On Bankruptcy and Mediation
Old overruling new? (Photo by Marilyn Swanson) By: Donald L Swanson “[T]he Supreme Court’s decisions evince a general skepticism about broad application of the Bankruptcy Code, which often has led to surprisingly narrow interpretations of relatively clear language,” which “challenges the common understanding of bankruptcy law as a domain of the Court’s plain-language interpretative practice.” [Fn.... Continue Reading →
Broken -- Exhibit by Nathan Sawaya (photo by Marilyn Swanson) By: Donald L Swanson I’ve been saying this for a long time: the mass tort system of justice in these United States is broken. Two piece of brokenness (there are lots of pieces) are: agonizingly long delays and excessive costs. We now have a new illustration... Continue Reading →
By: Donald L Swanson “Jun 02 2025 The Solicitor General is invited to file a brief in this case expressing the views of the United States.” That’s the latest entry by the U.S. Supreme Court on its electronic docket for Case No. 24-1062, The Hertz Corporation, et al v. Wells Fargo Bank, N.A., as Indenture Trustee.... Continue Reading →
A refreshing scene (photo by Marilyn Swanson) By: Donald L Swanson Here is a refresher on the proof of claim requirement for a "writing" attachment (under Fed.R.Bankr.P. 3001), and on the prima facie validity that can result (under subpart (f) thereof). The opinion is In re SVB Financial Group, Case No. 23-10367 in SDNY Bankruptcy Court... Continue Reading →
The greater good? (photo by Marilyn Swanson) By: Donald L Swanson What happens when a bankruptcy sale is nearly complete . . . and someone presents a substantially-higher bid? Must the lower-price deal proceed to completion? Or can the higher bid be considered? The answer is this: maximizing value is the greater good, so the higher... Continue Reading →
Consent? (photo by Marilyn Swanson) By: Donald L Swanson In Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), the Supreme Court declares: the Bankruptcy Code does not authorize non-consensual third-party releases in Chapter 11 plans of reorganization; but “Nothing in what we have said should be construed to call into question consensual third-party releases offered... Continue Reading →
BAPCPA By Donald L. Swanson The text of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is linked here. Title III of BAPCPA is named “Discouraging Bankruptcy Abuse,” and § 321 (from said Title III) is named “Chapter 11 Cases Filed by Individuals.” Such § 321 makes the following changes to the Bankruptcy... Continue Reading →
Wearing a vest (photo by Marilyn Swanson) By Donald L. Swanson This statutory language appears in each of Chapter 13, Chapter 12 and Subchapter V of the Bankruptcy Code: “Property of the estate includes . . . all property . . . that the debtor acquires after the commencement of the case”; and “confirmation of a... Continue Reading →
Philadelphia, Pennsylvania (photo by Marilyn Swanson) By: Donald L Swanson Today, the sole function a bankruptcy discharge is to rid the debtor of debts and, thereby, provide a fresh financial start. But in the 1700s, the focus was on getting a debtor’s body discharged from debtor’s prison, to provide a fresh start through personal liberty. And... Continue Reading →
“commercial or business activities”? (Photo by Marilyn Swanson) By: Donald L Swanson “We now hold that a not-for-profit company can be ‘engaged in commercial or business activities’ as that phrase is used" in Subchapter V of the Bankruptcy Code. Guan v. Ellingsworth Residential Community Association, Inc., 125 F.4th 1365 (11th Cir. 2025). Guan is a homeowner... Continue Reading →
MEDIATBANKRY 