On Bankruptcy and Mediation
Affiliates? (photo by Marilyn Swanson) By: Donald L Swanson "The term 'small business debtor'— . . . (B) does not include—(i) any member of a group of affiliated debtors that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than [$7,500,000] (excluding debt owed to 1 or more affiliates or insiders)." --11 U.S.C. §... Continue Reading →
A permanent extender? (photo by Marilyn Swanson) By: Donald L. Swanson The Small Business Reorganization Act of 2019 (aka “Subchapter V”) has been in effect since February 19, 2020. And here’s something we’ve learned since then: Subchapter V meets a definite need in our society for helping small businesses and owners in financial stress. I’ve seen... Continue Reading →
The path to confirmation? (Photo by Marilyn Swanson) By: Donald L Swanson 11 U.S.C. § 1191 is Subchapter V’s plan confirmation statute. One confirmation essential, from § 1191(b), is that a Subchapter V plan must be “fair and equitable” to each impaired class that does not accept the plan. This article summarizes two bankruptcy court opinions... Continue Reading →
By: Donald L. Swanson Studying mediation is hard to do—because of confidentiality concerns. One study from decades past, however, gets around the problem. It focuses on a course in the UCLA mediation clinic in which students act as mediators. The study looks at transcripts and recordings of mediation sessions (made with consents of the parties for... Continue Reading →
Unbiased justice (photo by Marilyn Swanson) By: Donald L Swanson The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States [on whether to grant the Petition for Writ of Certiorari]. --From U.S. Supreme Court docket entry dated October 5, 2020, in Deutsche Bank v. McCormick Foundation... Continue Reading →
Disputed property line is on the west side of this photo By Donald L. Swanson The opinion is In re Mattox, Case No. 18-10101-13 in the Kansas Bankruptcy Court, decided October 19, 2020 (Doc. 93). Homestead Exemption Dispute Here’s what happened. Debtor files Chapter 7 bankruptcy, claiming a homestead exemption in 43 acres of property, having... Continue Reading →
A conduit (photo by Marilyn Swanson) By Donald L. Swanson Under the Bankruptcy Code, an “initial transferee” is strictly liable for a fraudulent transfer—there is no good faith, subsequent advance, or similar defense. Fortunately for some fraudulent transfer defendants, it’s possible to be the “recipient” of a transfer as a mere conduit, without becoming a “transferee”... Continue Reading →
City of Chicago (Photo by Marilyn Swanson) By: Donald L Swanson So . . . I’m reading through the transcript of oral arguments at the U.S. Supreme Court on City of Chicago v. Fulton (Case No. 19-357) from October 13, 2020. The first thing that jumps out at me, three pages in, is this: there is... Continue Reading →
Voting (photo by Marilyn Swanson) By: Donald L Swanson In Subchapter V of the Bankruptcy Code, the “Post-Petition Disclosure and Solicitation” provisions of § 1125 do not apply without a specific court order (see § 1181(b)). Voting Questions So, a question exists on how the plan voting provisions of § 1126 and Fed.Bankr.R. 3018 might apply... Continue Reading →
War and Peace By: Donald L Swanson Many factors motivate disputing parties parties to mediate;Disputing parties are rational actors, driven by self-interest;There is a a strong relationship between conflict costs and the willingness of the parties to mediate; andA precondition for negotiations is a perception by the disputing parties that, (i) a negotiated outcome is preferable... Continue Reading →
MEDIATBANKRY 