On Bankruptcy and Mediation
Fallout and follow-up? (Photo by Marilyn Swanson) By: Donald L Swanson In its Siegel v. Fitzgerald opinion, the U.S. Supreme Court declares that disparate quarterly fee amounts between U.S. Trustee and Bankruptcy Administrator districts are unconstitutional, under the uniformity requirement of the U.S. Constitution’s bankruptcy clause. The most recent fallout from that opinion is the following... Continue Reading →
Working together? (Photo by Marilyn Swanson) By: Donald L Swanson Illinois follows the common law of assignments for benefit of creditors (“ABC”): a non-judicial, trust-like process for liquidating a failed business. That ABC process can work, hand-in-hand, with the Bankruptcy Code. The case of In re Computer World Solutions, Inc., Case No. 07-21123, Northern Illinois Bankruptcy... Continue Reading →
Problematic? (Photo by Marilyn Swanson) By: Donald L Swanson “[T]he bankruptcy court— . . . (2) shall excuse compliance . . . if . . . an assignee for the benefit of the debtor’s creditors . . . was appointed or took possession more than 120 days before the date of the filing of the petition,... Continue Reading →
Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson When parties contract for arbitration of their disputes: they are “forgoing the . . . appellate review of the courts in order to realize the benefits of private dispute resolution”; California’s state law in question “coerces parties to opt for a judicial forum” instead of the arbitration... Continue Reading →
On a quest (photo by Marilyn Swanson) By: Donald L Swanson I’m on a curiosity-quest to find the first-ever U.S. Supreme Court opinion on the subject of bankruptcy. Excitement arises, for a moment, upon discovering Gibbs v. Gibbs, 1 U.S. 371 (1788). After all, Gibbs v. Gibbs: deals with priority of a judgment lien, a fraudulent... Continue Reading →
Avoid this? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a hard-knocks rule for debtor attorneys: Never file Chapter 7 for a corporation or an LLC. Chapter 7 has always been a grave yard for failed Chapter 11s: that’s where Chapter 11 cases go when debtors can’t get a Chapter 11 plan confirmed. For example,... Continue Reading →
Preempting? (photo by Marilyn Swanson) By: Donald L Swanson The interface between federal bankruptcy law and similar state laws has a long history, going back to at least 1819, when the U.S. Supreme Court rules that a state insolvency law: may discharge a person from debtor’s prison; butmay not discharge that person’s debt.[Fn. 1] A more... Continue Reading →
An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases. That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →
The same . . . or different? (photo by Marilyn Swanson) By: Donald L Swanson “2 There is one inconsequential difference — § 1228(a) refers to debt ‘of a kind specified,’ while § 1192(2) refers to debt ‘of the kind specified.’” [Fn. 1] This "inconsequential difference" quotation, from footnote 2 in the Fourth Circuit’s Cantwell v.... Continue Reading →
Waived protections? (Photo by Marilyn Swanson) By: Donald L. Swanson Is the § 363(m) limit on appeal of a sale order “subject to waiver”? That’s the essential question before the U.S. Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, Case No. 21-1270 (certiorari granted June 27, 2022). A deep circuit split exists on... Continue Reading →
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