On Bankruptcy and Mediation
Substantively consolidated (Photo by Marilyn Swanson) By: Donald L Swanson The legal basis for a substantive consolidation of two bankruptcy debtors is uncertain. Many opinions find bankruptcy court authority for substantive consolidation in this language of 11 U.S.C. § 105(a): “The court may issue any order, process, or judgment that is necessary or appropriate to carry... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson Stern v. Marshall, 564 U.S. 462 (2011), is a five-justice majority opinion with a four-justice dissent. And the dissent is strong. Too bad it failed to prevail, because: the majority opinion created havoc within the entire bankruptcy system; and it did so by creating uncertainty, confusion and... Continue Reading →
A Toolbox Hypothetical: Debtor’s business is failing, and everyone agrees that its assets need to be liquidated. What follows is, (i) a list of tools available, in the debtor/creditor toolbox, to use in accomplishing the liquidation, and (ii) a generalized explanation of each tool. Debtor’s Self-Liquidation Tool The debtor's self-liquidation tool works best when the... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson The Bankruptcy Code's effective date was October 1, 1979. Northern Pipeline Construction Co. filed Chapter 11 bankruptcy in January of 1980, under the new Bankruptcy Code. In its bankruptcy, Northern Pipeline sued Marathon Pipe Line Co. in bankruptcy court, asserting claims under state law. The question of... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson The U.S. Supreme Court has never liked like the Bankruptcy Code and has worked diligently, over the decades, to limit the authority of bankruptcy courts and bankruptcy judges. Two examples are U.S. Supreme Court opinions that have anniversaries this month—in June of 2026: 44 years ago (on... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson Here is a common statement of bankruptcy court jurisdiction: “The Court has constitutional authority to determine this matter because it,” “is purely a matter of bankruptcy law”; and “does not require the resolution of any matter similar to ‘the stuff of the traditional actions at common law... Continue Reading →
Removed. Reinstatement possibilities? (photo by Marilyn Swanson) By: Donald L SwansonA problem: What is a Subchapter V trustee to do when the Subchapter V debtor is removed from possession? Authorizations The Bankruptcy Code authorizes removal of a debtor in possession for cause—in both Subchapter V and standard Chapter 11.[Fn. 1] And in a removed-debtor context, the Bankruptcy... Continue Reading →
Northern Pipeline & Stern Opinions The Bankruptcy Code goes into effect on October 1, 1979. I take the Nebraska Bar Exam in July of 1980 and am sworn-in to practice law in Nebraska in September of that year. Two years later (forty four years ago), the U.S. Supreme Court issues its Northern Pipeline Construction Co.... Continue Reading →
Electing? (photo by Marilyn Swanson) By: Donald L Swanson Question: Can a bankruptcy court revoke a debtor’s Subchapter V election without debtor’s consent when debtor is statutorily eligible for Subchapter V relief? Two recent opinions on that question from a single bankruptcy case (In re USA Cricket, Case No. 25-16381, Colorado Bankruptcy Court) say, “Yes”: opinion... Continue Reading →
An oral promise? (Photo by Marilyn Swanson) By: Donald L Swanson What does it take to assure that a limited liability company owned and controlled by an individual is obligated to pay the individual’s legal fees? Is an oral promise sufficient? That’s the issue in Ballrad Spahr LLP v. Official Committee of Equity Security Holders (In... Continue Reading →
