On Bankruptcy and Mediation
A path (photo by Marilyn Swanson) By: Donald L Swanson A recent Bankruptcy Court opinion grants an involuntary Debtor’s motion to convert its Chapter 7 case to Subchapter V—relying on a U.S. Supreme Court opinion. This Bankruptcy Court opinion provides a path for others to follow. The opinion is In re Zarifian Enterprises LLC, Case No.... Continue Reading →
A bad deal for some (photo by Marilyn Swanson) By: Donald L Swanson Back in September of 2021, a super-majority of voting plaintiffs (95%) supported confirmation of the Purdue Pharma bankruptcy plan. Under the plan, the Sackler family would contribute $6.0 billion to pay plaintiffs. The plan was confirmed by the Bankruptcy Court, and the super-majority... Continue Reading →
BAPCPA By: Donald L Swanson Back in the mid-1990s, the Eighth Circuit Court of Appeals issued two opinions declaring the plain meaning of “projected disposable income” in § 1225(b)(1) to be “absurd” and that the true meaning thereof is, instead, “actual disposable income” determined at the end of the debtor’s confirmed Chapter 12 plan. Such two... Continue Reading →
Tick tock (photo by Marilyn Swanson) By: Donald L Swanson Being in business is risky. And the risks are ever-expanding. The latest illustration of a new risk is the case of TikTok, Inc. v. Garland. The new risk is for businesses using the TikTok social media platform: i.e., the U.S. Government can shut that social media... Continue Reading →
BAPCPA By: Donald L Swanson Here are five points explaining why the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) should be enacted . . . appearing on the opening page of this “Report of the Committee on the Judiciary, House of Representatives” (at fn. 1, emphasis added): “Shoplifting is wrong; bankruptcy is also... Continue Reading →
By Donald L. Swanson “[T]he appellant would not have acquired priority over other creditors by the sheriff's levy, for the obvious reason that the right of property in the goods seized under the execution had previously passed” to the assignee under Debtor’s ABC. Reed v McIntyre, 98 U.S. 507, 512 (1878). Facts The Debtor, in the... Continue Reading →
BAPCPA By: Donald L Swanson Before 1998, (i) all student loans from for-profit lenders were dischargeable in bankruptcy, but (ii) student loans backed by the federal government or from non-profits were dischargeable in only these circumstances: when the student loan “became due more than 7 years . . . before the date of the filing of... Continue Reading →
By: Donald L Swanson Here are three propositions of law, based on the U.S. Supreme Court’s Clark v. White, 13 U.S. 178 (1838), opinion: absent evidence of wrongful knowledge or intent, a creditor’s efforts at racing-to-the-courthouse to collect a debt are among the basic rights of contract that cannot be abridged by the states; state laws... Continue Reading →
BAPCPA By: Donald L Swanson BAPCPA harmed honest but unfortunate consumers in these United States. It did so by moving them out of Chapter 7 bankruptcy and into an unworkable Chapter 13 system that few consumers can use effectively in times of economic stress. That’s a given. But the up-side tradeoff that’s being pitched to us... Continue Reading →
By: Donald L Swanson The common law of assignments for benefit of creditors ("ABCs”) has been around for a very long time as an out-of-court process under the law of trusts: debtor is trustor, assignee is trustee, and debtor’s creditors are beneficiaries. And the common law of ABCs had already been well-established, when the U.S. Constitution... Continue Reading →
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