On Bankruptcy and Mediation
COVID-19 Bankruptcy Relief Extension Act of 2021 By: Donald L Swanson It's finally happened -- on bi-partisan and nearly-unanimous votes. The $7.5 million debt limit for Subchapter V eligibility, set to expire on March 27, 2021, is extended. Yet, it took a March 2021 fire drill to do so (see this webpage), which fire drill concluded... Continue Reading →
https://youtu.be/ysWRt4_-6uk By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →
Timing (photo by Marilyn Swanson) By Donald L. Swanson Here are opposing Subchapter V discharge rules—based on whether the plan is confirmed consensually or non-consensually: Consensual Confirmation. “If a plan is consensual and confirmed under Section 1191(a), the debtor receives a discharge under Section 1141(d)”; butNon-Consensual Confirmation. If a plan is non-consensual and confirmed under Section... Continue Reading →
A tough task (photo by Marilyn Swanson) By Donald L. Swanson Lawsuits opposing discharge are tough, to begin with. That’s true whether the action is under Sec. 523 (opposing discharge of the plaintiff’s claim) or under Sec. 727 (opposing discharge of all claims). Here are some reasons why: A revenge-type motivation is commonly involved, since all... Continue Reading →
Filling the void (photo by Marilyn Swanson) By: Donald L Swanson “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” --U.S. Constitution, Art. 1, Sec. 10, Cl. 1 (the “Contracts Clause”). One of the earliest opinions from the U.S. Supreme Court on the subject of bankruptcy is Sturges... Continue Reading →
By: Donald L Swanson On January 14, 2021, the U.S. Supreme Court issued its majority and concurring opinions in the City of Chicago v. Fulton case. The opinions give a technical victory to the City on a narrow legal issue but suggest that the City may be in a difficult position on a variety of related... Continue Reading →
Engaged in business or commercial activities? (photo by Marilyn Swanson) By: Donald L Swanson Negotiating a lease for office space in a portion of the debtor's business premises qualifies as “engaged in commercial or business activities" on the petition date for Subchapter V eligibility. That’s the ruling by Hon. Charles L. Nail, Jr., Bankruptcy Judge for... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson We've dodged the bullet . . . again! Yesterday, the U.S. Supreme Court denied certiorari in GE Capital Retail Bank v. Belton (Case No. 20-481), where the question presented is: Which federal statutory scheme takes precedence in resolving important bankruptcy issues -- the Bankruptcy Code or the... Continue Reading →
https://youtu.be/W23y7atJORM Debtor digital signatures -- some background Reprinted with permission from the ABI Journal, Vol. XXXVIX, No. 1, January 2020. Here is a link to the original publication. Debtors sign their federal tax returns digitally all the time. The Internal Revenue Service (IRS) allows digital signing, without reservation; the Department of Justice (DOJ) prosecutes digital... Continue Reading →
A mediation session? (photo by Marilyn Swanson) By: Donald L Swanson Every now and then, something happens that can serve as a model or form or checklist for similar situations. Chapter 11 plan confirmation disputes are often complex and involve multiple parties. In the case of In re Garrett Motion, Inc., (Case No. 20-12212, S.D.N.Y. Bankruptcy),... Continue Reading →
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