On Bankruptcy and Mediation
Hope?! (photo by Marilyn Swanson) By: Donald L Swanson The Bankruptcy Code's Subchapter V provides hope to formerly successful entrepreneurs. It's a hope that never before existed. I'll try to explain. Formerly Successful Entrepreneurs – A Historical Problem The Bankruptcy Code became effective in October of 1979. And I’ve been practicing under the Bankruptcy Code from... Continue Reading →
Working together? (photo by Grant Swanson) By: Donald L Swanson Answers to these two questions can get tricky: When should a previously successful business engage distress-debt counsel? What is the role of the business’s general counsel once that happens? Second Question: Role Here’s the answer to the second question first: The business’s general counsel needs to... Continue Reading →
A direct hit (photo by Marilyn Swanson) By: Donald L Swanson The hits keep coming for student loans in bankruptcy. This time the hit is this: student loans for attending medical school do not qualify as “commercial or business” loans for Subchapter V eligibility. The central finding, for a medical student who worked as an employee... Continue Reading →
Easily satisfied? (photo by Marilyn Swanson) By: Donald L Swanson Is a debtor “engaged in commercial or business activities” for Subchapter V eligibility? Such question has been addressed on many occasions and by many courts. The trend seems to be toward a conclusion that the nature and quantity of “commercial or business activities” required for Subchapter... Continue Reading →
By: Donald L Swanson The 2022 Amendments to the Uniform Commercial Code were proposed as, and expected to be, a non-partisan and apolitical piece of legislation. Road Bump That expectation met a road bump in South Dakota when the proposed Amendments were adopted by both the House and Senate—but then vetoed by the Governor. The Governor... Continue Reading →
Tribal sovereignty (photo by Marilyn Swanson) By: Donald L Swanson Oral arguments occur on April 24, 2023, before the U.S. Supreme Court in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No 22-227. Here is a link to the oral arguments transcript. What follows is an attempt to, (i) summarize the facts... Continue Reading →
Disclosure? (Photo by Marilyn Swanson) By: Donald L Swanson “within three (3) business days of termination of the mediation, the Debtors shall publicly disclose the terms of the last offers extended by each of the Mediation Parties, respectively.”[Fn. 1] Say what!? Whoever heard of such a thing—a requirement that the “last offers” of the mediating parties... Continue Reading →
Bad faith intentions? (photo by Marilyn Swanson) By: Donald L Swanson Dismissal of a bankruptcy—for bad faith filing—is a rarity. So, how a bankruptcy court grapples with the bad faith issue . . . and ends up dismissing the bankruptcy . . . can provide a lesson for us all. What follows is a summary of... Continue Reading →
Some would call it "theft" (photo by Marilyn Swanson) By: Donald L Swanson Oral arguments are held at the U.S. Supreme Court on April 26, 2023, in Tyler v. Hennepin County, Minnesota, Case No. 22-166. A transcript of such arguments is linked here. The essence of the case is this. Hennepin County, Minnesota: confiscates the home... Continue Reading →
Mootness? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now that the U.S. Supreme Court recently declared the provisions of 11 U.S.C. § 363(m) to be NOT jurisdictional.[Fn. 1] Instead, § 363(m) is merely an important statutory directive.[Fn. 2] Mootness Issue What’s received less attention is a preliminary issue the U.S. Supreme Court... Continue Reading →
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