On Bankruptcy and Mediation
BAPCPA By: Donald L Swanson On April 20, 2005 (that's 20 years ago this Sunday), the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is signed into law, after being passed by bi-partisan majorities in both the House and the Senate. But BAPCPA has been tough on middle class debtors and on debtors with... Continue Reading →
Opposition! (Photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy laws in these United States need to be reformed. For example: About a year ago, Congress allowed the $7,500,000 Subchapter V debt limit to expire, reducing that limit to an inflation-adjusted $3,024,725 and leaving many entrepreneurs without viable bankruptcy relief—this needs to be fixed! Also about... Continue Reading →
Empowered (photo by Marilyn Swanson) By: Donald L Swanson “chapter 15 authorizes this Court to enforce nonconsensual third-party releases ordered by foreign courts.” That’s the conclusion of the Delaware Bankruptcy Court in In re Real, Case No. 25-10208, Doc. 65 at 19 (decided April 1, 2025). The Facts Here is a quick summary of the In... Continue Reading →
Authorized to act (photo by Marilyn Swanson) By: Donald L Swanson Some time ago, I’m discussing the role and powers of a Chapter 12 trustee. In response to a question, I say that a Chapter 12 trustee has no authority to sell estate assets unless and until the debtor is removed from possession. Someone promptly counters... Continue Reading →
A character for truthfulness (photo by Marilyn Swanson) By: Donald L Swanson Here are two questions under Federal Rule of Evidence 608(b): Is a bankruptcy discharge admissible to prove a person’s character for truthfulness or untruthfulness? How about a prior repossession of a person’s automobile? Is that probative of a person’s character for truthfulness or untruthfulness?... Continue Reading →
Flow-through (Photo by Marilyn Swanson) By Donald L. Swanson Question: Can a law firm member avoid flow-through tax liability by giving up ownership in the law firm shortly before it files bankruptcy? The answer is, “Yes.” That’s according to LeClair v. Tavenner, Case No. 23-1133 (4th Cir., decided 2/7/2025). Facts Law Firm operates successfully for several... Continue Reading →
Refuses to leave (photo by Marilyn Swanson) By: Donald L Swanson What happens, after a bankruptcy sale of real estate, when the party in possession of that real estate . . . refuses to leave? We now know. The case is In re Galleria 2425 Owner, L.L.C., Case No. 23-34815 in Southern Texas Bankruptcy Court (decided... Continue Reading →
A weapon (photo by Marilyn Swanson) By: Donald L Swanson Since Debtor “does not now seek to use that agreement as a weapon” against Creditor, Debtor’s “bankruptcy discharge renders the arbitration agreement unenforceable.” Rogne v. Digital Forensics Corp., Case No. 24-cv-2612 (D. Minn. 1/13/2025; Doc. 22, at 7) (emphasis added). Facts Debtor gets a Chapter 7... Continue Reading →
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 →
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