Debtors In Bankruptcy: The “Criminals” Of Olde (Wood v. Owings)

Title page of U.S. Supreme Court's 1803 opinion, Wood v. Owings By Donald L. Swanson “The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly.” This quotation is a punch line from the very first opinion by the U.S. Supreme Court on... Continue Reading →

Over-Estimating The Persuasive Value Of Electronic Communications

Face-to-face communications (photo by Marilyn Swanson) By: Donald L Swanson Electronic communications (e.g., emails and texts) fail to convey the non-verbal cues that are readily apparent in face-to-face communications.  That’s an unsurprising conclusion from a study titled, “Ask in person: You're less persuasive than you think over email.”  [Fn. 1] Dominant Email and text communications are... Continue Reading →

Subchapter V’s $7.5 Million Limit: Sunset? Or Another Fire Drill In Congress?

Sunset (photo by Marilyn Swanson) By: Donald L Swanson So . . . here we go again.  We’re four months from a “sunset” of the $7.5 million limit for Subchapter V eligibility.  And we’ve heard nothing from Congress about extending that limit. Everyone agrees that the $7.5 million limit is a good thing . . .... Continue Reading →

A Mediator’s Motto: “Never Give Up” — And Its Unexpected Benefits

Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.”  At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →

Ending The Tragedy Of Debtors Prison (U.S. Supreme Court — Beers v. Haughton)

Imprisoned in a Safari Park (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy laws must (and do) change.  That’s because the U.S. economy is always changing: it has been in an ever-expanding mode—punctuated by recessions and depressions from time-to-time—throughout the course of its existence. One example of change is abolition of the debtors prison remedy.... Continue Reading →

“Facilitate” Role Of Subchapter V Trustees

11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate By: Donald L Swanson What follows is a script (more or less) of a portion of a seminar presentation I recently gave. Duty to "Facilitate" Every Subchapter V trustee has a statutory duty to “facilitate the development of a consensual plan of reorganization.”  This is a brand-new duty:... Continue Reading →

Subchapter V Eligibility: A “Liberal Construction” Trend (Lyons v. Family Friendly; In re Mongeau)

"Commercial or business activity"? (photo by Grant Swanson) By: Donald L Swanson Bankruptcy courts continue struggling with the meaning of the phrase “commercial or business activities” for Subchapter V eligibility.  That’s especially true when a debtor’s business liquidates before the bankruptcy is filed. However, the distinct trend of such struggle is toward a liberal construction of... Continue Reading →

Mandated Mediation: An Effective Dispute-Resolution Tool

Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →

“Scheduled” Property & Automatic Abandonment (§ 554(c)): What About Listing Only On SOFA? (Stevens v. Whitmore)

11 U.S.C. Sec. 554–on abandonment By: Donald L Swanson “any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of  a case is abandoned to the debtor”  (11 U.S.C. § 554(c), emphasis added).  Question: What does “scheduled under section 521(a)(1)” mean in § 554(c): Is inclusion on the... Continue Reading →

“Puffing” In Negotiations — The Hazard Of Trust: A Study

When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc.  Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →

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