On Bankruptcy and Mediation
De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.” --From In re 218 Jackson... Continue Reading →
A homestead By: Donald L Swanson A bankruptcy trustee cannot transform an exempt homestead into property of the bankruptcy estate by avoiding and preserving a mortgage lien against it. That’s a fundamental rule of law established by two opinions from the First Circuit Court of Appeals: one in 2014 and one on August 6, 2021. Background... Continue Reading →
Viewed from a distance (photo by Marilyn Swanson) By: Donald L Swanson The subject is “equitable mootness” of an order confirming a Chapter 11 plan—when viewed from a distance, through Article III of the U.S. Constitution. The opinion is In re VeroBlue Farms USA, Inc. [Fn. 1] Here are three conclusions from the opinion: “‘equitable,’... Continue Reading →
Old and bad (photo by Marilyn Swanson) By: Donald L Swanson “Projected disposable income” is a plan confirmation provision appearing in all reorganization chapters of the Bankruptcy Code: in § 1129(a)(15) for Chapter 11;in § 1191(c)(2) for Subchapter V; in § 1225(b)(1) for Chapter 12; andin § 1325(b)(1) for Chapter 13. Here’s an example of... Continue Reading →
Don’t sleep on your rights (photo by Marilyn Swanson) By: Donald L Swanson Ooops! Debtor’s counsel fails to apply its pre-petition retainer to its pre-petition fee before filing Debtor’s Subchapter V Petition. The result is a reduced fee claim (to a $9,999 amount, as authorized by § 1195) and a fight over the post-petition application of... Continue Reading →
A special purpose: gas mask for a WWI horse By: Donald L Swanson It’s great to see a bankruptcy process that works—i.e., where both the debtor and its creditors are on board with a course of bankruptcy action. An excellent and recent example of such a thing involves a PPP loan, in which Debtor: dismisses its... Continue Reading →
A link to the past (photo by Marilyn Swanson) By: Donald L Swanson Formerly-successful entrepreneurs have always been treated harshly in these United States. That may be hard to believe, given our market and credit economy and the importance of small businesses to it. But it’s true. And prejudices against formerly-successful entrepreneurs remain in today’s bankruptcy statutes.... Continue Reading →
An individual -- not an entity (photo by Marilyn Swanson) By: Donald L Swanson Do § 523(a) discharge exceptions apply to non-individual debtors in Subchapter V? That question has been resolved, with opposite results, in two recent opinions by two bankruptcy courts. What follows is a summary of operative statutes and the two opinions. Operative Statutes... Continue Reading →
College Sports (photo by Marilyn Swanson) By: Donald L Swanson On June 21, 2021, the U.S. Supreme Court orders the National Collegiate Athletic Association (“NCAA”) to stop limiting “education-related compensation or benefits” that schools provide to student athletes—any such limitation violates U.S. antitrust laws. [Fn. 1] This is not the first time the U.S. Supreme Court... Continue Reading →
https://youtu.be/fkGgti3-DsA By: Donald L Swanson Amy Quackenboss is Executive Director of the American Bankruptcy Institute (“ABI”). ABI is the nation’s largest, most diverse and premier community of bankruptcy professionals. It has more than 10,000 members, consisting of judges, attorneys, law professors, accountants, investment bankers and turn-around specialists, throughout the United States and internationally. In the interview... Continue Reading →
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