On Bankruptcy and Mediation
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 →
Abuse? (Photo by Marilyn Swanson) By: Donald L Swanson A new, bipartisan bankruptcy bill in the U.S. Senate purports, according to an official document, to: “deter the Texas Two-Step”; and “ensure injury victims have a chance to be heard in court.” In my lexicon, this bill already has three strikes against it and should be rejected. ... Continue Reading →
Exempt assets? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a retirement fund organized under Canadian law qualify for a state law exemption requiring that it “qualify as a retirement plan” under the Internal Revenue Code? This question gets all the way to the U.S. Seventh Circuit Court of appeals, which issues a “No”... Continue Reading →
A champ (photo by Marilyn Swanson) By: Donald L Swanson The general rule is that claims of the bankruptcy estate against third parties (e.g., preference claims and tort claims) can be sold to third parties in a § 363 sale.[Fn. 1] However, a recent opinion from the U.S. Fifth Circuit Court of Appeals discusses whether a... Continue Reading →
By: Donald L Swanson Four U.S. Supreme Court justices (Kagan, Kavanaugh, Roberts and Sotomayor) provide the following summary of their Purdue Pharma dissent in the Purdue Pharma case. Wrong & Devastating Today’s five-justice majority opinion is wrong on the law and devastating for more than 100,000 opioid victims and their families: the majority opinion rewrites the... Continue Reading →
Photo is from the electronic docket for Sears bankruptcy case By Donald L. Swanson Here’s an under-appreciated fact: businesses (every one of them) face every-day risks that can destroy them. The rise and fall of the retailer, Sears, provides an illustration of the reality of such risks and how those risks ultimately prevail—even for the best... Continue Reading →
Can it be fixed? (Photo by Marilyn Swanson) By: Donald L Swanson 11 U.S.C. § 1191(c)(2) provides (emphasis added): “(c) . . . the condition that a plan be fair and equitable . . . includes . . . (2) . . . all of the projected disposable income of the debtor to be received in... Continue Reading →
What’s the intent? (Photo by Marilyn Swanson) By: Donald L Swanson Under 11 U.S.C. § 727(a)(2), an individual debtor may be denied a discharge, in its entirely, for making a transfer “with intent to hinder, delay, or defraud” a creditor or the trustee. On April 17, 2023, the Bankruptcy Court for Eastern Michigan ruled: an “intent... Continue Reading →
MEDIATBANKRY 