On Bankruptcy and Mediation
By: Donald L Swanson Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question: Why is the bankruptcy system a lagging adopter of mediation?” A Surprising Answer The old-timer gave this surprising answer: “At the time of the Bankruptcy Code's enactment, the bankruptcy judge was viewed as a... Continue Reading →
Persistence through adversity (photo by Marilyn Swanson) By: Donald L Swanson You’ve gotta admire the Debtor in In re Deirdre Ventura. Debtor has been fighting to save a Bed and Breakfast business through bankruptcy: beginning in 2018 with a regular Chapter 11, and then struggling to get into Subchapter V. Debtor's is a you-can’t-make-this-stuff-up story of... Continue Reading →
Screwdriver v. Hammer By: Donald L Swanson Assignment for benefit of creditors (“ABC”) has existed for centuries under the common law of England and the United States. And the ABC process has worked well under that common law! ABC Function ABC has been an effective tool in the toolbox of debtor and creditor remedies for resolving... Continue Reading →
Interrelationships? (Photo by Marilyn Swanson) By: Donald L Swanson The interrelationship between an assignment for benefit of creditors (“ABC”) proceeding and an involuntary bankruptcy filing, for the same debtor, is governed by various portions of the Bankruptcy Code. But that relationship remains ill-defined, nonetheless. What follows is an attempt to summarize a bankruptcy court opinion dealing... Continue Reading →
A vacant seat at the mediation? (Photo by Marilyn Swanson) By: Donald L Swanson “We cannot glean whether the District Court’s outrage at Plaintiff’s attorneys stemmed from a belief that the attorneys acted in bad faith, or that they acted negligently.” --From Miller v. Midland Credit Management, Inc., Case No. 20-13390 (11th Cir., issued September 17,... Continue Reading →
Making adjustments? By: Donald L Swanson On June 21, 2022, Congress and the President (i) extend the $7.5 million debt limit for Subchapter V eligibility, and (ii) adjust other Subchapter V rules.[Fn. 1] One of the adjustments is this: formerly, an “affiliate” of any corporation did not qualify for Subchapter V; but now, only an “affiliate”... Continue Reading →
Scouting? (Photo by Marilyn Swanson) By: Donald L Swanson “Without these [mediated] settlements, there is no Plan.” From Opinion on Plan confirmation, In re Boy Scouts of America, Case No. 20-10343, Delaware Bankruptcy Court, Doc. 10136, at 80 (issued July 29, 2022). The Boy Scouts of America bankruptcy has achieved a milestone: on July 29, 2022,... Continue Reading →
Problematic? (Photo by Marilyn Swanson) By: Donald L Swanson “[T]he bankruptcy court— . . . (2) shall excuse compliance . . . if . . . an assignee for the benefit of the debtor’s creditors . . . was appointed or took possession more than 120 days before the date of the filing of the petition,... Continue Reading →
Who is footing the bill? (Photo by Marilyn Swanson) By: Donald L Swanson On August 15, 2022, the Tenth Circuit Court of Appeals reinstates its prior In re Hammons opinion, which deals with remedies for unconstitutionally lower quarterly fees charged to bankruptcy debtors in Alabama and North Carolina.[Fn. 1] Opinion Points Check out these points from... Continue Reading →
Supervision? (Photo by Marilyn Swanson) By: Donald L Swanson Congress must be allowed “to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” --from Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 94 (1989) (Blackmun dissent, emphasis added). Justice Blackmun had a point—back in 1989—that... Continue Reading →
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