On Bankruptcy and Mediation
Genetic information? (photo by Marilyn Swanson) By: Donald L Swanson Here are two legal policies in these United States that can conflict: personally identifiable information (“PII”) needs be protected; and in bankruptcy, asset values need to be maximized. The conflict is this: what happens when value maximization in bankruptcy requires the sale of PII? A recent... Continue Reading →
The better way (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy may not be very good at a lot of things. But one thing bankruptcy is good at is this: selling assets. Bankruptcy sales outside the ordinary course of business traditionally perform well at achieving top dollar. Two separate procedures are authorized for sales of... Continue Reading →
A time to reflect and refresh (photo by Marilyn Swanson) By: Donald L. Swanson It is helpful, every now and then, to receive a refresher on basic bankruptcy laws. We have such a refresher—on executory contract rejection under § 365—in this recent opinion: In re Dandurand, Case No. 24-40401, South Dakota Bankruptcy Court (decided May... Continue Reading →
Temporary (photo by Marilyn Swanson) By: Donald L Swanson Debtor’s Subchapter V Plan provides for: payment in full of all claims at the end of its three-years term, through a new loan to be guaranteed by Debtor’s insiders; and a temporary injunction, during the three-years term of the Plan, against creditors suing those same insiders on... Continue Reading →
Abuse? (Photo by Marilyn Swanson) By: Donald L Swanson Nobody likes bankruptcy. That’s a truism—and it’s true even though bankruptcy serves an essential role in our market-based and credit-based economy, in which the risk of failure is a constant companion for every business endeavor. But when the dislike of bankruptcy finds its way into judicial rulings... Continue Reading →
Things got out of hand here (photo by Marilyn Swanson) By: Donald L Swanson Sometimes, things get out of hand—starting with a small error that expands into something more. A recent example is the case of Gray v. United States, Case No. 24-CV-2621 in the U.S. District Court for Southern New York (Decided May 28, 2025).... Continue Reading →
Providing protection? (Photo by Marilyn Swanson) By: Donald L. Swanson Every now and then you see something and say, “How in the heck could this happen?!” Here is one of those times: In re Prehired LLC, Case No. 22-11007, Delaware Bankruptcy Court (decided May 30, 2025; Doc. 247). Facts Debtor LLC files a voluntary Subchapter... Continue Reading →
Repetition (photo by Marilyn Swanson) By: Donald L. Swanson Individuals who repeatedly file bankruptcy face an automatic stay problem under under 11 U.S.C. § 362(c). Subparts (c)(3)&(4) of § 362 terminate the automatic bankruptcy stay—automatically—for individual repeat-filers. Subpart (c)(3) deals with a first-time repeat-filer like this: “(3) if a single or joint case is filed by... Continue Reading →
London Tower -- site of many public hangings (Photo by Marilyn Swanson) By: Donald L Swanson “Blackstone . . . observed that acts such as . . . robbery, certain thefts, fraudulent bankruptcy, forgery of coin, and forgery of a marriage license were felonies that could warrant death.” This quote is from United States v. Duarte,... Continue Reading →
Racing (photo by Marilyn Swanson) By: Donald L. Swanson Several months ago, I stumbled upon an old opinion out of the U.S. Supreme Court suggesting that the right of a creditor to race to the courthouse to collect on its claim against a debtor—and to win (or lose) that race—is a basic right of contract... Continue Reading →
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