Flooding — an unforeseen event (photo by Marilyn Swanson) By Donald L. Swanson A business contract will often have a “force majeure” provision, which excuses a party from performing under the contract when performance is prevented by unforeseen circumstances. Force majeure provisions, while commonly included in business contracts, rarely take effect and are rarely even relevant—until... Continue Reading →
The tendency of legislation and of judicial interpretation has been uniformly in the direction of expanding the use of the bankruptcy power to meet the needs of an expanding economy.
Comparing and contrasting (photo by Marilyn Swanson) By Donald L. Swanson Pre-bankruptcy planning is an important part of representing an individual debtor in a bankruptcy case. In fact, such planning may be the most-crucial part of the entire bankruptcy process. In pre-bankruptcy planning, the goal is to establish a strategy for the upcoming bankruptcy and an... Continue Reading →
An election system and process (photo by Marilyn Swanson) By: Donald L Swanson Wow—didn’t expect to see an § 1111(b) election opinion under Subchapter V this soon! But here it is: In re Body Transit, Inc. d/b/a/ Rascals Fitness, Bky. No. 20-10014 in Eastern Pennsylvania Bankruptcy Court (decided August 7, 2020, by Hon. Eric. L. Frank,... Continue Reading →
Implied consent (photo by Marilyn Swanson) By: Donald L Swanson “Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree.” --U.S. Supreme Court in Wellness Int’l Network, Ltd. V. Sharif, 575 U.S. 665 (2015). The Supreme Court’s Wellness opinion adds the following: “The... Continue Reading →
Olde England (photo by Marilyn Swanson) By: Donald L Swanson “Be sure your sin will find you out.” (Numbers 32:23 (KJV)) Every now and then, we get a glimpse into human nature and how people work together, for good and for ill. What follows is one such glimpse, into the small cheat in business activities. --... Continue Reading →
The wheels of commerce must continue to turn (photo by Marilyn Swanson) By: Donald L Swanson Under UCC § 9-332, a debtor’s attorney can receive, and keep, pre-petition retainers paid from a lender’s collateral proceeds—absent collusion. That’s the conclusion of a recent Bankruptcy Court opinion in Walters v. Lynch (In re 3P4PL, LLC), Adv. No. 15-1120,... Continue Reading →
Our current bankruptcy system—with all its wisdom and shortcomings—is a culmination-to-date of the struggles and shortcomings and progress of generations past.
A backfire (photo by Marilyn Swanson) By: Donald L Swanson “Backfire” = “to have the reverse of the desired or expected effect” --from Merriam-Webster.com In 2005, the U.S. Congress decided to make life hard for individuals in bankruptcy. Congress saw fraudulent intent in the minds of their destitute constituents—particularly those who had been living above the... Continue Reading →
Holding onto the past (photo by Marilyn Swanson) By: Donald L. Swanson Do you have any fuddy-duddies in the family holding onto the past: they refuse to get a computer or smart phone or to use email or text messaging? If so, family communications require someone to pass-on information by snail mail or telephone—if anyone bothers... Continue Reading →