On Bankruptcy and Mediation
Revolutionary By: Donald L Swanson An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report. Pre-Pandemic Reality Before the pandemic began, US courts lag behind other... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson This is bizarre: Back in the 1980s, federal politicians in Alabama and North Carolina carve out a special deal for themselves (their bankruptcy funding is by taxpayers), while all other 48 states have a different deal (bankruptcy funding is by debtor fees); andThis disparity persists in varying... Continue Reading →
Failing to perform their function (photo by Marilyn Swanson) By: Donald L Swanson The doctrine of equitable mootness “is irreconcilable with” the “virtually unflagging obligation” of appellate courts “to exercise the jurisdiction given them.” --From Amicus Brief of 21 Bankruptcy Law Professors, in Hargreaves v. Nuverra Environmental Solutions Inc., Case No. 21-17, U.S. Supreme Court (Petition... Continue Reading →
Protecting (photo by Marilyn Swanson) By: Donald L Swanson Did Congress intend that Subchapter V provide greater bankruptcy protection to corporations than to individuals? The answer is, “Yes,” according to a recent line of opinions: it’s easier for a corporation to be “engaged in business or commercial activities” than it is for the corporation’s owners; andthe... Continue Reading →
He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues. Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →
The passing of time (photo by Marilyn Swanson) By: Donald L Swanson “Because Congress did not include a temporal limitation in § 327, the Court finds it inconsistent with the provisions of Title 11 to insert one”; and The U.S. Supreme Court, in Acevedo, “did not change the existing authority of the [bankruptcy] court to approve... Continue Reading →
A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →
De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.” --From In re 218 Jackson... Continue Reading →
A homestead By: Donald L Swanson A bankruptcy trustee cannot transform an exempt homestead into property of the bankruptcy estate by avoiding and preserving a mortgage lien against it. That’s a fundamental rule of law established by two opinions from the First Circuit Court of Appeals: one in 2014 and one on August 6, 2021. Background... Continue Reading →
Viewed from a distance (photo by Marilyn Swanson) By: Donald L Swanson The subject is “equitable mootness” of an order confirming a Chapter 11 plan—when viewed from a distance, through Article III of the U.S. Constitution. The opinion is In re VeroBlue Farms USA, Inc. [Fn. 1] Here are three conclusions from the opinion: “‘equitable,’... Continue Reading →
