Tag: Subchapter V

Subchapter V Trustee’s Facilitation Role (Part 6)—DUTIES & INHERENT POWERS

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 →

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Subchapter V Trustee’s Facilitation Role (Part 5)—INVESTIGATION DUTIES

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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Subchapter V Trustee’s Facilitation Role (Part 4)—A CITY OF DETROIT MODEL

Facilitating cultural preservation (Photo by Marilyn 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 →

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Subchapter V Trustee’s Facilitation Role (Part 2)—NOT MEDIATION  

Facilitating safety and relaxation (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... Continue Reading →

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Subchapter V Trustee’s Facilitation Role (Part 1)—NOT NEUTRAL

Facilitating fun: a primary duty (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... Continue Reading →

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Beating The “Single Asset Real Estate” Exclusion From Subchapter V Eligibility (In re Evergreen)

A “single asset real estate”? (Photo by Marilyn Swanson) By: Donald L Swanson Excluded from Subchapter V eligibility is a “single asset real estate” debtor. We have a recent opinion on a Subchapter V debtor who beats that exclusion: In re Evergreen Site Holdings, Inc., [Fn. 1] What follows is a summary of that opinion. Eligibility... Continue Reading →

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Trade-Off Theory: For Minimizing Debtor Benefits In Subchapter V

Trade-Off: Bait & Tackle v. Coffee & Deli (Photo by Marilyn Swanson) By: Donald L Swanson There is trade-off theory going around for construing Subchapter V statutes.  The theory is used to minimize benefits that Subchapter V statutes provide to debtors. The Theory The theory goes like this: elimination of the absolute priority rule is a... Continue Reading →

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Subchapter V: Its History And Its Future (An Interview With Robert J. Keach)

https://youtu.be/J-St2KJX6rk By: Donald L Swanson Subchapter V is the newest provision of the Bankruptcy Code—becoming effective on February 19, 2020.  Subchapter V arose from a Report by the American Bankruptcy Institute’s Commission to Study the Reform of Chapter 11.  Here is a link to the Commission’s “Recommendations” on “Small and Medium Sized Enterprise Cases,” which establish... Continue Reading →

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Shouldn’t Entrepreneurs Have After-Liquidation Bankruptcy Relief For The Risks They Take? (In re Hillman)

Entrepreneurship (Photo by Marilyn Swanson) By: Donald L Swanson Subchapter V eligibility requires a debtor to be “engaged in” commercial/business activities. Case Law Consensus Case law consensus is that such activities must exist on the petition filing date.  That means a debtor cannot utilize Subchapter V when: business assets are fully-liquidated; unpaid debts are the only... Continue Reading →

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Subchapter V Trustee’s “Facilitate” Duty: A Confidentiality Dilemma

A dilemma: elegance or country? (Photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee “shall . . . facilitate the development of a consensual plan of reorganization.” [Fn. 1]  This is a mediator-ish role: a “third party” who “participates to assist in the resolution of issues in controversy.” [Fn. 2] Subchapter V Trustee... Continue Reading →

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