On Bankruptcy and Mediation
Tribal sovereignty (photo by Marilyn Swanson) By: Donald L Swanson Oral arguments occur on April 24, 2023, before the U.S. Supreme Court in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No 22-227. Here is a link to the oral arguments transcript. What follows is an attempt to, (i) summarize the facts... Continue Reading →
Bad faith intentions? (photo by Marilyn Swanson) By: Donald L Swanson Dismissal of a bankruptcy—for bad faith filing—is a rarity. So, how a bankruptcy court grapples with the bad faith issue . . . and ends up dismissing the bankruptcy . . . can provide a lesson for us all. What follows is a summary of... Continue Reading →
Mootness? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now that the U.S. Supreme Court recently declared the provisions of 11 U.S.C. § 363(m) to be NOT jurisdictional.[Fn. 1] Instead, § 363(m) is merely an important statutory directive.[Fn. 2] Mootness Issue What’s received less attention is a preliminary issue the U.S. Supreme Court... Continue Reading →
Offensive or defensive deployment? (Photo by Marilyn Swanson) By: Donald L Swanson It's a defense v. offense distinction: Defense—An objection and counterclaim designed to diminish or zero-out a proof of claim in bankruptcy is not subject to arbitration; but Offense—An objection or counterclaim designed to do anything more . . . can be compelled to arbitrate.... Continue Reading →
New and improved? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson filed bankruptcy back in 2021 (In re LTL Management, Case No. 21-30589, New Jersey Bankruptcy Court). That bankruptcy is now dismissed—on order of the U.S. Third Circuit Court of Appeals. So, Johnson & Johnson refiles its bankruptcy (In re LTL Management, Case... Continue Reading →
From antiquity (photo by Marilyn Swanson) By: Donald L Swanson Conceit-of-the-present is this: thinking that people of today are smarter, more sophisticated and better than people of the past. There is, of course, some truth in that conceit for today: (i) improved hygiene and medicine, for example, enable people of today to be bigger, stronger and... Continue Reading →
Avoiding obligations? (photo by Marilyn Swanson) By: Donald L Swanson “The trustee may avoid . . . any obligation . . . incurred by the debtor, that was made or incurred“ with actual fraudulent intent or as constructive fraud. --From § 548 of Bankruptcy Code (emphasis added). Similar language is contained in the Uniform Voidable Transactions... Continue Reading →
Scouting? (Photo by Marilyn Swanson) By: Donald L SwansonBoy Scouts of American achieved a confirmed plan of reorganization in its bankruptcy. That confirmation is now affirmed on appeal by the U.S. District Court in Delaware[fn. 1]—and is heading to the Third Circuit Court of Appeals for further review. The District Court’s affirming opinion is 155 pages... Continue Reading →
Getting through the impediment (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a creditor prevent its debtor from filing bankruptcy by pre-petition contract terms? Answer: No . . . according to In re Roberson Cartridge Co., LLC, Case No. 22-20192 in the Northern Texas Bankruptcy Court (03/07/2023, opinion at Doc. 77). Facts The In... Continue Reading →
Inactive (photo by Marilyn Swanson) By: Donald L Swanson What happens when a creditor class fails or refuses to vote on confirmation of a Subchapter V plan? Does that prevent a consensual confirmation? We have a recent answer from In re Creason, Case No. 22-00988, Western Michigan Bankruptcy Court (opinion issued 2/23/2023). Facts The Subchapter V... Continue Reading →
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