On Bankruptcy and Mediation
By: Donald L. Swanson You know how bankruptcy debtors can strip-away out-of-money liens in Chapters 11, 12 and 13, using 11 U.S.C. § 506? Well . . . they can’t do it in Chapter 7. That’s because of a screw-up by the U.S. Supreme Court in an early opinion under the Bankruptcy Code—the opinion is Dewsnup... Continue Reading →
By: Donald L. Swanson A Hypothetical: You’ve sued an individual in state court for injunctive and other relief. Your defendant then files bankruptcy and receives a Chapter 7 discharge. Then, you ask the state court to determine that you can proceed with the lawsuit, despite the bankruptcy discharge. The state court says you can, and so... Continue Reading →
By: Donald L. Swanson New bankruptcy legislation to help small businesses and entrepreneurs, titled the “Small Business Reorganization Act (SBRA),” is wending its way through the U.S. Senate. This piece of legislation is long over-due and should be enacted with all due haste. Here are some reasons why. Mom & Pop Businesses Have the Same Bankruptcy... Continue Reading →
By: Donald L. Swanson “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Constitution, Art. 1, Sec. 8 (emphasis added). Bankruptcy law is special, to begin with. There is no other area of law quite like it -- either legally... Continue Reading →
By: Donald L. Swanson U.S. politicians love to talk about helping poor people—unless, that is, the poor owe money that can’t be repaid. U.S. politicians also love to talk about helping small businesses and entrepreneurs—unless, that is, the small business or entrepreneur owes money that can’t be repaid. When uncollectible debts are involved, politicians turn surly... Continue Reading →
By: Donald L Swanson Chapter 12 of the Bankruptcy Code exists for the protection of family farms. However, Chapter 12 has, from the beginning, imposed a debt limit for eligibility [Fn. 1]. This debt limit needs to be eliminated. Here’s why. Family Farms—Then and Now Back in 1986, at enactment of Chapter 12, the vast majority... Continue Reading →
By: Donald L Swanson Imagine a federal bankruptcy agency—like the Securities and Exchange Commission—called the “United States Bankruptcy Administration.” That’s exactly what was proposed by the report of the 1970s Bankruptcy Commission, which resulted in the Bankruptcy Code of 1978. The bankruptcy agency proposal was, in fact, “the most important innovation of the Commission’s report,” along... Continue Reading →
By: Donald L. Swanson When an executory contract is rejected in bankruptcy, what happens to the rights of the other party under that contract: Are those rights vaporized? Do those rights continue as if nothing happened? or Are those rights affected in some other way? The U.S Supreme Court will tackle this question in the case... Continue Reading →
By: Donald L Swanson Every now and then a good thing happens in bankruptcy. It’s not very often—but good things do happen. Here’s a story of one of those good things [Fn. 1]. Our Hero (the bankruptcy Debtor) is a 54 year old, single mother of two college-aged children. She is a self-employed professional in a... Continue Reading →
