On Bankruptcy and Mediation
Refuses to leave (photo by Marilyn Swanson) By: Donald L Swanson What happens, after a bankruptcy sale of real estate, when the party in possession of that real estate . . . refuses to leave? We now know. The case is In re Galleria 2425 Owner, L.L.C., Case No. 23-34815 in Southern Texas Bankruptcy Court (decided... Continue Reading →
A weapon (photo by Marilyn Swanson) By: Donald L Swanson Since Debtor “does not now seek to use that agreement as a weapon” against Creditor, Debtor’s “bankruptcy discharge renders the arbitration agreement unenforceable.” Rogne v. Digital Forensics Corp., Case No. 24-cv-2612 (D. Minn. 1/13/2025; Doc. 22, at 7) (emphasis added). Facts Debtor gets a Chapter 7... Continue Reading →
A problem to be solved? (Photo by Marilyn Swanson) By: Donald L Swanson A recent bankruptcy appellate decision by a U.S. District Court highlights a persistent bankruptcy problem: How to deal with pro se filers who abuse the bankruptcy system by repeated filings. The case is Hayes v. U.S. Bank Trust, N.A., Case Nos. 6:24-cv-00004 &... Continue Reading →
A portion excised? (Photo by Marilyn Swanson) By: Donald L Swanson Equitable mootness does not prevent the excising (i.e., the surgical removal), on appeal, of an indemnification provision from a confirmed Plan. That’s the ruling of the U.S. Fifth Circuit Court of Appeals in Excluded Lenders v. Serta Simmons Bedding, L.L.C. (In re Serta Simmons... Continue Reading →
In re LTL fee application summary By: Donald L Swanson Here is a hard-knocks rule (i.e., a rule learned the hard way) on fees for a court-approved professional in bankruptcy: representing a debtor, committee or trustee in bankruptcy has all the downside of a contingent fee case—but none of the upside. Here is what that means:... Continue Reading →
Art deco, circa 1920s (photo by Marilyn Swanson) By: Donald L. Swanson This has got to be one of the longest-running bankruptcy cases . . . ever. It was filed on July 17, 1928, and it is being wound-down now. A recent Bankruptcy Court Order in that case (entered January 22, 2025) addresses the question of... Continue Reading →
Enforceable? (Photo by Marilyn Swanson) By: Donald L Swanson “While the pre-petition Debtor may have consented to waiver of the automatic stay in favor of [secured creditor], . . . other creditors did not”; and “The automatic stay is designed to protect both debtors and creditors alike.” In re DJK Enterprises, LLC, Case No. 24-60126, Doc.... Continue Reading →
A path (photo by Marilyn Swanson) By: Donald L Swanson A recent Bankruptcy Court opinion grants an involuntary Debtor’s motion to convert its Chapter 7 case to Subchapter V—relying on a U.S. Supreme Court opinion. This Bankruptcy Court opinion provides a path for others to follow. The opinion is In re Zarifian Enterprises LLC, Case No.... Continue Reading →
BAPCPA By: Donald L Swanson Back in the mid-1990s, the Eighth Circuit Court of Appeals issued two opinions declaring the plain meaning of “projected disposable income” in § 1225(b)(1) to be “absurd” and that the true meaning thereof is, instead, “actual disposable income” determined at the end of the debtor’s confirmed Chapter 12 plan. Such two... Continue Reading →
Tick tock (photo by Marilyn Swanson) By: Donald L Swanson Being in business is risky. And the risks are ever-expanding. The latest illustration of a new risk is the case of TikTok, Inc. v. Garland. The new risk is for businesses using the TikTok social media platform: i.e., the U.S. Government can shut that social media... Continue Reading →
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