On Bankruptcy and Mediation
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 →
Looking ahead? (Photo by Marilyn Swanson) By: Donald L. Swanson Two-years prospective relief from the automatic bankruptcy stay is a remedy granted for serial bankruptcy filings, under § 362(d)(4)(B), in In re Karpuleon, Case No. 24-80647 in Central Illinois Bankruptcy Court (entered 12/6/2024; Doc. 48). Facts Here’s what happened. Debtor files a Chapter 13 petition... Continue Reading →
Keeping options open? (photo by Marilyn Swanson) By: Donald L Swanson We’ve all been there: when faced with alternative courses of action, we make a choice; but time and subsequent developments show we made the wrong choice. So, a hard-knocks rule is this: keep all options and alternatives open and viable for as long as possible;... Continue Reading →
Singapore By: Donald L. Swanson Most bankruptcy practitioners (me included) have no experience with Chapter 15 of the Bankruptcy Code, which deals with “Cross-Border Cases.” To say “Chapter 15” is, for many of us, like saying “Quantum Physics”: we know the general subject, but the details are a mystery. But . . . here is... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
Enforcing? (Photo by Marilyn Swanson) By Donald L. Swanson Is a confidentiality agreement in a state court settlement enforceable in a subsequent bankruptcy? That’s the issue in Meghji v. Casla Realty LLC (In re Celsius Network LLC), Adv.P. 24-04002 in SDNY Bankruptcy Court (decided October 17, 2024). The facts are unusual. Here’s what happened. Fraudulent Transfer... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XLIII, No. 9, September 2024. View the original publication here. Filing an involuntary bankruptcy petition as a petitioning creditor is a precarious action. The risks involved are intense, including potential liability for the debtor's costs, attorneys' fees, actual damages and punitive damages.1 To qualify as an involuntary... Continue Reading →
Direct discussions! By: Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →
A place for exercising police power? (Photo by Marilyn Swanson) By: Donald L Swanson (b) The filing of a [bankruptcy] petition . . . does not operate as a stay— . . . (4) . . . of the commencement or continuation of an action or proceeding by a governmental unit . . . to enforce... Continue Reading →
Dropping the hammer! (Photo by Marilyn Swanson) By: Donald L Swanson What happens when a Debtor goes through bankruptcy, gets a Chapter 7 discharge, believes a second mortgage on the homestead is gone, makes no payments thereon, and hears nothing for eleven years—then the hammer drops, with a lien foreclosure sale pending? That’s precisely the issue... Continue Reading →
MEDIATBANKRY 