On Bankruptcy and Mediation
By: Donald L. Swanson Whenever a court goes out of its way to say in an opinion, “We aren’t deciding issues X and Y,” it’s time to take notice. The omitted issues must be significant, in some way, to what’s being decided; otherwise, there’s no reason to mention them. And when the opinion is from the... Continue Reading →
By: Donald L. Swanson The Alternative Dispute Resolution Act of 1998 ("ADR Act") is celebrating its twenty-year anniversary this year. It's impact has been highly effective -- but with some less-than-positive results. This article is about the latter. The ADR Act provides in 28 U.S.C. § 652(d): "Until such time as rules are adopted under... Continue Reading →
By: Donald L Swanson A student loan cannot be discharged in bankruptcy, unless the loan “would impose an undue hardship on the debtor and the debtor’s dependents.” --11 U.S.C. § 523(a)(8) So, what qualifies as “undue hardship” under § 523(a)(8)? --You might think that an, “I can’t pay both rent and child care, let alone student... Continue Reading →
By: Donald L. Swanson For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not! The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013). It's prepared by these two professors: --James H.... Continue Reading →
By: Donald L. Swanson “[T]he Supreme Court has time and time again held: where parties have agreed to arbitration, . . . the agreement of the parties is to govern. There is no reason to think that, with time, the bankruptcy courts will not get there too.” --Collier on Bankruptcy, ¶ 9019-05 (15th Ed. 1998). Bankruptcy... Continue Reading →
By: Donald L. Swanson The legal opinion is In re Residential Capital, LLC, 536 B.R. 132 (Bankr. S.D.N.Y. 2015). The Facts, Including Mediation ResCap bought residential mortgage loans and sold those mortgage loans to others. When a mortgage loan crisis hits, a decade or so ago, many of these mortgage loans go bad. Those who bought... Continue Reading →
By Donald L. Swanson On March 5, 2018, the U.S. Supreme Court issues its latest bankruptcy opinion in the case of U.S. Bank v. Village at Lakeridge, LLC., Case no. 15-1509. The Facts Village at Lakeridge has a single owner: MBP Equity Partners. And it has two creditors: it owes “over $10 million” to U.S. Bank... Continue Reading →
By: Donald L. Swanson Have you ever wondered what happens when disputing parties reach a mediated settlement agreement that requires further documentation—and then the settlement falls apart? What actually happens is often not-good. Here is an actual example, from a bankruptcy case, of what happens. The opinion is Blue Dog at #99 Inc. v. BP... Continue Reading →
By Donald L. Swanson On February 27, 2018, the U.S. Supreme Court issued an eagerly awaited bankruptcy opinion on the § 546(e) safe harbor defense against trustee avoidance actions. The new opinion is Merit Management Group, LP v. PTI Consulting, Inc., Case No. 16-784. The opinion, at first read, appears to dramatically narrow the reach and effect... Continue Reading →
By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →
MEDIATBANKRY 