On Bankruptcy and Mediation
Monitoring? (photo by Marilyn Swanson) By: Donald L Swanson Question: Does a Subchapter V trustee have a duty to “monitor” debtor’s compliance with a confirmed plan? Answer: “No.” I’ll try to explain . . . and to add a suggestion on what Subchapter V trustees might do, instead. Consensual Confirmation When a plan is confirmed under... Continue Reading →
A safety valve? (Photo by Marilyn Swanson) By: Donald L Swanson Lots of things are wrong with the student loan program in these United States. For example: It’s a corporate-welfare program for high-price colleges; butTheir students pay the price. Unfortunately, the safety valve protection for students (i.e., a bankruptcy discharge) has failed them—and made the problem... Continue Reading →
An overreach? (photo by Marilyn Swanson) By: Donald L Swanson “Mediating judges have largely slipped through the cracks of widespread academic discussion. . . . Yet, some practices create the perception or the reality of judicial overreach in ways that elude standard judicial accountability measures.” Prov. Melissa B. Jacoby, “Other Judge’s Cases,” at 68 (January 22,... Continue Reading →
A rate of flow (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Wells Fargo Bank, Indenture Trustee v. The Hertz Corp. (In re The Hertz Corp), Adv. P. No. 21-50995, Delaware Bankruptcy Court (issued December 22, 2021, Doc. 28). The question is whether (and at what rate) post-petition interest can be recovered on... Continue Reading →
A report By: Donald L Swanson Here’s a first of its kind: a report about federal judges mediating other judges’ cases. It's a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law... Continue Reading →
City of Chicago (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court, in its Fulton v. City of Chicago opinion, let Chicago off the automatic stay hook for holding onto impounded vehicles owned by Chapter 13 debtors. But Fulton is not the last word on that subject. The new opinion is Cordova, et al. v. City of Chicago,... Continue Reading →
A lovely place to stay — oops, wrong “stay” (photo by Marilyn Swanson) By: Donald L Swanson An “Order Staying the Later-Filed Bankruptcy Cases” is from In re The Aliera Companies Inc., Case No. 21-11548, Delaware Bankruptcy Court (issued January 18, 2022, Doc. 56), followed by an "Order Transferring Venue of the Later-Filed Voluntary Bankruptcy Cases"... Continue Reading →
What’s the reasonably equivalent value? (Photo by Marilyn Swanson) By: Donald L Swanson Can the foreclosure of a property tax lien on real estate be avoided as a fraudulent transfer under § 584 of the Bankruptcy Code? That’s the issue before the District Court, on a bankruptcy appeal, in Duvall v. County of Ontario, New York,... Continue Reading →
Ignoring? (photo by Marilyn Swanson) By: Donald L Swanson “I have an opening statement that I give at the beginning of every mediation, and it goes like this”: “I don’t have a lot of rules but I have one firm rule and that is nobody uses the ‘F’ word—“final offer.” “And it’s very true. If I... Continue Reading →
A disconnect? (photo by Marilyn Swanson) By Donald L. Swanson Every now and then, (i) something is blatantly obvious, but (ii) those in charge insist that what seems obvious is actually false. Such a disconnect breeds distrust. That’s precisely what exists in our bankruptcy system. The U.S. Constitution requires that bankruptcy laws be “uniform .... Continue Reading →
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