Case law

In Re Conner

172 B.R. 119 · United States Bankruptcy Court, M.D. Florida · Aug 15, 1994

However, this principle cannot change the law which requires an annuity contract to qualify for the section 222.14 exemption. … If all that is required to establish an annuity contract is a stream of payments over time, all installment contracts would qualify as an annuity and that is clearly not what the McCollam decision requires.

In Re Iacono

120 B.R. 691 · United States Bankruptcy Court, E.D. New York · Nov 2, 1990

IRAs were originally established to ease the tax burden of employees that were not covered by a qualified pension plan as well as to encourage savings for retirement. … 10), retirement or other plan established by a corporation, which is qualified under section 401 of the U.S.

In Re El Comandante Management Co., LLC

358 B.R. 1 · United States Bankruptcy Court, D. Puerto Rico · Aug 10, 2006

Qualified Immunity. … The “clearly established rights” standard makes the defense of qualified immunity a difficult basis for a motion to dismiss. Walton v. Watts, 185 B.R. 963 , 969 n. 5 (Bankr.N.D.Ga.1995).

Potter v. City of Hanceville (In Re Potter)

354 B.R. 301 · United States Bankruptcy Court, N.D. Alabama · Nov 6, 2006

A plaintiff can overcome qualified immunity by a showing that (1) the defendant violated a statutory or constitutional right, and (2) this right was clearly established at the time of the alleged violation. … While there may have been a violation of a constitutional or statutory right of the plaintiff, the defendants would still be entitled to summary judgment as to qualified immunity if this right were not clearly established

Daniels v. County of Chester, Tax Claims Bureau (In Re Daniels)

304 B.R. 695 · United States Bankruptcy Court, E.D. Pennsylvania · Jul 16, 2003

Government officials, performing discretionary functions, are entitled to qualified immunity for their actions, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable … Bair is entitled to qualified immunity from plaintiffs Section 1983 action for damages will depend on whether she is able to show that her conduct did not violate clearly established *710 statutory or constitutional rights

Walton v. Watts (In re Swift)

185 B.R. 963 · United States Bankruptcy Court, N.D. Georgia · Aug 9, 1995

As interpreted by the Supreme Court, qualified immunity shields government officials from civil liability as a consequence of their discretionary acts, except when they have violated a clearly established statutory or constitutional … The Court notes that, although defendants can raise qualified immunity in a motion to dismiss, the presence of this “clearly established rights" standard often makes that defense a difficult foundation upon which to justify

Matter of Swift

185 B.R. 963 · United States Bankruptcy Court, N.D. Georgia · Aug 9, 1995

civil liability as a consequence of their discretionary acts, except when they have violated a clearly established statutory or constitutional right. … The Court notes that, although defendants can raise qualified immunity in a motion to dismiss, the presence of this "clearly established rights" standard often makes that defense a difficult foundation upon which to justify

McKibben v. Titus County Appraisal District (In Re McKibben)

233 B.R. 378 · United States Bankruptcy Court, E.D. Texas · Apr 23, 1999

The individual Defendants have again asserted the defense of qualified immunity from suit. … Qualified immunity protects public officials against the risk of trial and personal liability for the consequences of their actions taken to carry out their duties if there is no violation of well established law.

Kenny v. Block (In Re Kenny)

75 B.R. 515 · United States Bankruptcy Court, E.D. Michigan · Jun 17, 1987

Qualified immunity serves to shield governmental officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights … “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v.

Medical Educational & Health Services, Inc. v. Independent Municipality of Mayaguez (In Re Medical Educational & Health Services, Inc.)

459 B.R. 527 · United States Bankruptcy Court, D. Puerto Rico · Sep 2, 2011

Qualified Immunity Defendants argue that in the alternative the Court finds that Plaintiff has sufficiently pled a Section 1983 claim against the Mayor, which we do, the Mayor is entitled to qualified immunity. … “Since qualified immunity is a defense, the burden of proving it rests with the defendant.” Gomez v.

Rose v. U.S. Dept. of Education (In Re Rose)

214 B.R. 372 · United States Bankruptcy Court, W.D. Missouri · Nov 10, 1997

Two well-established exceptions to Eleventh Amendment immunity exist: Congress may abrogate a state’s sovereign immunity through statutory enactments, see Fitzpatrick v. … Rose does not feel qualified to brief it, as stated above, it is jurisdictional.

In Re Russell

60 B.R. 190 · United States Bankruptcy Court, M.D. Florida · Apr 9, 1986

Thus, it is clear that the Saltwater property qualified as her homestead and was therefore immune from the Bank’s judgment lien, unless it was not really properly claimed as homestead for other reasons or the Saltwater property … Therefore, clearly absent a showing that she did not intend to establish the Saltwater property as her homestead and that she effectively abandoned the same as her homestead, her exemption claim must be sustained.

Phoenician Mediterranean Villa, LLC v. Swope (In re J & S Properties, LLC)

545 B.R. 91 · United States Bankruptcy Court, W.D. Pennsylvania · Oct 5, 2015

Accordingly, we must not confuse the qualified immunity analyses associated with actions brought by estate beneficiaries with the qualified immunity analyses of actions brought by third parties. 6 *105 As to the latter, i.e … This Court notes that Antoine was addressing absolute immunity, and left open the issue of whether qualified immunity would require the same analysis.

Coats v. Vawter (In Re Coats)

168 B.R. 159 · United States Bankruptcy Court, S.D. Texas · Dec 9, 1993

Therefore, § 106(c) does not apply to Montgomery County because, as already established, it does not enjoy sovereign immunity in the first place. … This Court agrees that Constable Bishop would have qualified immunity in a 42 U.S.C. § 1983 action.

Exchange Bank of Polk County v. Christian (In Re Christian)

8 B.R. 816 · United States Bankruptcy Court, M.D. Florida · Jan 20, 1981

extent and if he can qualify under several, he is protected by each to the ex *819 tent he can qualify under each. … Accordingly, this Sub-clause furnishes no solace to the Bank and the Bank’s lien is not immunized from the Trustee’s attack under § 547 as a preferential transfer.

Innes v. Kansas State University (In Re Innes)

207 B.R. 953 · United States Bankruptcy Court, D. Kansas · Apr 8, 1997

The debtors dispute KSU’s right to claim that immunity, and alternatively, contend KSU has waived any immunity for which it might qualify. The controlling facts are not disputed. … Supreme Court eases discussing what it takes for a State to waive its Eleventh Amendment immunity from suit in federal court, These cases clearly declare that neither participation in a federal program, receipt of federal

Coulter v. Aplin (In Re Coulter)

305 B.R. 748 · United States Bankruptcy Court, D. South Carolina · Aug 7, 2003

Affirmative Defenses Defendants initially raise as defenses to this action abstention, qualified immunity and immunity under the Eleventh Amendment. … Qualified immunity “shields a governmental official from liability from civil monetary damages if the officer’s ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person

Roman Forest Public Utility District No. 3 v. Roman Forest Consolidated Public Utility District (In re Roman Forest Public Utility District No. 3)

339 B.R. 891 · United States Bankruptcy Court, S.D. Texas · Feb 8, 2005

Qualified Immunity does not Shield Individual Defendants from Deposition Even if the Individual Defendants do not have absolute legislative immunity, they next contend that they have qualified immunity. … Government officials performing discretionary functions receive qualified immunity — ie., are shielded from liability for civil damages — so long as their conduct does not violate clearly established statutory or constitutional

In Re Academy Answering Services, Inc.

90 B.R. 291 · United States Bankruptcy Court, N.D. Ohio · Jul 22, 1988

In order to qualify under § 7430 a party must satisfy three criteria: it must substantially prevail; it must have exhausted its administrative remedies; and, it must establish that the position of the United States in the … In its extensive discussion of sovereign immunity in In re Inslaw, 76 B.R. 224, 228-37 (Bankr.D.Dist.Col.1987), the court summarized its reasons for rejecting the government’s claim of immunity: The “plain language” of Section

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.