U.S. Supreme Court and Statute of Frauds for Nondischargeability (§ 523(a)(2)): In re Appling

By: Donald L Swanson On Friday, January 12, 2018, the U.S. Supreme Court granted certiorari in Lamar, Archer & Cofrin, LLP v. Appling (In re Appling), Case No. 16-1215, to resolve an indistinct legal standard. The case is about a statute of frauds for nondischargeability. Generally, a statute of frauds requires that certain promises be in... Continue Reading →

The “Estate Neutral” as an Expert Witness, a Mediator and a Financial Advisor

By: Donald L Swanson When ABI’s Commission to Study the Reform of Chapter 11 issued its Final Report in 2014, one creative approach it recommended is to authorize a new bankruptcy position: the "estate neutral." The Final Report says that chapter 11 "needs to offer tools to resolve a debtor’s financial distress." The estate neutral would... Continue Reading →

Bankruptcy Laws Need to Adequately Protect Entrepreneurs from Downside Risks

By Donald L. Swanson Individuals can, and often do, file for Chapter 11 bankruptcy.  Three professors recently published an article in the ABI Law Review on a ground breaking study of Chapter 11 bankruptcy cases for individual debtors. --The three professors are Richard M. Hynes (University of Virginia; Charlottesville, Va.), Anne Lawton (Lansing, Mich.), and Margaret Howard (Washington &... Continue Reading →

Evolutionary Progress of Mediation is Upward: Toward Greater, Earlier and Mandatory Use

By: Donald L. Swanson “Perhaps no idea has proven more controversial within evolutionary biology than the idea that evolution manifests progress.” --T. Shanahan (7/16/2012) The track-on-a-graph for mediation progress is, without question or controversy, upward! The formal and frequent use of mediation to resolve lawsuits in the U.S. dates back to experimental programs of the... Continue Reading →

Eight Unfortunate Ninth Circuit Words in Sunnyslope: “We Take the Supreme Court at its Word.”

By Donald L. Swanson The case is In re Sunnyslope Housing Ltd. Partnership, 859 F.3d 637 (9th Cir. 2017). It’s before the U.S. Supreme Court on Petition for a Writ of Certiorari, which is set for conference on January 5, 2018. In Sunnyslope, the Ninth Circuit’s ruling is based on a Chapter 13 valuation standard established... Continue Reading →

Subchapter S Revocation as Fraudulent Transfer? Courts are Finally Getting it Right!

By Donald L. Swanson “For the reasons set forth below, the Court holds that S corporation status is not ‘property’ for the purposes of 11 U.S.C. §§ 544(b), 548.” --Judge Kevin R. Huennekens in Arrowsmith v. USA (In re Health Diagnostic Laboratory, Inc., Case No 17-04300, Doc. 54 (Bankr.E.D.Va., December 6, 2017). The reasons identified by... Continue Reading →

Punishing Attorneys vs. Positive Incentives: Inducing Good Behavior in Bankruptcy

By Donald L. Swanson It’s a decade-or-more ago. I’m sitting in a continuing legal education seminar on bankruptcy law hoping to learn something new-and-useful for my day-to-day practice. Threatening Bankruptcy Attorneys With Criminal Prosecution?!! What we get, instead, is an hour-long warning from a representative of the U.S. Government on, (i) how attorneys in bankruptcy cases... Continue Reading →

There is NO Split of Authority on Make-Whole Premiums Between the Second and Third Circuits

By Donald L. Swanson The consensus I’ve been reading these days is that a split of authority is shaping up between the Second and Third Circuit Courts of Appeals on enforcability of make-whole premiums in bankruptcy. --The first of two cases is from the Third Circuit: In re Energy Future Holdings Corp., 842 F.3d 247 (3rd... Continue Reading →

A Surprise Development at U.S. Supreme Court in Oral Arguments on Merit Management v. FTI Consulting

By: Donald L. Swanson The case before the U.S. Supreme Court is Merit Management Group, LP v. FTI Consulting, Inc., Case No. 16-784. The bankruptcy question is whether the § 546(e) safe harbor prohibits avoidance of a transfer made through a financial institution as escrow agent. Oral arguments occurred on November 6, 2017 [Footnote 1]. Justice... Continue Reading →

Blog at WordPress.com.

Up ↑