On Bankruptcy and Mediation
Opposing views (photo by Marilyn Swanson) By: Donald L Swanson To be eligible for Subchapter V relief, the debtor must be “a person engaged in commercial or business activities” (§ 1182(1)(a)). Opposing Views Opposing views are developing on how this “engaged in” criterion should be applied. One view says, (i) nothing requires a debtor to be... Continue Reading →
U.S. Government (photo by Marilyn Swanson) By: Donald L Swanson We are focusing, here, on a mediation study titled, “Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes” (the "Vanishing Trial Study"). [Fn. 1] Some History & A Hypothesis A 2006 publication titled, “A World Without Trials,” documents a decline in the... Continue Reading →
Safe harbor (photo by Marilyn Swanson) By: Donald L Swanson In its unanimous Merit Management Group, LP v.FTI Consuting, Inc., opinion of February 27, 2018, the U.S. Supreme Court held (in the second-to-last sentence of the opinion): “Because the parties do not contend that either Valley View or Merit is a ‘financial institution’ or other covered... Continue Reading →
https://youtu.be/g1NZFVfJ98k Prof. Mann discussing "Bankruptcy and the U.S. Supreme Court" By: Donald L Swanson Ronald J. Mann is the “Albert E. Cinelli Enterprise Professor of Law” and co-director of the “Charles Evans Gerber Transactional Studies Center” at Columbia Law School. Prof. Mann is a nationally recognized scholar in bankruptcy and related areas of law. His prior... Continue Reading →
Removed (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession, the Subchapter V trustee steps into the possession role. That’s according to statute. Statutes Here are the statutory provisions (emphasis added): 11 U.S.C. § 1182(2) is titled, “Debtor in Possession” and says, “The term ‘debtor in possession’ means... Continue Reading →
The ADR Spectrum By: Donald L Swanson Alternative dispute resolution (“ADR”) has always referred to the use of a neutral third party to help resolve disputes. But the recent addition of Subchapter V to the Bankruptcy Code has changed that. I’ll try to explain. Alternative Dispute Resolution Act of 1998 28 U.S.C. § 651(a) is part... Continue Reading →
Normal activity cannot exist (photo by Marilyn Swanson) By: Donald L Swanson The automatic bankruptcy stay: “does not apply in a case in which the debtor— . . . (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period” before the... Continue Reading →
By: Donald L. Swanson Pre-litigation mediation opportunities are provided in many farm states before a creditor can pursue legal action against a farmer on a delinquent obligation. Such early mediation efforts are highly effective in resolving disputes. Similarly, small businesses in financial stress and their creditors might engage in early efforts to forestall credit disputes. ... Continue Reading →
COVID-19 Bankruptcy Relief Extension Act of 2021 By: Donald L Swanson It's finally happened -- on bi-partisan and nearly-unanimous votes. The $7.5 million debt limit for Subchapter V eligibility, set to expire on March 27, 2021, is extended. Yet, it took a March 2021 fire drill to do so (see this webpage), which fire drill concluded... Continue Reading →
https://youtu.be/ysWRt4_-6uk By: Donald L Swanson The above interview talks about mediators in general and about judicial mediators (i.e., a sitting judges) and private mediators more specifically; and it offers suggestions for practitioners on choosing a mediator. Hon. Louis H. Kornreich (Ret.) is well-qualified to speak on such matters because of his, (i) long and distinguished service... Continue Reading →
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