On Bankruptcy and Mediation
Imprisoned in a Safari Park (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy laws must (and do) change. That’s because the U.S. economy is always changing: it has been in an ever-expanding mode—punctuated by recessions and depressions from time-to-time—throughout the course of its existence. One example of change is abolition of the debtors prison remedy.... Continue Reading →
11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate By: Donald L Swanson What follows is a script (more or less) of a portion of a seminar presentation I recently gave. Duty to "Facilitate" Every Subchapter V trustee has a statutory duty to “facilitate the development of a consensual plan of reorganization.” This is a brand-new duty:... Continue Reading →
"Commercial or business activity"? (photo by Grant Swanson) By: Donald L Swanson Bankruptcy courts continue struggling with the meaning of the phrase “commercial or business activities” for Subchapter V eligibility. That’s especially true when a debtor’s business liquidates before the bankruptcy is filed. However, the distinct trend of such struggle is toward a liberal construction of... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →
11 U.S.C. Sec. 554–on abandonment By: Donald L Swanson “any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor” (11 U.S.C. § 554(c), emphasis added). Question: What does “scheduled under section 521(a)(1)” mean in § 554(c): Is inclusion on the... Continue Reading →
When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc. Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →
A homestead (photo by Marilyn Swanson) By: Donald L Swanson Here’s a new and interesting opinion from the Ninth Circuit Court of Appeals: Hutchinson v. Salven, Case No. 19-60065 (filed 10/19/2021). The opinion involves these facts: the IRS files a $162,000 tax lien for penalties against Debtors’ homestead;Debtors then file their Chapter 7 bankruptcy and attempt... Continue Reading →
An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers. Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →
11 U.S.C. § 1191(c)(2) By: Donald L Swanson Subchapter V of Chapter 11 authorizes a reorganization plan to have a term of three to five years. Here is the precise language involved, in § 1191(c)(2)(A)&(B): “in the 3-year period, or such longer period not to exceed 5 years as the court may fix.” So . .... Continue Reading →
Revolutionary By: Donald L Swanson An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report. Pre-Pandemic Reality Before the pandemic began, US courts lag behind other... Continue Reading →
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