Student Loans: The Modern-Day Debtor’s Prison (A “Certainty of Hopelessness” Standard for Discharge?!) and a Tax Glitch

By: Donald L Swanson A student loan cannot be discharged in bankruptcy, unless the loan “would impose an undue hardship on the debtor and the debtor’s dependents.” --11 U.S.C. § 523(a)(8) So, what qualifies as “undue hardship” under § 523(a)(8)? --You might think that an, “I can’t pay both rent and child care, let alone student... Continue Reading →

Mediators as Persuaders?

  By: Donald L. Swanson For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not! The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013).  It's prepared by these two professors: --James H.... Continue Reading →

Enforcing Arbitration in Bankruptcy: Second Circuit Puts Pressure on a Slam-Dunk Issue

By: Donald L. Swanson “[T]he Supreme Court has time and time again held: where parties have agreed to arbitration, . . . the agreement of the parties is to govern. There is no reason to think that, with time, the bankruptcy courts will not get there too.” --Collier on Bankruptcy, ¶ 9019-05 (15th Ed. 1998). Bankruptcy... Continue Reading →

Mediation Confidentiality Protection: A “Very High Bar to Overcome”

By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y.  2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad.  Those who bought... Continue Reading →

An Oddity: Supreme Court Decides Nothing in its U.S. Bank v. Village at Lakeridge Bankruptcy Opinion

By Donald L. Swanson On March 5, 2018, the U.S. Supreme Court issues its latest bankruptcy opinion in the case of U.S. Bank v. Village at Lakeridge, LLC., Case no. 15-1509. The Facts Village at Lakeridge has a single owner: MBP Equity Partners.  And it has two creditors: it owes “over $10 million” to U.S. Bank... Continue Reading →

What Happens When a Mediated Settlement Falls Apart? Some Not-Good Things (In re Blue Dog)

By:  Donald L. Swanson Have you ever wondered what happens when disputing parties reach a mediated settlement agreement that requires further documentation—and then the settlement falls apart? What actually happens is often not-good. Here is an actual example, from a bankruptcy case, of what happens. The opinion is Blue Dog at #99 Inc. v. BP... Continue Reading →

Supreme Court’s Bankruptcy Opinion on § 546(e): Merit Management v. FTI Consulting, and an Important Footnote 2

By Donald L. Swanson On February 27, 2018, the U.S. Supreme Court issued an eagerly awaited bankruptcy opinion on the § 546(e) safe harbor defense against trustee avoidance actions. The new opinion is Merit Management Group, LP v. PTI Consulting, Inc., Case No. 16-784. The opinion, at first read, appears to dramatically narrow the reach and effect... Continue Reading →

“Vital” Role of Mediator: Tony Blair and the Northern Ireland Peace Process

By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →

Government Bankruptcies: Needs of Citizens Take Priority Over Creditor Claims (Assured Guaranty v. Puerto Rico)

By: Donald L Swanson Puerto Rico’s long-standing financial straits, rendered more dire by Hurricane Maria, create an issue of bankruptcy priority: should available funds be used to, (i) address hurricane devastation and daily citizen needs, or (ii) pay creditor claims when due? --The answer to this priority is simple and easy in Puerto Rico: citizen needs... Continue Reading →

Blog at

Up ↑

%d bloggers like this: