On Bankruptcy and Mediation
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 →
Deceptive? (Photo by Marilyn Swanson) By Donald L. Swanson Here’s a refresher on legal standards, and the application of those standards, for denying a debtor’s discharge for “actual fraud” under § 523(a)(2)(A): the opinion is Capital, Inc. v. Novak (In re Novak), Adv. Pro. No. 23-01005 in the Eastern Louisiana Bankruptcy Court (decided October 21, 2024;... Continue Reading →
An unholy alliance? (Photo by Marilyn Swanson) By: Donald L Swanson I’m reading the U.S. Supreme Court’s latest opinion on a bankruptcy subject: U.S. v. Miller (decided March 26, 2025). And I’m looking for something in the opinion that’s interesting . . . anything! The opinion is about whether sovereign immunity has been waived for transfer... Continue Reading →
Bicycles are used everywhere (photo by Marilyn Swanson) By: Donald L Swanson I’ve always maintained that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is heavy on “preventing abuses” (mostly phantom abuses) and skinny on “protecting consumers.” IRA Exemption in BAPCPA But there is a consumer protection in the Bankruptcy Code, added by... Continue Reading →
Opposition! (Photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy laws in these United States need to be reformed. For example: About a year ago, Congress allowed the $7,500,000 Subchapter V debt limit to expire, reducing that limit to an inflation-adjusted $3,024,725 and leaving many entrepreneurs without viable bankruptcy relief—this needs to be fixed! Also about... Continue Reading →
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