Case law

Harden v. Texas Department of Transportation (In Re Aer-Aerotron, Inc.)

181 B.R. 268 · United States Bankruptcy Court, E.D. North Carolina · Jan 20, 1995

If an informal proof of claim is sufficient, then clearly DOT has waived its sovereign immunity. The Fourth Circuit has a very broad definition of what constitutes an informal proof of claim. … defined and well established.

Harden v. Gilbert (In Re International Heritage, Inc.)

239 B.R. 306 · United States Bankruptcy Court, E.D. North Carolina · Aug 27, 1999

The court will first address the issue of sovereign immunity. … Clearly, the State of Montana’s administrative proceeding against the debtors is covered within the scope of § 362(a)(1).

In re Jones

556 B.R. 219 · United States Bankruptcy Court, E.D. North Carolina · Aug 22, 2016

Second, the qualifier to this exception — that proceedings seeking to determine the division of property of the estate are not immune from the stay (put simply, the exception to the exception) — applies only to property of … On the contrary, since *224 domestic support obligations are not dis-chargeable, there is no reason to delay proceedings to establish or modify them. Collier ¶ 362.05[2],

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

181 B.R. 271 · United States Bankruptcy Court, E.D. North Carolina · Apr 18, 1995

Thus, the Eleventh Amendment/sovereign immunity issue presented here is clearly one *273 of congressional abrogation, rather than waiver or consent. In Hoffman v. … Moreover, the constitutional mandate for Congress to establish uniform bankruptcy laws necessarily and expressly displaces state authority.

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.

In Re Byrd

256 B.R. 246 · United States Bankruptcy Court, E.D. North Carolina · Nov 16, 2000

Younger established a three-part test to determine under what circumstances a federal court may enjoin a state court proceeding. … This proceeding also does not qualify as a suit against one of the United States.

In Re Cutting Edge Enterprises, Inc.

372 B.R. 255 · United States Bankruptcy Court, M.D. North Carolina · Jul 19, 2007

their escrow accounts is established under the Qualifying Statute and is based upon the NPMs’ sales in the year *259 preceding the date in which the payment is due. … Nor does the enforcement proceeding involve an effort by the State to establish or protect a pecuniary interest in any property of Cutting Edge.

Andresen & Arronte, PLLC v. Hill (In Re Hill)

425 B.R. 766 · United States Bankruptcy Court, W.D. North Carolina · Mar 23, 2010

As previously discussed, the Firm established proximate cause of damages but has *778 failed to establish either a false misrepresentation or justifiable reliance. … Clearly, the Firm closed its eyes to the Hills’ inability to pay. The Firm failed to establish reasonable reliance pursuant to § 523(a)(2)(B).

In Re Anastasios

72 B.R. 908 · United States Bankruptcy Court, W.D. North Carolina · Apr 29, 1987

A debtor qualified for relief under Title 11 may, in fact, not be eligible for relief under a specific chapter. … Filing of a case under Title 11 establishes jurisdiction in this Court in accordance with 28 U.S.C. §§ 1334 and 157.

In Re Cespedes

393 B.R. 403 · United States Bankruptcy Court, E.D. North Carolina · Sep 8, 2008

The court found that it was not, because the assessment was made “whenever an early withdrawal is made from a qualified pension plan, regardless of when the plan was established” and the “penalty is a flat rate penalty bearing … The tax resulting from the inclusion of the withdrawn amount in income is clearly a tax.

Ziegler v. Ziegler (In Re Charles W. Ziegler)

109 B.R. 172 · United States Bankruptcy Court, W.D. North Carolina · Nov 8, 1989

The conduct of Ziegler in the present case can clearly be compared to that of the debtor in McGovern, especially in light of the lower standard of proof required in the Fourth Circuit. … Ziegler having misled his attorneys as set out heretofore is not entitled to the defense of qualified immunity based upon seeking the advice of his attorneys. See Jones v. Soileau, 448 So.2d 1268, 1272 (La.1984).

