BAPCPA Nearly Backfires (Rose v. Portfolio — Cert. Denied)

A backfire (photo by Marilyn Swanson) By: Donald L Swanson “Backfire” = “to have the reverse of the desired or expected effect”  --from In 2005, the U.S. Congress decided to make life hard for individuals in bankruptcy.  Congress saw fraudulent intent in the minds of their destitute constituents—particularly those who had been living above the... Continue Reading →

Inertia in Decision Making: Implications for Mediation?

Inertia (photo by Marilyn Swanson) By: Donald L Swanson There is “a tendency for decision makers to choose a status quo option.” [Fn. 1] In many decision situations there is a status quo option, which may be the result of a previous choice or may simply be the option that ensues if no action is taken.... Continue Reading →

Document Retention Rules in Bankruptcy: Holding Onto the Past

Holding onto the past (photo by Marilyn Swanson) By: Donald L. Swanson Do you have any fuddy-duddies in the family holding onto the past: they refuse to get a computer or smart phone or to use email or text messaging? If so, family communications require someone to pass-on information by snail mail or telephone—if anyone bothers... Continue Reading →

Succeeding at Small Claims Mediation: England and Wales Showing How It’s Done

England (photo by Marilyn Swanson) By: Donald L Swanson Small claims mediation efforts often languish. Many small claims parties don’t choose to use mediation—even when mediation is offered at a reduced fee or without charge. How can this be? It’s a mystery. Some small claims mediation efforts, by contrast, are successful. Here’s an example. High Volume... Continue Reading →

First-Ever U.S. Bankruptcy Law — Enacted With A Pandemic’s Help

The Bankruptcy Act of 1800 By: Donald L Swanson 1800 is the year Congress adopts its first bankruptcy law under the "Bankruptcies" clause of the newly-ratified U.S. Constitution. Congress’s Bankruptcy Act of 1800 is modeled after England’s bankruptcy laws.  But there is a significant difference: the focus of England’s bankruptcy laws, back then, is exclusively on... Continue Reading →

Japan’s Nuclear Disaster Fund, A U.S. Court, & Mediation (Imamura v. GE)

By: Donald L Swanson The opinion is Imamura v. General Electric Co., Case No. 19-1457 in the U.S. First Circuit Court of Appeals (issued April 24, 2020).  Facts In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan, triggering explosions and a nuclear disaster, which destroyed property and livelihoods of residents in... Continue Reading →

Subchapter V Trustee Employing An Attorney? (In re Penland)

An attorney By: Donald L Swanson The Bankruptcy Court opinion is in In re Penland Heating And Air Conditioning, Inc., Case No. 20-01795 (Bankry.E.D.N.Car.)(decided June 11, 2020).  Issue The In re Penland issue is this: should a Subchapter V Trustee be allowed to hire an attorney, as common practice, at the beginning of a Subchapter V... Continue Reading →

A Supreme Court Civics Lesson: Separation of Powers And Appointments Clause For Puerto Rico

Map of Puerto Rico By: Donald L Swanson Mediation is playing a central role in Puerto Rico’s bankruptcy.  But mediating parties could not resolve an Appointments Clause dispute under the U.S. Constitution.  So, the U.S. Supreme Court recently resolved it for them. And the Supreme Court's decision is a welcome affirmation of the legitimacy of actions... Continue Reading →

Fraudulent Transfer Claims in Bankruptcy After Statute of Limitations Expires (In re Tribune)

A closed door By: Donald L Swanson “We need not resolve” Appellants’ arguments, but we find such arguments to be fraught with “lack of statutory support, ambiguities, anomalies” and to conflict with “purposes of the Code.” --Second Circuit Court of Appeals, from December 19, 2019, opinion in In re Tribune Company Fraudulent Conveyance Litigation. As a... Continue Reading →

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