Author: mediatbankry

My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than four decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers. I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.

Is Obtaining A Bankruptcy Discharge Probative Of A “Character For . . . Untruthfulness”? (U.S. v. Hadad)

A character for truthfulness (photo by Marilyn Swanson) By: Donald L Swanson Here are two questions under Federal Rule of Evidence 608(b): Is a bankruptcy discharge admissible to prove a person’s character for truthfulness or untruthfulness? How about a prior repossession of a person’s automobile?  Is that probative of a person’s character for truthfulness or untruthfulness?... Continue Reading →

0

Avoiding Flow-Through Tax Liability By Giving Up Ownership Shortly Before Bankruptcy Filing? (LeClair v. Tavenner)

Flow-through (Photo by Marilyn Swanson) By Donald L. Swanson Question: Can a law firm member avoid flow-through tax liability by giving up ownership in the law firm shortly before it files bankruptcy? The answer is, “Yes.”  That’s according to LeClair v. Tavenner, Case No. 23-1133 (4th Cir., decided 2/7/2025). Facts Law Firm operates successfully for several... Continue Reading →

0

What Happens After A Bankruptcy Sale When The Party In Possession Refuses to Leave? (In re Galleria)

Refuses to leave (photo by Marilyn Swanson) By: Donald L Swanson What happens, after a bankruptcy sale of real estate, when the party in possession of that real estate . . . refuses to leave? We now know. The case is In re Galleria 2425 Owner, L.L.C., Case No. 23-34815 in Southern Texas Bankruptcy Court (decided... Continue Reading →

0

Arbitration Clause In A Discharged Contract Is Unenforceable—Unless Weaponized (Rogne v. Digital)

A weapon (photo by Marilyn Swanson) By: Donald L Swanson Since Debtor “does not now seek to use that agreement as a weapon” against Creditor, Debtor’s “bankruptcy discharge renders the arbitration agreement unenforceable.” Rogne v. Digital Forensics Corp., Case No. 24-cv-2612 (D. Minn. 1/13/2025; Doc. 22, at 7) (emphasis added). Facts Debtor gets a Chapter 7... Continue Reading →

2

Abusive Pro Se Bankruptcy Filings: A Problem To Be Solved? (Hayes v. U.S. Bank Trust)

A problem to be solved? (Photo by Marilyn Swanson) By: Donald L Swanson A recent bankruptcy appellate decision by a U.S. District Court highlights a persistent bankruptcy problem: How to deal with pro se filers who abuse the bankruptcy system by repeated filings. The case is Hayes v. U.S. Bank Trust, N.A., Case Nos. 6:24-cv-00004 &... Continue Reading →

0

Equitable Mootness Rejected & A Confirmed Plan Provision Excised (In re Serta)

A portion excised? (Photo by Marilyn Swanson) By: Donald L Swanson Equitable mootness does not prevent the excising (i.e., the surgical removal), on appeal, of an indemnification provision from a confirmed Plan.    That’s the ruling of the U.S. Fifth Circuit Court of Appeals in Excluded Lenders v. Serta Simmons Bedding, L.L.C. (In re Serta Simmons... Continue Reading →

2

Getting A “Discretionary Fee” + Hourly Fees Awarded In Bankruptcy: A Road Map? (In re LTL Management)

In re LTL fee application summary By: Donald L Swanson Here is a hard-knocks rule (i.e., a rule learned the hard way) on fees for a court-approved professional in bankruptcy: representing a debtor, committee or trustee in bankruptcy has all the downside of a contingent fee case—but none of the upside. Here is what that means:... Continue Reading →

0

Winding Down A 97 Year Old Bankruptcy Case (In re Yellow Poplar Lumber)

Art deco, circa 1920s (photo by Marilyn Swanson) By: Donald L. Swanson This has got to be one of the longest-running bankruptcy cases . . . ever. It was filed on July 17, 1928, and it is being wound-down now. A recent Bankruptcy Court Order in that case (entered January 22, 2025) addresses the question of... Continue Reading →

0

§ 523(a) Discharge Exceptions & The Corporate Subchapter V Debtor (In re Blok Industries)

Corporations doing business here (photo by Marilyn Swanson) By: Donald L Swanson “[T]his Court finds that the exceptions to discharge under §523(a) only apply to individuals in Subchapter V.” Spring, et al. v. Davidson and Blok Industries, Inc. (In re Davidson; In re Blok Industries, Inc.; Jointly Administered), Adv. No. 23-3005, Doc. 87, at 15 (Bankr.,... Continue Reading →

0

Is An Automatic Stay Waiver, In A Pre-Petition Forbearance Agreement, Enforceable? (In re DJK Enterprises)

Enforceable? (Photo by Marilyn Swanson) By: Donald L Swanson “While the pre-petition Debtor may have consented to waiver of the automatic stay in favor of [secured creditor], . . . other creditors did not”; and “The automatic stay is designed to protect both debtors and creditors alike.” In re DJK Enterprises, LLC, Case No. 24-60126, Doc.... Continue Reading →

1

Blog at WordPress.com.

Up ↑