On Bankruptcy and Mediation
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 →
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 →
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 →
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 →
By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →
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 →
By: Donald L. Swanson The U.S. Supreme Court has already dismissed one bankruptcy appeal this term as “improvidently granted.” This is an oddity. And it should have also dismissed U.S. Bank National Association v. Village at Lakeridge, Case No. 15-1509, for the same reason. Instead, the Court held oral arguments in the Lakeridge case on... Continue Reading →
By: Donald L. Swanson The fact scenario is this. An S corporation pays its own taxes each year. Then it files bankruptcy. So, the bankruptcy trustee sues the IRS for recovery of those tax payments as fraudulent transfers. It does so under two different sections of the Bankruptcy Code: (i) Under § 548, for payments within... Continue Reading →
By Donald L. Swanson I’m irritated [not that anyone actually cares]. Here’s why. Federal Arbitration Act I’ve been reading some bankruptcy cases on requirements of the Federal Arbitration Act. These cases talk about submitting a bankruptcy dispute to arbitration based on an arbitration provision in the disputing parties’ pre-petition contract. Never mind that the dispute is... Continue Reading →
By Donald L. Swanson "We must decide whether Puerto Rico is a “State” for purposes of this [bankruptcy] pre-emption provision. We hold that it is." --Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, U.S. Supreme Court Case No. 15-233 (Decided June 13, 2016). The Bankruptcy Code definition of "State" is contained in Sec. 101(52) and... Continue Reading →
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