70% Of Mediation PARTICIPANTS Prefer Zoom Mediations To In-Person Mediations (A Study Of EEOC Mediations—Part 1 of 2)

In-Person (Photo by Marilyn Swanson) By:  Donald L. Swanson “Nearly 70% of the participants prefer Online Dispute Resolution [e.g., via Zoom] to In-Person Mediation . . . Only 13% preferred In-Person Mediation in the future.” That’s the finding from a study of party-participants in the mediation program conducted by the U.S. Equal Employment Opportunity Commission... Continue Reading →

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In Bankruptcy Sales, Value Maximization Preempts Technicality Enforcement (In re Parkcliffe)

The greater good? (photo by Marilyn Swanson) By: Donald L Swanson What happens when a bankruptcy sale is nearly complete . . . and someone presents a substantially-higher bid? Must the lower-price deal proceed to completion? Or can the higher bid be considered? The answer is this: maximizing value is the greater good, so the higher... Continue Reading →

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Uniform Special Deposits Act: An Illustration Of The Problems It Can Solve (Hopkins Hospitality)

Awaiting special deposits (photo by Marilyn Swanson) By: Donald L Swanson The Uniform Law Commission offers a Uniform Special Deposits Act.  Such Act is designed to provide certainty on issues surrounding the ownership and use of money deposited in a bank account for a special purpose. Here’s an example of the type of disasters that could... Continue Reading →

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What Qualifies As “Consent” For A Third Party Release? (In re Spirit Airlines)

Consent? (photo by Marilyn Swanson) By: Donald L Swanson In Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), the Supreme Court declares: the Bankruptcy Code does not authorize non-consensual third-party releases in Chapter 11 plans of reorganization; but “Nothing in what we have said should be construed to call into question consensual third-party releases offered... Continue Reading →

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The Winners In A Successful ABC: Debtor’s Secured Creditors

Winners (photo by Marilyn Swanson) By: Donald L Swanson Here’s a hypothetical. Banker is trying to manage credit problems with debtor’s failing business.  Debtor’s attorney offers banker a choice among these alternatives: Debtor could give the keys of the business to bank—to liquidate as bank sees fit; Bank could foreclose its liens; Bank could initiate a... Continue Reading →

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Congress Codified The Ninth Circuit’s New Value Exception/Corollary To The Absolute Priority Rule For Individual Debtors: In BAPCPA?

BAPCPA By Donald L. Swanson The text of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is linked here. Title III of BAPCPA is named “Discouraging Bankruptcy Abuse,” and § 321 (from said Title III) is named “Chapter 11 Cases Filed by Individuals.”  Such § 321 makes the following changes to the Bankruptcy... Continue Reading →

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“Vesting” Property In Debtor At Plan Confirmation: What Does It Mean? (In re Marsh)

Wearing a vest (photo by Marilyn Swanson) By Donald L. Swanson This statutory language appears in each of Chapter 13, Chapter 12 and Subchapter V of the Bankruptcy Code: “Property of the estate includes . . . all property . . . that the debtor acquires after the commencement of the case”; and “confirmation of a... Continue Reading →

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A History Of The Bankruptcy Discharge: From Debtor’s Prison To Uniformity (Central Virginia v. Katz)

Philadelphia, Pennsylvania (photo by Marilyn Swanson) By: Donald L Swanson Today, the sole function a bankruptcy discharge is to rid the debtor of debts and, thereby, provide a fresh financial start. But in the 1700s, the focus was on getting a debtor’s body discharged from debtor’s prison, to provide a fresh start through personal liberty. And... Continue Reading →

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A Not-For-Profit Is Eligible For Subchapter V (Guan v. Ellingsworth)

“commercial or business activities”? (Photo by Marilyn Swanson) By: Donald L Swanson “We now hold that a not-for-profit company can be ‘engaged in commercial or business activities’ as that phrase is used" in Subchapter V of the Bankruptcy Code. Guan v. Ellingsworth Residential Community Association, Inc., 125 F.4th 1365 (11th Cir. 2025). Guan is a homeowner... Continue Reading →

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A Refresher On “Actual Fraud” For Nondischargeability Under § 523(a)(2)(A) (In re Novak)

Deceptive? (Photo by Marilyn Swanson) By Donald L. Swanson Here’s a refresher on legal standards, and the application of those standards, for denying a debtor’s discharge for “actual fraud” under § 523(a)(2)(A): the opinion is Capital, Inc. v. Novak (In re Novak), Adv. Pro. No. 23-01005 in the Eastern Louisiana Bankruptcy Court (decided October 21, 2024;... Continue Reading →

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