On Bankruptcy and Mediation
Narrow (Photo by Marilyn Swanson) By: Donald L Swanson When a federal court approves a [bankruptcy] plan allowing someone to put its hands into another person’s pockets, the person with the pockets is entitled to be fully heard and to have legitimate objections addressed.[Fn. 1] Pop Quiz Question: Does Insurer, in the following facts, have standing... Continue Reading →
A tapering approach? (Photo by Marilyn Swanson) By: Donald L Swanson "What’s the Best Way to Give Ground in Negotiations?" is the report of a study on negotiating strategies. [Fn.1] What follows is a summary of that report. Overview In negotiating, a key challenge is to decide how much to change your offer at each round... Continue Reading →
Is this feasible? (Photo byMarilyn Swanson) By: Donald L Swanson Feasibility of a bankruptcy plan is always a tough issue. Think about it: debtors are in bankruptcy because they can’t make their payments when due; and in bankruptcy, a debtor must propose a plan for paying creditors—that will work this time. We now have a new... Continue Reading →
In-person involvement (photo by Marilyn Swanson) By: Donald L Swanson 3M’s Chief Executive Officer “must personally attend, and listen and engage directly with the mediators.” From mediation Order entered May 19, 2023, in In re 3M Combat Arms Earplug Products Liability Litigation, Case No. 3740 (Doc. 3740), by U.S. District Court in Northern Florida. Wow! That’s... Continue Reading →
A missing piece? (Photo by Marilyn Swanson) By: Donald L Swanson One of the missing pieces in Subchapter V is this: it’s easier for a corporate business to meet the “engaged in commercial or business activities” standard for eligibility than it is for an individual owner/guarantor of that business. Here’s how one court describes the missing... Continue Reading →
Hope?! (photo by Marilyn Swanson) By: Donald L Swanson The Bankruptcy Code's Subchapter V provides hope to formerly successful entrepreneurs. It's a hope that never before existed. I'll try to explain. Formerly Successful Entrepreneurs – A Historical Problem The Bankruptcy Code became effective in October of 1979. And I’ve been practicing under the Bankruptcy Code from... Continue Reading →
Working together? (photo by Grant Swanson) By: Donald L Swanson Answers to these two questions can get tricky: When should a previously successful business engage distress-debt counsel? What is the role of the business’s general counsel once that happens? Second Question: Role Here’s the answer to the second question first: The business’s general counsel needs to... Continue Reading →
A direct hit (photo by Marilyn Swanson) By: Donald L Swanson The hits keep coming for student loans in bankruptcy. This time the hit is this: student loans for attending medical school do not qualify as “commercial or business” loans for Subchapter V eligibility. The central finding, for a medical student who worked as an employee... Continue Reading →
Easily satisfied? (photo by Marilyn Swanson) By: Donald L Swanson Is a debtor “engaged in commercial or business activities” for Subchapter V eligibility? Such question has been addressed on many occasions and by many courts. The trend seems to be toward a conclusion that the nature and quantity of “commercial or business activities” required for Subchapter... Continue Reading →
By: Donald L Swanson The 2022 Amendments to the Uniform Commercial Code were proposed as, and expected to be, a non-partisan and apolitical piece of legislation. Road Bump That expectation met a road bump in South Dakota when the proposed Amendments were adopted by both the House and Senate—but then vetoed by the Governor. The Governor... Continue Reading →
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