Appeal Deadline in Consolidated Bankruptcy Cases: Supreme Court Adopts Minority View (Hall v. Hall)

By:  Donald L. Swanson A new, and unanimous, decision from the U.S. Supreme Court is Hall v. Hall, Case No. 16-1150 (Decided March 27, 2018). A first read of this opinion seems like a, “What’s the big deal here?” The opinion: Is about a technical issue of appeal procedure; Reaches back, for historical authority, to... Continue Reading →

No Quorum on U.S. Supreme Court?! And § 546(e) Issues Heading Back to Courts Below? (Deutsche Bank v. McCormick)

By: Donald L. Swanson On April 3, 2018, Justices Kennedy and Thomas issue this Statement for the U.S. Supreme Court in Deutsche Bank v. McCormick, Case No. 16-317 [photo of entire Statement is above]: “consideration of the petition for certiorari will be deferred . . . given the possibility that there might not be a quorum... Continue Reading →

Footnote 5 in Supreme Court’s Merit Management Opinion: “Settlement Payment” Under a “Securities Contract”

By: Donald L. Swanson Whenever a court goes out of its way to say in an opinion, “We aren’t deciding issues X and Y,” it’s time to take notice. The omitted issues must be significant, in some way, to what’s being decided; otherwise, there’s no reason to mention them. And when the opinion is from the... Continue Reading →

An Oddity: Supreme Court Decides Nothing in its U.S. Bank v. Village at Lakeridge Bankruptcy Opinion

By Donald L. Swanson On March 5, 2018, the U.S. Supreme Court issues its latest bankruptcy opinion in the case of U.S. Bank v. Village at Lakeridge, LLC., Case no. 15-1509. The Facts Village at Lakeridge has a single owner: MBP Equity Partners.  And it has two creditors: it owes “over $10 million” to U.S. Bank... Continue Reading →

Supreme Court’s Bankruptcy Opinion on § 546(e): Merit Management v. FTI Consulting, and an Important Footnote 2

By Donald L. Swanson On February 27, 2018, the U.S. Supreme Court issued an eagerly awaited bankruptcy opinion on the § 546(e) safe harbor defense against trustee avoidance actions. The new opinion is Merit Management Group, LP v. PTI Consulting, Inc., Case No. 16-784. The opinion, at first read, appears to dramatically narrow the reach and effect... Continue Reading →

U.S. Supreme Court and Statute of Frauds for Nondischargeability (§ 523(a)(2)): In re Appling

By: Donald L Swanson On Friday, January 12, 2018, the U.S. Supreme Court granted certiorari in Lamar, Archer & Cofrin, LLP v. Appling (In re Appling), Case No. 16-1215, to resolve an indistinct legal standard. The case is about a statute of frauds for nondischargeability. Generally, a statute of frauds requires that certain promises be in... Continue Reading →

Eight Unfortunate Ninth Circuit Words in Sunnyslope: “We Take the Supreme Court at its Word.”

By Donald L. Swanson The case is In re Sunnyslope Housing Ltd. Partnership, 859 F.3d 637 (9th Cir. 2017). It’s before the U.S. Supreme Court on Petition for a Writ of Certiorari, which is set for conference on January 5, 2018. In Sunnyslope, the Ninth Circuit’s ruling is based on a Chapter 13 valuation standard established... Continue Reading →

There is NO Split of Authority on Make-Whole Premiums Between the Second and Third Circuits

By Donald L. Swanson The consensus I’ve been reading these days is that a split of authority is shaping up between the Second and Third Circuit Courts of Appeals on enforcability of make-whole premiums in bankruptcy. --The first of two cases is from the Third Circuit: In re Energy Future Holdings Corp., 842 F.3d 247 (3rd... Continue Reading →

A Surprise Development at U.S. Supreme Court in Oral Arguments on Merit Management v. FTI Consulting

By: Donald L. Swanson The case before the U.S. Supreme Court is Merit Management Group, LP v. FTI Consulting, Inc., Case No. 16-784. The bankruptcy question is whether the § 546(e) safe harbor prohibits avoidance of a transfer made through a financial institution as escrow agent. Oral arguments occurred on November 6, 2017 [Footnote 1]. Justice... Continue Reading →

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