On Bankruptcy and Mediation
A convertible car? (Photo by Marilyn Swanson) By: Donald L Swanson Can a creditor’s future right to convert an existing debt claim to equity prevent that creditor from being an involuntary bankruptcy petitioner under § 303(b)? That’s the issue resolved in In re QDOS, Inc., Case No. 8:18-bk-11997, Central California Bankruptcy Court (decided July 23, 2024;... Continue Reading →
Who controls this? (Photo by Marilyn Swanson) By: Donald L Swanson When an individual files Chapter 7 bankruptcy, with a bad-faith claim against Debtor’s insurer as an asset, who controls Debtor’s attorney client privilege? That’s the question in this new opinion: Chambers v. State Farm Mutual Automobile Insurance Co., Case No. 24-cv-00557 in the Colorado U.S.... Continue Reading →
Blocked from moving forward (photo by Marilyn Swanson) By Donald L. Swanson You’d think it’s immoral or something—or at least it’s in violation of some constitutional principle of great and foundational importance . . . like due process or First Amendment or separation of powers. I’m talking about tort claimants being denied payments for their injuries,... Continue Reading →
London Tower Prison (Photo by Marilyn Swanson) By: Donald L Swanson A new Seventh Circuit Court of Appeals opinion[fn. 1] involves the motion of a federal inmate, who was also a Chapter 7 bankruptcy debtor, for compassionate-release under 18 U.S. § 3582(c)(1)(A). The new Seventh Circuit opinion denies the motion. Notably, the bankruptcy Debtor/Inmate is... Continue Reading →
In danger of being stopped? (Photo by Marilyn Swanson) By: Donald L Swanson Question: What happens when a Chapter 7 debtor: fails to disclose the existence of claims against third parties; receives a Chapter 7 discharge and a closing of the Chapter 7 case; then, pursues the undisclosed claims by filing a lawsuit against the third... Continue Reading →
Mens rea presumed? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Must a jury instruction, in a fraudulent transfer lawsuit involving an alleged Ponzi scheme, require a mens rea finding of actual fraudulent intent? That’s a question addressed by the U.S. Ninth Circuit Court of Appeals in Kirkland v. Rund (In re EPD Investment Co.,... Continue Reading →
By: Donald L Swanson “A discharge under section 727, 1141, 1192 [Subchapter V], 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— . . .” 11 U.S.C. § 523(a) (emphasis added). Bankruptcy courts applying the foregoing language in the early days of Subchapter V found such language to be clear and... Continue Reading →
Abuse? (Photo by Marilyn Swanson) By: Donald L Swanson A new, bipartisan bankruptcy bill in the U.S. Senate purports, according to an official document, to: “deter the Texas Two-Step”; and “ensure injury victims have a chance to be heard in court.” In my lexicon, this bill already has three strikes against it and should be rejected. ... Continue Reading →
Exempt assets? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a retirement fund organized under Canadian law qualify for a state law exemption requiring that it “qualify as a retirement plan” under the Internal Revenue Code? This question gets all the way to the U.S. Seventh Circuit Court of appeals, which issues a “No”... Continue Reading →
A champ (photo by Marilyn Swanson) By: Donald L Swanson The general rule is that claims of the bankruptcy estate against third parties (e.g., preference claims and tort claims) can be sold to third parties in a § 363 sale.[Fn. 1] However, a recent opinion from the U.S. Fifth Circuit Court of Appeals discusses whether a... Continue Reading →
MEDIATBANKRY 