(a) Except as provided in section 1161 of this title, chapters 1, 3, and 5 of this title apply in a case under chapter 7, 11, 12, or 13 of this title, and this chapter, sections 307, 362(n), 555 through 557, and 559 through 562 apply in a case under chapter 15.
(b) Subchapters I and II of chapter 7 of this title apply only in a case under such chapter.
(c) Subchapter III of chapter 7 of this title applies only in a case under such chapter concerning a stockbroker.
(d) Subchapter IV of chapter 7 of this title applies only in a case under such chapter concerning a commodity broker.
(e) Scope of Application.— Subchapter V of chapter 7 of this title shall apply only in a case under such chapter concerning the liquidation of an uninsured State member bank, or a corporation organized under section 25A of the Federal Reserve Act, which operates, or operates as, a multilateral clearing organization pursuant to section 409 of the Federal Deposit Insurance Corporation Improvement Act of 1991.
(f) Except as provided in section 901 of this title, only chapters 1 and 9 of this title apply in a case under such chapter 9.
(g) Except as provided in section 901 of this title, subchapters I, II, and III of chapter 11 of this title apply only in a case under such chapter.
(h) Subchapter IV of chapter 11 of this title applies only in a case under such chapter concerning a railroad.
(i) Chapter 13 of this title applies only in a case under such chapter.
(j) Chapter 12 of this title applies only in a case under such chapter.
Title 11 U.S. Bankruptcy Code
Chapter 1 - General Provisions
- §101 Definitions
- §102 Rules of construction
- §103 Applicability of chapters
- §104 Adjustment of dollar amounts
- §105 Power of court
- §106 Waiver of sovereign immunity
- §107 Public access to papers
- §108 Extension of time
- §109 Who may be a debtor
- §110 Penalty for persons who negligently or fr...
Chapter 3 - Case Administration
Subchapter I - Commencement of a Case
- §301 Voluntary cases
- §302 Joint cases
- §303 Involuntary cases
- §304 Cases ancillary to foreign proceedings
- §305 Abstention
- §306 Limited Appearance
- §307 United States trustee
Subchapter II - Officers
- §321 Eligibility to serve as trustee
- §322 Qualification of trustee
- §323 Role and capacity of trustee
- §324 Removal of trustee or examiner
- §325 Effect of vacancy
- §326 Limitation on compensation of trustee
- §327 Employment of professional persons
- §328 Limitation on compensation of professiona...
- §329 Debtor's transactions with attorneys
- §330 Compensation of officers
- §331 Interim compensation
Subchapter III - Administration
- §341 Meetings of creditors and equity security
- §342 Notice
- §343 Examination of the debtor
- §344 Self-incrimination, immunity
- §345 Money of estates
- §346 Special tax provisions
- §347 Unclaimed property
- §348 Effect of conversion
- §349 Effect of dismissal
- §350 Closing and reopening cases
Subchapter IV - Administrative Powers
- §361 Adequate protection
- §362 Automatic stay
- §363 Use, sale, or lease of property
- §364 Obtaining credit
- §365 Executory contracts and unexpired leases
- §366 Utility service
Chapter 5 - Creditors, the Debtor, and the Estate
Subchapter 1 - Creditors & Claims
- §501 Filing of proofs of claims or interests
- §502 Allowance of claims or interests
- §503 Allowance of administrative expenses
- §504 Sharing of compensation
- §505 Determination of tax liability
- §506 Determination of secured status
- §507 Priorities
- §508 Effect of distribution other than under t...
- §509 Claims of codebtors
- §510 Subordination
Subchapter II - Debtor's Duties and Benefits
- §521 Debtor's duties
- §522 Exemptions
- §523 Exceptions to discharge
- §524 Effect of discharge
- §525 Protection against discriminatory treatme...
Subchapter III - The Estate
- §541 Property of the estate
- §542 Turnover of property to the estate
- §543 Turnover of property by a custodian
- §544 Trustee as hen creditor and as successor
- §545 Statutory liens
- §546 Limitations on avoiding powers
- §547 Preferences
- §548 Fraudulent transfers and obligations
- §549 Postpetition transactions
- §550 Liability of transferee of avoided transf...
- §551 Automatic preservation of avoided transfe...
- §552 Postpetition effect of security interest
- §553 Setoff
- §554 Abandonment of property of the estate
- §555 Contractual right to liquidate a secunti...
- §556 Contractual right to liquidate a commodit...
- §557 Expedited determination of interests in, ...
- §558 Defenses of the estate
- §559 Contractual right to liquidate a repurcha...
- §560 Contractual right to terminate a swap agr...<
Subchapter 1 - Officers and Administration
- §701 Interim trustee
- §702 Election of trustee
- §703 Successor trustee
- §704 Duties of trustee
- §705 Creditors' committee
- §706 Conversion
- §707 Dismissal
Subchapter II - Collection, Liquidation and Distribution of t...
- §721 Authorization to operate business
- §722 Redemption
- §723 Rights of partnership trustee against gen...
- §724 Treatment of certain hens
- §725 Disposition of certain property
- §726 Distribution of property of the estate
- §727 Discharge
- §728 Special tax provisions
Subchapter III - Stockbroker Liquidation
- §741 Definitions for this subchapter
- §742 Effect of section 362 of this title in th...
- §743 Notice
- §744 Executory contracts
- §745 Treatment of accounts
- §746 Extent of customer claims
- §747 Subordination of certain customer claims
- §748 Reduction of securities to money
- §749 Voidable transfers
- §750 Distribution of securities
- §751 Customer name securities
- §752 Customer property
Subchapter IV - Commodity Broker Liquidation
- §761 Definitions for this subchapter
- §762 Notice to the Commission and right to be
- §763 Treatment of accounts
- §764 Voidable transfers
- §765 Customer instructions
- §766 Treatment of customer property
Subchapter V - Clearing Bank Liquidation
- §781 Definitions
- §782 Selection of trustee
- §783 Additional powers of trustee
- §784 Right to be heard
Chapter 9 - Adjustments of Debts of a Municipality
Subchapter I - General Provisions
- §901 Applicability of other sections of this t...
- §902 Definitions for this chapter
- §903 Reservation of State power to control mun...
- §904 Limitation on jurisdiction and powers of...
Subchapter II - Administration
- §921 Petition and proceedings relating to peti...
- §922 Automatic stay of enforcement of claims a...
- §923 Notice
- §924 List of creditors
- §925 Effect of list of claims
- §926 Avoiding powers
- §927 Limitation on recourse
- §928 Post petition effect of security interest
- §929 Municipal leases
- §930 Dismissal
Subchapter III - The Plan
- §941 Filing of plan
- §942 Modification of plan
- §943 Confirmation
- §944 Effect of confirmation
- §945 Continuing jurisdiction and closing of th...
- §946 Effect of exchange of securities before t...
Subchapter I - Officers and Administration
- §1101 Definitions for this chapter
- §1102 Creditors' and equity security holders'...
- §1103 Powers and duties of committees
- §1104 Appointment of trustee or examiner
- §1105 Termination of trustee's appointment
- §1106 Duties of trustee and examiner
- §1107 Rights, powers, and duties of debtor in...
- §1108 Authorization to operate business
- §1109 Right to be heard
- §1110 Aircraft equipment and vessels
- §1111 Claims and interests
- §1112 Conversion or dismissal
- §1113 Rejection of collective bargaining agree
- §1114 Payment of insurance benefits to retired
Subchapter II - The Plan
- §1121 Who may file a plan
- §1122 Classification of claims or interests
- §1123 Contents of plan
- §1124 Impairment of claims or interests
- §1125 Postpetition disclosure and solicitation
- §1126 Acceptance of plan
- §1127 Modification of plan
- §1128 Confirmation hearing
- §1129 Confirmation of plan
Subchapter III -( Postconfirmation Matters
- §1141 Effect of confirmation
- §1142 Implementation of plan
- §1143 Distribution
- §1144 Revocation of an order of confirmation
- §1145 Exemption from securities laws
- §1146 Special tax provisions
Subchapter IV - Railroad Reorganization
- §1161 Inapplicability of other sections
- §1162 Definition
- §1163 Appointment of trustee
- §1164 Right to be heard
- §1165 Protection of the public interest
- §1166 Effect of subtitle IV of title 49 and of
- §1167 Collective bargaining agreements
- §1168 Rolling stock equipment
- §1169 Effect of rejection of lease of railroad
- §1170 Abandonment of railroad line
- §1171 Priority claims
- §1172 Contents of plan
- §1173 Confirmation of plan
- §1174 Liquidation
Chapter 12 - Adjustments of Debts of a Family Farmer
with Regular Annual Income
Subchapter I - Officers, Administration, and the Estate
- §1201 Stay of action against codebtor
- §1202 Trustee
- §1203 Rights and powers of debtor
- §1204 Removal of debtor as debtor in possession
- §1205 Adequate protection
- §1206 Sales free of interests
- §1207 Property of the estate
- §1208 Conversion or dismissal
Subchapter II - The Plan
- §1221 Filing of plan
- §1222 Contents of plan
- §1223 Modification of plan before confirmation
- §1224 Confirmation hearing
- §1225 Confirmation of plan
- §1226 Payments
- §1227 Effect of confirmation
- §1228 Discharge
- §1229 Modification of plan after confirmation
- §1230 Revocation of an order of confirmation
- §1231 Special tax provisions
Chapter 13 - Adjustment of Debts of an Individual
with Regular Income
Subchapter I - Officers Administration and the Estate
- §1301 Stay of action against codebtor
- §1302 Trustee
- §1303 Rights and powers of debtor
- §1304 Debtor engaged in business
- §1305 Filing and allowance of postpetition cla...
