On Bankruptcy and Mediation
By Donald L. Swanson Desperate people do desperate things. And desperation leads even good people astray. So it is in the world of financial stress. Desperate people do desperate things: like providing sloppy financial statements to creditors, failing to assure that all collateral proceeds go to the proper place, and fudging on the truth here-and-there. All... Continue Reading →
Window refreshed? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now of a problem in the Southern Texas Bankruptcy Court with a judge who resigned over ethics controversies. That resignation did not solve anything for the cases in which that judge was involved. Instead, the controversies continue to mushroom in a variety of... Continue Reading →
Replacing the old (Photo byMarilyn Swanson) By: Donald L Swanson We hear a lot these days about bankruptcy venue abuse via corporate-entity manipulation shortly before bankruptcy filing. Here’s the latest opinion on that subject—which allows Debtor’s choice of venue to stand, based on a newly-created entity: In re Amerifirst Financial, Inc., Case No. 23-11240 in the... Continue Reading →
Deception? By: Donald L Swanson Plaintiff claims to have been deceived into reaching a mediated settlement agreement—and refuses to proceed with the agreement. The U.S. District Court rejects Plaintiff’s deception claim. And the U.S. Sixth Circuit Court of Appeals affirms. The Sixth Circuit’s opinion is White v. Perron, Case No 23-1542, decided September 25, 2023. Facts White... Continue Reading →
Good faith v. Bad faith? By: Donald L Swanson Is an involuntary bankruptcy, filed by an owner/creditor of the Debtor, filed in good faith or in bad faith? That’s the question before the U.S. Supreme Court on which it denied certiorari on October 30, 2023 (Wortley v. Juranitch, Case No. 23-211). Here’s the gist of the... Continue Reading →
A crusade? (Photo by Marilyn Swanson) By: Donald L Swanson The U.S. Trustee is on a crusade to eradicate every type of third-party release from all Chapter 11 bankruptcy plans—no matter what the facts or circumstances might be. It’s a policy based on the idea that, if the Bankruptcy Code doesn’t specifically and explicitly authorize something,... Continue Reading →
These buildings are “arising in”? (Photo by Marilyn Swanson) By: Donald L Swanson A bankruptcy court has jurisdiction to dismiss a legal malpractice claim of non-debtor plaintiffs against non-debtor attorneys. That’s the ruling in Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern Ohio Bankruptcy Court (decided... Continue Reading →
Request denied? (Photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy Court denies a party’s request to enforce arbitration of a legal malpractice claim—and then dismisses that malpractice claim for failure to state a claim. The opinion is Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern... Continue Reading →
What are the rights, powers, functions and duties here? (Photo by Marilyn Swanson) By: Donald L Swanson This ideal is floating around: upon removal of a Subchapter V debtor from possession, for fraud or other cause, the Subchapter V trustee has no expanded right, power, function or duty beyond operating debtor’s business (the “Ideal”). This Ideal... Continue Reading →
Roundness (photo by Marilyn Swanson) By: Donald L Swanson A study on using round-number offers and precise-number offers in negotiations reaches these two conclusions: Round numbers signal completion—and so, negotiators are more likely to accept a round number offer (e.g., $3,000) than a precise number offer (e.g., $3,278.23); and Precise numbers are perceived as factual and... Continue Reading →
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