On Bankruptcy and Mediation
Ancient Athens (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy benefits for individual debtors are a tough sell—always have been. That’s because no one likes bankruptcy—unless they need it. But relieving people from debts in unfortunate circumstances is essential to our collective way of life in these United States. That’s always been true. What follows... Continue Reading →
Ignoring reality? (photo by Marilyn Swanson) By: Donald L Swanson We have a student loans problem in these United States. A huge part of the problem is that we are, (i) focused on addressing symptoms of the problem in small ways, (ii) ignoring the underlying problem, and (iii) enabling higher education costs to spiral out of... Continue Reading →
Little-known and rarely-used? (Photo by Marilyn Swanson) By: Donald L Swanson Preference avoidance provisions are a crucial part of the Bankruptcy Code—contained, primarily, in § 547 & § 550. States also have a preference avoidance statute—for insiders. It’s in the Uniform Voidable Transactions Act (“UVTA)” or in its predecessor, the Uniform Fraudulent Transfer Act (“UFTA)). The... Continue Reading →
Carolina Panthers practice facility after construction halted. By: Donald L Swanson 2022 has been a bad year for the Carolina Panthers of the National Football League: Their practice facility project goes into Chapter 11 bankruptcy on June 1, 2022 (Case No. 22-10505 in the Delaware Bankruptcy Court); They fire their coach after only five games (one... Continue Reading →
A Vise-Grip Tool By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.” 11 U.S.C. § 1183(b)(7). That’s what we Subchapter V trustees are supposed to do. Ok, fine. But how are we supposed to do that? A facilitation tool that many Subchapter V trustees... Continue Reading →
An Illinois view (photo by Marilyn Swanson) By: Donald L Swanson Assignments for benefit of creditors (“ABC”) are rarely used in these United States. That’s for two reasons: (i) some states have no ABC statute and do not recognize the common law of ABCs, and (ii) other states have onerous ABC statutes that no one wants... Continue Reading →
Finishes last? (Photo by Marilyn Swanson) By: Donald L Swanson Negotiators consider, (i) the reputation of the opposition, in an effort to decrease uncertainty, and (ii) their own reputations, recognizing that past behaviors can influence future efforts. A study examines the effects of a negotiator’s tough guy reputation on negotiation processes (fn. 1, the “Study”). Distributive... Continue Reading →
Fiduciary capacity? (Photo by Marilyn Swanson) By: Donald L Swanson A bankruptcy discharge “does not discharge an individual debtor from any debt-- . . . for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). The effect of this “fiduciary capacity” statute is newly before the U.S. Supreme Court on a petition... Continue Reading →
A symbol of European progress? (Photo by Marilyn Swanson) By: Donald L Swanson Non-judicial forms of dispute resolution are widespread in legal systems, (i) within the western legal tradition, or (ii) based on religion and tradition. Further, over the past 50 years, mediation has found a prominent place in legal systems based on the rule of... Continue Reading →
Precedent for today’s cell phones? By: Donald L Swanson Here are a couple long-standing and foundational policies for the entire bankruptcy system: Bankruptcy laws protect the honest but unfortunate debtor; and Discharge exceptions are to be strictly construed against the objecting creditor and liberally construed in favor of debtor. So, for all my decades of practice... Continue Reading →
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