- §1306 Property of the estate
- §1307 Conversion or dismissal
Subchapter II - The Plan
- §1321 Filing of plan
- §1322 Contents of plan
- §1323 Modification of plan before confirmation
- §1324 Confirmation hearing
- §1325 Confirmation of plan
- §1326 Payments
- §1327 Effect of confirmation
- §1328 Discharge
- §1329 Modification of plan after confirmation
- §1330 Revocation of an order of confirmation
Chapter 1 - General Provisions
§ 101. Definitions
In this title-
(1) "accountant" means accountant authorized
under applicable law to practice public accounting, and includes professional
accounting association, corporation, or partnership, if so authorized;
(2) "affiliate" means-
(A) entity that directly or indirectly owns,
controls, or holds with power to vote, 20 percent or more of the outstanding
voting securities of the debtor, other than an entity that holds such
securities-
(i) in a fiduciary or agency capacity without sole
discretionary power to vote such securities; or
(ii) solely to secure a debt, if such entity has not
in fact exercised such power to vote;
(B) corporation 20 percent or more of whose outstanding
voting securities are directly or indirectly owned, controlled, or held
with power to vote, by the debtor, or by an entity that directly or indirectly
owns, controls, or holds with power to vote, 20 percent or more of the
outstanding voting securities of the debtor, other than an entity that
holds such securities-
(i) in a fiduciary or agency capacity without sole
discretionary power to vote such securities; or
(ii) solely to secure a debt, if such entity has not
in fact exercised such power to vote;
(C) person whose business is operated under a
lease or operating agreement by a debtor, or person substantially all
of whose property is operated under an operating agreement with the debtor;
or
(D) entity that operates the business or substantially
all of the property of the debtor under a lease or operating agreement;
[(3)Redesignated(21B)]
(4) "attorney" means attorney, professional law
association, corporation, or partnership, authorized under applicable
law to practice law;
(5) "claim" means-
(A) right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured;
or
(B) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured;
(6) "commodity broker" means futures commission
merchant, foreign futures commission merchant, clearing organization,
leverage transaction merchant, or commodity options dealer, as defined
in section 761 of this title, with respect to which there is a customer,
as defined in section 761 of this title;
(7) "community claim" means claim that arose
before the commencement of the case concerning the debtor for which property
of the kind specified in section 541(a)(2) of this title is liable, whether
or not there is any such property at the time of the commencement of the
case;
(8) "consumer debt" means debt incurred by an
individual primarily for a personal, family, or household purpose;
(9) "corporation"-
(A) includes-
(i) association having a power or privilege that a
private corporation, but not an
individual or a partnership, possesses;
(ii) partnership association organized under a law
that makes only the capital
subscribed responsible for the debts of such association;
(iii) joint-stock company;
(iv) unincorporated company or association; or
(v) business trust; but
(B) does not include limited partnership;
(10) "creditor" means-
(A) entity that has a claim against the debtor
that arose at the time of or before the order for relief concerning the
debtor;
(B) entity that has a claim against the estate
of a kind specified in section 348(d), 502(f), 502(g), 502(h) or 502(i)
of this title; or
(C) entity that has a community claim;
(11) "custodian" means-
(A) receiver or trustee of any of the property
of the debtor, appointed in a case or proceeding not under this title;
(B) assignee under a general assignment for the
benefit of the debtor's creditors; or
(C) trustee, receiver, or agent under applicable
law, or under a contract, that is appointed or authorized to take charge
of property of the debtor for the purpose of enforcing a lien against
such property, or for the purpose of general administration of such property
for the benefit of the debtor's creditors;
(12) "debt" means liability on a claim;
(12A) "debt for child support" means a debt of a kind
specified in section 523(a)(5) of this title for maintenance or support
of a child of the debtor;
(13) "debtor" means person or municipality concerning
which a case under this title has been commenced;
(14) "disinterested person" means person that-
(A) is not a creditor, an equity security holder,
or an insider;
(B) is not and was not an investment banker for
any outstanding security of the debtor;
(C) has not been, within three years before the
date of the filing of the petition, an investment banker for a security
of the debtor, or an attorney for such an investment banker in connection
with the offer, sale, or issuance of a security of the debtor;
(D) is not and was not, within two years before
the date of the filing of the petition, a director, officer, or employee
of the debtor or of an investment banker specified in subparagraph (B)
or (C) of this paragraph; and
(E) does not have an interest materially adverse to
the interest of the estate or of any class of creditors or equity security
holders, by reason of any direct or indirect relationship to, connection
with, or interest in, the debtor or an investment banker specified in
subparagraph (B) or (C) of this paragraph, or for any other reason;
(15) "entity" includes person, estate, trust,
governmental unit, and United States trustee;
(16) "equity security" means-
(A) share in a corporation, whether or not transferable
or denominated "stock", or similar security;
(B) interest of a limited partner in a limited
partnership; or
(C) warrant or right, other than a right to convert,
to purchase, sell, or subscribe to a share, security, or interest of a
kind specified in subparagraph (A) or (B) of this paragraph;
(17) "equity security holder" means holder of
an equity security of the debtor;
(18) "family farmer" means-
(A) individual or individual and spouse engaged
in a farming operation whose aggregate debts do not exceed $1,500,000
and not less than 80 percent of whose aggregate noncontingent, liquidated
debts (excluding a debt for the principal residence of such individual
or such individual and spouse unless such debt arises out of a farming
operation), on the date the case is filed, arise out of a farming operation
owned or operated by such individual or such individual and spouse, and
such individual or such individual and spouse receive from such farming
operation more than 50 percent of such individual's or such individual
and spouse's gross income for the taxable year preceding the taxable year
in which the case concerning such individual or such individual and spouse
was filed; or
(B) corporation or partnership in which more than
50 percent of the outstanding stock or equity is held by one family, or
by one family and the relatives of the members of such family, and such
family or such relatives conduct the farming operation, and
(i) more than 80 percent of the value of its assets
consists of assets related to the farming operation;
(ii) its aggregate debts do not exceed $1,500,000 and
not less than 80 percent of its aggregate noncontingent, liquidated debts
(excluding a debt for one dwelling which is owned by such corporation
or partnership and which a shareholder or partner maintains as a principal
residence, unless such debt arises out of a farming operation), on the
date the case is filed, arise out of the farming operation owned or operated
by such corporation or such partnership; and (iii) if such corporation
issues stock, such stock is not publicly traded;
(19) "family farmer with regular annual income"
means family farmer whose annual income is sufficiently stable and regular
to enable such family farmer to make payments under a plan under chapter
12 of this title;
(20) "farmer" means (except when such term appears
in the term "family farmer") person that received more than 80 percent
of such person's gross income during the taxable year of such person immediately
preceding the taxable year of such person during which the case under
this title concerning such person was commenced from a farming operation
owned or operated by such person;
(21) "farming operation" includes farming, tillage
of the soil, dairy farming, ranching, production or raising of crops,
poultry, or livestock, and production of poultry or livestock products
in an unmanufactured state;
(21 A) "farmout agreement" means a written agreement
in which-
(A) the owner of a right to drill, produce, or
operate liquid or gaseous hydrocarbons on property agrees or has agreed
to transfer or assign all or a part of such right to another entity; and
(B) such other entity (either directly or through
its agents or its assigns), as consideration, agrees to perform drilling,
reworking, recompleting, testing, or similar or related operations, to
develop or produce liquid or gaseous hydrocarbons on the property; (21B)
"Federal depository institutions regulatory agency" means-
(A) with respect to an insured depository institution
(as defined in section 3(c)(2) of the Federal Deposit Insurance Act) for
which no conservator or receiver has been appointed, the appropriate Federal
banking agency (as defined in section 3(q) of such Act);
(B) with respect to an insured credit union (including
an insured credit union for which the National Credit Union Administration
has been appointed conservator or liquidating agent), the National Credit
Union Administration;
(C) with respect to any insured depository institution
for which the Resolution Trust Corporation has been appointed conservator
or receiver, the Resolution Trust Corporation; and
(D) with respect to any insured depository institution
for which the Federal Deposit Insurance Corporation has been appointed
conservator or receiver, the Federal Deposit Insurance Corporation;
(22) the term "financial institution'-
(A) means-
(i) a Federal reserve bank or an entity (domestic or
foreign) that is a commercial or savings bank, industrial savings bank,
savings and loan association, trust company, or receiver or conservator
for such entity and, when any such Federal reserve bank, receiver, conservator,
or entity is acting as agent or custodian for a customer in connection
with a securities contract, as defined in section 741 of this title, the
customer; or
(ii) in connection with a securities contract, as defined
in section 741 of this title, an investment company registered under the
Investment Company Act of 1940; and
(B) includes any person described in subparagraph
(A) which operates, or operates as, a multilateral clearing organization
pursuant to section 409 of the Federal Deposit Insurance Corporation Improvement
Act of 1991;
(23) "foreign proceeding" means proceeding, whether
judicial or administrative and whether or not under bankruptcy law, in
a foreign country in which the debtor's domicile, residence, principal
place of business, or principal assets were located at the commencement
of such proceeding, for the purpose of liquidating an estate, adjusting
debts by composition, extension, or discharge, or effecting a reorganization;
(24) "foreign representative" means duly selected
trustee, administrator, or other representative of an estate in a foreign
proceeding;
(25) "forward contract" means a contract (other
than a commodity contract) for the purchase, sale, or transfer of a commodity,
as defined in section 761(8) of this title, or any similar good, article,
service, right, or interest which is presently or in the future becomes
the subject of dealing in the forward contract trade, or product or byproduct
thereof, with a maturity date more than two days after the date the contract
is entered into, including, but not limited to, a repurchase transaction,
reverse repurchase transaction, consignment, lease, swap, hedge transaction,
deposit, loan, option, allocated transaction, unallocated transaction,
or any combination thereof or option thereon;
(26) "forward contract merchant" means a person
whose business consists in whole or in part of entering into forward contracts
as or with merchants in a commodity, as defined in section 761(8) of this
title, or any similar good, article, service, right, or interest which
is presently or in the future becomes the subject of dealing in the forward
contract trade;
(27) "governmental unit" means United States;
State; Commonwealth; District; Territory; municipality; foreign state;
department, agency, or instrumentality of the United States (but not a
United States trustee while serving as a trustee in a case under this
title), a State, a Commonwealth, a District, a Territory, a municipality,
or a foreign state; or other foreign or domestic government;
(28) "indenture" means mortgage, deed of trust,
or indenture, under which there is outstanding a security, other than
a voting-trust certificate, constituting a claim against the debtor, a
claim secured by a lien on any of the debtor's property, or an equity
security of the debtor;
(29) "indenture trustee" means trustee under an
indenture;
(30) "individual with regular income" means individual
whose income is sufficiently stable and regular to enable such individual
to make payments under a plan under chapter 13 of this title, other than
a stockbroker or a commodity broker;
(31) "insider" includes-
(A) if the debtor is an individual-
(i) relative of the debtor or of a general partner
of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director,