Derek & Matthew Bissett Farms v. Bissett Produce, Inc. (In re Bissett Produce, Inc.)

512 B.R. 528 · United States Bankruptcy Court, E.D. North Carolina · May 21, 2014

Defendants contend that this conceded fact is fatal to plaintiffs’ PACA claims, reasoning that both the applicable statutes and a comprehensive body of case law establish quite clearly that a “supplier” seeking to claim entitlement … It is inconceivable that if this was to be a requirement for the protected class, it would not have been clearly stated in the statute, legislative history, or regulations. Id. at 6 .

In re Rose

563 B.R. 606 · United States Bankruptcy Court, E.D. North Carolina · Dec 22, 2016

Jones’ 401(k) account was not property of his bankruptcy estate but did not agree that the account was immune from the impact of the automatic stay. Id. at 223. … Alimony qualifies as a "domestic support obligation” as defined in the Code, and the automatic stay does not apply to civil proceedings “for the establishment or modification of an order for domestic support obligations;

McClendon v. Walter Home Mortgage (In re McClendon)

488 B.R. 876 · United States Bankruptcy Court, E.D. North Carolina · Mar 1, 2013

To establish liability in the rate spread home loan context, Plaintiffs must prove by preponderance of the evidence that the loan agreement 1.) qualifies as a rate spread home loan and 2.) violates the law concerning a lender … The facts established at trial describe the long and painful process of qualifying Plaintiffs for their home loan. Their relationship with WMC catalogues countless inequities, which the Court has described at length.

Robinson v. Worley

540 B.R. 568 · United States Bankruptcy Court, M.D. North Carolina · Sep 30, 2015

The Bankruptcy Court’s application is not clearly erroneous. … Although the exact value of Gemini was not established with certainty, the record as a whole clearly supports the Bankruptcy Court’s finding that Worley’s in *576 terest in Gemini is worth substantially and materially more

Tetterton v. Ocwen Federal Bank (In Re Tetterton)

379 B.R. 595 · United States Bankruptcy Court, E.D. North Carolina · Dec 13, 2007

A loan may qualify as a “high-cost home loan” under N.C. … The document clearly states that Ocwen is an assignee only with respect to the loan’s servicing rights.

In Re Renegade Holdings, Inc.

429 B.R. 502 · United States Bankruptcy Court, M.D. North Carolina · Apr 16, 2010

their escrow accounts is established under the Qualifying Statute and is based upon the NPMs’ sales in the year preceding the date in which the payment is due. … The Debtors have established an escrow account at Sun-Trust Bank as required under N.C. Gen.

In re Page

519 B.R. 908 · United States Bankruptcy Court, M.D. North Carolina · Oct 7, 2014

Page’s appeal of the First Contempt Order, concluding in an opinion issued June 7, 2011, that the appeal was “clearly interlocutory.” Diaz v. Diaz, 212 N.C.App. 419 , 713 S.E.2d 791 (2011). … O’Donnell, the Fourth Circuit established factors that, while not exhaustive, should be considered in determining good faith.

Cabarrus County v. Boyd (In re Boyd)

525 B.R. 299 · United States Bankruptcy Court, M.D. North Carolina · Jan 9, 2015

Boyd clearly constitute material misrepresentations. On the six FNS recertification forms that Mrs. Boyd completed and submitted, she indicated on all but the last one that no one in the house was working. … No evidence was presented to establish that Mr. Boyd had any knowledge of the information that Mrs. Boyd included in the forms. Moreover, Mr.

Angell v. Ber Care, Inc. (In Re Caremerica, Inc.)

409 B.R. 737 · United States Bankruptcy Court, E.D. North Carolina · Jul 23, 2009

In order to properly assert a violation of a clearly established right, it was necessary for the plaintiff in Iqbal to plead factual assertions showing that the defendants adopted the alleged detention policy for the purpose … immunity and protection from the burdens of litigation.