On Bankruptcy and Mediation
Coming out of the void? (Photo by Marilyn Swanson) By: Donald L Swanson Can a judgment that’s “void” for lack of jurisdiction become valid by the passage of time? That’s the question on which the U.S. Supreme Court granted certiorari (on June 6, 2025—in Case No. 24-808, Coney Island Auto Parts Unlimited, Inc. v. Burton, Chapter... Continue Reading →
A portion excised? (Photo by Marilyn Swanson) By: Donald L Swanson Equitable mootness does not prevent the excising (i.e., the surgical removal), on appeal, of an indemnification provision from a confirmed Plan. That’s the ruling of the U.S. Fifth Circuit Court of Appeals in Excluded Lenders v. Serta Simmons Bedding, L.L.C. (In re Serta Simmons... Continue Reading →
A homestead (photo by Marilyn Swanson) By: Donald L Swanson Does a Chapter 7 debtor have appellate standing to protect the homestead exemption? That’s an issue addressed (sort of) in Karamoussayan v Massachusetts Department of Revenue (In re Karamoussayan), Case No. 22-041, First Circuit Bankruptcy Appellate Panel (decided April 11, 2024). Chronology Here’s a chronology. September... Continue Reading →
These buildings are “arising in”? (Photo by Marilyn Swanson) By: Donald L Swanson A bankruptcy court has jurisdiction to dismiss a legal malpractice claim of non-debtor plaintiffs against non-debtor attorneys. That’s the ruling in Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern Ohio Bankruptcy Court (decided... Continue Reading →
Hypothetical? — Chihuly (photo by Marilyn Swanson) By: Donald L. Swanson Say what?!. “Hypothetical jurisdiction” for a bankruptcy appeal?! Who knew? I sure didn’t. But it is, apparently, a thing . . . and it may even be real. At U.S. Supreme Court A newly filed Petition in the U.S. Supreme Court is Waleski v. Montgomery,... Continue Reading →
Public rights? (photo by Marilyn Swanson) By: Donald L Swanson Justice Stephen G. Breyer is now retired from the U.S. Supreme Court, serving from August 3, 1994, to June 30, 2022. One of his legacies—and an exceedingly important one—is this: he has worked, successfully, to erase “public rights” from the lexicon of controlling bankruptcy law. What... Continue Reading →
Waived protections? (Photo by Marilyn Swanson) By: Donald L. Swanson Is the § 363(m) limit on appeal of a sale order “subject to waiver”? That’s the essential question before the U.S. Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, Case No. 21-1270 (certiorari granted June 27, 2022). A deep circuit split exists on... Continue Reading →
Public rights? (Photo by Marilyn Swanson) There’s a new U.S. Circuit Court opinion on a person’s right to a jury trial, when sued by the Securities and Exchange Commission before one of its administrative judges. The opinion is Jarkesy v. SEC, case No. 20-61007 (5th Cir., issued May 18, 2022). And guess what: the most-cited legal authority in... Continue Reading →
Fed.R.Bankr.P. 9023 & Fed.R.Civ.P. 59 By: Donald L Swanson Imagine this: a U.S. District Court enters judgment in a case that’s “related to” a bankruptcy, and we want to file a motion for new trial or to amend the judgment. So, which deadline applies to the motion: 28 days under Fed.R.Civ.P. 59(e); or14 days under Fed.R.Bankr.P.... Continue Reading →
Flip-Flopping (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const., Article I, §8, cl. 4). Once upon a long time ago, the U.S. Constitution’s Bankruptcy Clause, and its “uniform Laws” requirement,... Continue Reading →
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