. Board of Trustees (In Re T & D Management Co.)

40 B.R. 781 · United States Bankruptcy Court, D. Utah · Jun 8, 1984

, and then only with respect to compulsory counterclaims and certain offsets in favor of estates. 12 Clearly there was concern in the House about the power of Congress to waive the sovereign immunity of the states. … The trustee does not consider the effect of the qualifying language immediately following the quotation he cited: [S]ection 106(c) permits a trustee or debt- or in possession to assert avoiding powers under title 11 against

Lawrence v. Kentucky (In re Shelbyville Road Shoppes, LLC)

486 B.R. 848 · United States Bankruptcy Court, W.D. Kentucky · Feb 20, 2013

Thus, “all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to a judgment.” S. … In entering into a contract, the State has not waived its sovereign immunity for its alleged tortious conduct performed prior to the establishment of the contractual relationship.

Winchester v. Commodity Credit Corp. (In Re Winchester)

191 B.R. 93 · United States Bankruptcy Court, N.D. Mississippi · Jan 23, 1995

Waiver of sovereign immunity (a) Notwithstanding as assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: (1) Sections … Clearly, the amended section applies to this case and permits this court to assess monetary damages against the defendants.

Kentucky Employees Retirement System v. Seven Counties Services, Inc. (In re Seven Counties Services, Inc.)

511 B.R. 431 · United States Bankruptcy Court, W.D. Kentucky · May 30, 2014

remains qualified. … Here the answer to both questions is clearly yes.

In re McDonald

519 B.R. 324 · United States Bankruptcy Court, D. Kansas · Oct 27, 2014

There is no violation of sovereign immunity here, however, because no claim is being made against the Tribe and sovereign immunity does not extend to Tribe members not representing the Tribe. … Stidham, 640 F.3d 1140, 1153-54 (10th Cir.2011) (describing sovereign immunity of Indian tribes and stating that the immunity extends to tribal officials, "so long as they are acting within the scope of their official capacities

In re La Paloma Generating Co.

588 B.R. 695 · United States Bankruptcy Court, D. Delaware · Jul 25, 2018

section 505 argument supra , the Court is unable to grant relief as to the entirety of the Tax Dispute because of SBE's immunity from suit in federal court as established by the Eleventh Amendment. … In addition, the Court grants SBE's Eleventh Amendment immunity defense, as SBE has neither waived its argument by consent nor waived its immunity under the consent-by-ratification waiver established in Katz .

Wilson v. South Carolina State Education Assistance Authority (In Re Wilson)

258 B.R. 303 · United States Bankruptcy Court, S.D. Georgia · Jan 19, 2001

In Seminole Tribe , the Supreme Court established a two prong test to determine whether Congress may abrogate a state’s immunity: “...first, whether Congress has unequivocally expressed its intent to abrogate the immunity … Congressional intent clearly is to abrogate sovereign immunity. The Pennhurst rule of construction has no relevance to this case. Id.

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

Pullman Construction Industries, Inc. v. United States (In Re Pullman Construction Industries, Inc.)

142 B.R. 280 · United States Bankruptcy Court, N.D. Illinois · Jun 17, 1992

The Court added, “the fact that a preference is a consequence of the assessed penalties fails to establish the relationship necessary to waive immunity.” … Oxford Marketing is clearly distinguishable since the government's claim in Oxford arose out of a security interest, and the trustee’s claim arose out of the government’s action to collect on the debt.

Zazzali Ex Rel. DBSI Estate Litigation Trust v. Swenson (In Re DBSI, Inc.)

463 B.R. 709 · United States Bankruptcy Court, D. Delaware · Jan 27, 2012

This power clearly includes, and is in fact, the ability to subordinate state sovereignty with respect to proceedings in the area of bankruptcy laws. … Applying Section 106 of the Bankruptcy Code After establishing above that the power to enact bankruptcy legislation was understood to carry with it the power to subordinate state sovereignty, 10 and that avoiding fraudulent

In Re Cochrane

178 B.R. 1011 · United States Bankruptcy Court, D. Minnesota · Jan 30, 1995

It has been established that neither the Debtor nor any member of his family actually “occupied” the condominium unit in this sense as of the commencement of this case. … Since the Debtor scheduled all of the five-plus joint claims without qualifying them as disputed, there is nothing to quibble about as to their existence. 15 .The Debtor argues at length that the mere existence of a joint

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

Smith v. United States (In Re Smith)

447 B.R. 435 · United States Bankruptcy Court, W.D. Pennsylvania · Mar 14, 2011

The IRS’ position on sovereign immunity is simple and direct. … First, the proceeds clearly cannot qualify as “earnings from services,” so they cannot come into the estate via Section 1207(a)(2).

In Re Phillips

45 B.R. 529 · United States Bankruptcy Court, N.D. Ohio · Nov 23, 1984

The Owens Illinois Employee Benefit Book clearly states that severance pay is available only “if you should lose your job through no fault of your own.” … The Ohio statute does not provide a definition of reasonably necessary, therefore, the court looks to the legislative history and the case law to establish a standard. The U.S.

Campbell Enterprises, Inc. v. United States Department of Treasury Internal Revenue Service (In Re Campbell Enterprises, Inc.)

66 B.R. 200 · United States Bankruptcy Court, D. New Jersey · Jun 4, 1986

Pursuant to 28 U.S.C. § 1334 and § 157, which sections were created by the Act, this court clearly retains subject matter jurisdiction over the instant proceeding. … The Regan court established that the plaintiff before it lacked an alternative means to challenge the injunction proceeding, and thus the court did not apply the two-part test established in Enochs .

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.

In Re Burkhardt

220 B.R. 837 · United States Bankruptcy Court, D. New Jersey · May 13, 1998

Because discharging a debt would clearly have such an impact, appellant’s argument must fail.” Id. (emphasis added). … In relevant part, the Court interpreted the application of the Eleventh Amendment as follows: This court’s decisions thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens

Teraforce Technology Corp. v. Vista Controls, Inc. (In Re Teraforce Technology Corp.)

379 B.R. 626 · United States Bankruptcy Court, N.D. Texas · Nov 13, 2007

For example, in Peoples, the case that the Defendants cite to establish the elements of a tortious interference claim, Memorandum at p. 5, the defendant was a former employee who had gone to work for a competitor and subsequently … Therefore, this Court cannot hold that Curtiss-Wright is immune from liability based solely on its “non-outsider” status. 2.

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.

Abernathy v. United States (In Re Abernathy)

150 B.R. 688 · United States Bankruptcy Court, N.D. Illinois · Feb 16, 1993

Clearly, the Debtors have more than substantially prevailed in their dispute with the IRS. B.Was the United States’ position substantially unjustified? … However, it is well established in this circuit that, in ruling on substantial justification, the court can consider not only the United States’ in-court litigating position, but also the United States’ out-of-court position