Author: mediatbankry

My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than four decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers. I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.

U.S. Congress and Supreme Court Support ADR — But Some Bankruptcy Courts Remain Nonconformist on Mediation

NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... Continue Reading →

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A History of Ancient Bankruptcy Laws

By: Donald L. Swanson Etymology of the word “Bankrupt” According to the 1899 treatise linked below, the word “bankrupt” comes from the ancient days of Florence, Italy, when that city “occupied a prominent place among the commercial cities of the world.” The word “bankrupt” arises from the Latin words, “banca rotta,” which mean “broken bench”... Continue Reading →

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How Mediation Can Be Effective – Even When it Doesn’t Happen

By: Donald L. Swanson Arch Coal, Inc., files bankruptcy on January 11, 2016. By the month of May 2016, the debtor and its creditors are in contentious negotiations over terms of a Chapter 11 plan.  At one point, the parties think they have an agreement in principal, but things fall apart when putting settlement details... Continue Reading →

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What Happens to Fraudulent Transfer Claims When Barred by Bankruptcy’s Two-Year Statute of Limitations?

By Donald L. Swanson Two Hypotheticals and a Question: First Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 7 bankruptcy. The Chapter 7 Trustee refuses to pursue the fraudulent transfer claim, and the Bankruptcy Code’s two-year statute of limitations expires. Second Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 11 bankruptcy.... Continue Reading →

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How a Judge Makes Mediation Work: Supporting Mediation with Timely Orders

By Donald L. Swanson “We in bankruptcy impair contracts all day, every day . . . That is what we do.” --Judge Steven Rhodes, as quoted by Nathan Bomey in “Detroit Resurrected: To Bankruptcy and Back.” Michigan’s State Constitution provides that public pension rights cannot be impaired.  So, pensioners take the position, in Detroit’s bankruptcy,... Continue Reading →

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Romance and “Insider” Status, with Other Oddities, at U.S. Supreme Court (U.S. Bank v. Village at Lakeridge)

By Donald L. Swanson On March 27, 2017, the U.S. Supreme Court grants certiorari in the case of U.S. Bank N.A. v. Village at Lakeridge, LLC, U.S. Supreme Court Case No. 15-1509. The Facts Kathie Bartlett is one of five owners of a company that owns the Debtor. So, both Kathie Bartlett and her company... Continue Reading →

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Mandating Mediation to Develop a Mediation Culture

By:  Donald L. Swanson “[T]he full benefits of mediation are not reaped when parties are left to participate in it voluntarily.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). The article linked above is written by Dorcas... Continue Reading →

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U.S. Supreme Court: Stale Claims, Attorneys and Trustees in Chapter 13 & Dissent’s Call for Congress to Overrule (Midland Funding v. Johnson)

By Donald L. Swanson The case is Midland Funding, LLC v. Johnson, Supreme Court Case No. 16-348 (decided May 15, 2017).   It’s about creditors filing proofs of stale claims (i.e., claims barred by statute of limitations) in Chapter 13 cases. The Facts Aleida Johnson files Chapter 13 bankruptcy.  Then, Midland files a proof of claim... Continue Reading →

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How a Judge Makes Mediation Work: Minimizing Risks in Close-Call and Winner-Take-All Disputes

By Donald L. Swanson “The decision here is most likely all or nothing.  One side is going to win and the other side is going to lose—and that’s going to be very happy on one side and very tough on the other side.” --Judge Steven Rhodes, encouraging parties to reach a settlement, as quoted in... Continue Reading →

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U.S. Supreme Court and Its Private Rights v. Public Rights Problem in Bankruptcy (Spokeo v. Robins)

By:  Donald L. Swanson The opinion in the U.S. Supreme Court is Spokeo, Inc. v. Robins (issued on May 16, 2016, in Case No. 13-1339). The Facts of the Case Here are the facts: Spokeo, Inc., operates a “people search engine”: you can search its website for a person’s name and get information about him/her. Spokeo... Continue Reading →

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