On Bankruptcy and Mediation
Implied consent (photo by Marilyn Swanson) By: Donald L Swanson “Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree.” --U.S. Supreme Court in Wellness Int’l Network, Ltd. V. Sharif, 575 U.S. 665 (2015). The Supreme Court’s Wellness opinion adds the following: “The... Continue Reading →
Olde England (photo by Marilyn Swanson) By: Donald L Swanson “Be sure your sin will find you out.” (Numbers 32:23 (KJV)) Every now and then, we get a glimpse into human nature and how people work together, for good and for ill. What follows is one such glimpse, into the small cheat in business activities. --... Continue Reading →
The wheels of commerce must continue to turn (photo by Marilyn Swanson) By: Donald L Swanson Under UCC § 9-332, a debtor’s attorney can receive, and keep, pre-petition retainers paid from a lender’s collateral proceeds—absent collusion. That’s the conclusion of a recent Bankruptcy Court opinion in Walters v. Lynch (In re 3P4PL, LLC), Adv. No. 15-1120,... Continue Reading →
Our current bankruptcy system—with all its wisdom and shortcomings—is a culmination-to-date of the struggles and shortcomings and progress of generations past.
A backfire (photo by Marilyn Swanson) By: Donald L Swanson “Backfire” = “to have the reverse of the desired or expected effect” --from Merriam-Webster.com In 2005, the U.S. Congress decided to make life hard for individuals in bankruptcy. Congress saw fraudulent intent in the minds of their destitute constituents—particularly those who had been living above the... Continue Reading →
Holding onto the past (photo by Marilyn Swanson) By: Donald L. Swanson Do you have any fuddy-duddies in the family holding onto the past: they refuse to get a computer or smart phone or to use email or text messaging? If so, family communications require someone to pass-on information by snail mail or telephone—if anyone bothers... Continue Reading →
The Bankruptcy Act of 1800 By: Donald L Swanson 1800 is the year Congress adopts its first bankruptcy law under the "Bankruptcies" clause of the newly-ratified U.S. Constitution. Congress’s Bankruptcy Act of 1800 is modeled after England’s bankruptcy laws. But there is a significant difference: the focus of England’s bankruptcy laws, back then, is exclusively on... Continue Reading →
By: Donald L Swanson Released water (photo by Marilyn Swanson) The opinion is In re Millennium Lab Holdings II, LLC, et al., 945 F.3d 126 (3d Cir. 2019). On March 18, 2020, a Petition for writ of certiorari is filed from this opinion (Supreme Court Case No. 19-1152). On May 26, 2020, the Supreme Court denies... Continue Reading →
A Bed & Breakfast (photo by Marilyn Swanson) By: Donald L Swanson Chapter 11 Debtor owns her home and uses it as a Bed & Breakfast. The mortgage on Debtor's B&B/residence is her primary debt. This raises Subchapter V issues like: Eligibility—is her primary debt a consumer debt or a business debt?Eligibility—is her bankruptcy a "single... Continue Reading →
By: Donald L Swanson Subchapter V exists "to improve the reorganization process for small business chapter 11 debtors." In re Wright, Case No. 20-01035 (Bankry.S.Car., Order dated 4/27/2020, Doc. 37 at 5). Charles Wright (“Debtor”) files a Chapter 11 case on February 28, 2020, designating himself a small business debtor and electing to proceed under Subchapter... Continue Reading →
MEDIATBANKRY 