On Bankruptcy and Mediation
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 →
Fixed (photo by Marilyn Swanson) By: Donald L Swanson A debtor’s Subchapter V plan must provide for disposable income payments over a “3-year period, or such longer period not to exceed 5 years as the court may fix” (11 U.S.C. § 1191(c)(2), emphasis added). One of the mysteries of Subchapter V is this: what standards should... Continue Reading →
Weak and strong (photo by Marilyn Swanson) By: Donald L Swanson Persuasion plays a pivotal role in all legal contexts: e.g., pleadings, motions, hearings, mediations, trials and appeals. A recent study on “Strategic Storytelling” [Fn. 1] looks at how the use of a story to present facts works as a tool of persuasion. Prior research has... Continue Reading →
An individual -- not an entity (photo by Marilyn Swanson) By: Donald L Swanson Do § 523(a) discharge exceptions apply to non-individual debtors in Subchapter V? That question has been resolved, with opposite results, in two recent opinions by two bankruptcy courts. What follows is a summary of operative statutes and the two opinions. Operative Statutes... Continue Reading →
College Sports (photo by Marilyn Swanson) By: Donald L Swanson On June 21, 2021, the U.S. Supreme Court orders the National Collegiate Athletic Association (“NCAA”) to stop limiting “education-related compensation or benefits” that schools provide to student athletes—any such limitation violates U.S. antitrust laws. [Fn. 1] This is not the first time the U.S. Supreme Court... Continue Reading →
Brunner's "certainty of hopelessness" test? (photo by Marilyn Swanson) By: Donald L Swanson “Petition DENIED” That’s the ruling of the U.S. Supreme Court, dated June 21, 2021, in McCoy v. United States (Case No. 20-886). The question in McCoy v. United States focuses on the test for discharging student loans in bankruptcy, under the “undue hardship”... Continue Reading →
https://youtu.be/fkGgti3-DsA By: Donald L Swanson Amy Quackenboss is Executive Director of the American Bankruptcy Institute (“ABI”). ABI is the nation’s largest, most diverse and premier community of bankruptcy professionals. It has more than 10,000 members, consisting of judges, attorneys, law professors, accountants, investment bankers and turn-around specialists, throughout the United States and internationally. In the interview... Continue Reading →
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