On Bankruptcy and Mediation
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 →
City of Chicago (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court, in its Fulton v. City of Chicago opinion, let Chicago off the automatic stay hook for holding onto impounded vehicles owned by Chapter 13 debtors. But Fulton is not the last word on that subject. The new opinion is Cordova, et al. v. City of Chicago,... Continue Reading →
A lovely place to stay — oops, wrong “stay” (photo by Marilyn Swanson) By: Donald L Swanson An “Order Staying the Later-Filed Bankruptcy Cases” is from In re The Aliera Companies Inc., Case No. 21-11548, Delaware Bankruptcy Court (issued January 18, 2022, Doc. 56), followed by an "Order Transferring Venue of the Later-Filed Voluntary Bankruptcy Cases"... Continue Reading →
A disconnect? (photo by Marilyn Swanson) By Donald L. Swanson Every now and then, (i) something is blatantly obvious, but (ii) those in charge insist that what seems obvious is actually false. Such a disconnect breeds distrust. That’s precisely what exists in our bankruptcy system. The U.S. Constitution requires that bankruptcy laws be “uniform .... Continue Reading →
A farming operation? (Photo by Marilyn Swanson) By: Donald L Swanson “Engaged in” eligibility for Chapter 12 (farming operations) and Subchapter V (commercial or business activities) are similar-but-separate things. An opinion by the Kansas Bankruptcy Court shows the difficulty in addressing the “engaged in” eligibility standards in Chapter 12—even when Subchapter V opinions are consulted as... Continue Reading →
A death knell? (photo by Marilyn Swanson) By: Donald L Swanson Merchant cash advances are the business version of payday loans: a relatively small amount of money loaned at a high rate of interest. Payday loans are repaid from debtor’s next paycheck, while merchant cash advances are repaid by daily withdrawals from debtor’s bank account. Merchant... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The United States of America is asking the U.S. Supreme Court to rule on the constitutionality of having U.S. Trustees in 88 judicial districts and Bankruptcy Administrators in 6 judicial districts. What follows is a summary of the U.S. Trustee’s explanation of the constitutionality issue in a... Continue Reading →
A reasonable and necessary path (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee is entitled to allowance of fees, even when the Subchapter V case is dismissed for lack of authority to file the case. That's the December 16, 2021, ruling in In re Besthost Inn LLC, Case No 21-12158 in the... Continue Reading →
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