Did Congress Intend Greater Subchapter V Protection To Corporations Than To Individuals? (In re Vertical Mac)

Protecting (photo by Marilyn Swanson) By: Donald L Swanson Did Congress intend that Subchapter V provide greater bankruptcy protection to corporations than to individuals? The answer is, “Yes,” according to a recent line of opinions: it’s easier for a corporation to be “engaged in business or commercial activities” than it is for the corporation’s owners; andthe... Continue Reading →

Ninth Circuit BAP Opinion In Subchapter V Case: On Authority To Sign Petition (In re SSRE Holdings)

He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues.  Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →

Nunc Pro Tunc Approval Of Employment Application In Bankruptcy — Acevedo Distinguished (In re Moore)

The passing of time (photo by Marilyn Swanson) By: Donald L Swanson “Because Congress did not include a temporal limitation in § 327, the Court finds it inconsistent with the provisions of Title 11 to insert one”; and The U.S. Supreme Court, in Acevedo, “did not change the existing authority of the [bankruptcy] court to approve... Continue Reading →

Gambling in Bankruptcy (In re Robinson)

A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →

Subchapter V Trustee As “De Facto Mediator” (In re 218 Jackson)

De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.”  --From In re 218 Jackson... Continue Reading →

Homestead Exemption vs. Avoided & Preserved Mortgage (In re Travers; In re Cancel & Gonzalez)

A homestead By: Donald L Swanson A bankruptcy trustee cannot transform an exempt homestead into property of the bankruptcy estate by avoiding and preserving a mortgage lien against it.  That’s a fundamental rule of law established by two opinions from the First Circuit Court of Appeals: one in 2014 and one on August 6, 2021. Background... Continue Reading →

A Primer on Equitable Mootness And Article III (In re VeroBlue)

Viewed from a distance (photo by Marilyn Swanson) By: Donald L Swanson The subject is “equitable mootness” of an order confirming a Chapter 11 plan—when viewed from a distance, through Article III of the U.S. Constitution. The opinion is In re VeroBlue Farms USA, Inc. [Fn. 1]    Here are three conclusions from the opinion: “‘equitable,’... Continue Reading →

Projected Disposable Income: An Old-And-Bad Ruling From Eighth Circuit

  Old and bad (photo by Marilyn Swanson) By: Donald L Swanson “Projected disposable income” is a plan confirmation provision appearing in all reorganization chapters of the Bankruptcy Code: in § 1129(a)(15) for Chapter 11;in § 1191(c)(2) for Subchapter V;         in § 1225(b)(1) for Chapter 12; andin § 1325(b)(1) for Chapter 13. Here’s an example of... Continue Reading →

Applying Pre-Petition Retainer To Pre-Petition Fees After Bankruptcy Filing: Subchapter V (In re Ozcelebi)

Don’t sleep on your rights (photo by Marilyn Swanson) By: Donald L Swanson Ooops!  Debtor’s counsel fails to apply its pre-petition retainer to its pre-petition fee before filing Debtor’s Subchapter V Petition. The result is a reduced fee claim (to a $9,999 amount, as authorized by § 1195) and a fight over the post-petition application of... Continue Reading →

An Example Of Subchapter V Accomplishing Its Purpose (In re Chip’s)

A special purpose: gas mask for a WWI horse By: Donald L Swanson It’s great to see a bankruptcy process that works—i.e., where both the debtor and its creditors are on board with a course of bankruptcy action. An excellent and recent example of such a thing involves a PPP loan, in which Debtor: dismisses its... Continue Reading →

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