On Bankruptcy and Mediation
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 →
A special purpose: gas mask for a WWI horse By: Donald L Swanson It’s great to see a bankruptcy process that works—i.e., where both the debtor and its creditors are on board with a course of bankruptcy action. An excellent and recent example of such a thing involves a PPP loan, in which Debtor: dismisses its... Continue Reading →
Trusting? (Photo by Marilyn Swanson) By: Donald L Swanson A 2019 study [Fn. 1] examines whether mediating parties will trust a mediator when the mediation occurs over Zoom (or similar platform), instead of in-person. Here are the study’s conclusions: all fifty-nine study participants "felt that they could trust the mediator and perceived the mediator as trustworthy”—whether... Continue Reading →
A link to the past (photo by Marilyn Swanson) By: Donald L Swanson Formerly-successful entrepreneurs have always been treated harshly in these United States. That may be hard to believe, given our market and credit economy and the importance of small businesses to it. But it’s true. And prejudices against formerly-successful entrepreneurs remain in today’s bankruptcy statutes.... Continue Reading →
Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective. But how they are used together, when they overlap, can get tricky. That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al. The case begins with a U.S.... Continue Reading →
New business opportunity (cleanup) arises from a failure (photo by Marilyn Swanson) By Donald L. Swanson For many years, Chapter 11 has been nearly-synonymous with sale of a business. The Old Way But such Chapter 11 sales typically occur under § 363 as pre-confirmation asset sales. Rarely is there a post-confirmation sale of the ownership interests... Continue Reading →
Unsolvable? (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Zimmer, Case No. 17-20543 in the Bankruptcy Court for the Western District of Pennsylvania (issued December 14, 2020, Doc. 452). The case is a mess—you’ve got to read it to believe it. Beginning Facts Daniel and Lucille Morris (the “Morris couple”) are... Continue Reading →
An early end By Donald L. Swanson A Subchapter V trustee has various duties established by statute (see 11 U.S.C. § 1183(b)). Such duties are substantial and important, but most are concluded upon confirmation of a Subchapter V plan. Administrative Expense—Early Termination Savings Of necessity, a Subchapter V trustee’s performance of statutory duties creates an... Continue Reading →
Face-to-face interactions (photo by Marilyn Swanson) By: Donald L Swanson People are “more honest when communicating face-to-face than through an intermediary,” and that is true in “even the briefest of face-to-face interactions.” Study Such are the findings of a study titled, “I Can’t Lie to Your Face.” [Fn. 1] Face-to-face interactions in the study involve visual... Continue Reading →
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