On Bankruptcy and Mediation
Hindering and delaying the flow of water (photo by Marilyn Swanson) By: Donald L Swanson Fraudulent conveyance law, with its “badges of fraud” approach, has been around for a very long time. We now have a new and fascinating article, by Prof. Emily Kadens, that provides new information and insights on this history. [Fn. 1] One... Continue Reading →
Webinar -- Promotional Notification By: Donald L Swanson What follows is a script (more or less) of my portion of a panel presentation in an webinar, presented on September 14, 2021, sponsored by the Mediation Committee of the American Bankruptcy Institute ("ABI"), titled "Facilitation Skills for Subchapter V Trustees." A video of the webinar appears at... Continue Reading →
Protecting (photo by Marilyn Swanson) By: Donald L Swanson Did Congress intend that Subchapter V provide greater bankruptcy protection to corporations than to individuals? The answer is, “Yes,” according to a recent line of opinions: it’s easier for a corporation to be “engaged in business or commercial activities” than it is for the corporation’s owners; andthe... Continue Reading →
Bankruptcy Petition for City of Detroit By: Donald L Swanson Judge Gerald Rosen [fn. 1] served as Chief Judicial Mediator in the City of Detroit bankruptcy. He is credited with masterminding an $820 million deal that rescued the City of Detroit from bankruptcy. In a fascinating discussion, Judge Rosen recently explained and illustrated his Four "C’s”... Continue Reading →
He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues. Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →
Italy (photo by Marilyn Swanson) By: Donald L Swanson Mediation has a long and fascinating history in Italy. What follows is an attempt at a summary of that history (both ancient and recent), taken from a recent report by Giovanni Matteucci titled, “Mandatory mediation, The Italian Experience.” Mediation in Italian Legal Tradition and Culture Mediation is... Continue Reading →
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 →
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