officer, or person in control;
(B) if the debtor is a corporation- (i) director
of the debtor;
(ii) officer of the debtor;
(iii) person in control of the debtor;
(iv) partnership in which the debtor is a general partner;
(v) general partner of the debtor; or
(vi) relative of a general partner, director, officer,
or person in control of the
debtor;
(C) if the debtor is a partnership- (i) general
partner in the debtor;
(ii) relative of a general partner in, general partner
of, or person in control of the
debtor;
(iii) partnership in which the debtor is a general
partner;
(iv) general partner of the debtor; or
(v) person in control of the debtor;
(D) if the debtor is a municipality, elected
official of the debtor or relative of an elected official of the debtor;
(E) affiliate, or insider of an affiliate as if
such affiliate were the debtor; and
(F) managing agent of the debtor;
(32) "insolvent" means-
(A) with reference to an entity other than a partnership
and a municipality, financial condition such that the sum of such entity's
debts is greater than all of such entity's property, at a fair valuation,
exclusive of-
(i) property transferred, concealed, or removed with
intent to hinder, delay, or defraud such entity's creditors; and
(ii) property that may be exempted from property of
the estate under section 522 of this title;
(B) with reference to a partnership, financial
condition such that the sum of such partnership's debts is greater than
the aggregate of, at a fair valuation-
(i) all of such partnership's property, exclusive of
property of the kind specified in subparagraph (A)(i) of this paragraph;
and
(ii) the sum of the excess of the value of each general
partner's nonpartnership property, exclusive of property of the kind specified
in subparagraph (A) of this paragraph, over such partner's nonpartnership
debts; and
(C) with reference to a municipality, financial
condition such that the municipality
(i) generally not paying its debts as they become due
unless such debts are the
subject of a bona fide dispute; or
(ii) unable to pay its debts as they become due;
(33) "institution-affiliated party"-
(A) with respect to an insured depository institution
(as defined in section 3(c)(2) of the Federal Deposit Insurance Act),
has the meaning given it in section 3(u) of the Federal Deposit Insurance
Act; and
(B) with respect to an insured credit union, has
the meaning given it in section 206(r) of the Federal Credit Union Act;
(34) "insured credit union" has the meaning given
it in section 101(7) of the Federal Credit Union Act;
(35) "insured depository institution"-
(A) has the meaning given it in section 3(c)(2)
of the Federal Deposit Insurance Act; and
(B) includes an insured credit union (except
in the case of paragraphs (21B) and (33)(A) of this subsection);
(35A) "intellectual property" means-
(A) trade secret;
(B) invention, process, design, or plant protected
under title 35;
(C) patent application;
(D) plant variety;
(E) work of authorship protected under title 17;
or
(F) mask work protected under chapter 9 of title
17;to the extent protected by applicable nonbankruptcy law; and [sic]
(36) "judicial lien" means lien obtained by judgment,
levy, sequestration, or other legal or equitable process or proceeding;
(37) "lien" means charge against or interest
in property to secure payment of a debt or performance of an obligation;
(38) "margin payment" means, for purposes of
the forward contract provisions of this title, payment or deposit of cash,
a security or other property, that is commonly known in the forward contract
trade as original margin, initial margin, maintenance margin, or variation
margin, including mark-to-market payments, or variation payments; and
[sic]
(39) "mask work" has the meaning given it in section
901(a)(2) of title 17. [sic] [;]
(40) "municipality" means political subdivision
or public agency or instrumentality of a State;
(41) "person" includes individual, partnership,
and corporation, but does not include governmental unit, except that a
governmental unit that-
(A) acquires an asset from a person-
(i) as a result of the operation of a loan guarantee
agreement; or (ii) as receiver or liquidating agent of a person;
(B) is a guarantor of a pension benefit payable
by or on behalf of the debtor or an affiliate of the debtor; or
(C) is the legal or beneficial owner of an asset
of-
(i) an employee pension benefit plan that is a governmental
plan, as defined in section 414(d) of the Internal Revenue Code of 1986;
or
(ii) an eligible deferred compensation plan, as defined
in section 457(b) of the Internal Revenue Code of 1986; shall be considered,
for purposes of section 1102 of this title, to be a person with respect
to such asset or such benefit;
(42) "petition" means petition filed under section
301, 302, 303, or 304 of this title, as the case may be, commencing a
case under this title;
(42A) "production payment" means a term overriding
royalty satisfiable in cash or in kind-
(A) contingent on the production of a liquid
or gaseous hydrocarbon from particular real property; and
(B) from a specified volume, or a specified value,
from the liquid or gaseous hydrocarbon produced from such property, and
determined without regard to production costs;
(43) "purchaser" means transferee of a voluntary
transfer, and includes immediate or mediate transferee of such a transferee;
(44) "railroad" means common carrier by railroad
engaged in the transportation of individuals or property or owner of trackage
facilities leased by such a common carrier;
(45) "relative" means individual related by affinity
or consanguinity within the third degree as determined by the common law,
or individual in a step or adoptive relationship within such third degree;
(46) "repo participant" means an entity that,
on any day during the period beginning 90 days before the date of the
filing of the petition, has an outstanding repurchase agreement with the
debtor;
(47) "repurchase agreement" (which definition
also applies to a reverse repurchase agreement) means an agreement, including
related terms, which provides for the transfer of certificates of deposit,
eligible bankers' acceptances, or securities that are direct
obligations of, or that are fully guaranteed as to
principal and interest by, the United States or any agency of the United
States against the transfer of funds by the transferee of such certificates
of deposit, eligible bankers' acceptances, or securities with a simultaneous
agreement by such transferee to transfer to the transferor thereof certificates
of deposit, eligible bankers' acceptances, or securities as described
above, at a date certain not later than one year after such transfers
or on demand, against the transfer of funds;
(48) "securities clearing agency" means person
that is registered as a clearing agency under section 17A of the Securities
Exchange Act of 1934 or whose business is confined to the performance
of functions of a clearing agency with respect to exempted securities,
as defined in section 3(a)(12) of such Act for the purposes of such section
17A;
(49) "security"-
(A) includes- (i) note; (ii) stock;
(iii) treasury stock; (iv) bond; (v) debenture;
(vi) collateral trust certificate; (vii) pre-organization
certificate or subscription; (viii) transferable share; (ix) voting-trust
certificate; (x) certificate of deposit; (xi) certificate of deposit for
security;
(xii) investment contract or certificate of interest
or participation in a profit-sharing agreement or in an oil, gas, or mineral
royalty or lease, if such contract or interest is required to be the subject
of a registration statement filed with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, or is exempt under
section 3(b) of such Act from the requirement to file such a statement;
(xiii) interest of a limited partner in a limited partnership;
(xiv) other claim or interest commonly known as "security"; and (xv) certificate
of interest or participation in, temporary or interim certificate for,
receipt for, or warrant or right to subscribe to or purchase or sell,
a security; but
(B) does not include-
(i) currency, check, draft, bill of exchange, or bank
letter of credit; (ii) leverage transaction, as defined in section 761
of this title; (iii) commodity futures contract or forward contract;
(iv) option, warrant, or right to subscribe to or purchase
or sell a commodity futures contract;
(v) option to purchase or sell a commodity;
(vi) contract or certificate of a kind specified in
subparagraph (A)(xii) of this
paragraph that is not required to be the subject of
a registration statement filed
with the Securities and Exchange Commission and is
not exempt under section
3(b) of the Securities Act of 1933 from the requirement
to file such a statement;
or
(vii) debt or evidence of indebtedness for goods sold
and delivered or services rendered;
(50) "security agreement" means agreement that
creates or provides for a security interest;
(51) "security interest" means lien created by
an agreement;
(51 A) "settlement payment" means, for purposes of
the forward contract provisions of this title, a preliminary settlement
payment, a partial settlement payment, an interim settlement payment,
a settlement payment on account, a final settlement payment, a net settlement
payment, or any other similar payment commonly used in the forward contract
trade;
(51B) "single asset real estate" means real property
constituting a single property or project, other than residential real
property with fewer than 4 residential units, which generates substantially
all of the gross income of a debtor and on which no substantial business
is being conducted by a debtor other than the business of operating the
real property and activities incidental thereto having aggregate noncontingent,
liquidated secured debts in an amount no more than $4,000,000;
(51C) "small business" means a person engaged in commercial
or business activities (but does not include a person whose primary activity
is the business of owning or operating real property and activities incidental
thereto) whose aggregate noncontingent liquidated secured and unsecured
debts as of the date of the petition do not exceed $2,000,000;
(52) "State" includes the District of Columbia
and Puerto Rico, except for the purpose of defining who may be a debtor
under chapter 9 of this title;
(53) "statutory lien" means lien arising solely
by force of a statute on specified circumstances or conditions, or lien
of distress for rent, whether or not statutory, but does not include security
interest or judicial lien, whether or not such interest or lien is provided
by or is dependent on a statute and whether or not such interest or lien
is made fully effective by statute;
(53A) "stockbroker" means person-
(A) with respect to which there is a customer,
as defined in section 741 of this title; and
(B) that is engaged in the business of effecting
transactions in securities- (i) for the account of others; or
(ii) with members of the general public, from or for
such person's own account; (53B) "swap agreement" means-
(A) an agreement (including terms and conditions
incorporated by reference therein) which is a rate swap agreement, basis
swap, forward rate agreement, commodity swap, interest rate option, forward
foreign exchange agreement, spot foreign exchange agreement, rate cap
agreement, rate floor agreement, rate collar agreement, currency swap
agreement, cross-currency rate swap agreement, currency option, any other
similar agreement (including any option to enter into any of the foregoing);
(B) any combination of the foregoing; or
(C) a master agreement for any of the foregoing
together with all supplements; (53C) "swap participant" means an entity
that, at any time before the filing of the petition, has an outstanding
swap agreement with the debtor;
(53D) "timeshare plan" means and shall include that
interest purchased in any arrangement, plan, scheme, or similar device,
but not including exchange programs,
whether by membership, agreement, tenancy in common,
sale, lease, deed, rental agreement, license, right to use agreement,
or by any other means, whereby a purchaser, in exchange for consideration,
receives a right to use accommodations, facilities, or recreational sites,
whether improved or unimproved, for a specific period of time less than
a full year during any given year, but not necessarily for consecutive
years, and which extends for a period of more than three years. A "timeshare
interest" is that interest purchased in a timeshare plan which grants
the purchaser the right to use and occupy accommodations, facilities,
or recreational sites, whether improved or unimproved, pursuant to a timeshare
plan;
(54) "transfer" means every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of disposing of or
parting with property or with an interest in property, including retention
of title as a security interest and foreclosure of the debtor's equity
of redemption;
(54A) the term "uninsured State member bank" means
a State member bank (as defined in section 3 of the Federal Deposit Insurance
Act) the deposits of which are not insured by the Federal Deposit Insurance
Corporation; and
(55) "United States", when used in a geographical
sense, includes all locations where the judicial jurisdiction of the United
States extends, including territories and possessions of the United States;
[sic] [and]
[(56)Redesignated(35A)]
(56A) "term overriding royalty" means an interest in
liquid or gaseous hydrocarbons in
place or to be produced from particular real property
that entitles the owner thereof to a
share of production, or the value thereof, for a term
limited by time, quantity, or value
realized; [sic] [.]
[(57) Redesignated (39)]
§ 102. Rules of construction
In this title-
(1) "after notice and a hearing", or a similar
phrase-
(A) means after such notice as is appropriate
in the particular circumstances, and such opportunity for a hearing as
is appropriate in the particular circumstances; but
(B) authorizes an act without an actual hearing
if such notice is given properly and if-
(i) such a hearing is not requested timely by a party
in interest; or (ii) there is insufficient time for a hearing to be commenced
before such act must be done, and the court authorizes such act;
(2) "claim against the debtor" includes claim
against property of the debtor;
(3) "includes" and "including" are not limiting;
(4) "may not" is prohibitive, and not permissive;
(5) "or" is not exclusive;
(6) "order for relief" means entry of an order
for relief;
(7) the singular includes the plural;
(8) a definition, contained in a section of this
title that refers to another section of this title, does not, for the
purpose of such reference, affect the meaning of a term used in such other
section; and
(9) "United States trustee" includes a designee
of the United States trustee.
§ 103. Applicability of chapters
(a) Except as provided in section 1161 of this
title, chapters 1, 3, and 5 of this title apply in a case under chapter
7, 11, 12, or 13 of this title.
(b) Subchapters I and II of chapter 7 of this
title apply only in a case under such chapter.
(c) Subchapter III of chapter 7 of this title
applies only in a case under such chapter concerning a stockbroker.
(d) Subchapter IV of chapter 7 of this title
applies only in a case under such chapter concerning a commodity broker.
(e) Scope of application.- Subchapter V of chapter
7 of this title shall apply only in a case under such chapter concerning
the liquidation of an uninsured State member bank, or a corporation organized
under section 25 A of the Federal Reserve Act, which operates, or operates
as, a multilateral clearing organization pursuant to section 409 of the
Federal Deposit Insurance Corporation Improvement Act of 1991.
(f) Except as provided in section 901 of this
title, only chapters 1 and 9 of this title apply in a case under such
chapter 9.
(g) Except as provided in section 901 of this
title, subchapters I, II, and III of chapter 11 of this title apply only
in a case under such chapter.
(h) Subchapter IV of chapter 11 of this title applies
only in a case under such chapter concerning a railroad.
(i) Chapter 13 of this title applies only in a case
under such chapter.
(j) Chapter 12 of this title applies only in a case
under such chapter.
§ 104. Adjustment of dollar amounts
(a) The Judicial Conference of the United States
shall transmit to the Congress and to the President before May 1, 1985,
and before May 1 of every sixth year after May 1, 1985, a recommendation
for the uniform percentage adjustment of each dollar amount in this title
and in section 1930 of title 28.
(b) (1) On April 1, 1998, and at each 3-year
interval ending on April 1 thereafter, each dollar amount in effect under
sections 109(e), 303(b), 507(a), 522(d), and 523(a)(2)(C) immediately
before such April 1 shall be adjusted-
(A) to reflect the change in the Consumer Price
Index for All Urban Consumers, published by the Department of Labor, for
the most recent 3-year period ending immediately before January 1 preceding
such April 1, and
(B) to round to the nearest $25 the dollar amount
that represents such change.
(2) Not later than March 1, 1998, and at each 3-year
interval ending on March 1 thereafter, the Judicial Conference of the
United States shall publish in the Federal
Register the dollar amounts that will become effective
on such April 1 under sections 109(e), 303(b), 507(a), 522(d), and 523(a)(2)(C)
of this title.
(3) Adjustments made in accordance with paragraph (1)
shall not apply with respect to cases commenced before the date of such
adjustments.
§ 105. Power of court
(a) The court may issue any order, process, or
judgment that is necessary or appropriate to carry out the provisions
of this title. No provision of this title providing for the raising of
an issue by a party in interest shall be construed to preclude the court
from, sua sponte, taking any action or making any determination necessary
or appropriate to enforce or implement court orders or rules, or to prevent
an abuse of process.
(b) Notwithstanding subsection (a) of this section,
a court may not appoint a receiver in a case under this title.
(c) The ability of any district judge or other
officer or employee of a district court to exercise any of the authority
or responsibilities conferred upon the court under this title shall be
determined by reference to the provisions relating to such judge, officer,
or employee set forth in title 28. This subsection shall not be interpreted
to exclude bankruptcy judges and other officers or employees appointed
pursuant to chapter 6 of title 28 from its operation.
(d) The court, on its own motion or on the request
of a party in interest, may-
(1) hold a status conference regarding any case
or proceeding under this title after notice to the parties in interest;
and
(2) unless inconsistent with another provision
of this title or with applicable Federal Rules of Bankruptcy Procedure,
issue an order at any such conference prescribing such limitations and
conditions as the court deems appropriate to ensure that the case is handled
expeditiously and economically, including an order that-
(A) sets the date by which the trustee must assume
or reject an executory contract or unexpired lease; or
(B) in a case under chapter 11 of this title-
(i) sets a date by which the debtor, or trustee if
one has been appointed, shall file a disclosure statement and plan;
(ii) sets a date by which the debtor, or trustee if
one has been appointed, shall solicit acceptances of a plan;
(iii) sets the date by which a party in interest other
than a debtor may file a plan;
(iv) sets a date by which a proponent of a plan, other
than the debtor, shall solicit acceptances of such plan;
(v) fixes the scope and format of the notice to be
provided regarding the hearing on approval of the disclosure statement;
or
(vi) provides that the hearing on approval of the disclosure
statement may be combined with the hearing on confirmation of the plan.
§ 106. Waiver of sovereign immunity
(a) Notwithstanding an assertion of sovereign
immunity, sovereign immunity is abrogated as to a governmental unit to
the extent set forth in this section with respect to the following:
(1) Sections 105, 106, 107, 108, 303, 346, 362,
363, 364, 365, 366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542,
543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726,
728, 744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142, 1143,
1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303, 1305, and 1327 of
this title.
(2) The court may hear and determine any issue
arising with respect to the application of such sections to governmental
units.
(3) The court may issue against a governmental
unit an order, process, or judgment under such sections or the Federal
Rules of Bankruptcy Procedure, including an order or judgment awarding
a money recovery, but not including an award of punitive damages. Such
order or judgment for costs or fees under this title or the Federal Rules
of Bankruptcy Procedure against any governmental unit shall be consistent
with the provisions and limitations of section 2412(d)(2)(A) of title
28.
(4) The enforcement of any such order, process,
or judgment against any governmental unit shall be consistent with appropriate
nonbankruptcy law applicable to such governmental unit and, in the case
of a money judgment against the United States, shall be paid as if it
is a judgment rendered by a district court of the United States.
(5) Nothing in this section shall create any
substantive claim for relief or cause of action not otherwise existing
under this title, the Federal Rules of Bankruptcy Procedure, or nonbankruptcy
law.
(b) A governmental unit that has filed a proof
of claim in the case is deemed to have waived sovereign immunity with
respect to a claim against such governmental unit that is property of
the estate and that arose out of the same transaction or occurrence out
of which the claim of such governmental unit arose.
(c) Notwithstanding any assertion of sovereign
immunity by a governmental unit, there shall be offset against a claim
or interest of a governmental unit any claim against such governmental
unit that is property of the estate.
§ 107. Public access to papers
(a) Except as provided in subsection (b) of this
section, a paper filed in a case under this title and the dockets of a
bankruptcy court are public records and open to examination by an entity
at reasonable times without charge.
(b) On request of a party in interest, the bankruptcy
court shall, and on the bankruptcy court's own motion, the bankruptcy
court may-
(1) protect an entity with respect to a trade
secret or confidential research, development, or commercial information;
or
(2) protect a person with respect to scandalous
or defamatory matter contained in a paper filed in a case under this title.
§ 108. Extension of time
(a) If applicable nonbankruptcy law, an order
entered in a nonbankruptcy proceeding, or an agreement fixes a period
within which the debtor may commence an action, and such period has not
expired before the date of the filing of the petition, the trustee may
commence such action only before the later of-
(1) the end of such period, including any suspension
of such period occurring on or after the commencement of the case; or
(2) two years after the order for relief.
(b) Except as provided in subsection (a) of this
section, if applicable nonbankruptcy law, an order entered in a nonbankruptcy
proceeding, or an agreement fixes a period within which the debtor or
an individual protected under section 1201 or 1301 of this title may file
any pleading, demand, notice, or proof of claim or loss, cure a default,
or perform any other similar act, and such period has not expired before
the date of the filing of the petition, the trustee may only file, cure,
or perform, as the case may be, before the later of-
(1) the end of such period, including any suspension
of such period occurring on or after the commencement of the case; or
(2) 60 days after the order for relief.
(c) Except as provided in section 524 of this
title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy
proceeding, or an agreement fixes a period for commencing or continuing
a civil action in a court other than a bankruptcy court on a claim against
the debtor, or against an individual with respect to which such individual
is protected under section 1201 or 1301 of this title, and such period
has not expired before the date of the filing of the petition, then such
period does not expire until the later of-
(1) the end of such period, including any suspension
of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or
expiration of the stay under section 362, 922, 1201, or 1301 of this title,
as the case may be, with respect to such claim.
§ 109. Who may be a debtor
(a) Notwithstanding any other provision of this
section, only a person that resides or has a domicile, a place of business,
or property in the United States, or a municipality, may be a debtor under
this title.
(b) A person may be a debtor under chapter 7 of
this title only if such person is not-
(1) a railroad;
(2) a domestic insurance company, bank, savings
bank, cooperative bank, savings and loan association, building and loan
association, homestead association, a New Markets Venture Capital company
as defined in section 351 of the Small Business Investment Act of 1958,
a small business investment company licensed by the Small Business Administration
under subsection (c) or (d) of section 301 of the Small Business Investment
Act of 1958, credit union, or industrial bank or similar institution which
is an insured bank as defined in section 3(h) of the Federal Deposit Insurance
Act, except that an uninsured State member bank, or a corporation organized
under section 25A of the
Federal Reserve Act, which operates, or operates as,
a multilateral clearing organization pursuant to section 409 of the Federal
Deposit Insurance Corporation Improvement Act of 1991 may be a debtor
if a petition is filed at the direction of the Board of Governors of the
Federal Reserve System ; or
(3) a foreign insurance company, bank, savings bank,
cooperative bank, savings and loan association, building and loan association,
homestead association, or credit union, engaged in such business in the
United States.
(c) An entity may be a debtor under chapter 9
of this title if and only if such entity-
(1) is a municipality;
(2) is specifically authorized, in its capacity
as a municipality or by name, to be a debtor under such chapter by State
law, or by a governmental officer or organization empowered by State law
to authorize such entity to be a debtor under such chapter;
(3) is insolvent;
(4) desires to effect a plan to adjust such debts;
and
(5) (A) has obtained the agreement of creditors holding
at least a majority in amount of the claims of each class that such entity
intends to impair under a plan in a case under such chapter;
(B) has negotiated in good faith with creditors
and has failed to obtain the agreement of creditors holding at least a
majority in amount of the claims of each class that such entity intends
to impair under a plan in a case under such chapter;
(C) is unable to negotiate with creditors because
such negotiation is impracticable; or
(D) reasonably believes that a creditor may attempt
to obtain a transfer that is avoidable under section 547 of this title.
(d) Only a railroad, a person that may be a debtor
under chapter 7 of this title (except a stockbroker or a commodity broker),
and an uninsured State member bank, or a corporation organized under section
25 A of the Federal Reserve Act, which operates, or operates as, a multilateral
clearing organization pursuant to section 409 of the Federal Deposit Insurance
Corporation Improvement Act of 1991 may be a debtor under chapter 11 of
this title.
(e) Only an individual with regular income that
owes, on the date of the filing of the petition, noncontingent, liquidated,
unsecured debts of less than $250,000 [$290,525] and noncontingent, liquidated,
secured debts of less than $750,000 [$871,550], or an individual with
regular income and such individual's spouse, except a stockbroker or a
commodity broker, that owe, on the date of the filing of the petition,
noncontingent, liquidated, unsecured debts that aggregate less than $250,000
[$290,525] and noncontingent, liquidated, secured debts of less than $750,000
[$871,550] may be a debtor under chapter 13 of this title.
(f) Only a family farmer with regular annual income
may be a debtor under chapter 12 of this title.
(g) Notwithstanding any other provision of this section,
no individual or family farmer may be a debtor under this title who has
been a debtor in a case pending under this title at any time in the preceding
180 days if-
(1) the case was dismissed by the court for willful
failure of the debtor to abide by orders of the court, or to appear before
the court in proper prosecution of the case; or
(2) the debtor requested and obtained the voluntary
dismissal of the case following the filing of a request for relief from
the automatic stay provided by section 362 of this title.
§ 110. Penalty for persons who negligently or fraudulently
prepare bankruptcy petitions
(a) In this section-
(1) "bankruptcy petition preparer" means a person,
other than an attorney or an employee of an attorney, who prepares for
compensation a document for filing; and
(2) "document for filing" means a petition or
any other document prepared for filing by a debtor in a United States
bankruptcy court or a United States district court in connection with
a case under this title.
(b) (1) A bankruptcy petition preparer who prepares
a document for filing shall sign the document and print on the document
the preparer's name and address.
(2) A bankruptcy petition preparer who fails to comply
with paragraph (1) may be fined not more than $500 for each such failure
unless the failure is due to reasonable cause.
(c) (1) A bankruptcy petition preparer who prepares
a document for filing shall place on the document, after the preparer's
signature, an identifying number that identifies individuals who prepared
the document.
(2) For purposes of this section, the identifying
number of a bankruptcy petition preparer shall be the Social Security
account number of each individual who prepared the document or assisted
in its preparation.
(3) A bankruptcy petition preparer who fails
to comply with paragraph (1) may be fined not more than $500 for each
such failure unless the failure is due to reasonable cause.
(d) (1) A bankruptcy petition preparer shall,
not later than the time at which a document for filing is presented for
the debtor's signature, furnish to the debtor a copy of the document.
(2) A bankruptcy petition preparer who fails to comply
with paragraph (1) may be fined not more than $500 for each such failure
unless the failure is due to reasonable cause.
(e) (1) A bankruptcy petition preparer shall
not execute any document on behalf of a debtor.
(2) A bankruptcy petition preparer may be fined not
more than $500 for each document executed in violation of paragraph (1).
(f) (1) A bankruptcy petition preparer shall
not use the word "legal" or any similar term in any advertisements, or
advertise under any category that includes the word "legal" or any similar
term.
(2) A bankruptcy petition preparer shall be fined not
more than $500 for each violation of paragraph (1).
(g) (1) A bankruptcy petition preparer shall
not collect or receive any payment from the debtor or on behalf of the
debtor for the court fees in connection with filing the petition.
(2) A bankruptcy petition preparer shall be fined not
more than $500 for each violation of paragraph (1).
(h) (1) Within 10 days after the date of the filing
of a petition, a bankruptcy petition preparer shall file a declaration
under penalty of perjury disclosing any fee received from or on behalf
of the debtor within 12 months immediately prior to the filing of the
case, and any unpaid fee charged to the debtor.
(2) The court shall disallow and order the immediate
turnover to the bankruptcy trustee of any fee referred to in paragraph
(1) found to be in excess of the value of services rendered for the documents
prepared. An individual debtor may exempt any funds so recovered under
section 522(b).
(3) The debtor, the trustee, a creditor, or the
United States trustee may file a motion for an order under paragraph (2).
(4) A bankruptcy petition preparer shall be fined
not more than $500 for each failure to comply with a court order to turn
over funds within 30 days of service of such order.
(i) (1) If a bankruptcy case or related proceeding
is dismissed because of the failure to file bankruptcy papers, including
papers specified in section 521(1) of this title, the negligence or intentional
disregard of this title or the Federal Rules of Bankruptcy Procedure by
a bankruptcy petition preparer, or if a bankruptcy petition preparer violates
this section or commits any fraudulent, unfair, or deceptive act, the
bankruptcy court shall certify that fact to the district court, and the
district court, on motion of the debtor, the trustee, or a creditor and
after a hearing, shall order the bankruptcy petition preparer to pay to
the debtor-
(A) the debtor's actual damages;
(B) the greater of- (i) $2,000; or
(ii) twice the amount paid by the debtor to the bankruptcy
petition preparer for the preparer's services; and
(C) reasonable attorneys' fees and costs in moving
for damages under this subsection.
(2) If the trustee or creditor moves for damages on
behalf of the debtor under this subsection, the bankruptcy petition preparer
shall be ordered to pay the movant the additional amount of $1,000 plus
reasonable attorneys' fees and costs incurred, (j) (1) A debtor for whom
a bankruptcy petition preparer has prepared a document for filing, the
trustee, a creditor, or the United States trustee in the district in which
the bankruptcy petition preparer resides, has conducted business, or the
United States trustee in any other district in which the debtor resides
may bring a civil action to enjoin a
bankruptcy petition preparer from engaging in any conduct
in violation of this section or from further acting as a bankruptcy petition
preparer.
(2) (A) In an action under paragraph (1), if
the court finds that-
(i) a bankruptcy petition preparer has-
(I) engaged in conduct in violation of this section
or of any provision of this title a violation of which subjects a person
to criminal penalty;
(II) misrepresented the preparer's experience
or education as a bankruptcy petition preparer; or
(III) engaged in any other fraudulent, unfair,
or deceptive conduct; and (ii) injunctive relief is appropriate to prevent
the recurrence of such conduct,
the court may enjoin the bankruptcy petition preparer
from engaging in such
conduct.
(B) If the court finds that a bankruptcy petition preparer
has continually engaged in conduct described in subclause (I), (II), or
(III) of clause (i) and that an injunction prohibiting such conduct would
not be sufficient to prevent such person's interference with the proper
administration of this title, or has not paid a penalty imposed under
this section, the court may enjoin the person from acting as a bankruptcy
petition preparer.
(3) The court shall award to a debtor, trustee,
or creditor that brings a successful action under this subsection reasonable
attorney's fees and costs of the action, to be paid by the bankruptcy
petition preparer.
(k) Nothing in this section shall be construed to permit
activities that are otherwise prohibited by law, including rules and laws
that prohibit the unauthorized practice of law.
Chapter 3 - Case Administration
subchapter i - commencement of a case
§ 301. Voluntary cases
A voluntary case under a chapter of this title is commenced
by the filing with the bankruptcy court of a petition under such chapter
by an entity that may be a debtor under such chapter. The commencement
of a voluntary case under a chapter of this title constitutes an order
for relief under such chapter.
§ 302. Joint cases
(a) A joint case under a chapter of this title
is commenced by the filing with the bankruptcy court of a single petition
under such chapter by an individual that may be a debtor under such chapter
and such individual's spouse. The commencement of a joint case under a
chapter of this title constitutes an order for relief under such chapter.
(b) After the commencement of a joint case, the
court shall determine the extent, if any, to which the debtors' estates
shall be consolidated.
§ 303. Involuntary cases
(a) An involuntary case may be commenced only
under chapter 7 or 11 of this title, and only against a person, except
a farmer, family farmer, or a corporation that is not a moneyed, business,
or commercial corporation, that may be a debtor under the chapter under
which such case is commenced.
(b) An involuntary case against a person is commenced
by the filing with the bankruptcy court of a petition under chapter 7
or 11 of this title-
(1) by three or more entities, each of which is
either a holder of a claim against such person that is not contingent
as to liability or the subject of a bona fide dispute, or an indenture
trustee representing such a holder, if such claims aggregate at least
$10,000 [$11,625] more than the value of any lien on property of the debtor
securing such claims held by the holders of such claims;
(2) if there are fewer than 12 such holders, excluding
any employee or insider of such person and any transferee of a transfer
that is voidable under section 544, 545, 547, 548, 549, or 724(a) of this
title, by one or more of such holders that hold in the aggregate at least
$10,000 [$11,625] of such claims;
(3) if such person is a partnership-
(A) by fewer than all of the general partners
in such partnership; or
(B) if relief has been ordered under this title
with respect to all of the general partners in such partnership, by a
general partner in such partnership, the trustee of such a general partner,
or a holder of a claim against such partnership; or
(4) by a foreign representative of the estate
in a foreign proceeding concerning such person.
(c) After the filing of a petition under this
section but before the case is dismissed or relief is ordered, a creditor
holding an unsecured claim that is not contingent, other than a creditor
filing under subsection (b) of this section, may join in the petition
with the same effect as if such joining creditor were a petitioning creditor
under subsection (b) of this section.
(d) The debtor, or a general partner in a partnership
debtor that did not join in the petition, may file an answer to a petition
under this section.
(e) After notice and a hearing, and for cause,
the court may require the petitioners under this section to file a bond
to indemnify the debtor for such amounts as the court may later allow
under subsection (i) of this section.
(f) Notwithstanding section 363 of this title,
except to the extent that the court orders otherwise, and until an order
for relief in the case, any business of the debtor may continue to operate,
and the debtor may continue to use, acquire, or dispose of property as
if an involuntary case concerning the debtor had not been commenced.
