Tag: Bankruptcy

Litigating Legacy Debt: “Commercial Or Business Activities” for Subchapter V Eligibility? (In re Fama-Chiarizia)

A different kind of legacy? (Photo by Marilyn Swanson) By: Donald L Swanson “courts agree that . . . evaluating, asserting, pursuing, and defending litigation claims . . .  can satisfy Section 1182(1)(A)’s requirement of ‘commercial or business activities.’” In re Fama-Chiarizia, Case No. 21-42341, E.D.N.Y. Bankruptcy Court, issued 9/15/2023, Doc. 238, at 37. One of... Continue Reading →

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Unconstitutionality of Bankruptcy Administrator Fees; A Remedies Debacle; & No Accountability For Those Responsible (U.S. Trustee v. John Q. Hammons)

From Official Comment to Fed.R.Bankr.P. 9035 By: Donald L Swanson This isn’t going to end well.  Looks like our bankruptcy system in these United States is about to take a big hit—to the tune of hundreds of millions of dollars (projected to be around $350 million).  And those responsible for creating the debacle are going to... Continue Reading →

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Individual Subchapter V Debtor’s Liquidating Plan: Can Discharge Be Denied Under § 1141(d)(3)? (In re Lucido)

A liquid plan? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a Bankruptcy Court opinion addressing a no-discharge claim under § 1141(d)(3) against an individual debtor who proposes a liquidating Subchapter V plan:   RGW Construction, Inc. v. Lucido (In re Lucido), Adv. No. 21-4031, Northern California Bankruptcy Court (issued 9/13/2023, Doc. 113). The Issue... Continue Reading →

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Till Interest Rate For A Bankruptcy Plan: Start With Treasury Rate or Prime Rate? (In re Topp)

A starting point? (Photo by Marilyn Swanson) By: Donald L Swanson What rate of interest should a debtor pay under a bankruptcy plan? The Eighth Circuit Court of Appeals addresses this question in Farm Credit Services of America, FLCA v. Topp (In re Topp), Case No. 22-2577 (8th Cir., decided August 2, 2023; Petition for rehearing... Continue Reading →

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Subchapter V Debtor’s Exclusive Right To File A Plan: Not A Super-Power

No super-power here (Photo by Marilyn Swanson) By: Donald L Swanson Question  Once a Subchapter V debtor is removed from possession under § 1185(a), what happens next? The answer to this question seems to have evolved over the few years of Subchapter V’s existence: from a low-power position for debtor, early-on; to a high-power position for... Continue Reading →

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Equitable Mootness Doctrine At U.S. Supreme Court (U.S. Bank v Windstream)

Enigmatic origins? (Photo by Marilyn Swanson) By: Donald L Swanson The equitable mootness doctrine is before the U.S. Supreme Court on a Petition for writ of certiorari.  The case is U.S. Bank National Association v. Windstream Holdings, Inc.[Fn. 1] All who’ve seen an effort to abuse equitable mootness, from a creditor’s view, will appreciate the following... Continue Reading →

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Third-Party Releases At U.S. Supreme Court & Strong Views Of Individual Victims (In re Purdue Pharma)

Rare and hard to get? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s my take on third-party releases in a bankruptcy plan [not that anyone asked]: third-party releases should be rare and hard-to-get; but in exceptional circumstances (i.e., when a third-party release is needed to get lots of money to claimants quickly under a plan,... Continue Reading →

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Subchapter V Trustee’s Facilitation Role (Part 6)—DUTIES & INHERENT POWERS

Inherent power of ocean waves (Photo by Marilyn Swanson) By: Donald L Swanson “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitate the development of a consensual plan of reorganization.” From 11 U.S.C § 1183(b)(7)(emphasis added). Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do.  But the nature and boundaries of the facilitation... Continue Reading →

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Subchapter V Trustee’s Facilitation Role (Part 5)—INVESTIGATION DUTIES

Facilitating investigation (Photo by Marilyn Swanson) By: Donald L Swanson “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitate the development of a consensual plan of reorganization.” From 11 U.S.C § 1183(b)(7)(emphasis added). Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do.  But the nature and boundaries of... Continue Reading →

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Perpetuating A Bad Homestead Exemption Rule at U.S. Supreme Court (Wells v. McCallister)

Vanishing? By: Donald L Swanson “Notwithstanding the court of appeals’ error, this case does not warrant this Court’s review.” Recommendation in Solicitor General’s Amicus Brief (at 16) at U.S. Supreme Court in Wells v. McCallister, filed 3/29/2023 in No. 21-1448 In response to this recommendation by the Solicitor General, the U.S. Supreme Court denies Wells’s Petition... Continue Reading →

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