On Bankruptcy and Mediation
Alive? Or a fiction? (Photo by Marilyn Swanson) By: Donald L Swanson Here are a couple discharge-related bankruptcy questions I’ve heard of late, along with an answer. Question 1. Why are individuals, but not corporations, eligible for a Chapter 7 discharge? §727(a)(1) says, “the court shall grant the debtor a discharge, unless—(1) the debtor is not... Continue Reading →
Confidential and no competition (photo by Marilyn Swanson) By: Donald L Swanson Can non-compete and confidentiality protections in a rejected franchise agreement be discharged in bankruptcy? The answer is, “No,” according to In re Empower Central Michigan, Inc.[Fn. 1] Facts Debtor is an automotive repair shop. Debtor operates under a Franchise Agreement with Autolab Franchising, LLC. ... Continue Reading →
Uttering an expletive? (Photo by Marilyn Swanson) By: Donald L Swanson The phrase “Texas Two-Step,” as used in bankruptcy, is a legal expletive. Regardless of what the details of a Texas Two-Step might be, the phrase has become synonymous with: abusive behavior; bad faith conduct; a means for swindling creditors; the antithesis of “doing what’s right”;... Continue Reading →
By: Donald L Swanson Here’s a dilemma: Should bankruptcy be available as a tool for resolving mass tort cases of all types (like it already is in asbestos contexts)? Here’s an illustration of the dilemma: many tort claimants in the Johnson & Johnson case DO NOT want bankruptcy involved; but many tort claimants in the Purdue... Continue Reading →
https://youtu.be/pjbJU1cUf80 By: Donald L Swanson Hon. Michelle M. Harner is Bankruptcy Judge for the District of Maryland. Judge Harner has a long history of work on creating and implementing Subchapter V bankruptcy laws for smaller businesses. That history includes these two roles: back in 2012 through 2014, Judge Harner served as Reporter for the Commission to... Continue Reading →
A narrow view (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court’s opinion is Truck Insurance Exchange v. Kaiser Gypsum Co., Inc., Case No. 22-1079, Decided June 6, 2024. Opinion’s Q & A The Truck Insurance question is this: Whether an insurer with financial responsibility for a bankruptcy claim is a “party in... Continue Reading →
Conflict (photo by Marilyn Swanson) By: Donald L Swanson We have a direct statutory conflict: one statute requires an ERISA dispute to be resolved in arbitration; but a bankruptcy statute requires the same dispute to be resolved in bankruptcy. Which statute should prevail? The bankruptcy statute, of course. That’s the conclusion of In re Yellow Corp.[Fn.... Continue Reading →
By: Donald L Swanson Before the U.S. Supreme Court on a Petition for writ of certiorari is United States v. Miller, Case No. 23-824 (“Distributed for Conference of 6/13/2024”). In United States v. Miller, a Chapter 7 Trustee obtains a fraudulent transfer judgment under 11 U.S.C. § 544(b) against the Internal Revenue Service to recover two... Continue Reading →
It means what it says (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Packet Construction, LLC, Case No. 23-10860 in the Western Texas Bankruptcy Court (issued April 30, 2024, Doc. 103). Subchapter V Issue & Ruling Here’s the issue raised by the Subchapter V Trustee’s plan objection and the Bankruptcy Court’s... Continue Reading →
A winding path (photo by Marilyn Swanson) By: Donald L Swanson There is a lesson for all debtor attorneys in the Chapter 7 case of In re Aquilino.[Fn. 1] The moral of the In re Aquilino story is this: a little carelessness in describing and disclosing bankruptcy fees in a Chapter 7 case can create big... Continue Reading →
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