(g) At any time after the commencement of an
involuntary case under chapter 7 of this title but before an order for
relief in the case, the court, on request of a party in interest, after
notice to the debtor and a hearing, and if necessary to preserve the property
of the
estate or to prevent loss to the estate, may order
the United States trustee to appoint an interim trustee under section
701 of this title to take possession of the property of the estate and
to operate any business of the debtor. Before an order for relief, the
debtor may regain possession of property in the possession of a trustee
ordered appointed under this subsection if the debtor files such bond
as the court requires, conditioned on the debtor's accounting for and
delivering to the trustee, if there is an order for relief in the case,
such property, or the value, as of the date the debtor regains possession,
of such property.
(h) If the petition is not timely controverted, the
court shall order relief against the debtor in an involuntary case under
the chapter under which the petition was filed. Otherwise, after trial,
the court shall order relief against the debtor in an involuntary case
under the chapter under which the petition was filed, only if-
(1) the debtor is generally not paying such debtor's
debts as such debts become due unless such debts are the subject of a
bona fide dispute; or
(2) within 120 days before the date of the filing
of the petition, a custodian, other than a trustee, receiver, or agent
appointed or authorized to take charge of less than substantially all
of the property of the debtor for the purpose of enforcing a lien against
such property, was appointed or took possession.
(i) If the court dismisses a petition under this section
other than on consent of all petitioners and the debtor, and if the debtor
does not waive the right to judgment under this subsection, the court
may grant judgment-
(1) against the petitioners and in favor of the
debtor for-
(A) costs; or
(B) a reasonable attorney's fee; or
(2) against any petitioner that filed the petition
in bad faith, for-
(A) any damages proximately caused by such filing;
or
(B) punitive damages.
(j) Only after notice to all creditors and a hearing
may the court dismiss a petition filed under this section-
(1) on the motion of a petitioner;
(2) on consent of all petitioners and the debtor;
or
(3) for want of prosecution.
(k) Notwithstanding subsection (a) of this section,
an involuntary case may be commenced against a foreign bank that is not
engaged in such business in the United States only under chapter 7 of
this title and only if a foreign proceeding concerning such bank is pending.
§ 304. Cases ancillary to foreign proceedings
(a) A case ancillary to a foreign proceeding
is commenced by the filing with the bankruptcy court of a petition under
this section by a foreign representative.
(b) Subject to the provisions of subsection (c)
of this section, if a party in interest does not timely controvert the
petition, or after trial, the court may-
(1) enjoin the commencement or continuation of-
(A) any action against-
(i) a debtor with respect to property involved in such
foreign proceeding; or (ii) such property; or
(B) the enforcement of any judgment against the
debtor with respect to such property, or any act or the commencement or
continuation of any judicial proceeding to create or enforce a lien against
the property of such estate;
(2) order turnover of the property of such estate,
or the proceeds of such property, to such foreign representative; or
(3) order other appropriate relief.
(c) In determining whether to grant relief under subsection
(b) of this section, the court shall be guided by what will best assure
an economical and expeditious administration of such estate, consistent
with-
(1) just treatment of all holders of claims against
or interests in such estate;
(2) protection of claim holders in the United
States against prejudice and inconvenience in the processing of claims
in such foreign proceeding;
(3) prevention of preferential or fraudulent dispositions
of property of such estate;
(4) distribution of proceeds of such estate substantially
in accordance with the order prescribed by this title;
(5) comity; and
(6) if appropriate, the provision of an opportunity
for a fresh start for the individual that such foreign proceeding concerns.
§ 305. Abstention
(a) The court, after notice and a hearing, may
dismiss a case under this title, or may suspend all proceedings in a case
under this title, at any time if-
(1) the interests of creditors and the debtor
would be better served by such dismissal or suspension; or
(2) (A) there is pending a foreign proceeding;
and
(B) the factors specified in section 304(c) of this
title warrant such dismissal or suspension.
(b) A foreign representative may seek dismissal
or suspension under subsection (a)(2) of this section.
(c) An order under subsection (a) of this section
dismissing a case or suspending all proceedings in a case, or a decision
not so to dismiss or suspend, is not reviewable by appeal or otherwise
by the court of appeals under section 158(d), 1291, or 1292 of title 28
or by the Supreme Court of the United States under section 1254 of title
28.
§ 306. Limited appearance
An appearance in a bankruptcy court by a foreign representative
in connection with a petition or request under section 303, 304, or 305
of this title does not submit such foreign representative to the jurisdiction
of any court in the United States for any other
purpose, but the bankruptcy court may condition any
order under section 303, 304, or 305 of this title on compliance by such
foreign representative with the orders of such bankruptcy court.
§ 307. United States trustee
The United States trustee may raise and may appear
and be heard on any issue in any case or proceeding under this title but
may not file a plan pursuant to section 1121(c) of this title.
SUBCHAPTER II - OFFICERS
§ 321. Eligibility to serve as trustee
(a) A person may serve as trustee in a case under
this title only if such person is-
(1) an individual that is competent to perform
the duties of trustee and, in a case under chapter 7, 12, or 13 of this
title, resides or has an office in the judicial district within which
the case is pending, or in any judicial district adjacent to such district;
or
(2) a corporation authorized by such corporation's
charter or bylaws to act as trustee, and, in a case under chapter 7, 12,
or 13 of this title, having an office in at least one of such districts.
(b) A person that has served as an examiner in
the case may not serve as trustee in the case.
(c) The United States trustee for the judicial
district in which the case is pending is eligible to serve as trustee
in the case if necessary.
§ 322. Qualification of trustee
(a) Except as provided in subsection (b)(1),
a person selected under section 701, 702, 703, 1104, 1163, 1202, or 1302
of this title to serve as trustee in a case under this title qualifies
if before five days after such selection, and before beginning official
duties, such person has filed with the court a bond in favor of the United
States conditioned on the faithful performance of such official duties.
(b) (1) The United States trustee qualifies wherever
such trustee serves as trustee in a case under this title.
(2) The United States trustee shall determine-
(A) the amount of a bond required to be filed
under subsection (a) of this section; and
(B) the sufficiency of the surety on such bond.
(c) A trustee is not liable personally or on
such trustee's bond in favor of the United States for any penalty or forfeiture
incurred by the debtor.
(d) A proceeding on a trustee's bond may not be
commenced after two years after the date on which such trustee was discharged.
§ 323. Role and capacity of trustee
(a) The trustee in a case under this title is
the representative of the estate.
(b) The trustee in a case under this title has
capacity to sue and be sued.
§ 324. Removal of trustee or examiner
(a) The court, after notice and a hearing, may
remove a trustee, other than the United States trustee, or an examiner,
for cause.
(b) Whenever the court removes a trustee or examiner
under subsection (a) in a case under this title, such trustee or examiner
shall thereby be removed in all other cases under this title in which
such trustee or examiner is then serving unless the court orders otherwise.
§ 325. Effect of vacancy
A vacancy in the office of trustee during a case does
not abate any pending action or proceeding, and the successor trustee
shall be substituted as a party in such action or proceeding.
§ 326. Limitation on compensation of trustee
(a) In a case under chapter 7 or 11, the court
may allow reasonable compensation under section 330 of this title of the
trustee for the trustee's services, payable after the trustee renders
such services, not to exceed 25 percent on the first $5,000 or less, 10
percent on any amount in excess of $5,000 but not in excess of $50,000,
5 percent on any amount in excess of $50,000 but not in excess of $1,000,000,
and reasonable compensation not to exceed 3 percent of such moneys in
excess of $1,000,000, upon all moneys disbursed or turned over in the
case by the trustee to parties in interest, excluding the debtor, but
including holders of secured claims.
(b) In a case under chapter 12 or 13 of this
title, the court may not allow compensation for services or reimbursement
of expenses of the United States trustee or of a standing trustee appointed
under section 586(b) of title 28, but may allow reasonable compensation
under section 330 of this title of a trustee appointed under section 1202(a)
or 1302(a) of this title for the trustee's services, payable after the
trustee renders such services, not to exceed five percent upon all payments
under the plan.
(c) If more than one person serves as trustee
in the case, the aggregate compensation of such persons for such service
may not exceed the maximum compensation prescribed for a single trustee
by subsection (a) or (b) of this section, as the case may be.
(d) The court may deny allowance of compensation
for services or reimbursement of expenses of the trustee if the trustee
failed to make diligent inquiry into facts that would permit denial of
allowance under section 328(c) of this title or, with knowledge of such
facts, employed a professional person under section 327 of this title.
§ 327. Employment of professional persons
(a) Except as otherwise provided in this section,
the trustee, with the court's approval, may employ one or more attorneys,
accountants, appraisers, auctioneers, or other professional persons, that
do not hold or represent an interest adverse to the estate, and that are
disinterested persons, to represent or assist the trustee in carrying
out the trustee's duties under this title.
(b) If the trustee is authorized to operate the
business of the debtor under section 721, 1202, or 1108 of this title,
and if the debtor has regularly employed attorneys, accountants, or other
professional persons on salary, the trustee may retain or replace such
professional persons if necessary in the operation of such business.
(c) In a case under chapter 7, 12, or 11 of this
title, a person is not disqualified for employment under this section
solely because of such person's employment by or representation of a creditor,
unless there is objection by another creditor or the United States trustee,
in which case the court shall disapprove such employment if there is an
actual conflict of interest.
(d) The court may authorize the trustee to act
as attorney or accountant for the estate if such authorization is in the
best interest of the estate.
(e) The trustee, with the court's approval, may
employ, for a specified special purpose, other than to represent the trustee
in conducting the case, an attorney that has represented the debtor, if
in the best interest of the estate, and if such attorney does not represent
or hold any interest adverse to the debtor or to the estate with respect
to the matter on which such attorney is to be employed.
(f) The trustee may not employ a person that has
served as an examiner in the case.
§ 328. Limitation on compensation of professional persons
(a) The trustee, or a committee appointed under
section 1102 of this title, with the court's approval, may employ or authorize
the employment of a professional person under section 327 or 1103 of this
title, as the case may be, on any reasonable terms and conditions of employment,
including on a retainer, on an hourly basis, or on a contingent fee basis.
Notwithstanding such terms and conditions, the court may allow compensation
different from the compensation provided under such terms and conditions
after the conclusion of such employment, if such terms and conditions
prove to have been improvident in light of developments not capable of
being anticipated at the time of the fixing of such terms and conditions.
(b) If the court has authorized a trustee to serve
as an attorney or accountant for the estate under section 327(d) of this
title, the court may allow compensation for the trustee's services as
such attorney or accountant only to the extent that the trustee performed
services as attorney or accountant for the estate and not for performance
of any of the trustee's duties that are generally performed by a trustee
without the assistance of an attorney or accountant for the estate.
