Mediation Timing And Details: Adjusting To Unique Circumstances (In re Diocese of Buffalo)

Adjustments to unique circumstances? (Photo by Marilyn Swanson) By Donald L. Swanson The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487). The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to... Continue Reading →

“Engaged In” Eligibility Struggles: Chapter 12 And Subchapter V (In re Mongeau)

A farming operation? (Photo by Marilyn Swanson) By: Donald L Swanson “Engaged in” eligibility for Chapter 12 (farming operations) and Subchapter V (commercial or business activities) are similar-but-separate things. An opinion by the Kansas Bankruptcy Court shows the difficulty in addressing the “engaged in” eligibility standards in Chapter 12—even when Subchapter V opinions are consulted as... Continue Reading →

A Behind-The-Scenes Role: Subchapter V Trustee Facilitation

Behind the scenes (photo by Marilyn Swanson) By Donald L. Swanson “We can’t see what the Subchapter V trustees are doing, so we don’t have an opinion on their effectiveness.” --This is the response of a couple bankruptcy judges, when asked about the effectiveness of Subchapter V trustees in performing the statutory “facilitate a consensual plan”... Continue Reading →

Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

Deposing A Mediator About What Happened In The Mediation (Roberts v. City of Fairbanks)

Pursuing a strategy? (Photo by Marilyn Swanson) By: Donald L Swanson “There is no federal mediation privilege”;“the mediator's testimony about the mediation is not privileged”; and“there is no legal bar to Defendants seeking the [mediator’s testimony] with regard to the mediation and settlement negotiations.” --Roberts v. City of Fairbanks, Case No. 17-cv-00034, U.S. District Court of... Continue Reading →

U.S. Supreme Court: Flip-Flopping On Constitution’s Bankruptcy Clause

Flip-Flopping (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const., Article I, §8, cl. 4). Once upon a long time ago, the U.S. Constitution’s Bankruptcy Clause, and its “uniform Laws” requirement,... Continue Reading →

Merchant Cash Advances Are Loans, Not Sales, And Violate Usury Laws (In re Shoot the Moon)

A death knell? (photo by Marilyn Swanson) By: Donald L Swanson Merchant cash advances are the business version of payday loans: a relatively small amount of money loaned at a high rate of interest. Payday loans are repaid from debtor’s next paycheck, while merchant cash advances are repaid by daily withdrawals from debtor’s bank account. Merchant... Continue Reading →

Constitutionality of U.S. Trustee v. Administrator Programs (Siegel v. Fitzgerald)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The United States of America is asking the U.S. Supreme Court to rule on the constitutionality of having U.S. Trustees in 88 judicial districts and Bankruptcy Administrators in 6 judicial districts. What follows is a summary of the U.S. Trustee’s explanation of the constitutionality issue in a... Continue Reading →

How To “Fix” A Subchapter V Plan’s Term (In re Urgent Care)

11 U.S.C. Sec. 1191(c)(2) By: Donald L Swanson “The three-year term here is fair and equitable, as it properly balances the risks and rewards for both the debtor and its creditors”; and“the Court declines to fix a longer plan period.” --From a Bankruptcy Court opinion confirming Debtor’s Subchapter V plan—In re Urgent Care Physicians, Ltd, Case... Continue Reading →

Allowing Subchapter V Trustee Fees In A Dismissed Case As “Reasonable” and “Necessary” (In re Besthost)

A reasonable and necessary path (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee is entitled to allowance of fees, even when the Subchapter V case is dismissed for lack of authority to file the case. That's the December 16, 2021, ruling in In re Besthost Inn LLC, Case No 21-12158 in the... Continue Reading →

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