In a few months, Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court.

The bankruptcy world will miss him.

The reason for discussing this subject now (instead of waiting for the retirement to actually happen) is this:

• The triumph of Justice Breyer’s Footnote 2 in Merit Management, as accomplished by a denial of certiorari on 2/22/2022.

What follows is a summary of four important Supreme Court bankruptcy opinions in which Justice Breyer played a significant role—starting with the Footnote 2 opinion.

Claims are “impaired,” unless the plan “leaves” their rights “unaltered.”§ 1124(1).

This rule is not as simple and unequivocal as it seems, according to an In re Hertz opinion. [Fn. 1] Here’s why.

Plan Treatment of Unsecured Claims

Claims of unsecured creditors in the Hertz bankruptcy are treated, under its Chapter 11 Plan, as follows:

Imagine this: a U.S. District Court enters judgment in a case that’s “related to” a bankruptcy, and we want to file a motion for new trial or to amend the judgment.

So, which deadline applies to the motion:

Lots of things are wrong with the student loan program in these United States. For example:

• It’s a corporate-welfare program for high-price colleges; but
• Their students pay the price.

Unfortunately, the safety valve protection for students (i.e., a bankruptcy discharge) has failed them—and made the problem worse!

Here’s how

Here’s a first of its kind: a report about federal judges mediating other judges’ cases.

• It’s a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law (2022).

What follows is an attempt to summarize portions of the report, including its description of a can-this-actually-happen case.

The opinion is Wells Fargo Bank, Indenture Trustee v. The Hertz Corp. (In re The Hertz Corp)

The question is whether (and at what rate) post-petition interest can be recovered on pre-petition unsecured claims, when debtor is solvent, under the “solvent debtor exception.” The answers pit equitable arguments against statutory provisions and even looks back to caselaw under the Bankruptcy Act of 1898.

The U.S. Supreme Court, in its Fulton v. City of Chicagoopinion, let Chicago off the automatic stay hook for holding onto impounded vehicles owned by Chapter 13 debtors.

But Fulton is not the last word on that subject.

The new opinion is Cordova, et al. v. City of Chicago, Case No. 19-0684 in the Northern Illinois Bankruptcy Court (issued December 6, 2021, Doc. 154).

Background

An “Order Staying the Later-Filed Bankruptcy Cases” is from In re The Aliera Companies Inc., Case No. 21-11548, Delaware Bankruptcy Court (issued January 18, 2022, Doc. 56), followed by an “Order Transferring Venue of the Later-Filed Voluntary Bankruptcy Cases” (issued January 25, 2022, Doc. 67) in the same case.

Can the foreclosure of a property tax lien on real estate be avoided as a fraudulent transfer under § 584 of the Bankruptcy Code?

That’s the issue before the District Court, on a bankruptcy appeal, in Duvall v. County of Ontario, New York, Case No. 21-cv-06236 in U.S. District Court, WDNY (issued 11/9/2021).

Courts have gone both ways on the issue.

The Difficulty

“I have an opening statement that I give at the beginning of every mediation, and it goes like this”:

• “I don’t have a lot of rules but I have one firm rule and that is nobody uses the ‘F’ word—“final offer.”

“And it’s very true. If I had listened to the parties in the Detroit bankruptcy when they said, ‘This is our final offer,’ and banged their laptops shut, Detroit would still be in bankruptcy. So ignore the ‘F’ word.”