On Bankruptcy and Mediation
A healthy tree? (photo by Marilyn Swanson) By: Donald L Swanson Does a rotten tree produce good fruit? That’s the bankruptcy issue before the U.S. Supreme Court in Siegel v. Fitzgerald, where the Question is this: “Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Bankruptcy Clause by increasing quarterly fees solely in... Continue Reading →
By: Donald L Swanson Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court in a few months. But he’s not easing into retirement. Instead, he’s out there swinging—fighting for his beliefs: trying to instruct / persuade current and future jurists on how the law should be applied. Justice Breyer’s latest punch is... Continue Reading →
An well-worn path (photo by Marilyn Swanson) By: Donald L Swanson Question: What gets an attorney’s fee application allowed—or rejected—in bankruptcy? Short answer: The services, (i) must be “necessary,” and (ii) must require legal expertise. Two Recent Opinions Two recent opinions address this question: In re H.T.O. Architect, PLLC, Case No. 19-10915, SDNY Bankruptcy Court (issued... Continue Reading →
SUNSET (photo by Marilyn Swanson) By Donald L. Swanson The sun has set. Yes it has. The $7,500,000 eligibility limit for Subchapter V expired yesterday (March 28, 2022), without action by Congress to extend it. Actually, the Subchapter V sun was set to set on March 27—but that’s a Sunday. So let’s give the benefit of... Continue Reading →
The setting of the sun (photo by Marilyn Swanson) By Donald L. Swanson Here’s a vindication for the Small Business Administration’s discrimination against bankruptcy debtors: On March 16, 2022, the Second Circuit Court of Appeals reverses a Bankruptcy Court Order that prohibited the SBA from denying PPP funds to bankruptcy debtors. The opinion is Springfield Hospital,... Continue Reading →
Ignoring the issue? (photo by Marilyn Swanson) By: Donald L Swanson A Petition for certiorari is before the U.S. Supreme Court in Speech & Language Center, LLC, and Chryssoula Marinos-Arsenis v. Horizon Blue Cross Blue Shield of New Jersey (Case No. 21-1154, filed 2/16/2022). Petition’s Question The Question presented in the Petition is this: “Can parties... Continue Reading →
Unimpaired (photo by Marilyn Swanson) By Donald L. Swanson Claims are “impaired,” unless the plan “leaves” their rights “unaltered.” § 1124(1). This rule is not as simple and unequivocal as it seems, according to an In re Hertz opinion. [Fn. 1] Here’s why. Plan Treatment of Unsecured Claims Claims of unsecured creditors in the Hertz bankruptcy... Continue Reading →
Fed.R.Bankr.P. 9023 & Fed.R.Civ.P. 59 By: Donald L Swanson Imagine this: a U.S. District Court enters judgment in a case that’s “related to” a bankruptcy, and we want to file a motion for new trial or to amend the judgment. So, which deadline applies to the motion: 28 days under Fed.R.Civ.P. 59(e); or14 days under Fed.R.Bankr.P.... Continue Reading →
Monitoring? (photo by Marilyn Swanson) By: Donald L Swanson Question: Does a Subchapter V trustee have a duty to “monitor” debtor’s compliance with a confirmed plan? Answer: “No.” I’ll try to explain . . . and to add a suggestion on what Subchapter V trustees might do, instead. Consensual Confirmation When a plan is confirmed under... Continue Reading →
A rate of flow (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Wells Fargo Bank, Indenture Trustee v. The Hertz Corp. (In re The Hertz Corp), Adv. P. No. 21-50995, Delaware Bankruptcy Court (issued December 22, 2021, Doc. 28). The question is whether (and at what rate) post-petition interest can be recovered on... Continue Reading →
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