“Safe Harbor”: Merit Management’s Footnote 2 Is Back! (Deutsche v. McCormick)

Safe harbor (photo by Marilyn Swanson) By: Donald L Swanson In its unanimous Merit Management Group, LP v.FTI Consuting, Inc., opinion of February 27, 2018, the U.S. Supreme Court held (in the second-to-last sentence of the opinion): “Because the parties do not contend that either Valley View or Merit is a ‘financial institution’ or other covered... Continue Reading →

Prof. Mann: On Bankruptcy And The U.S. Supreme Court (An Interview)

https://youtu.be/g1NZFVfJ98k Prof. Mann discussing "Bankruptcy and the U.S. Supreme Court" By: Donald L Swanson Ronald J. Mann is the “Albert E. Cinelli Enterprise Professor of Law” and co-director of the “Charles Evans Gerber Transactional Studies Center” at Columbia Law School.  Prof. Mann is a nationally recognized scholar in bankruptcy and related areas of law.  His prior... Continue Reading →

Removing Subchapter V Debtor From Possession And Replacing With Subchapter V Trustee (In re Young)

Removed (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession, the Subchapter V trustee steps into the possession role.  That’s according to statute. Statutes Here are the statutory provisions (emphasis added): 11 U.S.C. § 1182(2) is titled, “Debtor in Possession” and says, “The term ‘debtor in possession’ means... Continue Reading →

The ADR Spectrum: Subchapter V Adds A New / Unique ADR Role

The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes.  But the recent addition of Subchapter V to the Bankruptcy Code has changed that.  I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →

Automatic Stay: Does Not Exist For Small Business Cases Dismissed And Refiled in Two Years (In re Abundant)

Normal activity cannot exist (photo by Marilyn Swanson) By: Donald L Swanson The automatic bankruptcy stay: “does not apply in a case in which the debtor— . . . (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period” before the... Continue Reading →

Informal Mediation for Small Businesses in Financial Stress

By: Donald L. Swanson Pre-litigation mediation opportunities are provided in many farm states before a creditor can pursue legal action against a farmer on a delinquent obligation.  Such early mediation efforts are highly effective in resolving disputes. Similarly, small businesses in financial stress and their creditors might engage in early efforts to forestall credit disputes. ... Continue Reading →

Subchapter V’s $7.5 Million Debt Limit Is Extended (But Only For A Year!!)

COVID-19 Bankruptcy Relief Extension Act of 2021 By: Donald L Swanson It's finally happened -- on bi-partisan and nearly-unanimous votes. The $7.5 million debt limit for Subchapter V eligibility, set to expire on March 27, 2021, is extended. Yet, it took a March 2021 fire drill to do so (see this webpage), which fire drill concluded... Continue Reading →

Judge Kornreich: On Judicial Mediators And Private Mediators (An Interview)

https://youtu.be/ysWRt4_-6uk By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →

When Does A Subchapter V Discharge Happen? (In re Satellite Restaurants)

Timing (photo by Marilyn Swanson) By Donald L. Swanson Here are opposing Subchapter V discharge rules—based on whether the plan is confirmed consensually or non-consensually: Consensual Confirmation.  “If a plan is consensual and confirmed under Section 1191(a), the debtor receives a discharge under Section 1141(d)”; butNon-Consensual Confirmation.  If a plan is non-consensual and confirmed under Section... Continue Reading →

Mediating Discharge Disputes—A Tough Task

A tough task (photo by Marilyn Swanson) By Donald L. Swanson Lawsuits opposing discharge are tough, to begin with. That’s true whether the action is under Sec. 523 (opposing discharge of the plaintiff’s claim) or under Sec. 727 (opposing discharge of all claims). Here are some reasons why: A revenge-type motivation is commonly involved, since all... Continue Reading →

Blog at WordPress.com.

Up ↑

<span>%d</span> bloggers like this: