Dividing Secured Claims from Under-Secured Claims: A History

By: Donald L Swanson There are things we take for granted in bankruptcy cases: like concepts of fresh start and of absolute priority and of adequate protection. But the source of such concepts is often murky. One of those take-for-granted things is this: the division of a secured claim into, (i) an allowed secured claim that... Continue Reading →

Look “Outside Bankruptcy”: A U.S. Supreme Court Standard for Resolving Bankruptcy Questions

By: Donald L. Swanson In 2019, the U.S. Supreme Court issued two opinions on bankruptcy-specific topics that identify a common legal standard. The standard is this: In deciding a question under the Bankruptcy Code, look to legal standards that apply “outside bankruptcy” for guidance Both opinions do just that.  Here’s how. FIRST OPINION The U.S. Supreme Court... Continue Reading →

Chapter 12: In re Knudsen Revisited, After a U.S. Supreme Court Ruling

By: Donald L. Swanson Congress adopted Chapter 12 in 1986. Then, in 2005, Congress added special tax provisions to Chapter 12 at § 1222(a)(2)(A). Those provisions made taxes arising from sales of farm assets dischargeable as general unsecured claims. In re Knudsen The IRS didn’t like this new law and worked to limit its effect. That... Continue Reading →

How the Bankruptcy Stay Passed Constitutional Muster — A Depression-Era Opinion that’s a Model for Today

By: Donald L Swanson The automatic stay is one of the basics of our bankruptcy laws. It’s a foundational rule for the entire bankruptcy system. But that hasn’t always been the case. In fact, the U.S. Supreme Court, in a Depression-era case, had to decide whether a bankruptcy stay is constitutionally permissible. And, fortunately, the Supreme... Continue Reading →

Who Gets the $4 Million Tax Refund in Bankruptcy: U.S. Supreme Court to Decide (Rodriguez v. FDIC)

By: Donald L. Swanson On June 28, 2019, the U.S. Supreme Court granted certiorari in the case of Rodriguez v. FDIC, (Supreme Court Case No. 18-1269). The case is about a $4 million tax refund received by a parent corporation in bankruptcy, based upon losses from one of its wholly owned subsidiaries.  The question is this:... Continue Reading →

The Bankruptcy Code Needs an Advocate for Its Interests at U.S. Supreme Court — The Solicitor General is Not Adequate

By: Donald L Swanson The Bankruptcy Code is in a precarious position.  It is a “transformative piece of legislation,” but it is without a strong agency in the Executive Branch to interpret it, enforce it, and promote its interests. [Fn. 1] Each Federal agency is part of the Executive Branch and has an area of responsibility... Continue Reading →

Legal Standard for Imposing Civil Contempt

By: Donald L. Swanson On June 3, 2019, the U.S. Supreme Court issued its opinion in the Taggart v. Lorenzen case. The Question The question before the Supreme Court, in Taggart v. Lorenzen, “concerns the legal standard for holding a creditor in civil contempt when the creditor attempts to collect a debt in violation of a... Continue Reading →

Finality of Bankruptcy Court Orders for Appeal: U.S. Supreme Court Will Weigh In (Ritzen v. Jackson)

By: Donald L. Swanson “Appellate deadlines cannot serve their purpose when their trigger is unclear.” --U.S. Sixth Circuit Court of Appeals in Ritzen v. Jackson. This should be interesting. On May 20, 2019, the U.S. Supreme Court granted certiorari to decide whether the denial of a motion for relief from automatic bankruptcy stay is appealable as a... Continue Reading →

Rejected Executory Contracts Made Simple: Mission v. Tempnology

By: Donald L. Swanson “Rejection of a contract—any contract—in bankruptcy operates not as a rescission but as a breach.” Essential declaration of law from U.S. Supreme Court opinion on trademark issues in Mission Product Holdings, Inc. v. Tempnology, LLC, (Case No. 17-1657), issued May 20, 2019. Photocopier Lease Illustration The Supreme Court’s opinion illustrates and clarifies how... Continue Reading →

Blog at WordPress.com.

Up ↑

%d bloggers like this: