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    Voter Apathy & Consensual v. Non-Consensual Plan Confirmation In Subchapter V (In re Franco’s)
    2023-10-26

    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 refusing to vote on a Subchapter V plan. The In re Franco’s opinion addresses this apathy problem head-on.

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Internal Revenue Service (USA)
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    How a Judge Makes Mediation Work: Mandatory Mediation
    2023-10-24

    Recent expressions of concern about courts mandating mediation reminded me of a mandated mediation process that worked well: the City of Detroit bankruptcy.

    An illustration of the success of mandated mediation in the Detroit case is this line:

    The Bankruptcy Judge“put an end to the public bickering over the water deal by ordering the parties into confidential mediation.”

    Filed under:
    USA, Nebraska, Arbitration & ADR, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    No Third-Party Releases? But What About Fraudulent Transfer Claims and Derivative Claims? (Purdue Pharma)
    2023-10-17

    In Purdue Pharma, the U.S. Supreme Court grants certiorari on this question:

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Absolute Priority Rule And U.S. Supreme Court — A Refresher (Ahlers & 203 North LaSalle)
    2023-10-12

    The absolute priority rule [Fn. 1] has been a problem for businesses in bankruptcy—for a very long time! The rule dates back to at least 1899, when the U.S. Supreme Court prevents certain shareholder actions “until the interests of unsecured creditors have been preserved.” [Fn. 2]

    Since then, the U.S. Supreme Court has followed a long and relatively straight road for the absolute priority rule. And the rule has shown staying power, along that road.

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Enforcing A Mediated Settlement Agreement When Debtor Backs Out (In re Legarde)
    2023-10-10

    The opinion is In re Legarde, Case No. 22-12184, Eastern Pennsylvania Bankruptcy Court (issued September 14, 2023; Doc. 112).

    Facts

    Debtor claims Creditor raped her.

    Then, Debtor posts stuff about Creditor on the internet.

    So, Creditor sues Debtor for defamation, alleging willful and malicious conduct.

    Bankruptcy Developments

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Mediation
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Litigating Legacy Debt: “Commercial Or Business Activities” for Subchapter V Eligibility? (In re Fama-Chiarizia)
    2023-10-05

    “courts agree that . . . evaluating, asserting, pursuing, and defending litigation claims . . . can satisfy Section 1182(1)(A)’s requirement of ‘commercial or business activities.’”

    Filed under:
    USA, Nebraska, Company & Commercial, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Unconstitutionality of Bankruptcy Administrator Fees A Remedies Debacle & No Accountability For Those Responsible (U.S. Trustee v. John Q. Hammons)
    2023-10-03

    This isn’t going to end well.

    Looks like our bankruptcy system in these United States is about to take a big hit—to the tune of hundreds of millions of dollars (projected to be around $350 million). And those responsible for creating the debacle are going to skate.

    Here’s how.

    U.S. Trustee v. John Q. Hammons

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Individual Subchapter V Debtor’s Liquidating Plan: Can Discharge Be Denied Under § 1141(d)(3)? (In re Lucido)
    2023-09-28

    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

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Till Interest Rate For A Bankruptcy Plan: Start With Treasury Rate or Prime Rate? (In re Topp)
    2023-09-26

    What rate of interest should a debtor pay under a bankruptcy plan?

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Subchapter V Debtor’s Exclusive Right To File A Plan: Not A Super-Power
    2023-09-21

    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 debtor, in a re-thought view; and
    • then back to the low-power position for debtor, when problems of the re-thought view become evident.

    I’ll try to explain.

    Early Answer

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC

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