On Bankruptcy and Mediation
Ancient Athens (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy benefits for individual debtors are a tough sell—always have been. That’s because no one likes bankruptcy—unless they need it. But relieving people from debts in unfortunate circumstances is essential to our collective way of life in these United States. That’s always been true. What follows... Continue Reading →
Carolina Panthers practice facility after construction halted. By: Donald L Swanson 2022 has been a bad year for the Carolina Panthers of the National Football League: Their practice facility project goes into Chapter 11 bankruptcy on June 1, 2022 (Case No. 22-10505 in the Delaware Bankruptcy Court); They fire their coach after only five games (one... Continue Reading →
Fiduciary capacity? (Photo by Marilyn Swanson) By: Donald L Swanson A bankruptcy discharge “does not discharge an individual debtor from any debt-- . . . for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). The effect of this “fiduciary capacity” statute is newly before the U.S. Supreme Court on a petition... Continue Reading →
Precedent for today’s cell phones? By: Donald L Swanson Here are a couple long-standing and foundational policies for the entire bankruptcy system: Bankruptcy laws protect the honest but unfortunate debtor; and Discharge exceptions are to be strictly construed against the objecting creditor and liberally construed in favor of debtor. So, for all my decades of practice... Continue Reading →
Surprise? (Photo by Marilyn Swanson) By: Donald L Swanson Every now and then we get a bankruptcy opinion declaring a rule with broad application that, (i) may make sense is specific situations, but (ii) is a terrible result for others. Here’s an Exhibit A opinion for such a proposition: Reinhart Foodservice LLC v. Schlundt, Case No.... Continue Reading →
Chicago (photo by Marilyn Swanson) By: Donald L Swanson Poor Chicago. Unlike the result for Chicago’s traffic ticket income in Fulton v. Chicago, the U.S. Supreme Court refuses to rescue Chicago in City of Chicago v. Mance (Case No. 22-268; Cert. denied, 11/21/2022).[Fn. 1] Chicago’s Traffic Ticket Income Here’s the deal: Chicago issues three million traffic... Continue Reading →
Old and outdated? (photo by Marilyn Swanson) By: Donald L Swanson Four decades and several years ago, Congress repeals the Federal Bankruptcy Act of 1898 and replaces it with the Bankruptcy Reform Act of 1978, aka the “Bankruptcy Code.”[Fn. 1] A decade later, Justices on the U.S. Supreme Court are still disparaging the new Bankruptcy Code... Continue Reading →
Not made whole (photo by Marilyn Swanson) By: Donald L Swanson During a November 9, 2022, hearing on summary judgment motions in the Hertz bankruptcy[fn. 1], Delaware Bankruptcy Judge Mary F. Walrath issues the following oral ruling: The make-whole premium in this case is “calculated based on unmatured interest”; “If something is calculated by interest, I... Continue Reading →
Vanishing? By: Donald L Swanson The case is Wells v. McCallister, Case No. 21-1448 in the United States Supreme Court. The question presented is: whether a debtor's homestead exemption, existing on the date of bankruptcy filing, can vanish if the debtor sells the homestead during the bankruptcy and does not promptly reinvest the proceeds in another... Continue Reading →
A weathered bell (Photo by Marilyn Swanson) By: Donald L Swanson “Bellwether trials” are jury trials that serve as test cases.[FN. 1] Bellwether trials happen when many parties sue the same defendant over the same types of injuries from a defective product or wrongful action. The bellwether trial idea is to have jury trials in a... Continue Reading →
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