(c) Except as provided in section 327(c), 327(e), or
1107(b) of this title, the court may deny allowance of compensation for
services and reimbursement of expenses of a professional person employed
under section 327 or 1103 of this title if, at any time during such professional
person's employment under section 327 or 1103 of this title, such professional
person is not a disinterested person, or represents or holds an interest
adverse to the interest of the estate with respect to the matter on which
such professional person is employed.
§ 329. Debtor's transactions with attorneys
(a) Any attorney representing a debtor in a case
under this title, or in connection with such a case, whether or not such
attorney applies for compensation under this title, shall file with the
court a statement of the compensation paid or agreed to be paid, if such
payment or agreement was made after one year before the date of the filing
of the petition, for services rendered or to be rendered in contemplation
of or in connection with the case by such attorney, and the source of
such compensation.
(b) If such compensation exceeds the reasonable
value of any such services, the court may cancel any such agreement, or
order the return of any such payment, to the extent excessive, to-
(1) the estate, if the property transferred-
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor
under a plan under chapter 11, 12, or 13 of this title; or
(2) the entity that made such payment.
§ 330. Compensation of officers
(a) (1) After notice to the parties in interest and
the United States Trustee and a hearing, and subject to sections 326,
328, and 329, the court may award to a trustee, an examiner, a professional
person employed under section 327 or 1103-
(A) reasonable compensation for actual, necessary
services rendered by the trustee, examiner, professional person, or attorney
and by any paraprofessional person employed by any such person; and
(B) reimbursement for actual, necessary expenses.
(2) The court may, on its own motion or on the
motion of the United States Trustee, the United States Trustee for the
District or Region, the trustee for the estate, or any other party in
interest, award compensation that is less than the amount of compensation
that is requested.
(3) (A) In determining the amount of reasonable
compensation to be awarded, the court shall consider the nature, the extent,
and the value of such services, taking into account all relevant factors,
including-
(A) [sic] the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the
administration of, or beneficial at the time at which the service was
rendered toward the completion of, a case under this title;
(D) whether the services were performed within
a reasonable amount of time commensurate with the complexity, importance,
and nature of the problem, issue, or task addressed; and
(E) whether the compensation is reasonable based
on the customary compensation charged by comparably skilled practitioners
in cases other than cases under this title.
(4) (A) Except as provided in subparagraph (B),
the court shall not allow compensation for-
(i) unnecessary duplication of services; or (ii) services
that were not-
(I) reasonably likely to benefit the debtor's
estate; or
(II) necessary to the administration of the case.
(B) In a chapter 12 or chapter 13 case in which the
debtor is an individual, the court may allow reasonable compensation to
the debtor's attorney for representing the interests of the debtor in
connection with the bankruptcy case based on a consideration of the benefit
and necessity of such services to the debtor and the other factors set
forth in this section.
(5) The court shall reduce the amount of compensation
awarded under this section by the amount of any interim compensation awarded
under section 331, and, if the amount of such interim compensation exceeds
the amount of compensation awarded under this section, may order the return
of the excess to the estate.
(6) Any compensation awarded for the preparation
of a fee application shall be based on the level and skill reasonably
required to prepare the application.
(b) (1) There shall be paid from the filing fee
in a case under chapter 7 of this title $45 to the trustee serving in
such case, after such trustee's services are rendered.
(2) The Judicial Conference of the United States-
(A) shall prescribe additional fees of the same
kind as prescribed under section 1914(b)oftitle28;and
(B) may prescribe notice of appearance fees and
fees charged against distributions in cases under this title;
to pay $15 to trustees serving in cases after such
trustees' services are rendered. Beginning 1 year after the date of the
enactment of the Bankruptcy Reform Act of 1994, such $15 shall be paid
in addition to the amount paid under paragraph (1).
(c) Unless the court orders otherwise, in a case
under chapter 12 or 13 of this title the compensation paid to the trustee
serving in the case shall not be less than $5 per month from any distribution
under the plan during the administration of the plan.
(d) In a case in which the United States trustee
serves as trustee, the compensation of the trustee under this section
shall be paid to the clerk of the bankruptcy court and deposited by the
clerk into the United States Trustee System Fund established by section
589a of title 28.
§ 331. Interim compensation
A trustee, an examiner, a debtor's attorney, or any
professional person employed under section 327 or 1103 of this title may
apply to the court not more than once every 120 days after an order for
relief in a case under this title, or more often if the court permits,
for such compensation for services rendered before the date of such an
application or reimbursement for expenses incurred before such date as
is provided under section 330 of this title. After notice and a hearing,
the court may allow and disburse to such applicant such compensation or
reimbursement.
SUBCHAPTER III - ADMINISTRATION
§ 341. Meetings of creditors and equity security holders
(a) Within a reasonable time after the order for
relief in a case under this title, the United States trustee shall convene
and preside at a meeting of creditors.
(b) The United States trustee may convene a meeting
of any equity security holders.
(c) The court may not preside at, and may not
attend, any meeting under this section including any final meeting of
creditors.
(d) Prior to the conclusion of the meeting of
creditors or equity security holders, the trustee shall orally examine
the debtor to ensure that the debtor in a case under chapter 7 of this
title is aware of-
(1) the potential consequences of seeking a discharge
in bankruptcy, including the effects on credit history;
(2) the debtor's ability to file a petition under
a different chapter of this title;
(3) the effect of receiving a discharge of debts
under this title; and
(4) the effect of reaffirming a debt, including
the debtor's knowledge of the provisions of section 524(d) of this title.
§ 342. Notice
(a) There shall be given such notice as is appropriate,
including notice to any holder of a community claim, of an order for relief
in a case under this title.
(b) Prior to the commencement of a case under
this title by an individual whose debts are primarily consumer debts,
the clerk shall give written notice to such individual that indicates
each chapter of this title under which such individual may proceed.
(c) If notice is required to be given by the
debtor to a creditor under this title, any rule, any applicable law, or
any order of the court, such notice shall contain the name, address, and
taxpayer identification number of the debtor, but the failure of such
notice to contain such information shall not invalidate the legal effect
of such notice.
§ 343. Examination of the debtor
The debtor shall appear and submit to examination under
oath at the meeting of creditors under section 341 (a) of this title.
Creditors, any indenture trustee, any trustee or examiner
in the case, or the United States trustee may examine
the debtor. The United States trustee may administer the oath required
under this section.
§ 344. Self-incrimination; immunity
Immunity for persons required to submit to examination,
to testify, or to provide information in a case under this title may be
granted under part V of title 18.
§ 345. Money of estates
(a) A trustee in a case under this title may make
such deposit or investment of the money of the estate for which such trustee
serves as will yield the maximum reasonable net return on such money,
taking into account the safety of such deposit or investment.
(b) Except with respect to a deposit or investment
that is insured or guaranteed by the United States or by a department,
agency, or instrumentality of the United States or backed by the full
faith and credit of the United States, the trustee shall require from
an entity with which such money is deposited or invested-
(1) a bond-
(A) in favor of the United States;
(B) secured by the undertaking of a corporate
surety approved by the United States trustee for the district in which
the case is pending; and
(C) conditioned on-
(i) a proper accounting for all money so deposited
or invested and for any return on such money;
(ii) prompt repayment of such money and return; and
(iii) faithful performance of duties as a depository; or
(2) the deposit of securities of the kind specified
in section 9303 of title 31; unless the court for cause orders otherwise.
(c) An entity with which such moneys are deposited
or invested is authorized to deposit or invest such moneys as may be required
under this section.
§ 346. Special tax provisions
(a) Except to the extent otherwise provided in
this section, subsections (b), (c), (d), (e), (g), (h), (i), and (j) of
this section apply notwithstanding any State or local law imposing a tax,
but subject to the Internal Revenue Code of 1986.
(b) (1) In a case under chapter 7, 12, or 11
of this title concerning an individual, any income of the estate may be
taxed under a State or local law imposing a tax on or measured by income
only to the estate, and may not be taxed to such individual. Except as
provided in section 728 of this title, if such individual is a partner
in a partnership, any gain or loss resulting from a distribution of property
from such partnership, or any distributive share of income, gain, loss,
deduction, or credit of such individual that is distributed, or considered
distributed, from such partnership, after the commencement of the case
is gain, loss, income, deduction, or credit, as the case may be, of the
estate.
(2) Except as otherwise provided in this section
and in section 728 of this title, any income of the estate in such a case,
and any State or local tax on or measured by such income, shall be computed
in the same manner as the income and the tax of an estate.
(3) The estate in such a case shall use the same
accounting method as the debtor used immediately before the commencement
of the case.
(c) (1) The commencement of a case under this
title concerning a corporation or a partnership does not effect a change
in the status of such corporation or partnership for the purposes of any
State or local law imposing a tax on or measured by income. Except as
otherwise provided in this section and in section 728 of this title, any
income of the estate in such case may be taxed only as though such case
had not been commenced.
(2) In such a case, except as provided in section 728
of this title, the trustee shall make any tax return otherwise required
by State or local law to be filed by or on behalf of such corporation
or partnership in the same manner and form as such corporation or partnership,
as the case may be, is required to make such return.
(d) In a case under chapter 13 of this title,
any income of the estate or the debtor may be taxed under a State or local
law imposing a tax on or measured by income only to the debtor, and may
not be taxed to the estate.
(e) A claim allowed under section 502(f) or 503
of this title, other than a claim for a tax that is not otherwise deductible
or a capital expenditure that is not otherwise deductible, is deductible
by the entity to which income of the estate is taxed unless such claim
was deducted by another entity, and a deduction for such a claim is deemed
to be a deduction attributable to a business.
(f) The trustee shall withhold from any payment
of claims for wages, salaries, commissions, dividends, interest, or other
payments, or collect, any amount required to be withheld or collected
under applicable State or local tax law, and shall pay such withheld or
collected amount to the appropriate governmental unit at the time and
in the manner required by such tax law, and with the same priority as
the claim from which such amount was withheld was paid.
(g) (1) Neither gain nor loss shall be recognized
on a transfer-
(A) by operation of law, of property to the estate;
(B) other than a sale, of property from the estate
to the debtor; or
(C) in a case under chapter 11 or 12 of this
title concerning a corporation, of property from the estate to a corporation
that is an affiliate participating in a joint plan with the debtor, or
that is a successor to the debtor under the plan, except that gain or
loss may be recognized to the same extent that such transfer results in
the recognition of gain or loss under section 371 of the Internal Revenue
Code of 1986.
