Case law

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.

Sparkman v. State of Florida Department of Revenue (In Re York-Hannover Developments, Inc.)

201 B.R. 137 · United States Bankruptcy Court, E.D. North Carolina · Oct 10, 1996

The legislative history to the Bankruptcy Reform Act of 1994 clearly states that § 106 was being amended to conform with the Supreme Court’s requirement that Congress make an "unmistakably clear" statement of its intent to … Article I of the Constitution gives Congress the authority "[t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States[.]” U.S. Const, art.

Williamson v. Denson (In Re Williamson)

11 B.R. 791 · United States Bankruptcy Court, W.D. Pennsylvania · May 26, 1981

The Code qualifies this “exemption” by restricting the exemption to that interest which would have been exempt from process under applicable non-bankruptcy law. The U. S. … Rather, the common law of Pennsylvania establishes an immunity from process for entireties property where a creditor holds a judgment against one spouse only.

Matter of Reiber's Inn of Westchester, Inc.

1 B.R. 304 · United States Bankruptcy Court, S.D. New York · Nov 19, 1979

The plaintiff was thereafter appointed trustee in bankruptcy and has duly qualified to serve in that capacity. 6. … immunity must also fall.

Taylor v. United States (In Re Taylor)

252 B.R. 201 · United States Bankruptcy Court, N.D. Alabama · Jun 26, 2000

SOVEREIGN Immunity The Defendant admits the federal government’s sovereign immunity is waived under section 106, which states: Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental … Having established that the Defendant violated section 525(c), the Court must next determine what recourse is available to the Plaintiff. V.

Berger v. Commonwealth (In re Berger)

600 B.R. 491 · United States Bankruptcy Court, W.D. Pennsylvania · Mar 29, 2019

The Bergers argue that the Supreme Court's decision in Katz established the proposition that in rem proceedings in bankruptcy court preclude a sovereign immunity defense by the States, and a lien-stripping action under §§ … requires a showing of a constitutional basis for passing the law, and the law itself must unequivocally and clearly expresses an intent to abrogate sovereign immunity with respect to its terms. 51 Congress's exercise of

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.

In Re Maurer

268 B.R. 335 · United States Bankruptcy Court, W.D. New York · Jul 20, 2001

It seems clear to the Court that if the Internal Revenue Service has found the New York State Employees Deferred Compensation Plan to be § 457-qualified, then In re Dubroff clearly commands that the Plan be found exempt if … Although the Dubroff court found that an IRA clearly was a "plan on account of age," the Ruffo court extrapolated from the Dubroff holding to hold that any deferred compensation plan that qualified under § 457 would be a

Mostoller v. Wachter (In Re Wachter)

314 B.R. 365 · United States Bankruptcy Court, E.D. Tennessee · Jul 27, 2004

But in a note appended to this general observation by the editor, the text is thus qualified: “This statement, although generally true in the absence of restraint imposed by the creator of the trust, must be qualified by … The beneficiary was under no obligation to preserve the immunity by any testamentary provision, and this was not done by him.

In Re Agway, Inc.

412 B.R. 32 · United States Bankruptcy Court, N.D. New York · Aug 14, 2009

The IRS reserved its rights with respect to determining whether the Retirement Plan is a “qualified plan.” See Order, signed October 10, 2007 (Dkt. No. 6994). *36 By Order, dated October 10, 2007 (Dkt. … Sovereign Immunity In matters involving the United States, the issue of sovereign immunity is critical. Waiver of sovereign immunity is a prerequisite to subject matter jurisdiction.

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.

In Re AH Robins Co., Inc.

251 B.R. 312 · United States Bankruptcy Court, E.D. Virginia · Jul 28, 2000

The merger qualified as a tax-free reorganization under Section 368(a)(1)(G) and Section 368(a)(2)(B) of the Internal Revenue Code. … The Fourth Circuit sustained the plea of sovereign immunity under the Eleventh Amendment.

Lawson Burich Associates, Inc. v. Axelrod (In Re Lawson Burich Ass'n)

59 B.R. 681 · United States Bankruptcy Court, S.D. New York · Apr 4, 1986

The Department further asserts that Lawson has not established the elements necessary for injunctive relief. … The legislative history of the Bankruptcy Code clearly indicates that Code § 106 as a whole was intended to provide a rather “limited” waiver of sovereign immunity; “Section 106 provides for a limited waiver of sovereign

Koehler v. Iowa College Student Aid Commission (In Re Koehler)

204 B.R. 210 · United States Bankruptcy Court, D. Minnesota · Jan 6, 1997

It is well-established that Congress, under § 5 of the Fourteenth Amendment, has the power to abrogate a state’s Eleventh Amendment immunity by making its intention to do so “unmistakably clear in the language of the statute … While the language of the Eleventh Amendment rather clearly limits a state’s immunity from suit to situations where the state has been sued by a non-resident, it has not been so interpreted.

Vaca Brava Old San Juan, LLC v. Puerto Rico Treasury Department (In re Vaca Brava Old San Juan, LLC)

560 B.R. 376 · United States Bankruptcy Court, D. Puerto Rico · Oct 27, 2016

Section 106(a), as amended, clearly abrogates sovereign immunity in- relation to violation of the automatic stay and anti-discrimination provision claims. … These Supreme Court decisions held that the former section 106(c) did not state clearly a congressional intent to abrogate sovereign immunity.

Hoffman v. Connecticut (In Re Willington Convalescent Home, Inc.)

39 B.R. 781 · United States Bankruptcy Court, D. Connecticut · Apr 25, 1984

Terminal R. of Alabama Docks Dept., supra, established that Congress can provide that a State’s conducting activity validly subject to federal regulation under Art. … . § 1362 pursuant to this authority, Congress clearly intended to abrogate the states’ immunity from suit.

Horwitz v. Zywiczynski (In Re Zywiczynski)

210 B.R. 924 · United States Bankruptcy Court, W.D. New York · Jul 16, 1997

as respondent credibly claims to be able to establish it. … The Eleventh Amendment clearly prohibits that here, but the Bank can be ordered to turnover the C.D. over the State’s objection and the State can either assert its claims here (and thereby waive sovereign immunity), or await

In Re Messing

114 B.R. 541 · United States Bankruptcy Court, E.D. Tennessee · May 14, 1990

The statute, in its application to ERISA-qualified pension benefit plans, is clearly inconsistent with ERISA § 206(d)(1). … IV CONCLUSION ERISA § 206(d)(1) and IRC § 401(a)(13) permit the debtor to claim as exempt under § 522(b)(2)(A) his interest in the ERISA-qualified § 401(k) Plan established by his employer.

Matter of Mehrhoff

88 B.R. 922 · United States Bankruptcy Court, S.D. Iowa · Jul 5, 1988

This section does not confer sovereign immunity on any governmental unit that does not already have immunity. … The Government here sought neither immunity nor priority.

In Re Meola

158 B.R. 881 · United States Bankruptcy Court, S.D. Florida. · Jun 17, 1993

Similarly, in In re Laube, 152 B.R. 260 (Bankr.W.D.Wisconsin 1993), the Court concluded that a semitruck cab was a “dwelling” so as to qualify as an exempt homestead where the owner clearly resided in his cab tractor and … had resided there five or six nights per week, ate, visited with friends, and the owner’s testimony clearly established his intent to maintain his truck cab as his homestead.