On Bankruptcy and Mediation
Unconventional and impotent (photo by Marilyn Swanson) By: Donald L Swanson When a Subchapter V debtor is removed from possession under § 1185(a), what can the Subchapter V trustee do with debtor’s assets and operations? Duties, Rights, Powers and Functions Under § 1184, certain duties of a trustee are delegated to the Subchapter V debtor, “including... Continue Reading →
By: Donald L Swanson The American Bankruptcy Institute’s Subchapter V Task Force has issued its “Preliminary Report” on “Maintaining the $7,500,000 Debt Cap for Subchapter V Eligibility.” This article quotes from and summarizes the Report. Recommendation The Task Force recommends making permanent the $7,500,000 debt cap for Subchapter V eligibility, which is set to expire and... Continue Reading →
Making progress (photo by Marilyn Swanson) By: Donald L Swanson 2023 has been a good year for developing the law of Subchapter V through court rulings and opinions. Here are some of the highs and lows of that development. Working as Intended If 2023 shows us anything, it’s this: Subchapter V is working as intended. Subchapter... Continue Reading →
"Oh, no!" (Photo by Marilyn Swanson) By: Donald L Swanson Every now and then, a bankruptcy ruling elicits an “Oh, no!” response from just about everyone. And then, subsequent case law starts rejecting and/or chipping-away at that “On, no!” ruling. We have such an “Oh, no!” situation going on right now on a Subchapter V debt-limit... Continue Reading →
Apathy? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s the latest opinion on a controversial question: In re Franco’s Paving LLC, Case No. 23-20069, Southern Texas Bankruptcy Court, (decided 10/5/2023; Doc. 74). The Question & Answer Voter apathy is a problem in Subchapter V cases. That apathy is in the form of creditors failing or... Continue Reading →
A different kind of legacy? (Photo by Marilyn Swanson) By: Donald L Swanson “courts agree that . . . evaluating, asserting, pursuing, and defending litigation claims . . . can satisfy Section 1182(1)(A)’s requirement of ‘commercial or business activities.’” In re Fama-Chiarizia, Case No. 21-42341, E.D.N.Y. Bankruptcy Court, issued 9/15/2023, Doc. 238, at 37. One of... Continue Reading →
A liquid plan? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a Bankruptcy Court opinion addressing a no-discharge claim under § 1141(d)(3) against an individual debtor who proposes a liquidating Subchapter V plan: RGW Construction, Inc. v. Lucido (In re Lucido), Adv. No. 21-4031, Northern California Bankruptcy Court (issued 9/13/2023, Doc. 113). The Issue... Continue Reading →
No super-power here (Photo by Marilyn Swanson) By: Donald L Swanson Question Once a Subchapter V debtor is removed from possession under § 1185(a), what happens next? The answer to this question seems to have evolved over the few years of Subchapter V’s existence: from a low-power position for debtor, early-on; to a high-power position for... Continue Reading →
Inherent power of ocean waves (Photo by Marilyn Swanson) By: Donald L Swanson “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitate the development of a consensual plan of reorganization.” From 11 U.S.C § 1183(b)(7)(emphasis added). Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do. But the nature and boundaries of the facilitation... Continue Reading →
Facilitating investigation (Photo by Marilyn Swanson) By: Donald L Swanson “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitate the development of a consensual plan of reorganization.” From 11 U.S.C § 1183(b)(7)(emphasis added). Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do. But the nature and boundaries of... Continue Reading →
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