New Cases For the Week of November 11, 2002 - November 15, 2002

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November 15, 2002

Case

Court

Holding

In re Majewski
(DBN Subscription Required)
9th Cir. An employer's decision to fire an employee/debtor which is based upon the emplyee's announced intention to file bankruptcy does not violate 11 USC 525, as that section applies only to persons who have filed bankruptcy.

November 13, 2002

Case

Court

Holding

In re Foust
(DBN Subscription Required)
5th Cir. A writ of replevin issued ex parte which directed the sheriff to seize certain inventory and equipment, violated Constitutional due process requirements.

A short-term deprivation of property, pursuant to a writ of replevin, during which the sheriff changed the locks on a business could violate the Fourth Amendment of the Constitution. 

Judicial officers have absolute immunity for en forcing a court order, but only qualified immunity for the manner in which the order is enforced. Because the officers acted beyond the scope of the writ and of State law, they were not entitled to absolute immunity. 

11 USC 543 does not require a custodian to turnover property of the estate no longer under his control.  Where a sheriff had seized certain inventory prepetition pursuant to a writ of replevin, and had turned the inventory over to the judgment creditor for storage due to a lack of county storage facilities, the sheriff lacked control over the inventory, and thus did not violate section 543 by failing to return the inventory to the debtors after the filing of a bankruptcy. The sheriff did however violate section 543 by failing to provide the debtors with an accounting of the seized inventory.

November 11, 2002

Case

Court

Holding

In re MicroAge, Inc.
(DBN Subscription Required)
9th Cir. BAP 11 USC 502(d) can be used to bar payment of administrative claims. However, in the instant case, the debtor waived the 502(d) argument by failing to raise it when the court entered an order allowing the claimant an administrative reclamation claim.
 
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