On Bankruptcy and Mediation
The passing of time (photo by Marilyn Swanson) By: Donald L Swanson “Because Congress did not include a temporal limitation in § 327, the Court finds it inconsistent with the provisions of Title 11 to insert one”; and The U.S. Supreme Court, in Acevedo, “did not change the existing authority of the [bankruptcy] court to approve... Continue Reading →
Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile. You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →
A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →
De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.” --From In re 218 Jackson... Continue Reading →
A homestead By: Donald L Swanson A bankruptcy trustee cannot transform an exempt homestead into property of the bankruptcy estate by avoiding and preserving a mortgage lien against it. That’s a fundamental rule of law established by two opinions from the First Circuit Court of Appeals: one in 2014 and one on August 6, 2021. Background... Continue Reading →
Include them all? (photo by Marilyn Swanson) By: Donald L Swanson Settling with less than all defendants in a lawsuit is always tricky. And mediating without all interested parties involved is also tricky. The problem is that non-settling / non-participating parties might, (i) blow a settlement up, once they learn of it, (ii) be released unintentionally... Continue Reading →
Viewed from a distance (photo by Marilyn Swanson) By: Donald L Swanson The subject is “equitable mootness” of an order confirming a Chapter 11 plan—when viewed from a distance, through Article III of the U.S. Constitution. The opinion is In re VeroBlue Farms USA, Inc. [Fn. 1] Here are three conclusions from the opinion: “‘equitable,’... Continue Reading →
Power generation (photo by Marilyn Swanson) By: Donald L. Swanson “the desire to feel powerful motivates advice giving” That’s the conclusion of a study titled “Advice Giving: A Subtle Pathway to Power” [fn. 1]. Is that a Negative? Hmmmm . . . somehow, that conclusion doesn’t sound like a compliment. I’m not sure what to think... Continue Reading →
Old and bad (photo by Marilyn Swanson) By: Donald L Swanson “Projected disposable income” is a plan confirmation provision appearing in all reorganization chapters of the Bankruptcy Code: in § 1129(a)(15) for Chapter 11;in § 1191(c)(2) for Subchapter V; in § 1225(b)(1) for Chapter 12; andin § 1325(b)(1) for Chapter 13. Here’s an example of... Continue Reading →
Don’t sleep on your rights (photo by Marilyn Swanson) By: Donald L Swanson Ooops! Debtor’s counsel fails to apply its pre-petition retainer to its pre-petition fee before filing Debtor’s Subchapter V Petition. The result is a reduced fee claim (to a $9,999 amount, as authorized by § 1195) and a fight over the post-petition application of... Continue Reading →
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