Tag: Bankruptcy

Subchapter V Eligibility: A “Liberal Construction” Trend (Lyons v. Family Friendly; In re Mongeau)

"Commercial or business activity"? (photo by Grant Swanson) By: Donald L Swanson Bankruptcy courts continue struggling with the meaning of the phrase “commercial or business activities” for Subchapter V eligibility.  That’s especially true when a debtor’s business liquidates before the bankruptcy is filed. However, the distinct trend of such struggle is toward a liberal construction of... Continue Reading →

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“Scheduled” Property & Automatic Abandonment (§ 554(c)): What About Listing Only On SOFA? (Stevens v. Whitmore)

11 U.S.C. Sec. 554–on abandonment By: Donald L Swanson “any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of  a case is abandoned to the debtor”  (11 U.S.C. § 554(c), emphasis added).  Question: What does “scheduled under section 521(a)(1)” mean in § 554(c): Is inclusion on the... Continue Reading →

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Avoiding Liens On Residence: Homestead Exemption vs. Preserving For Estate vs. Tax Lien (Hutchinson v. Salven)

A homestead (photo by Marilyn Swanson) By: Donald L Swanson Here’s a new and interesting opinion from the Ninth Circuit Court of Appeals: Hutchinson v. Salven, Case No. 19-60065 (filed 10/19/2021). The opinion involves these facts: the IRS files a $162,000 tax lien for penalties against Debtors’ homestead;Debtors then file their Chapter 7 bankruptcy and attempt... Continue Reading →

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Pandemic-Induced Improvements In Judicial Processes Are Here To Stay: A Report

Revolutionary By: Donald L Swanson An early-in-the-pandemic report on judicial processes [fn. 1] shows how the pandemic produces a revolution in the way courts do business—a revolution creating improvements in court processes that are here to stay. What follows is a summary of that report. Pre-Pandemic Reality Before the pandemic began, US courts lag behind other... Continue Reading →

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Alabama & North Carolina: Squatter’s Rights On A Non-Uniform Bankruptcy System? (Siegel v. Fitzgerald)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson This is bizarre: Back in the 1980s, federal politicians in Alabama and North Carolina carve out a special deal for themselves (their bankruptcy funding is by taxpayers), while all other 48 states have a different deal (bankruptcy funding is by debtor fees); andThis disparity persists in varying... Continue Reading →

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Equitable Mootness Doctrine: Opposed At U.S. Supreme Court By 21 Law Professors (Hargreaves v. Nuverra)

Failing to perform their function (photo by Marilyn Swanson) By: Donald L Swanson The doctrine of equitable mootness “is irreconcilable with” the “virtually unflagging obligation” of appellate courts “to exercise the jurisdiction given them.” --From Amicus Brief of 21 Bankruptcy Law Professors, in Hargreaves v. Nuverra Environmental Solutions Inc., Case No. 21-17, U.S. Supreme Court (Petition... Continue Reading →

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Did Congress Intend Greater Subchapter V Protection To Corporations Than To Individuals? (In re Vertical Mac)

Protecting (photo by Marilyn Swanson) By: Donald L Swanson Did Congress intend that Subchapter V provide greater bankruptcy protection to corporations than to individuals? The answer is, “Yes,” according to a recent line of opinions: it’s easier for a corporation to be “engaged in business or commercial activities” than it is for the corporation’s owners; andthe... Continue Reading →

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Ninth Circuit BAP Opinion In Subchapter V Case: On Authority To Sign Petition (In re SSRE Holdings)

He had authority to act (photo by Marilyn Swanson) By: Donald L Swanson We are starting to get appellate opinions on Subchapter V cases and issues.  Here is one of the earliest: In re SSRE Holdings, LLC, Case No. CC-21-1027, Ninth Circuit BAP (issued August 26, 2021, “Not for Publication”). The issue in SSRE Holdings is... Continue Reading →

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Nunc Pro Tunc Approval Of Employment Application In Bankruptcy — Acevedo Distinguished (In re Moore)

The passing of time (photo by Marilyn Swanson) By: Donald L Swanson “Because Congress did not include a temporal limitation in § 327, the Court finds it inconsistent with the provisions of Title 11 to insert one”; and The U.S. Supreme Court, in Acevedo, “did not change the existing authority of the [bankruptcy] court to approve... Continue Reading →

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Gambling in Bankruptcy (In re Robinson)

A casino (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Robinson, Case No. 20-11471, Kansas Bankruptcy Court (issued August 20, 2021, Doc. 72). The issue involves gambling by the Debtor while in a Subchapter V bankruptcy case. The U.S. Trustee moves to dismiss Debtor’s Subchapter V case for “gross mismanagement,” because... Continue Reading →

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