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.

ABC Under The Common Law: An Out-Of-Court Tool For Liquidating Assets With Efficiency & Credibility—But With Court Assistance Available (First Bank v. Unique Marble)

A tool? (Photo by Marilyn Swanson) By:  Donald L. Swanson An assignment for benefit of creditors (an “ABC”) under the common law is an out-of-court tool for liquidating a business debtor’s assets in an efficient and credible manner.  Such a common law tool has been used, effectively and frequently, for many years in such states... Continue Reading →

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Advisory Opinion On An Issue Resolved By Stipulation Of The Parties (In re Whittaker—Part 5)

By: Donald L Swanson Here’s a curious thing: an advisory opinion from a U.S. Circuit Court of Appeals on an issue for which there is no controversy and that is mostly academic. That’s exactly what we have in In re Whittaker Clark & Daniels, Inc., Case Nos. 24-2210 & 24-2211 (3rd Cir., decided September 10, 2025)(see... Continue Reading →

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Common Law ABCs v. Receiverships

The new Act By: Donald L Swanson Assignments for benefit of creditors (“ABCs”) and receiverships have been utilized effectively for centuries under the common law, side-by-side as separate and distinct and complementary remedies for liquidating assets. Differences Differences between the two are that: receiverships are a court-supervised process initiated by a creditor to dispossess the debtor... Continue Reading →

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Can Bankruptcy Courts Ever Create a Federal Common Law Choice-Of-Law-Rule? (In re Whittaker–Part 4)

By: Donald L Swanson It’s not every day that the author of a Circuit Court opinion also authors a concurring opinion. But that’s exactly what happens here: In re Whittaker Clark & Daniels, Inc., Case Nos. 24-2210 & 24-2211 (3rd Cir., decided September 10, 2025).## Overview The issue in the concurring opinion deals with this question:... Continue Reading →

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Receiverships v. Bankruptcies = The Wild West v. The Rule Of Law

The wild west (photo by Grant Showalter-Swanson) By: Donald L Swanson When comparing proceedings under the Bankruptcy Code with receivership proceedings under state law, there is a similarity: both require intensive court supervision. And there is a huge difference: bankruptcy provides precise rules—lots of them—under an extensive Code and accompanying national and local rules and a... Continue Reading →

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Equitable Tolling & Nondischargeability Filing Deadline (In re Osborn)

A place of equity? (Photo by Marilyn Swanson) By: Donald L Swanson I recently published this linked article on equitable tolling of a deadline for filing a dischargeability complaint or a motion to extend that deadline: Equitable Tolling & Due Process for Dischargeability Deadlines (TL90108 v. Ford). Here’s another opinion on that same subject with an... Continue Reading →

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“Abuses Of Receiverships”—A Problem From The Late 1800s And Early 1900s

Built circa 1891 (photo by Marilyn Swanson) By: Donald L Swanson Here is an article from more than a century ago: Jacob Trieber, Abuses of Receiverships,”  37 Yale L.J. 275-279 (1909).  What follows is a summary of that article. Receivership—A Judicial Remedy Receivership is a judicial remedy to preserve a fund or property from spoliation, waste... Continue Reading →

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Failing To Prove “Intent” For “Embezzlement” Discharge Exception (In re Parker)

Intent? (Photo by Marilyn Swanson) By:  Donald L. Swanson Here’s a refresher on the law of nondischargeability for “embezzlement” under § 523(a)(4): Martin v. Parker (In re Parker), Case No. 23-2084 (4th Cir., decided July 1, 2025). Facts Morton and Peggy cohabit for years without marrying.  But they do sign a “Post Marital Agreement,” under... Continue Reading →

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What Happens To A Tort Claim Upon Abandonment By The Chapter 7 Trustee? (Martineu v. Wier)

What happens to a rainbow? (Photo by Marilyn Swanson) By: Donald L. Swanson When a Chapter 7 bankruptcy trustee abandons the debtor’s tort claims, what happens to those tort claims? Such question is addressed in a recent opinion of the U.S. Fourth Circuit Court of Appeals,[fn. 1] by describing a prior bankruptcy ruling (Martineau v. Wier,... Continue Reading →

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Fraudulent Transfer: What Does “Reasonably Equivalent Value” Mean? (In re White)

Are they all "reasonably equivalent"? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Bird v. Wardley (In re White), Case No. 24-4033 (10th Cir., decided July 22, 2025). It addresses the meaning of the phrase “reasonably equivalent value” in the Uniform Fraudulent Transfer Act. Facts The In re White Debtor creates a start-up... Continue Reading →

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