They say that breaking up is hard to do. Now I know, I know that it is true. (Neil Sedaka’s Breaking Up is Hard to Do) (Written by Neil Sedaka and Howard Greenfield) Welcome to “Breaking up is Hard to Do.” This is the first in a nine-part series exploring dispute resolution for business divorces. Let’s start at the very beginning. What is a business divorce? Generally, a business divorce is when a situation arises between business partners leading to one or more seeking to break up. While some business divorces are amicable, many are not. When the co-owners cannot agree, then their dispute may end up in mediation, arbitration, or courthouse litigation. In this series, we will explore a myriad of issues related to resolving business divorces, including planning, emotions, valuation, potential reconciliation, and closure. Although breaking up is hard to do, careful advanced planning and thoughtful navigation of the process can help parties find a path to resolution of the disputes that arise in their business break-up. Disclaimer: “You’re So Vain, You Probably Think This Song is About You” (written and sung by Clary Simon). Please note that this series is drawn from over 30 years of experience as counsel or neutral in business separations, reconciliations, and divorces. Nothing in this series is based on any specific dispute in which I have been involved. In addition, nothing contained herein constitutes legal advice nor does it create a professional relationship. ADR Insights on Business Divorces - Breaking Up is Hard to Do (Part 1 of 9) The post ADR Insights on Business Divorces: Breaking Up is Hard to Do (Part 1 of 9) appeared first on Sylvia Mayer Law.
Mediation is a give and take. It requires listening and sharing. It requires understanding wants and needs. To illustrate, let’s consider Karen Kaufman Orloff’s “I Wanna Iguana.” In this story, young Alex’s friend Mikey is moving away and cannot take his pet iguana with him. Alex really, really, really wants to adopt his friend’s iguana. He just has to convince his mother. As the story unfolds, Alex and his mother exchange a series of letters. Alex explains in each letter why he should be allowed to have a pet iguana. His mom responds. Alex’s first letter reads: “Dear Mom, Did you know that iguanas are really quiet and they are cute too. I think they are much cuter than hamsters. Love, Your adorable son, Alex.” Mom responds: “Dear Alex, Tarantulas are quiet too, but I wouldn’t want one as a pet. By the way, that iguana of Mikey’s is uglier than Godzilla. Just thought I’d mention it. Love, Mom.” Their letters go back and forth as Alex tries various different arguments. These arguments range from, he’s so small you will never know he’s there, to which Mom responds that iguanas can grow to over 6 feet long so she will know, to the iguana can be the brother that I’ve always wanted, to which Mom responds that he already has a brother. Alex perseveres. But, more importantly, both Alex and Mom learn in the process. Through trial and error, they each begin to understand what is important to the other. In one letter, Mom reminds Alex what happened when he brought home the class fish. Alex responds with “Dear Mom, If I knew the fish was going to jump into the spaghetti sauce, I never would have taken the cover off the jar! Love, Your son who has learned his lesson. P.S. Iguanas don’t like spaghetti.” This letter marks a turning point because Mom responds by asking, if he were allowed to have the iguana on a trial basis, how would he care for it? Through more letters, Alex explains how he would feed and water the iguana, clean its cage, and use his allowance to pay for its food. Mom writes in her final letter, “Dear Alex, Look on your dresser. Love, Mom” And there, Alex finds the iguana. This story beautifully captures the give and take of a successful mediation. Alex and Mom each listened to the other. Each shared with the other. They each considered the wants and the needs of the other. And, ultimately, they reached an agreement. Listening. Sharing. Considering both your own wants and needs and the other’s wants and needs. These are important parts of finding your path to resolution. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation. As a parent, I have spent a gazillion hours reading books to my children. Oftentimes, these books teach me new ways to approach conflict resolution. In this case, Karen Kaufman Orloff’s “I Wanna Iguana” inspired this post. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. Mediator Insights - The Give and Take of Mediation The post Mediator Insights: The Give and Take of Mediation appeared first on Sylvia Mayer Law.
