Prof. Mann: On Bankruptcy And The U.S. Supreme Court (An Interview) Prof. Mann discussing "Bankruptcy and the U.S. Supreme Court" By: Donald L Swanson Ronald J. Mann is the “Albert E. Cinelli Enterprise Professor of Law” and co-director of the “Charles Evans Gerber Transactional Studies Center” at Columbia Law School.  Prof. Mann is a nationally recognized scholar in bankruptcy and related areas of law.  His prior... Continue Reading →

How U.S. Constitution’s Contracts Clause Bans State Bankruptcy Laws (Sturges v. Crowninshield)

Filling the void (photo by Marilyn Swanson) By: Donald L Swanson “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” --U.S. Constitution, Art. 1, Sec. 10, Cl. 1 (the “Contracts Clause”). One of the earliest opinions from the U.S. Supreme Court on the subject of bankruptcy is Sturges... Continue Reading →

Judge Wedoff: On Representing Respondents At Supreme Court In Chicago v. Fulton (An Interview)

By: Donald L Swanson On January 14, 2021, the U.S. Supreme Court issued its majority and concurring opinions in the City of Chicago v. Fulton case.  The opinions give a technical victory to the City on a narrow legal issue but suggest that the City may be in a difficult position on a variety of related... Continue Reading →

Supreme Court Denies Cert (GE v. Belton): A Bankruptcy Code v. Arbitration Act Reprieve — And Constitution’s Bankruptcy Exception

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson We've dodged the bullet . . . again! Yesterday, the U.S. Supreme Court denied certiorari in GE Capital Retail Bank v. Belton (Case No. 20-481), where the question presented is: Which federal statutory scheme takes precedence in resolving important bankruptcy issues -- the Bankruptcy Code or the... Continue Reading →

Debtors Sign Federal Tax Returns Digitally; Why Not Petitions and Schedules? Debtor digital signatures -- some background Reprinted with permission from the ABI Journal, Vol. XXXVIX, No. 1, January 2020.  Here is a link to the original publication. Debtors sign their federal tax returns digitally all the time. The Internal Revenue Service (IRS) allows digital signing, without reservation; the Department of Justice (DOJ) prosecutes digital... Continue Reading →

Generating a Positive Cash Flow in Reorganization: The Central Task of a Family Business

By: Donald L Swanson A family business in Chapter 11 (whether in Subchapter V or a regular Chapter 11) has one task that stands above all others in importance. It’s this: The business must generate a positive cash flow. The Lawyer’s Impossible Task All the favorable bankruptcy rules that exist, and all the favorable bankruptcy court... Continue Reading →

Does § 1409(b) Require Filing A Preference Claim For <$25,000 In Defendant's Home District?

There’s no place like home (photo by Marilyn Swanson) By: Donald L Swanson Debtor files Chapter 7 in the Eastern New York Bankruptcy Court. The Chapter 7 Trustee sues Defendant in that same Bankruptcy Court to recover an $11,408.55 preference.  Defendant resides in California, not New York, and is not an insider.  So, Defendant contends that... Continue Reading →

When Does The SBRA’s “Due Diligence” Preference Duty Apply?

Must prepare to perform (photo by Marilyn Swanson) By: Donald L Swanson (b) . . . the trustee may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property—... Continue Reading →

What Are Owners Of A Closely-Held Business To Do, When Subchapter V Is Not Available?

By: Donald L Swanson It happens.  There are businesses in financial stress who, for a variety of reasons, can’t qualify for Subchapter V.  Owners want to save the business, but Subchapter V is not available. Reasons why Subchapter V might be unavailable include: Debtor has more than $7.5 million of qualifying debt and can’t get enough... Continue Reading →

U.S. Trustee & Bankruptcy Administrator Programs: Is This Constitutional? (St. Angelo v. Victoria / In re Buffets)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy courts in 48 of our 50 United States are administered by the U.S. Trustee program; while bankruptcy courts in the remaining 2 states (Alabama and North Carolina) are under the Bankruptcy Administrator program.  This has been true since the 1980s. The primary differences in the two... Continue Reading →

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