On Bankruptcy and Mediation
For publication? (Photo by Marilyn Swanson) By: Donald L Swanson U.S. Courts of Appeals frequently issue opinions designated “Not for Publication” or “Non-Precedential” or something similar (let’s call them “unpublished opinions”). Question: What, precisely, do such designations mean? Starting Places for Answers: The starting place for answering the question is Fed.R.App.P. 32.1(a), which provides: “A court... Continue Reading →
Ignoring? (Photo by Marilyn Swanson) By: Donald L Swanson When state legislatures consider a legislative bill, it’s important that they hear from stakeholders who would be affected by that bill. Important ABC Stakeholders When faced with a legislative bill on assignment for benefit of creditors (“ABC”), its important that legislatures hear from a variety of stakeholders,... Continue Reading →
Finding precedents? (Photo by Marilyn Swanson) By: Donald L Swanson Recently, the U.S. Supreme Court denied certiorari in two cases involving bankruptcy questions: in Barings L.L.C. v. Ag Centre Street Partnership, Case No. 24-1322 (cert. denied on 11/10/2025), the Question Presented is, “Whether an appellate court can materially alter a consummated plan of reorganization without permitting... Continue Reading →
A tool? (Photo by Marilyn Swanson) By: Donald L. Swanson An assignment for benefit of creditors (an “ABC”) under the common law is an out-of-court tool for liquidating a business debtor’s assets in an efficient and credible manner. Such a common law tool has been used, effectively and frequently, for many years in such states... Continue Reading →
By: Donald L Swanson Here’s a curious thing: an advisory opinion from a U.S. Circuit Court of Appeals on an issue for which there is no controversy and that is mostly academic. That’s exactly what we have in In re Whittaker Clark & Daniels, Inc., Case Nos. 24-2210 & 24-2211 (3rd Cir., decided September 10, 2025)(see... Continue Reading →
The new Act By: Donald L Swanson Assignments for benefit of creditors (“ABCs”) and receiverships have been utilized effectively for centuries under the common law, side-by-side as separate and distinct and complementary remedies for liquidating assets. Differences Differences between the two are that: receiverships are a court-supervised process initiated by a creditor to dispossess the debtor... Continue Reading →
By: Donald L Swanson It’s not every day that the author of a Circuit Court opinion also authors a concurring opinion. But that’s exactly what happens here: In re Whittaker Clark & Daniels, Inc., Case Nos. 24-2210 & 24-2211 (3rd Cir., decided September 10, 2025).## Overview The issue in the concurring opinion deals with this question:... Continue Reading →
The wild west (photo by Grant Showalter-Swanson) By: Donald L Swanson When comparing proceedings under the Bankruptcy Code with receivership proceedings under state law, there is a similarity: both require intensive court supervision. And there is a huge difference: bankruptcy provides precise rules—lots of them—under an extensive Code and accompanying national and local rules and a... Continue Reading →
A place of equity? (Photo by Marilyn Swanson) By: Donald L Swanson I recently published this linked article on equitable tolling of a deadline for filing a dischargeability complaint or a motion to extend that deadline: Equitable Tolling & Due Process for Dischargeability Deadlines (TL90108 v. Ford). Here’s another opinion on that same subject with an... Continue Reading →
Built circa 1891 (photo by Marilyn Swanson) By: Donald L Swanson Here is an article from more than a century ago: Jacob Trieber, Abuses of Receiverships,” 37 Yale L.J. 275-279 (1909). What follows is a summary of that article. Receivership—A Judicial Remedy Receivership is a judicial remedy to preserve a fund or property from spoliation, waste... Continue Reading →
MEDIATBANKRY 