On Bankruptcy and Mediation
An early end By Donald L. Swanson A Subchapter V trustee has various duties established by statute (see 11 U.S.C. § 1183(b)). Such duties are substantial and important, but most are concluded upon confirmation of a Subchapter V plan. Administrative Expense—Early Termination Savings Of necessity, a Subchapter V trustee’s performance of statutory duties creates an... Continue Reading →
Face-to-face interactions (photo by Marilyn Swanson) By: Donald L Swanson People are “more honest when communicating face-to-face than through an intermediary,” and that is true in “even the briefest of face-to-face interactions.” Study Such are the findings of a study titled, “I Can’t Lie to Your Face.” [Fn. 1] Face-to-face interactions in the study involve visual... Continue Reading →
Fixed (photo by Marilyn Swanson) By: Donald L Swanson A debtor’s Subchapter V plan must provide for disposable income payments over a “3-year period, or such longer period not to exceed 5 years as the court may fix” (11 U.S.C. § 1191(c)(2), emphasis added). One of the mysteries of Subchapter V is this: what standards should... Continue Reading →
Weak and strong (photo by Marilyn Swanson) By: Donald L Swanson Persuasion plays a pivotal role in all legal contexts: e.g., pleadings, motions, hearings, mediations, trials and appeals. A recent study on “Strategic Storytelling” [Fn. 1] looks at how the use of a story to present facts works as a tool of persuasion. Prior research has... Continue Reading →
An individual -- not an entity (photo by Marilyn Swanson) By: Donald L Swanson Do § 523(a) discharge exceptions apply to non-individual debtors in Subchapter V? That question has been resolved, with opposite results, in two recent opinions by two bankruptcy courts. What follows is a summary of operative statutes and the two opinions. Operative Statutes... Continue Reading →
College Sports (photo by Marilyn Swanson) By: Donald L Swanson On June 21, 2021, the U.S. Supreme Court orders the National Collegiate Athletic Association (“NCAA”) to stop limiting “education-related compensation or benefits” that schools provide to student athletes—any such limitation violates U.S. antitrust laws. [Fn. 1] This is not the first time the U.S. Supreme Court... Continue Reading →
Brunner's "certainty of hopelessness" test? (photo by Marilyn Swanson) By: Donald L Swanson “Petition DENIED” That’s the ruling of the U.S. Supreme Court, dated June 21, 2021, in McCoy v. United States (Case No. 20-886). The question in McCoy v. United States focuses on the test for discharging student loans in bankruptcy, under the “undue hardship”... Continue Reading →
https://youtu.be/fkGgti3-DsA By: Donald L Swanson Amy Quackenboss is Executive Director of the American Bankruptcy Institute (“ABI”). ABI is the nation’s largest, most diverse and premier community of bankruptcy professionals. It has more than 10,000 members, consisting of judges, attorneys, law professors, accountants, investment bankers and turn-around specialists, throughout the United States and internationally. In the interview... Continue Reading →
Surviving some heat (photo by Marilyn Swanson) By: Donald L Swanson There are two bankruptcy court opinions—issued a week apart. One converts a Chapter 11 case, involuntarily, to a case under Chapter 7. The Chapter 11 Debtor in the other opinion survives a similar conversion effort—but just barely and due to unique circumstances. A comparison and... Continue Reading →
Making progress with each step (photo by Marilyn Swanson) By: Donald L Swanson Very positive. That’s the experience in Subchapter V so far, with the “facilitate” role of a trustee in achieving consensual or uncontested plan confirmations. What the Subchapter V experience demonstrates is this: early involvement of an independent person, focused on achieving a consensual... Continue Reading →
MEDIATBANKRY 