On Bankruptcy and Mediation
By: Donald L Swanson On April 23, 2024, the American Bankruptcy Institute’s Subchapter V Task Force issued its Final Report. This article is the second in a series summarizing and condensing the Task Force’s Final Report into “a nutshell.” The subject of this article is: whether future rents should be included in the debt cap calculation... Continue Reading →
Subject matter jurisdiction? (Photo by Marilyn Swanson) By: Donald L Swanson Delaware’s Court of Chancery has no subject matter jurisdiction over an assignment for benefit of creditors proceeding when the debtor/assignor is an Illinois corporation with no assets or operations in Delaware, even when its ABC assignee/trustee is from Delaware. That’s the decision of Delaware’s Court... Continue Reading →
By: Donald L Swanson On April 23, 2024, the American Bankruptcy Institute’s Subchapter V Task Force issued its Final Report. This article is the first in a series that summarizes and condenses the Task Force’s Final Report into “a nutshell.” This article: provides background information and data on Subchapter V.[Fn. 1] Overall The Task Force undertook... Continue Reading →
Advocating for a position (photo by Marilyn Swanson) By: Donald L Swanson “Neutral Offering Solutions had long-term negative associations” in mediation. That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1] “Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas. Study’s Conclusion In... Continue Reading →
Compensation for late service? (Photo of a famous painting) By: Donald L Swanson Debtor’s Chapter 11 counsel cannot be compensated for services performed after a trustee is appointed and the debtor removed from possession. That’s the rule of law in the Fifth Circuit and in a not-for-publication decision of the Ninth Circuit’s Bankruptcy Appellate Panel, based... Continue Reading →
A dilemma? (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcies with large tort claims are common: some involve a limited number of claimants (e.g., a drunk driver hits a bus or a restaurant serves bad food one evening); and others have large numbers of claimants, some of whom won’t even be known for at least... Continue Reading →
An accurate statement (photo by Marilyn Swanson) By: Donald L Swanson The opinion is Bruce v. Citigroup Inc., Case No. 22-1000, decided August 2, 2023, by the U.S. Second Circuit Court of Appeals. The opinion addresses this question: Did Citigroup violate Debtor’s discharge injunction by refusing to correct an inaccurate credit report? The Second Circuit answers... Continue Reading →
Alive and well (Photo by Marilyn Swanson) By: Donald L Swanson You don’t see this very often: a dispute over the confidentiality of mediation communications. But such a dispute recently happened in In re Barretts Minerals, Inc., Case No. 23-90794, Southern Texas Bankruptcy Court. And the result is this: mediation confidentiality remains alive and well. In... Continue Reading →
Unconventional and impotent (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession under § 1185(a), what can the Subchapter V trustee do with debtor’s assets and operations? Duties, Rights, Powers and Functions Under § 1184, certain duties of a trustee are delegated to the Subchapter V debtor, “including... Continue Reading →
A bad development (photo by Marilyn Swanson) By: Donald L Swanson The existence of a bankruptcy option is a good thing for any debtor-creditor situation that is highly stressed—whether the bankruptcy option is used or not. This is especially true in mass-tort cases where a potential exists for (i) hugely-disparate results for similarly situated plaintiffs, and... Continue Reading →
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