On Bankruptcy and Mediation
What is he supposed to be doing? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a Subchapter V dilemma: I’m Trustee in a Subchapter V case, in which Debtor’s plan is confirmed non-consensually (i.e., under § 1191(b)), with plan payments being made by Debtor to creditors; the fact of my presence in the case as... Continue Reading →
By Donald L. Swanson H.R. 9154 is an important-and-new bill in the U.S. Congress. It was “Introduced” in the U.S. House of Representatives on July 25, 2024, and promptly “Referred to the House Committee on the Judiciary.” H.R. 9154 is titled, “Bankruptcy Administration Improvement Act of 2024,” and is designed to “modify the compensation payable to... Continue Reading →
Reading the primer here (photo by Marilyn Swanson) By: Donald L Swanson “A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.” 11 U.S.C. § 541(c)(2). That is the Bankruptcy Code provision incorporating state laws on... Continue Reading →
A convertible car? (Photo by Marilyn Swanson) By: Donald L Swanson Can a creditor’s future right to convert an existing debt claim to equity prevent that creditor from being an involuntary bankruptcy petitioner under § 303(b)? That’s the issue resolved in In re QDOS, Inc., Case No. 8:18-bk-11997, Central California Bankruptcy Court (decided July 23, 2024;... Continue Reading →
Who controls this? (Photo by Marilyn Swanson) By: Donald L Swanson When an individual files Chapter 7 bankruptcy, with a bad-faith claim against Debtor’s insurer as an asset, who controls Debtor’s attorney client privilege? That’s the question in this new opinion: Chambers v. State Farm Mutual Automobile Insurance Co., Case No. 24-cv-00557 in the Colorado U.S.... Continue Reading →
Blocked from moving forward (photo by Marilyn Swanson) By Donald L. Swanson You’d think it’s immoral or something—or at least it’s in violation of some constitutional principle of great and foundational importance . . . like due process or First Amendment or separation of powers. I’m talking about tort claimants being denied payments for their injuries,... Continue Reading →
London Tower Prison (Photo by Marilyn Swanson) By: Donald L Swanson A new Seventh Circuit Court of Appeals opinion[fn. 1] involves the motion of a federal inmate, who was also a Chapter 7 bankruptcy debtor, for compassionate-release under 18 U.S. § 3582(c)(1)(A). The new Seventh Circuit opinion denies the motion. Notably, the bankruptcy Debtor/Inmate is... Continue Reading →
In danger of being stopped? (Photo by Marilyn Swanson) By: Donald L Swanson Question: What happens when a Chapter 7 debtor: fails to disclose the existence of claims against third parties; receives a Chapter 7 discharge and a closing of the Chapter 7 case; then, pursues the undisclosed claims by filing a lawsuit against the third... Continue Reading →
Mens rea presumed? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Must a jury instruction, in a fraudulent transfer lawsuit involving an alleged Ponzi scheme, require a mens rea finding of actual fraudulent intent? That’s a question addressed by the U.S. Ninth Circuit Court of Appeals in Kirkland v. Rund (In re EPD Investment Co.,... Continue Reading →
By: Donald L Swanson “A discharge under section 727, 1141, 1192 [Subchapter V], 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— . . .” 11 U.S.C. § 523(a) (emphasis added). Bankruptcy courts applying the foregoing language in the early days of Subchapter V found such language to be clear and... Continue Reading →
MEDIATBANKRY 