On Bankruptcy and Mediation
By Donald L. Swanson Have you ever wondered why Congress, when it adopted the Bankruptcy Code in 1978, limited the term of service for bankruptcy judges to fourteen years? --This term limitation, established in 28 U.S.C. Sec. 157(a)(1), assures that bankruptcy judges are serving as Article I judges under the U.S. Constitution. Life tenure would... Continue Reading →
By Donald L. Swanson On June 23, 2017, Neil Gorsuch issues his first dissenting opinion as a Supreme Court Justice. The case is Perry v. Merit Systems Protection Board (Supreme Court Case No. 16-399). It's about statutory procedures for litigating Federal employee claims. The dissent by Justice Gorsuch illuminates a comparison of ideas with those... Continue Reading →
By Donald L. Swanson Federal courts in the U.S. bankruptcy system have been struggling for decades with the extent and limits of bankruptcy court jurisdiction under the U.S. Constitution. The difficulty begins with Articles I and III of the U.S. Constitution: --Article I, Section 8, says: “The Congress shall have power to . . .... Continue Reading →
By Donald L. Swanson The case is Henson v. Santander Consumer USA Inc., U.S. Supreme Court Case No. 16-349, decided June 12, 2017. The case is on appeal from the Fourth Circuit Court of Appeals. The question is whether the Fair Debt Collection Practices Act applies when you “purchase a debt and then try to collect... Continue Reading →
NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... Continue Reading →
By Donald L. Swanson Two Hypotheticals and a Question: First Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 7 bankruptcy. The Chapter 7 Trustee refuses to pursue the fraudulent transfer claim, and the Bankruptcy Code’s two-year statute of limitations expires. Second Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 11 bankruptcy.... Continue Reading →
By Donald L. Swanson The case is Midland Funding, LLC v. Johnson, Supreme Court Case No. 16-348 (decided May 15, 2017). It’s about creditors filing proofs of stale claims (i.e., claims barred by statute of limitations) in Chapter 13 cases. The Facts Aleida Johnson files Chapter 13 bankruptcy. Then, Midland files a proof of claim... Continue Reading →
By: Donald L. Swanson The opinion in the U.S. Supreme Court is Spokeo, Inc. v. Robins (issued on May 16, 2016, in Case No. 13-1339). The Facts of the Case Here are the facts: Spokeo, Inc., operates a “people search engine”: you can search its website for a person’s name and get information about him/her. Spokeo... Continue Reading →
By Donald L. Swanson These are the best of times, these are the worst of times for 11 U.S.C. § 546(e). § 546(e) provides protection from fraudulent transfer liability in specialized circumstances: e.g., for sales of corporate stock through an intermediary. The “best of times” are because five circuit courts of appeals construe § 546(e)... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has a penchant for rulings that, as a practical matter, screw up our bankruptcy world. The most recent example is the Supreme Court’s March 22, 2017, ruling in the In re Jevic case [see this article]. Another case, where the U.S. Supreme Court did us no favors in... Continue Reading →
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