On Bankruptcy and Mediation
Electing? (photo by Marilyn Swanson) By: Donald L Swanson Taxpayers can elect to have their tax refunds applied to pay their next year’s taxes. But a taxpayer in (or about to be in ) bankruptcy had better beware—doing such a thing might (or might not) result in a discharge denial. Illustrating the issue is a... Continue Reading →
Narrow (Photo by Marilyn Swanson) By: Donald L Swanson When a federal court approves a [bankruptcy] plan allowing someone to put its hands into another person’s pockets, the person with the pockets is entitled to be fully heard and to have legitimate objections addressed.[Fn. 1] Pop Quiz Question: Does Insurer, in the following facts, have standing... Continue Reading →
Is this feasible? (Photo byMarilyn Swanson) By: Donald L Swanson Feasibility of a bankruptcy plan is always a tough issue. Think about it: debtors are in bankruptcy because they can’t make their payments when due; and in bankruptcy, a debtor must propose a plan for paying creditors—that will work this time. We now have a new... Continue Reading →
A missing piece? (Photo by Marilyn Swanson) By: Donald L Swanson One of the missing pieces in Subchapter V is this: it’s easier for a corporate business to meet the “engaged in commercial or business activities” standard for eligibility than it is for an individual owner/guarantor of that business. Here’s how one court describes the missing... Continue Reading →
Hope?! (photo by Marilyn Swanson) By: Donald L Swanson The Bankruptcy Code's Subchapter V provides hope to formerly successful entrepreneurs. It's a hope that never before existed. I'll try to explain. Formerly Successful Entrepreneurs – A Historical Problem The Bankruptcy Code became effective in October of 1979. And I’ve been practicing under the Bankruptcy Code from... Continue Reading →
Working together? (photo by Grant Swanson) By: Donald L Swanson Answers to these two questions can get tricky: When should a previously successful business engage distress-debt counsel? What is the role of the business’s general counsel once that happens? Second Question: Role Here’s the answer to the second question first: The business’s general counsel needs to... Continue Reading →
Tribal sovereignty (photo by Marilyn Swanson) By: Donald L Swanson Oral arguments occur on April 24, 2023, before the U.S. Supreme Court in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No 22-227. Here is a link to the oral arguments transcript. What follows is an attempt to, (i) summarize the facts... Continue Reading →
Bad faith intentions? (photo by Marilyn Swanson) By: Donald L Swanson Dismissal of a bankruptcy—for bad faith filing—is a rarity. So, how a bankruptcy court grapples with the bad faith issue . . . and ends up dismissing the bankruptcy . . . can provide a lesson for us all. What follows is a summary of... Continue Reading →
Mootness? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now that the U.S. Supreme Court recently declared the provisions of 11 U.S.C. § 363(m) to be NOT jurisdictional.[Fn. 1] Instead, § 363(m) is merely an important statutory directive.[Fn. 2] Mootness Issue What’s received less attention is a preliminary issue the U.S. Supreme Court... Continue Reading →
Offensive or defensive deployment? (Photo by Marilyn Swanson) By: Donald L Swanson It's a defense v. offense distinction: Defense—An objection and counterclaim designed to diminish or zero-out a proof of claim in bankruptcy is not subject to arbitration; but Offense—An objection or counterclaim designed to do anything more . . . can be compelled to arbitrate.... Continue Reading →
MEDIATBANKRY 