On Bankruptcy and Mediation
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 →
BAPCPA By: Donald L Swanson Here are five points explaining why the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) should be enacted . . . appearing on the opening page of this “Report of the Committee on the Judiciary, House of Representatives” (at fn. 1, emphasis added): “Shoplifting is wrong; bankruptcy is also... Continue Reading →
By Donald L. Swanson “[T]he appellant would not have acquired priority over other creditors by the sheriff's levy, for the obvious reason that the right of property in the goods seized under the execution had previously passed” to the assignee under Debtor’s ABC. Reed v McIntyre, 98 U.S. 507, 512 (1878). Facts The Debtor, in the... Continue Reading →
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