Avoiding Liens On Residence: Homestead Exemption vs. Preserving For Estate vs. Tax Lien (Hutchinson v. Salven)

A homestead (photo by Marilyn Swanson) By: Donald L Swanson Here’s a new and interesting opinion from the Ninth Circuit Court of Appeals: Hutchinson v. Salven, Case No. 19-60065 (filed 10/19/2021). The opinion involves these facts: the IRS files a $162,000 tax lien for penalties against Debtors’ homestead;Debtors then file their Chapter 7 bankruptcy and attempt... Continue Reading →

Study: Effectiveness Of Deadlines For Responding To Offers

An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers.  Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →

Bankruptcy Plan Term (3 to 5 Years) — A Comparison Of Statutes

11 U.S.C. § 1191(c)(2) By: Donald L Swanson Subchapter V of Chapter 11 authorizes a reorganization plan to have a term of three to five years.  Here is the precise language involved, in § 1191(c)(2)(A)&(B): “in the 3-year period, or such longer period not to exceed 5 years as the court may fix.” So . .... Continue Reading →

Pandemic-Induced Improvements In Judicial Processes Are Here To Stay: A Report

Revolutionary By: Donald L Swanson An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report. Pre-Pandemic Reality Before the pandemic began, US courts lag behind other... Continue Reading →

Alabama & North Carolina: Squatter’s Rights On A Non-Uniform Bankruptcy System? (Siegel v. Fitzgerald)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson This is bizarre: Back in the 1980s, federal politicians in Alabama and North Carolina carve out a special deal for themselves (their bankruptcy funding is by taxpayers), while all other 48 states have a different deal (bankruptcy funding is by debtor fees); andThis disparity persists in varying... Continue Reading →

ABI’s Mediation Committee: A Home For The “Facilitate” Role Of Subchapter V Trustees

https://youtu.be/0kEXfRwXDSg By: Donald L Swanson The Mediation Committee of the American Bankruptcy Institute promotes mediation as a tool for resolving bankruptcy disputes. The new statutory duty of a Subchapter V trustee to “facilitate the development of a consensual plan of reorganization” (under § 1183(b)(7)) is a mediator-like role, which finds a home in ABI’s Mediation Committee.... Continue Reading →

Equitable Mootness Doctrine: Opposed At U.S. Supreme Court By 21 Law Professors (Hargreaves v. Nuverra)

Failing to perform their function (photo by Marilyn Swanson) By: Donald L Swanson The doctrine of equitable mootness “is irreconcilable with” the “virtually unflagging obligation” of appellate courts “to exercise the jurisdiction given them.” --From Amicus Brief of 21 Bankruptcy Law Professors, in Hargreaves v. Nuverra Environmental Solutions Inc., Case No. 21-17, U.S. Supreme Court (Petition... Continue Reading →

Observations on the Survey of Facilitation by Subchapter V Trustees

11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate The following article is reprinted with permission from the American Bankruptcy Institute—originally published in its Mediation Committee Newsletter.  Here is a link to the original publication, dated 6/30/2021. By: Hon. Louis H. Kornreich, David A. Mawhinney & Donald L Swanson The Bankruptcy Code directs the trustee in... Continue Reading →

Transfers With Intent To Hinder, Delay Or Defraud: History Of The Badges Of Fraud

Hindering and delaying the flow of water (photo by Marilyn Swanson) By: Donald L Swanson Fraudulent conveyance law, with its “badges of fraud” approach, has been around for a very long time.  We now have a new and fascinating article, by Prof. Emily Kadens, that provides new information and insights on this history. [Fn. 1] One... Continue Reading →

Facilitation Skills For Subchapter V Trustees

Webinar -- Promotional Notification By: Donald L Swanson What follows is a script (more or less) of my portion of a panel presentation in an webinar, presented on September 14, 2021, sponsored by the Mediation Committee of the American Bankruptcy Institute ("ABI"), titled "Facilitation Skills for Subchapter V Trustees." A video of the webinar appears at... Continue Reading →

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