Office of Solicitor General: A Biased and Conflicted Protector of Bankruptcy Laws (Ritzen v. Jackson Oral Arguments)

By: Donald L. Swanson “every creditor in the country should be lining up behind our side of the podium.” --Respondent’s counsel in Ritzen v. Jackson oral arguments at U.S. Supreme Court on 11/13/2019. Here’s a link to the transcript. On October 11, 2019, the Office of Solicitor General files an amicus brief in Ritzen v. Jackson... Continue Reading →

Accuracy on Bankruptcy Schedules: A Challenge in Representing Family Businesses

By: Donald L. Swanson “I’m very proud of the fact that, in four decades of practicing law, I’ve had only one client go to federal prison for lying on these bankruptcy schedules.” —Yours truly, emphasizing to clients the importance of accuracy and full disclosure in preparing bankruptcy schedules. One of the great challenges in representing... Continue Reading →

A Bankruptcy Exception to the Federal Arbitration Act — In the U.S. Constitution

By: Donald L Swanson “The Congress shall have Power . . . To Establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” --Bankruptcies Clause in the U.S. Constitution, Art. I, Sec. 8, Cl. 4. Bankruptcy Exception to Arbitration -- A Constitutional Argument Try this argument on for size: The Constitution's... Continue Reading →

Highlights from Oral Arguments at U.S. Supreme Court on Constitutionality of Puerto Rico’s Oversight Board

By: Donald L Swanson The case before the U.S. Supreme Court is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-1334). Oral arguments occurred on October 15, 2019. Here is a link to the official transcript. An Oddly Important Case This is an oddly important case: it’s resolution turns on... Continue Reading →

Forum Selection v. Forum Shopping: The Proposed “Bankruptcy Venue Reform Act of 2019”

By: Donald L Swanson A bankruptcy bill on venue reform is sitting in Congress right now. The bill is H.R. 4421 – 116th Congress (2019-2020) and is titled, “Bankruptcy Venue Reform Act of 2019.” It aims to eradicate “forum shopping” abuses by eliminating forum selection options altogether. Opposed Hopefully, this bill goes nowhere and dies out.... Continue Reading →

Debtor’s Digital Signature in Bankruptcy: The Nebraska Rule

By: Donald L Swanson The Nebraska Bankruptcy Court is the first in the nation to allow debtors to digitally sign petitions, schedules and other bankruptcy documents, rather than requiring a wet ink signature on paper documents. The Nebraska Rule On February 5, 2018, the Hon. Thomas L. Saladino, Chief Judge of the Nebraska Bankruptcy Court, amended... Continue Reading →

Small Business Reorganization Act: A Great Law With A Major Flaw

By: Donald L Swanson The Small Business Reorganization Act of 2019 has the following discharge provisions: Plan confirmation “discharges the debtor from” specified debts (see § 1181(c), § 1192 & § 1141(d)(1)(A)); but The discharge takes effect only “after completion” of “all payments due within” the 3 to 5 years term of the plan (§ 1192).... Continue Reading →

Dividing Secured Claims from Under-Secured Claims: A History

By: Donald L Swanson There are things we take for granted in bankruptcy cases: like concepts of fresh start and of absolute priority and of adequate protection. But the source of such concepts is often murky. One of those take-for-granted things is this: the division of a secured claim into, (i) an allowed secured claim that... Continue Reading →

Look “Outside Bankruptcy”: A U.S. Supreme Court Standard for Resolving Bankruptcy Questions

By: Donald L. Swanson In 2019, the U.S. Supreme Court issued two opinions on bankruptcy-specific topics that identify a common legal standard. The standard is this: In deciding a question under the Bankruptcy Code, look to legal standards that apply “outside bankruptcy” for guidance Both opinions do just that.  Here’s how. FIRST OPINION The U.S. Supreme Court... Continue Reading →

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