On Bankruptcy and Mediation
A Justice Breyer opinion at the U.S. Supreme Court -- Stern v. Marshall By Donald L. Swanson In a few months, Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court. The bankruptcy world will miss him. The reason for discussing this subject now (instead of waiting for the retirement to actually happen)... Continue Reading →
Rainbow—a spectrum of light (photo by Marilyn Swanson) By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.” 11 U.S.C. § 1183(b)(7). Facilitation is a mediator-like tool that can be used by every bankruptcy trustee in every case. Conflicting Duties For Subchapter V trustees, however,... Continue Reading →
Unimpaired (photo by Marilyn Swanson) By Donald L. Swanson Claims are “impaired,” unless the plan “leaves” their rights “unaltered.” § 1124(1). This rule is not as simple and unequivocal as it seems, according to an In re Hertz opinion. [Fn. 1] Here’s why. Plan Treatment of Unsecured Claims Claims of unsecured creditors in the Hertz bankruptcy... Continue Reading →
Fed.R.Bankr.P. 9023 & Fed.R.Civ.P. 59 By: Donald L Swanson Imagine this: a U.S. District Court enters judgment in a case that’s “related to” a bankruptcy, and we want to file a motion for new trial or to amend the judgment. So, which deadline applies to the motion: 28 days under Fed.R.Civ.P. 59(e); or14 days under Fed.R.Bankr.P.... Continue Reading →
Sec. 1183(c) By: Donald L Swanson There is no doubt about this: after the consensual confirmation of a Subchapter V plan: the trustee’s role terminates upon “substantial consummation” (see § 1183(c)); and“substantial consummation” often occurs shortly after confirmation (see § 1101(2)). The early trustee termination is not merely a possibility, it’s mandatory upon substantial consummation... Continue Reading →
Monitoring? (photo by Marilyn Swanson) By: Donald L Swanson Question: Does a Subchapter V trustee have a duty to “monitor” debtor’s compliance with a confirmed plan? Answer: “No.” I’ll try to explain . . . and to add a suggestion on what Subchapter V trustees might do, instead. Consensual Confirmation When a plan is confirmed under... Continue Reading →
A safety valve? (Photo by Marilyn Swanson) By: Donald L Swanson Lots of things are wrong with the student loan program in these United States. For example: It’s a corporate-welfare program for high-price colleges; butTheir students pay the price. Unfortunately, the safety valve protection for students (i.e., a bankruptcy discharge) has failed them—and made the problem... Continue Reading →
An overreach? (photo by Marilyn Swanson) By: Donald L Swanson “Mediating judges have largely slipped through the cracks of widespread academic discussion. . . . Yet, some practices create the perception or the reality of judicial overreach in ways that elude standard judicial accountability measures.” Prov. Melissa B. Jacoby, “Other Judge’s Cases,” at 68 (January 22,... Continue Reading →
A rate of flow (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Wells Fargo Bank, Indenture Trustee v. The Hertz Corp. (In re The Hertz Corp), Adv. P. No. 21-50995, Delaware Bankruptcy Court (issued December 22, 2021, Doc. 28). The question is whether (and at what rate) post-petition interest can be recovered on... Continue Reading →
A report By: Donald L Swanson Here’s a first of its kind: a report about federal judges mediating other judges’ cases. It's a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law... Continue Reading →
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