Enforcing Arbitration in Bankruptcy: Second Circuit Puts Pressure on a Slam-Dunk Issue

By: Donald L. Swanson “[T]he Supreme Court has time and time again held: where parties have agreed to arbitration, . . . the agreement of the parties is to govern. There is no reason to think that, with time, the bankruptcy courts will not get there too.” --Collier on Bankruptcy, ¶ 9019-05 (15th Ed. 1998). Bankruptcy... Continue Reading →

An Oddity: Supreme Court Decides Nothing in its U.S. Bank v. Village at Lakeridge Bankruptcy Opinion

By Donald L. Swanson On March 5, 2018, the U.S. Supreme Court issues its latest bankruptcy opinion in the case of U.S. Bank v. Village at Lakeridge, LLC., Case no. 15-1509. The Facts Village at Lakeridge has a single owner: MBP Equity Partners.  And it has two creditors: it owes “over $10 million” to U.S. Bank... Continue Reading →

Supreme Court’s Bankruptcy Opinion on § 546(e): Merit Management v. FTI Consulting, and an Important Footnote 2

By Donald L. Swanson On February 27, 2018, the U.S. Supreme Court issued an eagerly awaited bankruptcy opinion on the § 546(e) safe harbor defense against trustee avoidance actions. The new opinion is Merit Management Group, LP v. PTI Consulting, Inc., Case No. 16-784. The opinion, at first read, appears to dramatically narrow the reach and effect... Continue Reading →

Government Bankruptcies: Needs of Citizens Take Priority Over Creditor Claims (Assured Guaranty v. Puerto Rico)

By: Donald L Swanson Puerto Rico’s long-standing financial straits, rendered more dire by Hurricane Maria, create an issue of bankruptcy priority: should available funds be used to, (i) address hurricane devastation and daily citizen needs, or (ii) pay creditor claims when due? --The answer to this priority is simple and easy in Puerto Rico: citizen needs... Continue Reading →

Beware the “Related To” Jurisdiction for Post-Confirmation Lawsuits on Inadequately-Disclosed Claims

By Donald L. Swanson Here are some basic rules on bankruptcy court jurisdiction: --“Core” proceedings can be heard and decided by bankruptcy courts; --“Related to” proceedings can be heard and decided by bankruptcy courts upon consent of the parties but, otherwise, must be resolved through proposed findings of fact and conclusions of law to the district... Continue Reading →

Propping Up a High-Price Model of Higher Education: In re Pratola

By Donald L. Swanson The U.S. Government continues to prop up a high-price model of higher education, forcing students to bear the brunt of such foolishness! News reports are filled these days with student loan crisis stories. We hear how: --"the number of Americans severely behind on payments on federal student loans reached roughly 4.6 million... Continue Reading →

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 →

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