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. |