On Bankruptcy and Mediation
Custodians By: Donald L Swanson The case is, In re U.S.A. Parts Supply, Cadillac U.S.A. Oldsmobile U.S.A., L.P., Case No. 20-bk-241, U.S. Bankruptcy Court, Northern West Virginia (decided Aug. 17, 2020, Doc. 143). On March 22, 2020, Debtor files a voluntary Chapter 11 petition under Subchapter V as a small business debtor. Creditors promptly file a... Continue Reading →
Access is unavailable (photo by Marilyn Swanson) By Donald L. Swanson Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”). The Zoom technology is wonderful! It is revolutionizing litigation processes. And the resulting changes are here... Continue Reading →
Comparing and contrasting (photo by Marilyn Swanson) By Donald L. Swanson Pre-bankruptcy planning is an important part of representing an individual debtor in a bankruptcy case. In fact, such planning may be the most-crucial part of the entire bankruptcy process. In pre-bankruptcy planning, the goal is to establish a strategy for the upcoming bankruptcy and an... Continue Reading →
Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct. Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →
An election system and process (photo by Marilyn Swanson) By: Donald L Swanson Wow—didn’t expect to see an § 1111(b) election opinion under Subchapter V this soon! But here it is: In re Body Transit, Inc. d/b/a/ Rascals Fitness, Bky. No. 20-10014 in Eastern Pennsylvania Bankruptcy Court (decided August 7, 2020, by Hon. Eric. L. Frank,... Continue Reading →
By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →
Implied consent (photo by Marilyn Swanson) By: Donald L Swanson “Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree.” --U.S. Supreme Court in Wellness Int’l Network, Ltd. V. Sharif, 575 U.S. 665 (2015). The Supreme Court’s Wellness opinion adds the following: “The... Continue Reading →
Olde England (photo by Marilyn Swanson) By: Donald L Swanson “Be sure your sin will find you out.” (Numbers 32:23 (KJV)) Every now and then, we get a glimpse into human nature and how people work together, for good and for ill. What follows is one such glimpse, into the small cheat in business activities. --... Continue Reading →
The wheels of commerce must continue to turn (photo by Marilyn Swanson) By: Donald L Swanson Under UCC § 9-332, a debtor’s attorney can receive, and keep, pre-petition retainers paid from a lender’s collateral proceeds—absent collusion. That’s the conclusion of a recent Bankruptcy Court opinion in Walters v. Lynch (In re 3P4PL, LLC), Adv. No. 15-1120,... Continue Reading →
New York By: Donald L Swanson As necessity is the mother of invention, so mandatory mediation programs are the progeny of overburdened courts and backlogged dockets. That’s what happened, a couple years ago, in a New York appellate court: this overburdened court, with seriously-backlogged dockets, instituted mandatory mediation as one of a series of steps to... Continue Reading →
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