On Bankruptcy and Mediation
By: Donald L. Swanson Mediators and Other Special Masters in District Courts -- Rule 53 “Special Masters” can be appointed by U.S. District Courts to handle special circumstances, under Fed.R.Civ.P. 53. One type of special master under Rule 53 is a “Settlement Master” (aka “Mediator”). Special masters are used by District Courts, typically, in large... Continue Reading →
By Donald L. Swanson Have you ever wondered about the nature and history of Puerto Rico's relationship with the United States of America? After all, it’s located 1,600 miles beyond Miami and is separated from the U.S. mainland by the likes of Cuba, Bahamas, Turks and Caicos Islands, Haiti and Dominican Republic. So . .... Continue Reading →
By: Donald L Swanson “And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.” From Prof. Emily Kadens in “The Last Bankrupt Hanged.” The latest installment of harsh and publicly-visible punishments for bankruptcy crimes involves a... Continue Reading →
“Hanging was a spectator sport in eighteenth-century England, and . . . the usual crowd turned out to watch [John Perrott] swing. They came to see off not a murderer, rapist, or highwayman, but rather a bankrupt.” E. Kadens, “The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law,” 59 Duke L.J.... Continue Reading →
By Donald L. Swanson Have you ever wondered why Congress, when it adopted the Bankruptcy Code in 1978, limited the term of service for bankruptcy judges to fourteen years? --This term limitation, established in 28 U.S.C. Sec. 157(a)(1), assures that bankruptcy judges are serving as Article I judges under the U.S. Constitution. Life tenure would... Continue Reading →
By Donald L. Swanson The case is Henson v. Santander Consumer USA Inc., U.S. Supreme Court Case No. 16-349, decided June 12, 2017. The case is on appeal from the Fourth Circuit Court of Appeals. The question is whether the Fair Debt Collection Practices Act applies when you “purchase a debt and then try to collect... Continue Reading →
NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... Continue Reading →
By Donald L. Swanson Two Hypotheticals and a Question: First Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 7 bankruptcy. The Chapter 7 Trustee refuses to pursue the fraudulent transfer claim, and the Bankruptcy Code’s two-year statute of limitations expires. Second Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 11 bankruptcy.... Continue Reading →
By Donald L. Swanson On March 27, 2017, the U.S. Supreme Court grants certiorari in the case of U.S. Bank N.A. v. Village at Lakeridge, LLC, U.S. Supreme Court Case No. 15-1509. The Facts Kathie Bartlett is one of five owners of a company that owns the Debtor. So, both Kathie Bartlett and her company... Continue Reading →
By Donald L. Swanson The case is Midland Funding, LLC v. Johnson, Supreme Court Case No. 16-348 (decided May 15, 2017). It’s about creditors filing proofs of stale claims (i.e., claims barred by statute of limitations) in Chapter 13 cases. The Facts Aleida Johnson files Chapter 13 bankruptcy. Then, Midland files a proof of claim... Continue Reading →
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