Alabama & North Carolina — A Bankruptcy World Of Their Own (USA Sales v. U.S. Trustee)

By: Donald L Swanson Alabama and North Carolina are interesting places. But in the world of bankruptcy, Alabama and North Carolina are truly special—seriously!! These two states have carved out a bankruptcy world of their own—a world that’s different from every other state and all the territories in the Union!  How they did it, is undoubtedly... Continue Reading →

Judge Rosen: On Mediation In City Of Detroit Bankruptcy (Part I, Getting Started!) By: Donald L Swanson Hon. Gerald E. Rosen (Ret.) serves as mediator, arbitrator and neutral evaluator in high-level business cases for the JAMS office in Detroit.   Previously, Judge Rosen served as Chief Judge of the U.S. District Court for the Eastern District of Michigan, when the City of Detroit filed its Chapter 9 bankruptcy. ... Continue Reading →

Subchapter V Eligibility: “Engaged In” is NOT Modified By “Petition Date”!

Opposing views (photo by Marilyn Swanson) By: Donald L Swanson To be eligible for Subchapter V relief, the debtor must be “a person engaged in commercial or business activities” (§ 1182(1)(a)). Opposing Views Opposing views are developing on how this “engaged in” criterion should be applied.  One view says, (i) nothing requires a debtor to be... Continue Reading →

Mediating With Department Of Justice Of The U.S. Government: A Study

U.S. Government (photo by Marilyn Swanson) By: Donald L Swanson We are focusing, here, on a mediation study titled, “Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes” (the "Vanishing Trial Study"). [Fn. 1] Some History & A Hypothesis A 2006 publication titled, “A World Without Trials,” documents a decline in the... Continue Reading →

“Safe Harbor”: Merit Management’s Footnote 2 Is Back! (Deutsche v. McCormick)

Safe harbor (photo by Marilyn Swanson) By: Donald L Swanson In its unanimous Merit Management Group, LP v.FTI Consuting, Inc., opinion of February 27, 2018, the U.S. Supreme Court held (in the second-to-last sentence of the opinion): “Because the parties do not contend that either Valley View or Merit is a ‘financial institution’ or other covered... Continue Reading →

Prof. Mann: On Bankruptcy And The U.S. Supreme Court (An Interview) Prof. Mann discussing "Bankruptcy and the U.S. Supreme Court" By: Donald L Swanson Ronald J. Mann is the “Albert E. Cinelli Enterprise Professor of Law” and co-director of the “Charles Evans Gerber Transactional Studies Center” at Columbia Law School.  Prof. Mann is a nationally recognized scholar in bankruptcy and related areas of law.  His prior... Continue Reading →

Removing Subchapter V Debtor From Possession And Replacing With Subchapter V Trustee (In re Young)

Removed (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession, the Subchapter V trustee steps into the possession role.  That’s according to statute. Statutes Here are the statutory provisions (emphasis added): 11 U.S.C. § 1182(2) is titled, “Debtor in Possession” and says, “The term ‘debtor in possession’ means... Continue Reading →

The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

Automatic Stay: Does Not Exist For Small Business Cases Dismissed And Refiled in Two Years (In re Abundant)

Normal activity cannot exist (photo by Marilyn Swanson) By: Donald L Swanson The automatic bankruptcy stay: “does not apply in a case in which the debtor— . . . (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period” before the... Continue Reading →

Informal Mediation for Small Businesses in Financial Stress

By: Donald L. Swanson Pre-litigation mediation opportunities are provided in many farm states before a creditor can pursue legal action against a farmer on a delinquent obligation.  Such early mediation efforts are highly effective in resolving disputes. Similarly, small businesses in financial stress and their creditors might engage in early efforts to forestall credit disputes. ... Continue Reading →

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