On Bankruptcy and Mediation
He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues. Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →
A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →
De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.” --From In re 218 Jackson... Continue Reading →
Old and bad (photo by Marilyn Swanson) By: Donald L Swanson “Projected disposable income” is a plan confirmation provision appearing in all reorganization chapters of the Bankruptcy Code: in § 1129(a)(15) for Chapter 11;in § 1191(c)(2) for Subchapter V; in § 1225(b)(1) for Chapter 12; andin § 1325(b)(1) for Chapter 13. Here’s an example of... Continue Reading →
Don’t sleep on your rights (photo by Marilyn Swanson) By: Donald L Swanson Ooops! Debtor’s counsel fails to apply its pre-petition retainer to its pre-petition fee before filing Debtor’s Subchapter V Petition. The result is a reduced fee claim (to a $9,999 amount, as authorized by § 1195) and a fight over the post-petition application of... Continue Reading →
A special purpose: gas mask for a WWI horse By: Donald L Swanson It’s great to see a bankruptcy process that works—i.e., where both the debtor and its creditors are on board with a course of bankruptcy action. An excellent and recent example of such a thing involves a PPP loan, in which Debtor: dismisses its... Continue Reading →
A link to the past (photo by Marilyn Swanson) By: Donald L Swanson Formerly-successful entrepreneurs have always been treated harshly in these United States. That may be hard to believe, given our market and credit economy and the importance of small businesses to it. But it’s true. And prejudices against formerly-successful entrepreneurs remain in today’s bankruptcy statutes.... Continue Reading →
New business opportunity (cleanup) arises from a failure (photo by Marilyn Swanson) By Donald L. Swanson For many years, Chapter 11 has been nearly-synonymous with sale of a business. The Old Way But such Chapter 11 sales typically occur under § 363 as pre-confirmation asset sales. Rarely is there a post-confirmation sale of the ownership interests... Continue Reading →
An early end By Donald L. Swanson A Subchapter V trustee has various duties established by statute (see 11 U.S.C. § 1183(b)). Such duties are substantial and important, but most are concluded upon confirmation of a Subchapter V plan. Administrative Expense—Early Termination Savings Of necessity, a Subchapter V trustee’s performance of statutory duties creates an... Continue Reading →
Fixed (photo by Marilyn Swanson) By: Donald L Swanson A debtor’s Subchapter V plan must provide for disposable income payments over a “3-year period, or such longer period not to exceed 5 years as the court may fix” (11 U.S.C. § 1191(c)(2), emphasis added). One of the mysteries of Subchapter V is this: what standards should... Continue Reading →
