U.S. Solicitor General: A POWERFUL AND BIASED Advocate Before the U.S. Supreme Court on Bankruptcy Issues (Deutsche Bank v. McCormick Foundation)

Unbiased justice (photo by Marilyn Swanson) By: Donald L Swanson The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States [on whether to grant the Petition for Writ of Certiorari]. --From U.S. Supreme Court docket entry dated October 5, 2020, in Deutsche Bank v. McCormick Foundation... Continue Reading →

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Vacating A Court Order That Violates A Mediated Settlement Agreement—For “Mistake” (In re Mattox)

Disputed property line is on the west side of this photo By Donald L. Swanson The opinion is In re Mattox, Case No. 18-10101-13 in the Kansas Bankruptcy Court, decided October 19, 2020 (Doc. 93). Homestead Exemption Dispute Here’s what happened. Debtor files Chapter 7 bankruptcy, claiming a homestead exemption in 43 acres of property, having... Continue Reading →

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Fraudulent Transfer–Distinguishing Between A “Recipient” And A “Transferee” (Jalbert v. Gryaznova)

A conduit (photo by Marilyn Swanson) By Donald L. Swanson Under the Bankruptcy Code, an “initial transferee” is strictly liable for a fraudulent transfer—there is no good faith, subsequent advance, or similar defense. Fortunately for some fraudulent transfer defendants, it’s possible to be the “recipient” of a transfer as a mere conduit, without becoming a “transferee”... Continue Reading →

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How Is Refusing A Turnover Request Not “Exercising Control Over”? (City of Chicago v. Fulton)

City of Chicago (Photo by Marilyn Swanson) By: Donald L Swanson So . . . I’m reading through the transcript of oral arguments at the U.S. Supreme Court on City of Chicago v. Fulton (Case No. 19-357) from October 13, 2020.  The first thing that jumps out at me, three pages in, is this: there is... Continue Reading →

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Do Creditors Vote on Subchapter V Plans? (In re Desert Lake / In re Pearl Resources)

Voting (photo by Marilyn Swanson) By: Donald L Swanson In Subchapter V of the Bankruptcy Code, the “Post-Petition Disclosure and Solicitation” provisions of § 1125 do not apply without a specific court order (see § 1181(b)). Voting Questions So, a question exists on how the plan voting provisions of § 1126 and Fed.Bankr.R. 3018 might apply... Continue Reading →

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Mediation: The Same In War And Peace?

War and Peace By: Donald L Swanson Many factors motivate disputing parties parties to mediate;Disputing parties are rational actors, driven by self-interest;There is a a strong relationship between conflict costs and the willingness of the parties to mediate; andA precondition for negotiations is a perception by the disputing parties that, (i) a negotiated outcome is preferable... Continue Reading →

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U.S. Solicitor General: A Biased Advocate Before The U.S. Supreme Court On Bankruptcy Issues–Again (City of Chicago v. Fulton)

City of Chicago (Photo by Marilyn a Swanson) By: Donald L Swanson The case before the U.S. Supreme Court is City of Chicago v. Fulton, Case No. 19-357.  It is scheduled for oral argument on Tuesday, October 13, 2020. Facts The essential facts are these: City of Chicago impounds Fulton’s car to collect fines and penalties... Continue Reading →

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When is a Dispute Ripe for Mediation? (In re Diocese of Buffalo)

Are they ripe? (Photo by Marilyn Swanson) By: Donald L Swanson The timing of mediation efforts in litigation is important (and can be tricky).  Studies show that early is better than late.  But in early mediation efforts, a tension exists between, (i) acting promptly, and (ii) assuring that parties have adequate information to make informed decisions.... Continue Reading →

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Bankruptcy Laws v. Insolvency Laws: A Debtors’ Prison Distinction (Sturges v. Crowninshield)

Flying high (photo by Marilyn Swanson) By: Donald L Swanson Over the past two hundred and thirty years, the United States of America has been flying high on a massive economic expansion, punctuated periodically by times of economic stress or crisis. Bankruptcy laws have struggled to keep pace with the expansion and occasional turmoil. An earliest... Continue Reading →

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Mediation Costs In Sanctions For Frivolous Appeal (Quincy Bioscience v. Ellishbooks)

Frivolous? (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Quincy Bioscience, LLC v. Ellishbooks, et al., Case No. 19-1799 (7th Cir.) (decided July 22, 2020).   The procedural background is this: Ellishbooks loses a case before the U.S. District Court for the Northern District of Illinois (Doc. 1:17-cv-08292) and appeals to the Seventh... Continue Reading →

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