On Bankruptcy and Mediation
Procedural guidance? (Photo by Marilyn Swanson) By Donald L. Swanson How are private practice mediators compensated in a bankruptcy case—procedurally? We have a new court order providing guidance on how such procedures can work. The new guidance is from Sears Holding Corp. v. Lampert (In re Sears Holdings Corp.), Adv. Pro. No. 19-08250, SDNY Bankruptcy Court. ... Continue Reading →
Appearing and being heard? (Photo by Marilyn Swanson) By: Donald L Swanson "The trustee shall . . . appear and be heard at . . . any hearing that concerns . . . the value of property . . . confirmation of a plan . . . sale of property." § 1183(b)(3) (emphasis added). In every... Continue Reading →
By: Donald L Swanson Business people value their reputations because they take pride in their good names, and “not for some nebulous financial gain.” They: are guided “by their consciences”; and avoid cheating and “keep promises” because they “believe it is right to do so, not because it is good business.” [Fn. 1] The internal drive... Continue Reading →
Ancient tool with limited present value (photo by Marilyn Swanson) By Donald L. Swanson How much precedential value does an 1885 opinion of the U.S. Supreme Court deserve on a bankruptcy discharge issue? That’s a central question in the Petition for a Writ of Certiorari before the U.S. Supreme Court in Bartenwerfer v. Buckly, Case No.... Continue Reading →
“Either this or that” (photo by Marilyn Swanson) By Donald L. Swanson Here’s an important rule for mediators: When the parties try to present you with a binary equation—“either this or that”—reject it; insteadGet the parties involved in the process with you—try to help think your way out of the binary box they are trying to... Continue Reading →
A healthy tree? (photo by Marilyn Swanson) By: Donald L Swanson Does a rotten tree produce good fruit? That’s the bankruptcy issue before the U.S. Supreme Court in Siegel v. Fitzgerald, where the Question is this: “Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Bankruptcy Clause by increasing quarterly fees solely in... Continue Reading →
By: Donald L Swanson Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court in a few months. But he’s not easing into retirement. Instead, he’s out there swinging—fighting for his beliefs: trying to instruct / persuade current and future jurists on how the law should be applied. Justice Breyer’s latest punch is... Continue Reading →
An well-worn path (photo by Marilyn Swanson) By: Donald L Swanson Question: What gets an attorney’s fee application allowed—or rejected—in bankruptcy? Short answer: The services, (i) must be “necessary,” and (ii) must require legal expertise. Two Recent Opinions Two recent opinions address this question: In re H.T.O. Architect, PLLC, Case No. 19-10915, SDNY Bankruptcy Court (issued... Continue Reading →
Dale G. Higer is an attorney and a long-time Commissioner for the State of Idaho on the Uniform Law Commission. His newest role is Chair of the Commission’s newly-formed Study Committee on Assignments for Benefit of Creditors. What follows is Mr. Higer’s report on the Commission and on the work of the newly formed Study... Continue Reading →
Built for speed (photo by Marilyn Swanson) By Donald L. Swanson “Subchapter V is supposed to be a fast process toward plan confirmation, but I don’t see that happening!” --Comment of a Bankruptcy Judge (as I recall the comment) It’s true: (i) Subchapter V is supposed to go quickly, but (ii) it often doesn’t. Here’s why... Continue Reading →
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