A Missing Piece in Subchapter V Eligibility & A Potential Work-Around

A missing piece? (Photo by Marilyn Swanson) By: Donald L Swanson One of the missing pieces in Subchapter V is this: it’s easier for a corporate business to meet the “engaged in commercial or business activities” standard for eligibility than it is for an individual owner/guarantor of that business. Here’s how one court describes the missing... Continue Reading →

Subchapter V: Providing Hope To Formerly Successful Entrepreneurs

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: A Previously Successful Business’s General Counsel and Distressed-Debt Counsel

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 →

Student Loans Take Another Bankruptcy Hit: This Time On Subchapter V Eligibility (In re Reis)

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 →

How the “Engaged In” Standard For Subchapter V Eligibility Is Easily Satsified (In re Robinson)

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 →

Proposed Uniform Commercial Code Amendments: A South Dakota Road Bump & A Proposed Solution

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 →

Does Bankruptcy Code Waive Tribal Sovereign Immunity? (Lac Du Flabeau Band v. Coughlin—Oral Arguments At U.S. Supreme Court)

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 →

Required Disclosure Of “Last Offers” By Mediating Parties (In re Genesis Global)

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 Bankruptcy Filing & Dismissal: An Illustration (In re Obstetric and Gynecologic Associates)

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 →

Protecting Property Interests From Aggressive Government Tax Taking (Tyler v. Hennepin County—Oral Arguments at U.S. Supreme Court)

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 →

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