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 A Confidentiality Agreement In A State Court Settlement Enforceable In A Subsequent Bankruptcy? (In re Celsius)

Enforcing? (Photo by Marilyn Swanson) By Donald L. Swanson Is a confidentiality agreement in a state court settlement enforceable in a subsequent bankruptcy? That’s the issue in Meghji v. Casla Realty LLC (In re Celsius Network LLC), Adv.P. 24-04002 in SDNY Bankruptcy Court (decided October 17, 2024). The facts are unusual.  Here’s what happened. Fraudulent Transfer... Continue Reading →

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Involuntary Bankruptcy: BAPCPA Amendment to § 303(b) Needs to be Revoked

Reprinted with permission from the ABI Journal, Vol. XLIII, No. 9, September 2024. View the original publication here. Filing an involuntary bankruptcy petition as a petitioning creditor is a precarious action. The risks involved are intense, including potential liability for the debtor's costs, attorneys' fees, actual damages and punitive damages.1 To qualify as an involuntary... Continue Reading →

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Mediating Commercial Cases With Direct Discussions Between Parties — An Effective Approach

Direct discussions! By:  Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →

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Applying The Automatic Stay’s Police Power Exception (In re Ruiz)

A place for exercising police power? (Photo by Marilyn Swanson) By: Donald L Swanson (b) The filing of a [bankruptcy] petition . . . does not operate as a stay— . . . (4) . . . of the commencement or continuation of an action or proceeding by a governmental unit . . . to enforce... Continue Reading →

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Waiting For 11 Years After Chapter 7 Discharge to Notify Debtors Of Payment Obligations On Homestead?! (Campos v. Dyck)

Dropping the hammer! (Photo by Marilyn Swanson) By: Donald L Swanson What happens when a Debtor goes through bankruptcy, gets a Chapter 7 discharge, believes a second mortgage on the homestead is gone, makes no payments thereon, and hears nothing for eleven years—then the hammer drops, with a lien foreclosure sale pending? That’s precisely the issue... Continue Reading →

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What Should A Business Do When Facing Financial Stress?

A plan of action (photo by Marilyn Swanson) By: Donald L Swanson There are lots of well-run businesses.  But even the best of them face risks, from time to time, that threaten their existence.  Such risks often arise from events that can’t be foreseen, let alone controlled. When such risks become reality for a business, what... Continue Reading →

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Bankruptcy Overrides Arbitration In A Claim Objection Proceeding (In re Bridger)

Overriding? (Photo by Marilyn Swanson) By: Donald L Swanson This new bankruptcy opinion denies a creditor’s Motion to compel arbitration: Samson v. The LCF Group, Inc. (In re Bridger Steele, Inc.), Adv. No. 2:24-ap-2003 in Montana Bankruptcy Court (decided September 30, 2024; Doc. 10). What follows is a summary of that opinion’s arbitration-denial analysis. Background The... Continue Reading →

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Merchant Cash Advance Lender: A Defendant In Bankruptcy (In re Bridger)

Running away! (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Samson v. The LCF Group, Inc. (In re Bridger Steele, Inc.), Adv. No. 2:24-ap-2003 in the Montana Bankruptcy Court (decided September 30, 2024; Doc. 10). Background Debtor is a fabricator and seller of metal roofing and siding products. Debtor files its voluntary Chapter... Continue Reading →

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Appointing A Receiver To Decide Whether To Put Defendant Into A Voluntary Bankruptcy?! (City National v. Louisiana Apple)

Where diverse parties intersect (photo by Marilyn Swanson) By: Donald L Swanson A receiver is appointed to recommend, for the appointing court’s determination, whether to put the defendant into a voluntary bankruptcy proceeding. I don’t remember ever seeing such a thing before! The opinion is City National Bank of Florida v. Louisiana Apple, LLC, Case No.... Continue Reading →

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Chapter 12 v. Subchapter V: Which Should a Farmer Choose?

Which to choose? (Photo by Marilyn Swanson) By: Donald L Swanson Chapter 12 is for farmers. Subchapter V is for main street businesses. But in many circumstances, a farmer could be eligible for relief under both Chapter 12 and Subchapter V.  In such circumstances, the question is this: Which should the farmer choose—Chapter 12 or Subchapter... Continue Reading →

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