Did Congress Intend Greater Subchapter V Protection To Corporations Than To Individuals? (In re Vertical Mac)

Protecting (photo by Marilyn Swanson) By: Donald L Swanson Did Congress intend that Subchapter V provide greater bankruptcy protection to corporations than to individuals? The answer is, “Yes,” according to a recent line of opinions: it’s easier for a corporation to be “engaged in business or commercial activities” than it is for the corporation’s owners; andthe... Continue Reading →

The Four “C’s” of Mediation: Candor, Cooperation, Creativity and Courage (from Judge Rosen)

Bankruptcy Petition for City of Detroit By: Donald L Swanson Judge Gerald Rosen [fn. 1] served as Chief Judicial Mediator in the City of Detroit bankruptcy.  He is credited with masterminding an $820 million deal that rescued the City of Detroit from bankruptcy. In a fascinating discussion, Judge Rosen recently explained and illustrated his Four "C’s”... Continue Reading →

Ninth Circuit BAP Opinion In Subchapter V Case: On Authority To Sign Petition (In re SSRE Holdings)

He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues.  Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →

A History Of Mediation In Italy: Both Ancient (Including Bankruptcy) And Recent

Italy (photo by Marilyn Swanson) By: Donald L Swanson Mediation has a long and fascinating history in Italy. What follows is an attempt at a summary of that history (both ancient and recent), taken from a recent report by Giovanni Matteucci titled, “Mandatory mediation, The Italian Experience.” Mediation in Italian Legal Tradition and Culture Mediation is... Continue Reading →

Nunc Pro Tunc Approval Of Employment Application In Bankruptcy — Acevedo Distinguished (In re Moore)

The passing of time (photo by Marilyn Swanson) By: Donald L Swanson “Because Congress did not include a temporal limitation in § 327, the Court finds it inconsistent with the provisions of Title 11 to insert one”; and The U.S. Supreme Court, in Acevedo, “did not change the existing authority of the [bankruptcy] court to approve... Continue Reading →

Litigious People Are Going to Litigate—And Mediation Can’t Change That Fact (In re Butko)

Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile.  You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →

Gambling in Bankruptcy (In re Robinson)

A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →

Subchapter V Trustee As “De Facto Mediator” (In re 218 Jackson)

De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.”  --From In re 218 Jackson... Continue Reading →

Homestead Exemption vs. Avoided & Preserved Mortgage (In re Travers; In re Cancel & Gonzalez)

A homestead By: Donald L Swanson A bankruptcy trustee cannot transform an exempt homestead into property of the bankruptcy estate by avoiding and preserving a mortgage lien against it.  That’s a fundamental rule of law established by two opinions from the First Circuit Court of Appeals: one in 2014 and one on August 6, 2021. Background... Continue Reading →

Perils Of Mediating / Settling With Less Than All Defendants (Kennedy v. Alliance)

Include them all? (photo by Marilyn Swanson) By: Donald L Swanson Settling with less than all defendants in a lawsuit is always tricky. And mediating without all interested parties involved is also tricky. The problem is that non-settling / non-participating parties might, (i) blow a settlement up, once they learn of it, (ii) be released unintentionally... Continue Reading →

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