Refusing a Mediation Opportunity

By: Donald L. Swanson “By providing you with this notice, [creditor’s name] is merely complying with the notice requirements under the Nebraska Farm Mediation Act. [Creditor’s name] does not, in any way, acquiesce to participation in the mediation process with you.” --Two sentences from a creditor’s notice of mediation rights to a debtor under Neb. Rev.... Continue Reading →

Bankruptcy’s Uniformity Requirement & Federal Arbitration Act (Nelson v. Carland)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Constitution requires that bankruptcy laws be “uniform . . . throughout the United States.” Among such uniformity requirements is this: rulings on core bankruptcy issues must be subject to meaningful appellate review—all the way to the U.S. Supreme Court. Explaining this requirement is the dissent... Continue Reading →

Mediation Paves The Way To Plan Confirmation — Quickly! (In re Tailored Brands)

The way is paved (photo by Marilyn Swanson) By: Donald L Swanson The parent company of menswear chains Jos A. Bank and Men’s Wearhouse filed Chapter 11 bankruptcy on August 2, 2020.  And it achieved a confirmed plan on November 13, 2020.  The case is In re Tailored Brands, Inc., Case No. 20-33900 in the Southern... Continue Reading →

Subchapter V Eligibility: Beware The “Affiliated Debtor” Trap (In re 305 Petroleum)

Affiliates? (photo by Marilyn Swanson) By: Donald L Swanson "The term 'small business debtor'— . . . (B) does not include—(i) any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than [$7,500,000] (excluding debt owed to 1 or more affiliates or insiders)."             --11 U.S.C. §... Continue Reading →

Subchapter V Eligibility: Congress Needs To Permanently Extend The $7.5 Million Limit — Now!

A permanent extender? (photo by Marilyn Swanson) By: Donald L. Swanson The Small Business Reorganization Act of 2019 (aka “Subchapter V”) has been in effect since February 19, 2020.  And here’s something we’ve learned since then: Subchapter V meets a definite need in our society for helping small businesses and owners in financial stress. I’ve seen... Continue Reading →

Subchapter V: What Does “Fair and Equitable” Mean For Plan Confirmation? (In re Pearl & In re Ellingsworth)

The path to confirmation? (Photo by Marilyn Swanson) By: Donald L Swanson 11 U.S.C. § 1191 is Subchapter V’s plan confirmation statute.  One confirmation essential, from § 1191(b), is that a Subchapter V plan must be “fair and equitable” to each impaired class that does not accept the plan. This article summarizes two bankruptcy court opinions... Continue Reading →

A Study of Mediation Transcripts and Recordings

By: Donald L. Swanson Studying mediation is hard to do—because of confidentiality concerns. One study from decades past, however, gets around the problem. It focuses on a course in the UCLA mediation clinic in which students act as mediators. The study looks at transcripts and recordings of mediation sessions (made with consents of the parties for... Continue Reading →

U.S. Solicitor General: A POWERFUL AND BIASED Advocate Before the U.S. Supreme Court on Bankruptcy Issues (Deutsche Bank v. McCormick Foundation)

Unbiased justice (photo by Marilyn Swanson) By: Donald L Swanson The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States [on whether to grant the Petition for Writ of Certiorari]. --From U.S. Supreme Court docket entry dated October 5, 2020, in Deutsche Bank v. McCormick Foundation... Continue Reading →

Vacating A Court Order That Violates A Mediated Settlement Agreement—For “Mistake” (In re Mattox)

Disputed property line is on the west side of this photo By Donald L. Swanson The opinion is In re Mattox, Case No. 18-10101-13 in the Kansas Bankruptcy Court, decided October 19, 2020 (Doc. 93). Homestead Exemption Dispute Here’s what happened. Debtor files Chapter 7 bankruptcy, claiming a homestead exemption in 43 acres of property, having... Continue Reading →

Fraudulent Transfer–Distinguishing Between A “Recipient” And A “Transferee” (Jalbert v. Gryaznova)

A conduit (photo by Marilyn Swanson) By Donald L. Swanson Under the Bankruptcy Code, an “initial transferee” is strictly liable for a fraudulent transfer—there is no good faith, subsequent advance, or similar defense. Fortunately for some fraudulent transfer defendants, it’s possible to be the “recipient” of a transfer as a mere conduit, without becoming a “transferee”... Continue Reading →

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