Arbitration of Bankruptcy Disputes: The Need for a “Uniformity” Rationale Under U.S. Constitution

By:  Donald L. Swanson The case is Thomas v Midland Funding LLC, A.P. No. 17-05010 in the Bankruptcy Court for the Western District of Virginia. On appeal, it’s Civil Action No. 5:18-cv-00128 in the U.S. District Court. Odd Facts The facts of the case are a kind of, “Who knew this happens?” Debtor is in... Continue Reading →

Dividing Secured Claims from Under-Secured Claims: A History

By: Donald L Swanson There are things we take for granted in bankruptcy cases: like concepts of fresh start and of absolute priority and of adequate protection. But the source of such concepts is often murky. One of those take-for-granted things is this: the division of a secured claim into, (i) an allowed secured claim that... Continue Reading →

Nothing is Permanent: Mediation of International Commercial Disputes

By: Donald L Swanson HISTORY: “Prior to World War II, most international commercial disputes were resolved through consensual procedures such as mediation”—mediation was viewed by many as “an inclusive and effective cross-cultural approach to problem solving.” RECENT TIMES: Mediation is infrequently used in international commercial disputes—mediation is viewed by many as “a futile and potentially expensive... Continue Reading →

Look “Outside Bankruptcy”: A U.S. Supreme Court Standard for Resolving Bankruptcy Questions

By: Donald L. Swanson In 2019, the U.S. Supreme Court issued two opinions on bankruptcy-specific topics that identify a common legal standard. The standard is this: In deciding a question under the Bankruptcy Code, look to legal standards that apply “outside bankruptcy” for guidance Both opinions do just that.  Here’s how. FIRST OPINION The U.S. Supreme Court... Continue Reading →

Striking the Answer and Entering Default: A Sanction for Blowing Off Mediation

By: Donald L. Swanson The case is Trujillo v. Tak (In re Tak), Case No. 18-ap-01217 (Bankry. C.D. Cal.). The Case Celia Trujillo sues Debtor in Superior Court of the State of California, County of Los Angeles, at Case No. BC672613, for sexual harassment and discrimination. In response, Debtor files Chapter 7 bankruptcy. Then, Celia Trujillo... Continue Reading →

Plan Confirmation Standards Under Small Business Reorganization Act of 2019

By Donald L. Swanson The Small Business Reorganization Act of 2019 is said to provide a “Chapter 12-type” reorganization opportunity for small businesses within Chapter 11. That comparison is apt. Here’s why: Chapter 12 came into existence, back in 1986, because farmers had difficulty getting plans of reorganization confirmed under Chapter 11; The Small Business Act... Continue Reading →

What’s a Mediator To Do When Parties Seem Unaware of an Important Rule of Law?

By: Donald L. Swanson The title of this article is the subject of an advisory opinion from New York’s Mediator Ethics Advisory Committee.  What happened An attorney and client are mediating a fee dispute.  The mediator realizes the parties’ fee dispute is covered by a New York law requiring the attorney to notify the client of... Continue Reading →

A CRO-Type Advisory Role for Family Businesses in Financial Stress

By: Donald L Swanson When large businesses are in financial trouble, their banks commonly require them to hire a CRO (a Chief Restructuring Officer) as a condition for extending loans. The CRO can do a variety of things. But one of the essentials is an advisory role: --Evaluate the financial troubles and recommend a course of... Continue Reading →

Trustee’s Role Includes Financial Adviser & Mediation: Small Business Reorganization Act of 2019

By Donald L. Swanson The Small Business Reorganization Act of 2019 became law on August 23, 2019.  But the date it takes effect is "180 days" later: on February 19, 2020. This new law helps small business reorganize under Chapter 11 in much the same way that farmers reorganize under Chapter 12 and consumers reorganize under... Continue Reading →

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