“Goodnight room, goodnight moon, goodnight cow jumping over the moon…” Does just reading or hearing those words make you feel more relaxed? That is the beauty of Margaret Wise Brown’s book “Goodnight Moon.” Her book has helped children fall asleep for decades and teaches us a valuable lesson for conflict resolution. Let’s explore this concept by looking more closely at the story. The story and imagery are simple. The book starts by painting a picture with words and images as a little bunny is getting ready for sleep. “In the great green room, there was a telephone and a red balloon and a picture of the cow jumping over the moon and there were three little bears sitting on chairs, and two little kittens, and a pair of mittens, and a little toy house, and a young mouse, and a comb and a brush, and a bowl full of mush, and a quiet old lady who was whispering ‘hush.’” Next, the story takes us through the bunny’s bedtime routine of saying goodnight to all in the room. “Goodnight room, goodnight moon, goodnight cow jumping over the moon…” Ending with “Goodnight noises everywhere.” This story’s patterns, repetition, rhymes, and simple imagery soothe and comfort us. There are no surprises. There is no real climax. There is just a calm and peaceful bedtime routine. What does “Goodnight Moon” have to do with mediation? Or arbitration? Or conflict resolution in general? It helps to illustrate a tool in a neutral’s toolbox. Whether mediation or arbitration, inherently all forms of conflict resolution involve conflict. While we cannot eliminate conflict from conflict resolution, we can create a safe space that allows parties to work through their conflict to find a path to resolution. In mediation, that may mean giving parties the opportunity to share and process their emotions. In arbitration, that may mean giving parties a fair and efficient means for each to tell their side of the story. Just as with “Goodnight Moon,” mediators and arbitrators use routine, repetition, and basic rules to put parties at ease. Author’s Note: As a mediator, I am a “forever student” always seeking new ways to help people find a path to resolution in mediation. As a parent, I have spent a gazillion hours reading books to my children. Oftentimes, these books teach me new ways to approach conflict resolution. In this case, Margaret Wise Brown’s “Goodnight Moon” inspired this post. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. ADR Insights - Goodnight Moon The post ADR Insights: Goodnight Moon appeared first on Sylvia Mayer Law.
Closure. Closure is generally defined as the act of closing or a comforting sense of finality. But what does closure mean in mediation? In mediation, closure is the sense of relief parties feel when they are able to put a dispute behind them. Particularly in emotionally charged, long-running, or very contentious disputes, regardless of what value may be exchanged to achieve a settlement, the feeling of closure is often priceless. And in some cases, closure is the most valuable aspect of the resolution. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. MMM - Closure The post MAYER MEDIATION MINUTE: Closure appeared first on Sylvia Mayer Law.
Today, I want to explore the importance of being curious. Curiosity allows us to learn and grow. Curiosity also leads to sharing. Sharing leads to understanding and connection. In mediation, understanding and connection can pave the path to resolution. So, in your next mediation, be curious. Curious about opposing views. Curious about options. Curious about wants and needs. Curiosity may just lead to resolution. Disclaimer: Nothing contained herein constitutes legal advice nor does anything contained herein create a professional relationship. MMM - Be Curious The post MAYER MEDIATION MINUTE: Be Curious appeared first on Sylvia Mayer Law.
Some who took out parent PLUS loans to send their kids to college expect to die with debt.USA Today has an article about Parent Plus Loans and parents who took them out.The article can be found at https://www.usatoday.com/story/news/education/2023/12/03/parents-struggle-student-loan-debt/71680559007/Jim Shenwick, Esq 917 363 3391 jshenwick@gmail.com Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
The Daily Record has an article titled "Small business, big target: Predatory lenders take aim at struggling businesses | Civil Litigation". The article concerns Merchant Cash Advances to small businesses and the risks and pitfalls of those loans.The article can be found at https://nydailyrecord.com/2023/11/27/small-business-big-target-predatory-lenders-take-aim-at-struggling-businesses-civil-litigation/Jim Shenwick, Esq 917 363 3391 jshenwick@gmail.com Please click the link to schedule a telephone call with me. https://calendly.com/james-shenwick/15minWe held individuals & businesses with too much debt!
