There are Problems Mediation Can’t Solve (Ripa v. Perfetti)

By: Donald L Swanson Lots of things are wrong with the case of Ripa v. Perfetti [Fn. 1]. The ills start with this fact: all parties are pro se.  The case illustrates, once again, that limitations exist on the problems mediation can solve. In this case, a frustrated Bankruptcy Judge encourages the parties to mediate: one side... Continue Reading →

Subchapter V: Can A Plan Term Be Less Than 3 Years?

An early end By: Donald L Swanson “The term of a Subchapter V plan can be less than three years, based upon the language of the statute!” --A Bankruptcy Judge's comment at a bankruptcy conference in December 2019 (as I recall it). Upon hearing that comment, I went scrambling to find the statutory language.  And here... Continue Reading →

Bad Automatic Stay Form & Violating the Spirit Of A Mediation Order (In re Nilhan)

Bad form: Angus cattle on a road at dusk! (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is dated November 9, 2020, and appears in the jointly administered cases of In re Nilhan Developers, LLC, Case No. 15-58443 (Northern Georgia Bankruptcy Court) (Doc. 206), and In re Bay Circle Properties, LLC, Case No. 15-58440... Continue Reading →

When To Start Drafting the Mediation Settlement Agreement?

Getting started (Photo by Marilyn Swanson) By: Donald L Swanson The American Bar Association published an article titled, “Draft the Settlement Agreement First,” by John Bickerman. [Fn. 1]  The article begins with the following: “One of the most effective techniques I know and use as a mediator is to begin negotiating the terms of the settlement agreement before... Continue Reading →

A Study of Anger and Its Effects — Implications for Mediation?

What is his perspective? (photo by Marilyn Swanson) By: Donald L Swanson Have you ever been in a mediation—or other negotiation context—where one party blows-up in a fit of anger?  And wondered about the effect of that moment on the negotiation effort? A 2019 study on "Losing your temper" shows that “anger reduces perspective-taking.” [Fn. 1]... Continue Reading →

Refusing a Mediation Opportunity

By: Donald L. Swanson “By providing you with this notice, [creditor’s name] is merely complying with the notice requirements under the Nebraska Farm Mediation Act. [Creditor’s name] does not, in any way, acquiesce to participation in the mediation process with you.” --Two sentences from a creditor’s notice of mediation rights to a debtor under Neb. Rev.... Continue Reading →

Bankruptcy’s Uniformity Requirement & Federal Arbitration Act (Nelson v. Carland)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Constitution requires that bankruptcy laws be “uniform . . . throughout the United States.” Among such uniformity requirements is this: rulings on core bankruptcy issues must be subject to meaningful appellate review—all the way to the U.S. Supreme Court. Explaining this requirement is the dissent... Continue Reading →

Mediation Paves The Way To Plan Confirmation — Quickly! (In re Tailored Brands)

The way is paved (photo by Marilyn Swanson) By: Donald L Swanson The parent company of menswear chains Jos A. Bank and Men’s Wearhouse filed Chapter 11 bankruptcy on August 2, 2020.  And it achieved a confirmed plan on November 13, 2020.  The case is In re Tailored Brands, Inc., Case No. 20-33900 in the Southern... Continue Reading →

Subchapter V Eligibility: Beware The “Affiliated Debtor” Trap (In re 305 Petroleum)

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 →

Vacating A Court Order That Violates A Mediated Settlement Agreement—For “Mistake” (In re Mattox)

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 →

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