On Bankruptcy and Mediation
By: Donald L. Swanson Arch Coal, Inc., files bankruptcy on January 11, 2016. By the month of May 2016, the debtor and its creditors are in contentious negotiations over terms of a Chapter 11 plan. At one point, the parties think they have an agreement in principal, but things fall apart when putting settlement details... Continue Reading →
By Donald L. Swanson Two Hypotheticals and a Question: First Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 7 bankruptcy. The Chapter 7 Trustee refuses to pursue the fraudulent transfer claim, and the Bankruptcy Code’s two-year statute of limitations expires. Second Hypothetical: Debtor makes a fraudulent transfer shortly before filing Chapter 11 bankruptcy.... Continue Reading →
By Donald L. Swanson “We in bankruptcy impair contracts all day, every day . . . That is what we do.” --Judge Steven Rhodes, as quoted by Nathan Bomey in “Detroit Resurrected: To Bankruptcy and Back.” Michigan’s State Constitution provides that public pension rights cannot be impaired. So, pensioners take the position, in Detroit’s bankruptcy,... Continue Reading →
By Donald L. Swanson On March 27, 2017, the U.S. Supreme Court grants certiorari in the case of U.S. Bank N.A. v. Village at Lakeridge, LLC, U.S. Supreme Court Case No. 15-1509. The Facts Kathie Bartlett is one of five owners of a company that owns the Debtor. So, both Kathie Bartlett and her company... Continue Reading →
By: Donald L. Swanson “[T]he full benefits of mediation are not reaped when parties are left to participate in it voluntarily.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). The article linked above is written by Dorcas... Continue Reading →
By Donald L. Swanson The case is Midland Funding, LLC v. Johnson, Supreme Court Case No. 16-348 (decided May 15, 2017). It’s about creditors filing proofs of stale claims (i.e., claims barred by statute of limitations) in Chapter 13 cases. The Facts Aleida Johnson files Chapter 13 bankruptcy. Then, Midland files a proof of claim... Continue Reading →
By Donald L. Swanson “The decision here is most likely all or nothing. One side is going to win and the other side is going to lose—and that’s going to be very happy on one side and very tough on the other side.” --Judge Steven Rhodes, encouraging parties to reach a settlement, as quoted in... Continue Reading →
By: Donald L. Swanson The opinion in the U.S. Supreme Court is Spokeo, Inc. v. Robins (issued on May 16, 2016, in Case No. 13-1339). The Facts of the Case Here are the facts: Spokeo, Inc., operates a “people search engine”: you can search its website for a person’s name and get information about him/her. Spokeo... Continue Reading →
By Donald L. Swanson Mediators are appointed as “special masters” in the U.S. District Courts. Such appointments are authorized by Fed. R. Civ. P. 53. Examples of Mediators as Special Settlement Masters Mediators appointed as special settlement masters are often given a broad range of authority to act proactively on the court’s behalf. One example is In... Continue Reading →
By Donald L. Swanson These are the best of times, these are the worst of times for 11 U.S.C. § 546(e). § 546(e) provides protection from fraudulent transfer liability in specialized circumstances: e.g., for sales of corporate stock through an intermediary. The “best of times” are because five circuit courts of appeals construe § 546(e)... Continue Reading →
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