On Bankruptcy and Mediation
In danger of being stopped? (Photo by Marilyn Swanson) By: Donald L Swanson Question: What happens when a Chapter 7 debtor: fails to disclose the existence of claims against third parties; receives a Chapter 7 discharge and a closing of the Chapter 7 case; then, pursues the undisclosed claims by filing a lawsuit against the third... Continue Reading →
By: Donald L Swanson I’m serving on a Drafting Committee of the Uniform Law Commission for a uniform law on assignment for benefit of creditors (“ABC”). A draft of such a uniform law is coming together, with lots of input from many people and organizations. But we are always looking for more input. So, if you'd like to participate... Continue Reading →
Mens rea presumed? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Must a jury instruction, in a fraudulent transfer lawsuit involving an alleged Ponzi scheme, require a mens rea finding of actual fraudulent intent? That’s a question addressed by the U.S. Ninth Circuit Court of Appeals in Kirkland v. Rund (In re EPD Investment Co.,... Continue Reading →
By: Donald L SwansonI’m serving on a Drafting Committee of the Uniform Law Commission for a uniform law on assignment for benefit of creditors (“ABC”). A draft of such a uniform law is coming together, with lots of input from many people and organizations. And we are always looking for more input! At one point, I’m... Continue Reading →
By: Donald L Swanson “A discharge under section 727, 1141, 1192 [Subchapter V], 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— . . .” 11 U.S.C. § 523(a) (emphasis added). Bankruptcy courts applying the foregoing language in the early days of Subchapter V found such language to be clear and... Continue Reading →
Favoring (photo by Marilyn Swanson) By: Donald L Swanson A recent bankruptcy opinion[fn. 1] recites the following arbitration policies under the Federal Arbitration Act (“FAA”), based on an old U.S. Supreme Court opinion[fn. 2]: “The FAA is rooted in the notion that arbitration agreements are private contracts affecting commerce, creating a strong presumption in favor of... Continue Reading →
Abuse? (Photo by Marilyn Swanson) By: Donald L Swanson A new, bipartisan bankruptcy bill in the U.S. Senate purports, according to an official document, to: “deter the Texas Two-Step”; and “ensure injury victims have a chance to be heard in court.” In my lexicon, this bill already has three strikes against it and should be rejected. ... Continue Reading →
By Donald L. Swanson Attorneys make mistakes. It happens. Here’s a case where two competing attorneys each violate a court rule on mediation confidentiality: In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The hand-slap The two attorneys get hauled before the Court to explain their dastardly deeds. But in the end, they only get... Continue Reading →
Exempt assets? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a retirement fund organized under Canadian law qualify for a state law exemption requiring that it “qualify as a retirement plan” under the Internal Revenue Code? This question gets all the way to the U.S. Seventh Circuit Court of appeals, which issues a “No”... Continue Reading →
A champ (photo by Marilyn Swanson) By: Donald L Swanson The general rule is that claims of the bankruptcy estate against third parties (e.g., preference claims and tort claims) can be sold to third parties in a § 363 sale.[Fn. 1] However, a recent opinion from the U.S. Fifth Circuit Court of Appeals discusses whether a... Continue Reading →
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