When ABC Proceeding And Involuntary Bankruptcy Meet (In re Scandia)

Interrelationships? (Photo by Marilyn Swanson) By: Donald L Swanson The interrelationship between an assignment for benefit of creditors (“ABC”) proceeding and an involuntary bankruptcy filing, for the same debtor, is governed by various portions of the Bankruptcy Code.  But that relationship remains ill-defined, nonetheless. What follows is an attempt to summarize a bankruptcy court opinion dealing... Continue Reading →

Sanctions For Failing To Attend Mediation — Vacated And Remanded (Miller v. Midland)

A vacant seat at the mediation? (Photo by Marilyn Swanson) By: Donald L Swanson “We cannot glean whether the District Court’s outrage at Plaintiff’s attorneys stemmed from a belief that the attorneys acted in bad faith, or that they acted negligently.” --From Miller v. Midland Credit Management, Inc., Case No. 20-13390 (11th Cir., issued September 17,... Continue Reading →

Becoming Eligible For Subchapter V By A Retroactive Change In the New Law (In re Phenomenon)

Making adjustments? By: Donald L Swanson On June 21, 2022, Congress and the President (i) extend the $7.5 million debt limit for Subchapter V eligibility, and (ii) adjust other Subchapter V rules.[Fn. 1] One of the adjustments is this: formerly, an “affiliate” of any corporation did not qualify for Subchapter V; but now, only an “affiliate”... Continue Reading →

Mediation And The Boy Scouts Bankruptcy: From A Court Opinion On Plan Confirmation

Scouting? (Photo by Marilyn Swanson) By: Donald L Swanson “Without these [mediated] settlements, there is no Plan.” From Opinion on Plan confirmation, In re Boy Scouts of America, Case No. 20-10343, Delaware Bankruptcy Court, Doc. 10136, at 80 (issued July 29, 2022). The Boy Scouts of America bankruptcy has achieved a milestone: on July 29, 2022,... Continue Reading →

One Thing Wrong With ABC Laws: § 543(d)(2) Of The Bankruptcy Code (Global Safety Labs)

Problematic? (Photo by Marilyn Swanson) By: Donald L Swanson “[T]he bankruptcy court— . . . (2) shall excuse compliance . . . if . . . an assignee for the benefit of the debtor’s creditors . . . was appointed or took possession more than 120 days before the date of the filing of the petition,... Continue Reading →

U.S. Taxpayers To Foot The Bill for Alabama’s and North Carolina’s Bankruptcy Unconstitutionally?! (In re Hammons)

Who is footing the bill? (Photo by Marilyn Swanson) By: Donald L Swanson On August 15, 2022, the Tenth Circuit Court of Appeals reinstates its prior In re Hammons opinion, which deals with remedies for unconstitutionally lower quarterly fees charged to bankruptcy debtors in Alabama and North Carolina.[Fn. 1] Opinion Points Check out these points from... Continue Reading →

Judicial Supervision Over ABCs: A Problem

Supervision? (Photo by Marilyn Swanson) By: Donald L Swanson Congress must be allowed “to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” --from Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 94 (1989) (Blackmun dissent, emphasis added). Justice Blackmun had a point—back in 1989—that... Continue Reading →

“Forgoing Appellate Review” Through Arbitration: A Constitutional Problem For Bankruptcy Laws (Viking River Cruises v. Moriana; Nelson v. Carland)

Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson When parties contract for arbitration of their disputes: they are “forgoing the . . . appellate review of the courts in order to realize the benefits of private dispute resolution”; California’s state law in question “coerces parties to opt for a judicial forum” instead of the arbitration... Continue Reading →

The Common Law Of ABCs Is Effective: And Statutory Limitations On ABCs Are Bad Policy

Temptation? (Photo by Marilyn Swanson) By: Donald L Swanson Assignment for benefit of creditors (“ABC”) laws are, historically, a debtor remedy.  ABC laws are a voluntary debtor tool for shutting down and winding up the debtor’s failed business. Ancient History ABC laws began under the common law, back in merrie olde England, arising out of the... Continue Reading →

What To Do With A Mediated Settlement After Breach? (Rivera v. Sharp)

Schrödinger’s cat? (Photo by Marilyn Swanson) By: Donald L Swanson Defendants see “both an unenforceable settlement and a binding unilateral agreement simultaneously emerging, like Schrödinger's cat,” from their lawsuit with Plaintiff, but “only one exists” and “the District Court did not err in finding the settlement agreement valid.” --From Rivera v. Sharp, Case No. 21-2254, at... Continue Reading →

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