On Bankruptcy and Mediation
Flip-Flopping (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const., Article I, §8, cl. 4). Once upon a long time ago, the U.S. Constitution’s Bankruptcy Clause, and its “uniform Laws” requirement,... Continue Reading →
A death knell? (photo by Marilyn Swanson) By: Donald L Swanson Merchant cash advances are the business version of payday loans: a relatively small amount of money loaned at a high rate of interest. Payday loans are repaid from debtor’s next paycheck, while merchant cash advances are repaid by daily withdrawals from debtor’s bank account. Merchant... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The United States of America is asking the U.S. Supreme Court to rule on the constitutionality of having U.S. Trustees in 88 judicial districts and Bankruptcy Administrators in 6 judicial districts. What follows is a summary of the U.S. Trustee’s explanation of the constitutionality issue in a... Continue Reading →
11 U.S.C. Sec. 1191(c)(2) By: Donald L Swanson “The three-year term here is fair and equitable, as it properly balances the risks and rewards for both the debtor and its creditors”; and“the Court declines to fix a longer plan period.” --From a Bankruptcy Court opinion confirming Debtor’s Subchapter V plan—In re Urgent Care Physicians, Ltd, Case... Continue Reading →
A reasonable and necessary path (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee is entitled to allowance of fees, even when the Subchapter V case is dismissed for lack of authority to file the case. That's the December 16, 2021, ruling in In re Besthost Inn LLC, Case No 21-12158 in the... Continue Reading →
An outlier (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy Court denies a motion to compel arbitration, because the arbitration agreement is a rejected executory contract. This appears to be a new and outlying theory for denying arbitration of bankruptcy disputes. The opinion is Highland Capital Management, L.P. v. Dondero et al., A.P. No. 21-03003,... Continue Reading →
A “single asset real estate”? (Photo by Marilyn Swanson) By: Donald L Swanson Rules for Subchapter V eligibility exclude a “single asset real estate” business. The operative statute provides: “Debtor’ . . . [in Subchapter V] means a person engaged in commercial or business activities . . . excluding a person whose primary activity is the... Continue Reading →
Not real (photo by Marilyn Swanson) By: Donald L Swanson An insurer in the Boy Scouts of America bankruptcy [fn. 1] files a motion to compel production of documents held by a proposed mediator who did not become an actual mediator in the case. The proposed mediator opposes production based upon a mediation privilege. Guess how... Continue Reading →
Election (photo by Marilyn Swanson) By: Donald L Swanson A new Bankruptcy Court opinion applies the § 1111(b) election and its two-step test in the context of a Subchapter V plan confirmation. The opinion is In re Topp’s Mechanical, Inc., Case No. 21-40038, Nebraska Bankruptcy Court (issued November 23, 2021, Doc. 94). What follows is an... Continue Reading →
Placing limitations upon (Photo by Marilyn Swanson) By: Donald L Swanson Currently before the U.S. Supreme Court on a Petition for writ of certiorari is Fast Auto Loans, Inc. v. Maldonado, Case No. 21-31 (Petition filed 7/7/2021). The Question In Fast Auto v. Maldonado, the question is this: Can state law place a limitation the operation... Continue Reading →
MEDIATBANKRY 