On Bankruptcy and Mediation
Abstaining? (Photo by Marilyn Swanson) By: Donald L Swanson This is the second of two articles on abstention in bankruptcy. This article is about appellate review of a decision on bankruptcy abstention. Appellate review of a bankruptcy abstention rulings is limited: denial of a mandatory abstention motion can be appealed; but all other types of abstention... Continue Reading →
Apportioned? (Photo by Marilyn Swanson) By: Donald L Swanson The question in In re Pirron, Case No. 22 B 08555 (Bankry. N.D. Ill., Decided 2/18/2025), is this: How is a tax refund to be allocated between a bankruptcy debtor’s estate and the debtor’s spouse who does not file bankruptcy, when they file a joint tax return?... Continue Reading →
Abstaining? (Photo by Marilyn Swanson) By: Donald L Swanson Here is a bankruptcy abstention ruling: One William Street Capital Master Fund Ltd. V. Wilmington Trust, National Association, Case No. 26-CV-01123, S.D.N.Y. Bankruptcy Court (decided June 5, 2026). This is the first of two articles on abstention. The second article will be on limited appellate review of... Continue Reading →
Fixing the defects (Photo by Marilyn Swanson) By: Donald L Swanson Defaults on home mortgage loans are frequently cured under Chapter 13 plans. But what about defaulted home mortgages in Subchapter V? Here is an opinion dealing with such question: In re Koetters, Case No. 25-80895, Central Illinois Bankruptcy Court (decided May 29, 2026; Doc. 95).... Continue Reading →
Can’t always see it (photo by Marilyn Swanson) By: Donald L Swanson Chapter 11 bankruptcy filings by affiliated entities are common, as is joint administration of their bankruptcy cases with a single law firm representing them all. However, such common representation cannot be taken for granted. Here is an example of it not working: Whitehall Trust... Continue Reading →
Has prevailed over many years (photo by Marilyn Swanson) By: Donald L Swanson There is an ongoing effort among bankruptcy courts and their appellate overseers to define the role and enforceability of contracts for arbitration in bankruptcy. An example is from the Ninth Circuit Court of Appeals: Harada Family Dental Care, PC v. Kapitus Servicing, Inc,... Continue Reading →
Cattle where they don't belong (Photo by Marilyn Swanson) By: Donald L Swanson The equitable mootness doctrine and statutory mootness doctrine get a lot of attention in bankruptcy, but as to the doctrine of constitutional mootness—not so much. Here’s an opinion on constitutional mootness: New Mexico Cattle Growers’ Association v. United States Forest Service, Case No.... Continue Reading →
Subordinating? (Photo by Marilyn Swanson) By: Donald L Swanson Issue: Can claims for “punitive damages” be subordinated in Chapter 11 cases under § 726(a)(4)? Here are operative statutes: Sec. 510 authorizes subordination, and § 103(a) makes § 510 applicable in all chapters of the Bankruptcy Code; Sec. 726(a)(4) places “punitive damages” at a lower distribution level... Continue Reading →
Finality? (Photo by Marilyn Swanson) By: Donald L Swanson Fed.R.Bankr.P. 8002(a) provides that “a notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed.” This time limit is jurisdictional and, in the absence of a timely notice of appeal, the district court is... Continue Reading →
Getting paid for valuable services? (Photo by Marilyn Swanson) By: Donald L Swanson There is a hole in the Bankruptcy Code: a dispossessed Subchapter V debtor has the exclusive right and power to file a plan, but there is no specific provision for compensating the dispossessed debtor’s attorney for doing so. A way needs to be... Continue Reading →
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