Being in debt is not an enjoyable experience in any way whatsoever. It can make you feel like you are beholden to someone else and not exactly free to do whatever you want. Even though you may be working to pay off a debt, the reality is that a creditor or debt collector may try to initiate a lawsuit against you to have the court compel you to pay them. Being on the receiving end of a lawsuit can be a scary experience, but you don’t have to go through it alone. You need experienced legal representation to defend yourself against a debt collection lawsuit. Fortunately, our attorneys can provide just that. We have represented people with debt issues before, and we can work hard to make sure you have the best defense possible against debt collectors who have stepped out of line. There are a number of ways that you can defend against a debt collection claim, ranging from fighting the lawsuit at trial to filing for bankruptcy and more. For a free, confidential analysis of your situation, call our Pennsylvania bankruptcy attorneys from Young, Marr, Mallis & Associates at (215) 701-6519. Can I Be Sued for Being in Debt in Pennsylvania? You can be sued for being in debt in Pennsylvania, but only for a certain amount of time. Statutes of limitation prevent you from being sued for certain things after a certain period of time. In the case of debt collection lawsuits, the statutory period is four years under 13 Pa.C.S. § 2725. This timer runs from when the first missed payment takes place. The statute of limitations can be used as a defense against a debt collection lawsuit. If the debt collector suing you has waited too long to file, they may be out of luck. However, it is important to remember that certain things can “toll” or prolong the statutory period. For example, making a payment after a missed payment may extend the statutory period. What to Do After Receiving a Debt Collection Lawsuit in Pennsylvania There are some things you can do right away to start fighting against a debt collection lawsuit. These steps are very important and need to be taken quickly so that you have the best chance of success in a debt collection lawsuit. Get in Touch with an Attorney Once you know you are being sued, you need to talk to our Pennsylvania debt lawyers as soon as possible. It is not advisable to take other steps without legal counsel. The law does allow you to represent yourself in court, but doing so will put you at an extreme disadvantage and virtually guarantee an unfavorable outcome. Respond to the Complaint Once you have obtained legal counsel, you have to respond to the complaint. If you do not respond to the complaint, it will have an adverse effect on the outcome. In Pennsylvania, you have 20 days to respond to a complaint for a debt collection lawsuit. In responding to the complaint with your “answer,” you are quite literally answering the claims put forth in the plaintiff’s complaint. You can admit to, deny, or simply ignore anything that the plaintiff has brought up in their complaint. Additionally, the answer is where you would put your initial defense to any of the plaintiff’s claims if you have any. Our lawyers can help you with this process. Once your answer is complete, you need to file it with the court and send a copy of it to the plaintiff so their lawyers can examine it. Bankruptcy Can Stop Debt Collection Lawsuits in Pennsylvania There also may be ways that you can avoid a debt collection lawsuit entirely. One of the primary ways of doing this is by filing for bankruptcy. The prospect of doing this may be scary, but, in reality, filing for bankruptcy is not as definitively awful as common parlance would lead you to believe. The main purpose of bankruptcy is not to leave you destitute, but to clear your slate so that you can start over. Essentially, the court is taking over the debt payment process so that you can focus on getting all debts paid. The court does this through an “automatic stay.” This is a court order that stops all forms of debt collection against you immediately. A debt collector can not even call you once an automatic stay is in place. This helps the court take over the process. Depending on the chapter of bankruptcy you file under, the process will be different. Chapter 7 Bankruptcy Chapter 7 bankruptcy is the most streamlined, quickest, and least precise form of bankruptcy. Part of the reason that Chapter 7 bankruptcy is so efficient is that it is fairly indiscriminate in which assets it sells of to pay off debts. Therefore, you need to be prepared to have any asset potentially liquidated to pay off debtors. For these reasons, Chapter 7 is useful for individuals either with few assets or large amounts of debt. No matter how much debt or how little assets you have, once everything has been liquidated, all your debt is gone, whether it was able to be paid off with your assets or not. Chapter 13 Bankruptcy Chapter 13 bankruptcy is a much more precise, and therefore longer, process. Under Chapter 13 bankruptcy, you are able to name certain assets as “off limits” from liquidation. However, Chapter 13 bankruptcy can take a long time to finish, so you will need to be comfortable with being bankrupt for an extended period of time. Call Our Pennsylvania Debt Attorneys Today Young, Marr, Mallis & Associates has Delaware County debt attorneys ready to take your calls and give free case reviews at the number (215) 701-6519.
I’m worried about you, especially with more and more people on the verge of maxing out their credit cards. Credit cards are extremely convenient and easy to use. With the holidays coming up – Black Friday, Small Business Saturday, Cyber Monday, Hanukkah, Christmas – there are all kinds of incentives to buy. But with temptation to charge comes consequences at large. Alarming Credit Card Debt Statistics People are using their charge cards at very high rates – between 80-90% of availability. This is red alert territory. According to LendingTree, as of December 2022, Illinois ranks 16th in the country for the highest average credit card debt per person ($7,756). Also, the 30-day delinquency rate – or the percentage of total outstanding credit card balances at least 30 days overdue – climbed to 2.77% by the second half of 2023. That’s the highest rate seen since Q3 2012. Here are some more key statistics pulled from WalletHub’s national survey: 56% of Americans say they have more credit card debt than they did 12 months ago 57% of Americans with credit card debt say it will take them more than a year to pay it all off 54% of Americans say that credit cards overall have cost them more money than saved them money 23% of Americans are in debt because of frivolous spending 24% of Americans would move in with their in-laws to get out of credit card debt For us, this is an early warning sign of bankruptcy. Credit card companies start dunning you when you are 60 days behind payment. They may even file suit and garnish your wages when you fall 90 days or more behind. Want a brighter financial future? Speak with an experienced debt consolidation lawyer. What Happens If You Max Out a Credit Card? Having a maxed out credit card means that you’ve met or exceeded your credit card limit. You have no more borrowing power until you pay off the monthly minimum amount plus interest. New spending habits must be created in order to pay off a maxed out credit card. Here are some ways you can do just that. 1. Hide Your Credit Cards Yes, physically take out your maxed out credit cards from your wallet and lock them in a vault. Freeze your cards, then hide them in a secure and inconspicuous place – behind a picture frame, buried in a potted plant, inside the freezer. You can also leave your cards with a loved one. This creates more visibility and accountability on your part for tackling the debt head-on, not continuing to build on it. 2. Remove Digital Wallets Apple Wallet, Google Wallet, Amazon, Uber, Lyft, DoorDash – these are common places where you can store your payment information and make online purchases with just a single tap. Remove saved credit cards from your apps and online accounts. If you need to make a purchase, use your debit card or a payment service that’s linked to your bank account like PayPal or Venmo. 3. Calculate What You Owe The principal might be $4,000 right now, but you’ll need to pay off more than the minimum amount each month if you want to make a significant dent on your credit card balance. We recommend using a credit card minimum payment calculator to determine exactly what your payment schedule must look like in order to wipe clean of your debt. Use this time to carefully examine your budget and cut out things that you don’t need. 4. Start Paying Off Your Debt Figure out which credit card has the highest rate of interest and put as much as you can above the minimum payment on that card until you pay it off. Repeat with the card with the next highest rate. Make sure to redeem any accumulated reward points you have accrued for spending or paying off your credit card balance. These statement credits will help speed up the repayment process. 5. Negotiate with Credit Card Issuers Don’t have any money left over to pay your debt? Contact each credit card company and ask them to reduce their interest rate. It never hurts to ask. If you have good credit, you may be eligible to transfer one balance to another credit card. Settle Your Debt with a Credit Card Debt Lawyer Chapter 7 or Chapter 13 bankruptcy are last resort options to consider for outstanding debt. If you are being sued, garnished, can’t sleep, or can’t deal with your debt, contact David P. Leibowitz from Lakelaw – Chicago’s most trusted bankruptcy law firm. At Lakelaw, we have represented over 10,000 cases in the past 50 years, helping our clients to confidently navigate through any financial crisis. We have also been recognized for excellence by every rating service in the industry including Super Lawyers 2024 and Martindale-Hubbell Client Champion 2023. At Lakelaw, we represent you fearlessly and zealously. Contact us today to schedule a free confidential consultation. The post Maxed Out Credit Cards? 2023 Statistics & How to Clear Your Debt appeared first on Lakelaw.
Author's Note: I started writing this post in April. My life has been a bit busy this year so I haven't blogged as much as in prior years. If you are already familiar with the holding of Moac Mall Holdings, you may want to skip to the end to the What It Means section.In Justice Ketanji Brown Jackson's first major opinion, the Supreme Court ruled that 11 U.S.C. Sec. 363(m) is not a jurisdictional bar and batted away an appellate mootness argument. The ruling means that Mall of the Americas may continue to challenge the assignment of a lease to a subsidiary of a purchaser in the Sears bankruptcy case. However, in a larger sense, the opinion is a challenge to the rulings that have shielded many bankruptcy court rulings from appellate review. The case is No. 21-1270, MOAC Mall Holdings, LLC v. Transform Holdco, LLC, 508 U.S. ___ (U.S. 4/19/23). You can find the opinion here. What HappenedWhen Sears filed bankruptcy, it sold most of its assets to Transform Holdco, LLC. One of the assets it purchased was the right to designate who leases would be assumed and assigned to. It formed a subsidiary to assume a lease at Mall of the Americas. Mall of the Americas objected that Transform Holdco could not prove that its newly formed entity could not provide adequate assurance of future performance under 11 U.S.C. Sec. 365(f)(2)(B). The Bankruptcy Court overruled the objection. MOAC requested a stay pending appeal. The Bankruptcy Court denied the stay on the basis that Sec. 363(m) did not apply. Transform insisted that it would not rely on Sec. 363(m).MOAC appealed to the District Court which reversed the order approving the assignment. Transform then moved for reconsideration on the basis that Sec. 363(m) deprived the Court of jurisdiction to hear the appeal (the very position it had told the Bankruptcy Court it would not assert). The District Court was not happy and said some choice things about Transform. Nevertheless, it held that it lacked jurisdiction and dismissed the appeal. MOAC appealed to the Second Circuit which affirmed in an unpublished order.The Issue at the Supreme Court Section 363(m) states that:The reversal or modification on appeal of an authorization under [§363(b) or §363(c)] of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal.The Second Circuit had previously held that Sec. 363(m) was jurisdictional, meaning that an appellate court had no power to review an order falling within its power while the Third and Eleventh Circuits said that it was not. Justice Jackson framed the issue this way:In this case, we are called upon to decide whether §363(m)’s strictures are jurisdictional. If so, a party may invoke that provision at any time—without fear of waiver, forfeiture, or similar doctrines interposing. If not, courts can apply such doctrines when evaluating §363(m) issues, where appropriate. Opinion, p. 2. It's Not Jurisdictional Justice Jackson and the unanimous Court concluded that Sec. 363(m) was not jurisdictional. Congressional statutes are replete with directions to litigants that serve as “preconditions to relief.” Filing deadlines are classic examples. So are preconditions to suit, like exhaustion requirements. So, too, are “statutory limitation[s] on coverage,” or“on a statute’s scope,” such as the “element[s] of a plaintiff ’s claim for relief.” Congress can, if it chooses, make compliance with such rules “important and mandatory.” But knowing that much does not, in itself, make such rules jurisdictional.The “jurisdictional” label is significant because it carries with it unique and sometimes severe consequences. An unmet jurisdictional precondition deprives courts of power to hear the case, thus requiring immediate dismissal. And jurisdictional rules are impervious to excuses like waiver or forfeiture. Courts must also raise and enforce them sua sponte.This case exemplifies why the distinction between nonjurisdictional and jurisdictional preconditions matters. In light of Transform’s belated invocation of §363(m), the District Court stated that, “if ever there were an appropriate situation for the application of judicial estoppel, this would be it.” But not even such egregious conduct by a litigant could permit the application of judicial estoppel as against a jurisdictional rule. In view of these consequences and our past sometimes-loose use of the word “jurisdiction,” we have endeavored “to bring some discipline” to this area. We have clarified that jurisdictional rules pertain to “ ‘ “the power of the court rather than to the rights or obligations of the parties.” ’ ” And we only treat a provision as jurisdictional if Congress “ ‘clearly states’ ” as much. This clear-statement rule implements “Congress’ likely intent” regarding whether noncompliance with a precondition “governs a court’s adjudicatory capacity.” We have reasoned that Congress ordinarily enacts preconditions to facilitate the fair and orderly disposition of litigation and would not heedlessly give those same rules an unusual character that threatens to upend that orderly progress.Opinion, pp. 7-8 (cleaned up). To sum up, jurisdictional limitations are limitations on the power of the court, not the parties and Congress must clearly state when it is imposing a jurisdictional limit. First, there must be an express jurisdictional grant, such as diversity jurisdiction or bankruptcy jurisdiction under 28 U.S.C. Sec. 1334 or appellate jurisdiction under 28 U.S.C. Sec. 1291. If there is not an affirmative grant of jurisdiction, the court has no power to proceed. However, even if there is an affirmative grant of jurisdiction, there may be cases in which Congress has taken that jurisdiction away. Transform was arguing that Sec. 363(m) fell into this second category, that it took the power to adjudicate certain disputes regarding sales or leases away from the appellate courts if a stay pending appeal was not granted. Supremes Say No to Equitable MootnessIn keeping with the focus on deciding cases on the merits, the Court also rejected an equitable mootness argument. This was not a hard call. None of the lower courts applied equitable mootness. As a result, there was not a factual record for the court to rule on. To apply equitable mootness at the Supreme Court level, the Court would have to find that application of the doctrine was required under the undisputed facts of the case. Justice Brown dispatched this argument as easily as she rejected the jurisdictional argument. (Note: The Court's opinion addressed mootness first. Because it was a secondary issue to me, I addressed it in order of importance). Justice Brown explained equitable mootness using these words:A “case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” The case remains live “‘[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation.’” Opinion, p. 5. Justice Brown noted that mootness is disfavored, which must have come as a surprise to all of the hundreds of courts that have used it as a means to clear their dockets. In the end, she found that that the Supreme Court was not going to not going to act as a court of first review where it was not clear that no relief could be granted. She wrote:Here, as elsewhere, we decline to act as a court of “‘first view,’” plumbing the Code’s complex depths in “‘the first instance’” to assure ourselves that Transform is correct about its contention that no relief remains legally available.Opinion, p. 6. Under this formulation, mootness is a doctrine of last resort. For example, if a criminal defendant passes away while a case is on appeal, the correctness of the sentence becomes moot since the defendant has already been granted release. The Post-Script On November 6, 2023, the Second Circuit vacated the decision of the District Court and remanded the case for further proceedings. MOAC Mall Holdings, LLC v. Transform Holdco (In re Sears), 2023 U.S. App. LEXIS 29477 (2nd Cir. 2023). It found that because Sec. 363(m) was not jurisdictional, the District Court should not have dismissed the appeal.