On Bankruptcy and Mediation
Estopped? (photo by Marilyn Swanson) By: Donald L Swanson A Petition for Writ of Certiorari has been granted by the U.S. Supreme Court in Keathley v. Buddy Ayers Construction, Inc., Case No. 25-6, on a ruling from the U.S. Fifth Circuit Court of Appeals.[Fn. 1] The Question Presented in Kethley v. Buddy Ayers is this: “Whether... Continue Reading →
Accommodating? (Photo by Marilyn Swanson) By: Donald L Swanson 11 U.S.C. § 365(c)(2) says (emphasis added): “(c) The trustee may not assume or assign any executory contract or unexpired lease of the debtor . . . , if— . . . (2) such contract is a contract to make a loan, or extend other debt financing... Continue Reading →
A powerful conveyance (photo by Marilyn Swanson) By: Donald L Swanson Here’s a new issue—at least for me: a combination of fraudulent conveyance law & § 510(b) subordination addressed in: Phillips v. Josmic 2 LLC (ONH AFC CS Investors, LLC), Adv. Proc. No. 24-50085, Delaware Bankruptcy Court (decided May 8, 2025). The Issue At common law,... Continue Reading →
An unsecured trade creditor? (Photo by Marilyn Swanson) By: Donald L Swanson Here's a question about the new Uniform Assignment for Benefit of Creditors Act (the “Uniform ABC Act”): Is a liquidation under the Uniform ABC Act a good thing or a bad thing for the debtor’s unsecured trade creditors? The answer is easy: it’s a... Continue Reading →
A place of authority? (Photo by Marilyn Swanson) By: Donald L Swanson 28 U.S.C. § 157(b)(5) provides: “personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose” In other words, “personal injury... Continue Reading →
Even-handed? (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court does not like the Bankruptcy Code. It never has. Two examples are: in Northern Pipeline v. Marathon Pipe Line (1982), the Supreme Court comes within one vote of declaring the entire Bankruptcy Code unconstitutional—and while it fails to deal the Code a mortal... Continue Reading →
Delays? (photo by Marilyn Swanson) By: Donald L Swanson Mass torts and resulting litigation are a reality of life in these United States. But one of the truly shocking things about mass tort litigation, in recent times, is this: judicial delays override the wishes of mass tort victims for prompt payment of negotiated amounts. A current... Continue Reading →
Across state lines? (Photo by Marilyn Swanson) By: Donald L. Swanson The Uniform Law Commission (“ULC”) is the same organization that brought us the Uniform Commercial Code, the Uniform Trust Code, and other “Uniform” state laws. The ULC is now offering a Uniform Assignment for Benefit of Creditors Act (the “Uniform ABC Act”). The new... Continue Reading →
Nation-Wide By: Donald L Swanson I recently ran across an Order from a state court, under that state’s receivership statutes, purporting to create a nation-wide injunction (i.e., a “stay”) against any judicial, administrative or other action by any creditor that would affect any of the debtor’s property. And the debtor’s property spans across state lines. My... Continue Reading →
Not uniform (photo by Marilyn Swanson) By Donald L. Swanson Here are some reasons why a uniform law on the subject of assignments for benefit of creditors ("ABC") is needed. Bankruptcy Analogy The need for a uniform ABC law is the same as the need behind the “uniform” bankruptcy law requirement in the U.S. Constitution—only, it’s... Continue Reading →
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