On Bankruptcy and Mediation
BAPCPA By: Donald L Swanson Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”): “A person who had a heart attack is treated the same as someone who had a spending spree at the mall”; and So, BAPCPA created a “worsening of the value” of bankruptcy as a means of protecting middle class... Continue Reading →
By: Donald L Swanson A sweet-spot for an assignment for benefit of creditors (“ABC”) in today’s world is this: a failing business needs to liquidate; and bankruptcy laws are inadequate or too expensive. An ABC fills-in where bankruptcy doesn't work. In other words, an ABC is a state-law complement to federal bankruptcy laws . . .... Continue Reading →
Report by Henry G. Newton in the May 1900 Yale Law Journal By: Donald L Swanson The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is a bi-partisan law: enacted on a vote of 302 yaes and 126 nays in the House and on a vote of 75 yaes and 24 nays in the... Continue Reading →
By: Donald L Swanson Congress must be permitted “at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” Granfinanciera v. Nordberg, 492 U.S. 33, 94 (1989) (Justices Blackmun and O’Connor dissenting, emphasis added). Justices Blackmun and O’Connor were right, of... Continue Reading →
By: Donald L Swanson Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on April 14, 2005. It was signed into law on April 20, 2005. And it applied to all bankruptcy cases filed after October 17, 2005. So, the year 2025 is the 20th anniversary of all such dates. Regressive Law BAPCPA is... Continue Reading →
By: Donald L. Swanson The intersection of state escrow laws and federal bankruptcy laws can create confusion and surprise for contracting parties. The Problem & Four Examples The problem creating such confusion and surprise is this. State escrow laws: are, typically, defined by the common law; lack precise details; and are often applied in bankruptcy... Continue Reading →
Looking ahead? (Photo by Marilyn Swanson) By: Donald L. Swanson Two-years prospective relief from the automatic bankruptcy stay is a remedy granted for serial bankruptcy filings, under § 362(d)(4)(B), in In re Karpuleon, Case No. 24-80647 in Central Illinois Bankruptcy Court (entered 12/6/2024; Doc. 48). Facts Here’s what happened. Debtor files a Chapter 13 petition... Continue Reading →
Keeping options open? (photo by Marilyn Swanson) By: Donald L Swanson We’ve all been there: when faced with alternative courses of action, we make a choice; but time and subsequent developments show we made the wrong choice. So, a hard-knocks rule is this: keep all options and alternatives open and viable for as long as possible;... Continue Reading →
Singapore By: Donald L. Swanson Most bankruptcy practitioners (me included) have no experience with Chapter 15 of the Bankruptcy Code, which deals with “Cross-Border Cases.” To say “Chapter 15” is, for many of us, like saying “Quantum Physics”: we know the general subject, but the details are a mystery. But . . . here is... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
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