Case law

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.

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.

In re Overton

169 B.R. 196 · United States Bankruptcy Court, D. Nebraska · Jun 21, 1994

Any such pledge shall not operate to sever or terminate either in whole or in part the joint tenancy estate and relationships reflected in or established by this contract. … Thus, they may not enforce the agreement unless they qualify as third party beneficiaries with an enforceable claim.

H.J. Wilson Co. v. Commissioner of Revenue of Massachusetts (In Re Service Merchandise Co.)

262 B.R. 738 · United States Bankruptcy Court, M.D. Tennessee · Feb 9, 2001

Citing the power to establish uniform laws on naturalization as an example where the states completely surrendered sovereignty in the plan of the Constitution, Alexander Hamilton explained, that “the power ‘to establish a … Clearly, the issue of debtor-creditor rights is a sensitive issue, as this nation was founded largely by debtors.

Quillard v. United States (In Re Quillard)

150 B.R. 291 · United States Bankruptcy Court, D. Rhode Island · Jan 15, 1993

Veterans Admin., 498 U.S. 89, 95 , 111 S.Ct. 453, 457 , 112 L.Ed.2d 435 (1990)), and that “§ 106(c) nor any other provision of law establishes an unequivocal textual waiver of the Government’s immunity from a bankruptcy trustee … Both cases involve § 106(c) of the Bankruptcy Code, and Nordic Village clearly holds that § 106(c) does not impair Government immunity in actions for monetary recovery, even in bankruptcy.

Burlington Motor Carriers Inc. v. Indiana Department of Revenue (In re Burlington Motor Holdings Inc.)

235 B.R. 741 · United States Bankruptcy Court, D. Delaware · Jul 9, 1999

on Eleventh Amendment sovereign immunity. … Notwithstanding the foregoing, the Successor Corporation has not alleged or established the applicability of any state’s refund provisions.

Association of Retired Employees v. City of Stockton (In re City of Stockton)

478 B.R. 8 · United States Bankruptcy Court, E.D. California · Aug 6, 2012

Second, sovereign immunity is voluntarily abrogated to the extent provided in § 106. … VI Having established that there will be no TRO, no injunction, and no relief from the automatic stay, as well as having established that the claims-adjudication procedure within the collective chapter 9 case is adequate

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

Bishop v. Cates (In Re Cates)

73 B.R. 874 · United States Bankruptcy Court, D. Oregon · May 20, 1987

In In re West, 64 B.R. 738 (Bankr.D.Or.1986), this Court held that a debtor’s interest in an E.R.I.S.A. qualified plan is immune from the trustee’s reach only if that interest is subject to a spendthrift clause that is enforceable … The fact that the trust mechanism was established by the employer does not make the employer the settlor of the trust.

Kids World of America, Inc. v. State of Georgia, Dept. of Early Care & Learning (In Re Kids World of America, Inc.)

349 B.R. 152 · United States Bankruptcy Court, W.D. Kentucky · Aug 18, 2006

If this Court determines that these are core proceedings and that sovereign immunity is not available to the Defendant, then the Court must determine if the Plaintiff has successfully established its claim against the Defendant … If a matter is merely “related to” a bankruptcy case but does not qualify as a “core proceeding,” a bankruptcy court may hear the matter and submit proposed findings of fact and conclusions of law that are referred to the

In Re Kelly

289 B.R. 38 · United States Bankruptcy Court, D. Delaware · Jan 30, 2003

In the absence of qualifying language, we conclude that the parties hold the Property as tenants by the entireties and not as joint tenants or tenants in common. B. … Rodgers, 461 U.S. 677 , 103 S.Ct. 2132 , 76 L.Ed.2d 236 (1983) (federal tax liens could attach to property that was immune from unilateral alienation).

Goldin v. Montana (In Re Pegasus Gold Corp.)

275 B.R. 902 · United States Bankruptcy Court, D. Nevada · Mar 29, 2002

Though the exact length of the interim period was never firmly established, in reality it was short. … Clearly, “it is long-established that a state’s participation in a bankruptcy proceeding can trigger a waiver of immunity.” In re 995 Fifth Ave. Assoc., 963 F.2d at 507 .

Turning Stone Casino v. Vianese (In Re Vianese)

195 B.R. 572 · United States Bankruptcy Court, N.D. New York · Nov 3, 1995

The burden then shifts to Plaintiff to establish that it was substantially justified in bringing its Complaint against C. Vianese. In other words, Plaintiff must prove that its allegations against C. … Clearly, Plaintiff was not substantially justified in seeking a determination of nondisehargeability against C. Vianese pursuant to Code § 523(a)(2).

Lunan v. Jones (In re Lunan)

489 B.R. 711 · United States Bankruptcy Court, E.D. Tennessee · Nov 21, 2012

The factual allegations of the Plaintiffs amended complaint readily establish this standard. … On a final note, this court observes that all of the foregoing establishes that the Defendants have immunity from any attempt by the Plaintiff to hold them personally liable for their conduct that was authorized by court

Stanley v. Student Loan Services, Inc. (In Re Stanley)

273 B.R. 907 · United States Bankruptcy Court, N.D. Florida · Feb 13, 2002

The Burke panel, in affirming the district court noted that ... there are certain well-established exceptions to Eleventh Amendment immunity. … In fact, the Manual clearly instructs the lender to file a proof of claim when a borrower files an adversary complaint for undue hardship.

Rainwater v. Alabama (In Re Rainwater)

233 B.R. 126 · United States Bankruptcy Court, N.D. Alabama · Apr 16, 1999

The Supreme Court held that Congress had taken the common-law into account in providing for certain forms of absolute and qualified immunities, but that a state may not exempt persons that Congress subjected to liability … Also, she asserts and claims “absolute quasi-judicial immunity,” “qualified good faith immunity,” and “absolute immunity.”

Schechter v. Illinois, Department of Revenue (In Re Markos Gurnee Partnership)

182 B.R. 211 · United States Bankruptcy Court, N.D. Illinois · Apr 27, 1995

Id. 2 The Court then engaged in the following discussion, clearly identifying the receivership as separate from the receiver personally. … In re Rollins, 175 B.R. 69 , 77 n. 7 (Bankr.E.D.Cal.1994) (“If a trustee incurs a contract or tort liability to someone other than the debtor or a creditor of the estate, he is entitled to a qualified judicial immunity.

Gower v. Farmers Home Administration (In Re Davis)

91 B.R. 627 · United States Bankruptcy Court, M.D. Georgia · Sep 23, 1988

of qualified bankruptcy attorneys was limited. … Only expenses clearly related to this case are included in the Court’s award.

Quality Stores, Inc. v. Vermont Department of Taxes (In Re Quality Stores, Inc.)

324 B.R. 631 · United States Bankruptcy Court, W.D. Michigan · Mar 17, 2005

With regard to the first prong of the test, the court had little trouble concluding that Congress clearly expressed its intent to abrogate state sovereign immunity when it enacted § 106(a). In re Hood, 319 F.3d at 762 . … Article I, § 8 of the Constitution, commonly referred to as the "Bankruptcy Clause," gives Congress the power "[t]o establish ... uniform Laws on the subject of Bankruptcies throughout the United States.” U.S.

In Re PT-1 Communications, Inc.

403 B.R. 250 · United States Bankruptcy Court, E.D. New York · Mar 31, 2009

Sovereign immunity may only be waived or abrogated by statute. Id. … The requirement for waiver of sovereign immunity is also met, in that APA § 702 waives sovereign immunity as to PT-l’s counterclaims.