On Bankruptcy and Mediation
BAPCPA By: Donald L Swanson Before 1998, (i) all student loans from for-profit lenders were dischargeable in bankruptcy, but (ii) student loans backed by the federal government or from non-profits were dischargeable in only these circumstances: when the student loan “became due more than 7 years . . . before the date of the filing of... Continue Reading →
By: Donald L Swanson Here are three propositions of law, based on the U.S. Supreme Court’s Clark v. White, 13 U.S. 178 (1838), opinion: absent evidence of wrongful knowledge or intent, a creditor’s efforts at racing-to-the-courthouse to collect a debt are among the basic rights of contract that cannot be abridged by the states; state laws... Continue Reading →
BAPCPA By: Donald L Swanson BAPCPA harmed honest but unfortunate consumers in these United States. It did so by moving them out of Chapter 7 bankruptcy and into an unworkable Chapter 13 system that few consumers can use effectively in times of economic stress. That’s a given. But the up-side tradeoff that’s being pitched to us... Continue Reading →
By: Donald L Swanson The common law of assignments for benefit of creditors ("ABCs”) has been around for a very long time as an out-of-court process under the law of trusts: debtor is trustor, assignee is trustee, and debtor’s creditors are beneficiaries. And the common law of ABCs had already been well-established, when the U.S. Constitution... Continue Reading →
BAPCPA By: Donald L Swanson Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”): “A person who had a heart attack is treated the same as someone who had a spending spree at the mall”; and So, BAPCPA created a “worsening of the value” of bankruptcy as a means of protecting middle class... Continue Reading →
By: Donald L Swanson A sweet-spot for an assignment for benefit of creditors (“ABC”) in today’s world is this: a failing business needs to liquidate; and bankruptcy laws are inadequate or too expensive. An ABC fills-in where bankruptcy doesn't work. In other words, an ABC is a state-law complement to federal bankruptcy laws . . .... Continue Reading →
Report by Henry G. Newton in the May 1900 Yale Law Journal By: Donald L Swanson The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is a bi-partisan law: enacted on a vote of 302 yaes and 126 nays in the House and on a vote of 75 yaes and 24 nays in the... Continue Reading →
By: Donald L Swanson Congress must be permitted “at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” Granfinanciera v. Nordberg, 492 U.S. 33, 94 (1989) (Justices Blackmun and O’Connor dissenting, emphasis added). Justices Blackmun and O’Connor were right, of... Continue Reading →
By: Donald L Swanson Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on April 14, 2005. It was signed into law on April 20, 2005. And it applied to all bankruptcy cases filed after October 17, 2005. So, the year 2025 is the 20th anniversary of all such dates. Regressive Law BAPCPA is... Continue Reading →
By: Donald L. Swanson The intersection of state escrow laws and federal bankruptcy laws can create confusion and surprise for contracting parties. The Problem & Four Examples The problem creating such confusion and surprise is this. State escrow laws: are, typically, defined by the common law; lack precise details; and are often applied in bankruptcy... Continue Reading →
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