On Bankruptcy and Mediation
Northern Pipeline & Stern Opinions By: Donald L Swanson The U.S. Supreme Court has never liked like the Bankruptcy Code and has worked diligently, over the decades, to limit the authority of bankruptcy courts and bankruptcy judges. Two examples are U.S. Supreme Court opinions that have anniversaries this month—in June of 2026: 44 years ago (on... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson Here is a common statement of bankruptcy court jurisdiction: “The Court has constitutional authority to determine this matter because it,” “is purely a matter of bankruptcy law”; and “does not require the resolution of any matter similar to ‘the stuff of the traditional actions at common law... Continue Reading →
Removed. Reinstatement possibilities? (photo by Marilyn Swanson) By: Donald L SwansonA problem: What is a Subchapter V trustee to do when the Subchapter V debtor is removed from possession? Authorizations The Bankruptcy Code authorizes removal of a debtor in possession for cause—in both Subchapter V and standard Chapter 11.[Fn. 1] And in a removed-debtor context, the Bankruptcy... Continue Reading →
Northern Pipeline & Stern Opinions The Bankruptcy Code goes into effect on October 1, 1979. I take the Nebraska Bar Exam in July of 1980 and am sworn-in to practice law in Nebraska in September of that year. Two years later (forty four years ago), the U.S. Supreme Court issues its Northern Pipeline Construction Co.... Continue Reading →
Electing? (photo by Marilyn Swanson) By: Donald L Swanson Question: Can a bankruptcy court revoke a debtor’s Subchapter V election without debtor’s consent when debtor is statutorily eligible for Subchapter V relief? Two recent opinions on that question from a single bankruptcy case (In re USA Cricket, Case No. 25-16381, Colorado Bankruptcy Court) say, “Yes”: opinion... Continue Reading →
An oral promise? (Photo by Marilyn Swanson) By: Donald L Swanson What does it take to assure that a limited liability company owned and controlled by an individual is obligated to pay the individual’s legal fees? Is an oral promise sufficient? That’s the issue in Ballrad Spahr LLP v. Official Committee of Equity Security Holders (In... Continue Reading →
An oddity (photo by Marilyn Swanson) By: Donald L Swanson This has got to be one of the oddest § 523(a)(6) “willful and malicious injury” cases out there: Adair v. Stutsman Construction, L.L.C., Case No. 24-30273 (5th Cir., decided May 20, 2025). Summary of Case Debtor contracts with Contractor to repair flood damage to Debtor’s home.... Continue Reading →
Potential Liability? (Photo by Marilyn Swanson) By: Donald L Swanson What standards govern the potential liability of a credit reporting agency for inaccurate credit reports about debts discharged in bankruptcy? That’s the question addressed in Riddick v. Chex Systems, Inc., Case No. 2:24-cv-700 in U.S. District Court for Eastern Virginia (decided October 10, 2025). What follows... Continue Reading →
Caesars (photo by Marilyn Swanson) By: Donald L Swanson Mediating bankruptcy reorganization disputes is dramatically different from mediating commercial lawsuit disputes. I’ll try to explain. Mediating Commercial Lawsuit Disputes Commercial litigation tends to go through these broad phases: pleadings; discovery; dispositive motions; mediation; trial; and appeal. Mediation in commercial lawsuits tends to be a one-and-done affair:... Continue Reading →
Honest and unfortunate (photo by Marilyn Swanson) By: Donald L Swanson Nondischargeability for “willful and malicious injury by the debtor to another entity or to the property of another entity,” under § 523(a)(6), cannot be based on a principal-agent theory of vicarious liability. That’s the holding of M.O. v. Rosario (In re Rosario), Case No. CC-24-1163... Continue Reading →
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