On Bankruptcy and Mediation
A narrow view (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court’s opinion is Truck Insurance Exchange v. Kaiser Gypsum Co., Inc., Case No. 22-1079, Decided June 6, 2024. Opinion’s Q & A The Truck Insurance question is this: Whether an insurer with financial responsibility for a bankruptcy claim is a “party in... Continue Reading →
Conflict (photo by Marilyn Swanson) By: Donald L Swanson We have a direct statutory conflict: one statute requires an ERISA dispute to be resolved in arbitration; but a bankruptcy statute requires the same dispute to be resolved in bankruptcy. Which statute should prevail? The bankruptcy statute, of course. That’s the conclusion of In re Yellow Corp.[Fn.... Continue Reading →
By: Donald L Swanson Before the U.S. Supreme Court on a Petition for writ of certiorari is United States v. Miller, Case No. 23-824 (“Distributed for Conference of 6/13/2024”). In United States v. Miller, a Chapter 7 Trustee obtains a fraudulent transfer judgment under 11 U.S.C. § 544(b) against the Internal Revenue Service to recover two... Continue Reading →
It means what it says (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Packet Construction, LLC, Case No. 23-10860 in the Western Texas Bankruptcy Court (issued April 30, 2024, Doc. 103). Subchapter V Issue & Ruling Here’s the issue raised by the Subchapter V Trustee’s plan objection and the Bankruptcy Court’s... Continue Reading →
A winding path (photo by Marilyn Swanson) By: Donald L Swanson There is a lesson for all debtor attorneys in the Chapter 7 case of In re Aquilino.[Fn. 1] The moral of the In re Aquilino story is this: a little carelessness in describing and disclosing bankruptcy fees in a Chapter 7 case can create big... Continue Reading →
Compensation for late service? (Photo of a famous painting) By: Donald L Swanson Debtor’s Chapter 11 counsel cannot be compensated for services performed after a trustee is appointed and the debtor removed from possession. That’s the rule of law in the Fifth Circuit and in a not-for-publication decision of the Ninth Circuit’s Bankruptcy Appellate Panel, based... Continue Reading →
A dilemma? (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcies with large tort claims are common: some involve a limited number of claimants (e.g., a drunk driver hits a bus or a restaurant serves bad food one evening); and others have large numbers of claimants, some of whom won’t even be known for at least... Continue Reading →
An accurate statement (photo by Marilyn Swanson) By: Donald L Swanson The opinion is Bruce v. Citigroup Inc., Case No. 22-1000, decided August 2, 2023, by the U.S. Second Circuit Court of Appeals. The opinion addresses this question: Did Citigroup violate Debtor’s discharge injunction by refusing to correct an inaccurate credit report? The Second Circuit answers... Continue Reading →
Unconventional and impotent (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession under § 1185(a), what can the Subchapter V trustee do with debtor’s assets and operations? Duties, Rights, Powers and Functions Under § 1184, certain duties of a trustee are delegated to the Subchapter V debtor, “including... Continue Reading →
A bad development (photo by Marilyn Swanson) By: Donald L Swanson The existence of a bankruptcy option is a good thing for any debtor-creditor situation that is highly stressed—whether the bankruptcy option is used or not. This is especially true in mass-tort cases where a potential exists for (i) hugely-disparate results for similarly situated plaintiffs, and... Continue Reading →
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