(2) The transferee of a transfer of a kind specified
in this subsection shall take the property transferred with the same character,
and with the transferor's basis, as adjusted under subsection (j)(5) of
this section, and holding period.
(h) Notwithstanding sections 728(a) and 1146(a) of
this title, for the purpose of determining the number of taxable periods
during which the debtor or the estate may use a loss carryover or a loss
carryback, the taxable period of the debtor during which the case is commenced
is deemed not to have been terminated by such commencement.
(i) (1) In a case under chapter 7, 12, or 11 of this
title concerning an individual, the estate shall succeed to the debtor's
tax attributes, including-
(A) any investment credit carryover;
(B) any recovery exclusion;
(C) any loss carryover;
(D) any foreign tax credit carryover;
(E) any capital loss carryover; and
(F) any claim of right.
(2) After such a case is closed or dismissed,
the debtor shall succeed to any tax attribute to which the estate succeeded
under paragraph (1) of this subsection but that was not utilized by the
estate. The debtor may utilize such tax attributes as though any applicable
time limitations on such utilization by the debtor were suspended during
the time during which the case was pending.
(3) In such a case, the estate may carry back
any loss of the estate to a taxable period of the debtor that ended before
the order for relief under such chapter the same as the debtor could have
carried back such loss had the debtor incurred such loss and the case
under this title had not been commenced, but the debtor may not carry
back any loss of the debtor from a taxable period that ends after such
order to any taxable period of the debtor that ended before such order
until after the case is closed.
(j) (1) Except as otherwise provided in this subsection,
income is not realized by the estate, the debtor, or a successor to the
debtor by reason of forgiveness or discharge of indebtedness in a case
under this title.
(2) For the purposes of any State or local law
imposing a tax on or measured by income, a deduction with respect to a
liability may not be allowed for any taxable period during or after which
such liability is forgiven or discharged under this title. In this paragraph,
"a deduction with respect to a liability" includes a capital loss incurred
on the disposition of a capital asset with respect to a liability that
was incurred in connection with the acquisition of such asset.
(3) Except as provided in paragraph (4) of this
subsection, for the purpose of any State or local law imposing a tax on
or measured by income, any net operating loss of an individual or corporate
debtor, including a net operating loss carryover to such debtor, shall
be reduced by the amount of indebtedness forgiven or discharged in a case
under this title, except to the extent that such forgiveness or discharge
resulted in a disallowance under paragraph (2) of this subsection.
(4) A reduction of a net operating loss or a
net operating loss carryover under paragraph (3) of this subsection or
of basis under paragraph (5) of this subsection is not required to the
extent that the indebtedness of an individual or corporate debtor forgiven
or discharged-
(A) consisted of items of a deductible nature that
were not deducted by such debtor; or
(B) resulted in an expired net operating loss carryover
or other deduction that-
(i) did not offset income for any taxable period; and
(ii) did not contribute to a net operating loss in
or a net operating loss carryover to the taxable period during or after
which such indebtedness was discharged.
(5) For the purposes of a State or local law imposing
a tax on or measured by income, the basis of the debtor's property or
of property transferred to an entity required to use the debtor's basis
in whole or in part shall be reduced by the lesser of-
(A)(i) the amount by which the indebtedness of the
debtor has been forgiven or discharged in a case under this title; minus
(ii) the total amount of adjustments made under paragraphs
(2) and (3) of this
subsection; and
(B) the amount by which the total basis of the debtor's
assets that were property of the estate before such forgiveness or discharge
exceeds the debtor's total liabilities that were liabilities both before
and after such forgiveness or discharge.
(6) Notwithstanding paragraph (5) of this subsection,
basis is not required to be reduced to the extent that the debtor elects
to treat as taxable income, of the taxable period in which indebtedness
is forgiven or discharged, the amount of indebtedness forgiven or discharged
that otherwise would be applied in reduction of basis under paragraph
(5) of this subsection.
(7) For the purposes of this subsection, indebtedness
with respect to which an equity security, other than an interest of a
limited partner in a limited partnership, is issued to the creditor to
whom such indebtedness was owed, or that is forgiven as a contribution
to capital by an equity security holder other than a limited partner in
the debtor, is not forgiven or discharged in a case under this title-
(A) to any extent that such indebtedness did not
consist of items of a deductible nature; or
(B) if the issuance of such equity security has
the same consequences under a law imposing a tax on or measured by income
to such creditor as a payment in cash to such creditor in an amount equal
to the fair market value of such equity security, then to the lesser of-
(i) the extent that such issuance has the same such
consequences; and (ii) the extent of such fair market value.
§ 347. Unclaimed property
(a) Ninety days after the final distribution under
section 726, 1226, or 1326 of this title in a case under chapter 7, 12,
or 13 of this title, as the case may be, the trustee shall stop payment
on any check remaining unpaid, and any remaining property of the estate
shall be paid into the court and disposed of under chapter 129 of title
28.
(b) Any security, money, or other property remaining
unclaimed at the expiration of the time allowed in a case under chapter
9, 11, or 12 of this title for the presentation of a security or the performance
of any other act as a condition to participation in the distribution under
any plan confirmed under section 943(b), 1129, 1173, or 1225 of this title,
as the case may be, becomes the property of the debtor or of the entity
acquiring the assets of the debtor under the plan, as the case may be.
§ 348. Effect of conversion
(a) Conversion of a case from a case under one
chapter of this title to a case under another chapter of this title constitutes
an order for relief under the chapter to which the case is converted,
but, except as provided in subsections (b) and (c) of this section, does
not effect a change in the date of the filing of the petition, the commencement
of the case, or the order for relief.
(b) Unless the court for cause orders otherwise,
in sections 701 (a), 727(a)(10), 727(b), 728(a), 728(b), 1102(a), 1110(a)(1),
1121(b), 1121(c), 1141(d)(4), 1146(a), 1146(b), 1201(a), 1221, 1228(a),
1301(a), and 1305(a) of this title, "the order for relief under this chapter"
in a chapter to which a case has been converted under section 706, 1112,
1208, or 1307 of this title means the conversion of such case to such
chapter.
(c) Sections 342 and 365(d) of this title apply
in a case that has been converted under section 706, 1112, 1208, or 1307
of this title, as if the conversion order were the order for relief.
(d) A claim against the estate or the debtor that
arises after the order for relief but before conversion in a case that
is converted under section 1112, 1208, or 1307 of this title, other than
a claim specified in section 503(b) of this title, shall be treated for
all purposes as if such claim had arisen immediately before the date of
the filing of the petition.
(e) Conversion of a case under section 706, 1112,
1208, or 1307 of this title terminates the service of any trustee or examiner
that is serving in the case before such conversion.
(f) (1) Except as provided in paragraph (2),
when a case under chapter 13 of this title is converted to a case under
another chapter under this title--
(A) property of the estate in the converted case
shall consist of property of the estate, as of the date of filing of the
petition, that remains in the possession of or is under the control of
the debtor on the date of conversion; and
(B) valuations of property and of allowed secured
claims in the chapter 13
case shall apply in the converted case, with allowed
secured claims reduced to the extent that they have been paid in accordance
with the chapter 13 plan.
(2) If the debtor converts a case under chapter 13
of this title to a case under another chapter under this title in bad
faith, the property in the converted case shall consist of the property
of the estate as of the date of conversion.
§ 349. Effect of dismissal
(a) Unless the court, for cause, orders otherwise,
the dismissal of a case under this title does not bar the discharge, in
a later case under this title, of debts that were dischargeable in the
case dismissed; nor does the dismissal of a case under this title prejudice
the debtor with regard to the filing of a subsequent petition under this
title, except as provided in section 109(g) of this title.
(b) Unless the court, for cause, orders otherwise,
a dismissal of a case other than under section 742 of this title-
(1) reinstates-
(A) any proceeding or custodianship superseded
under section 543 of this title;
(B) any transfer avoided under section 522, 544,
545, 547, 548, 549, or 724(a) of this title, or preserved under section
510(c)(2), 522(i)(2), or 551 of this title; and
(C) any lien voided under section 506(d) of this
title;
(2) vacates any order, judgment, or transfer
ordered, under section 522(i)(1), 542, 550, or 553 of this title; and
(3) revests the property of the estate in the
entity in which such property was vested immediately before the commencement
of the case under this title.
§ 350. Closing and reopening cases
(a) After an estate is fully administered and
the court has discharged the trustee, the court shall close the case.
(b) A case may be reopened in the court in which
such case was closed to administer assets, to accord relief to the debtor,
or for other cause.
SUBCHAPTER IV - ADMINISTRATIVE POWERS
§ 361. Adequate protection
When adequate protection is required under section
362, 363, or 364 of this title of an interest of an entity in property,
such adequate protection may be provided by-
(1) requiring the trustee to make a cash payment
or periodic cash payments to such entity, to the extent that the stay
under section 362 of this title, use, sale, or lease under section 363
of this title, or any grant of a lien under section 364 of this title
results in a decrease in the value of such entity's interest in such property;
(2) providing to such entity an additional or
replacement lien to the extent that such stay, use, sale, lease, or grant
results in a decrease in the value of such entity's interest in such property;
or
(3) granting such other relief, other than entitling
such entity to compensation allowable under section 503(b)(1) of this
title as an administrative expense, as will result in the realization
by such entity of the indubitable equivalent of such entity's interest
in such property.
§ 362. Automatic stay
(a) Except as provided in subsection (b) of this section,
a petition filed under section 301, 302, or 303 of this title, or an application
filed under section 5(a)(3) of the Securities Investor Protection Act
of 1970, operates as a stay, applicable to all entities, of-
(1) the commencement or continuation, including the
issuance or employment of process, of a judicial, administrative, or other
action or proceeding against the debtor that was or could have been commenced
before the commencement of the case under this title, or to recover a
claim against the debtor that arose before the commencement of the case
under this title;
(2) the enforcement, against the debtor or against
property of the estate, of a judgment obtained before the commencement
of the case under this title;
(3) any act to obtain possession of property of
the estate or of property from the estate or to exercise control over
property of the estate;
(4) any act to create, perfect, or enforce any
lien against property of the estate;
(5) any act to create, perfect, or enforce against
property of the debtor any lien to the extent that such lien secures a
claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a
claim against the debtor that arose before the commencement of the case
under this title;
(7) the setoff of any debt owing to the debtor
that arose before the commencement of the case under this title against
any claim against the debtor; and
(8) the commencement or continuation of a proceeding
before the United States Tax Court concerning the debtor.
(b) The filing of a petition under section 301, 302,
or 303 of this title, or of an application under section 5(a)(3) of the
Securities Investor Protection Act of 1970, does not operate as a stay-
(1) under subsection (a) of this section, of
the commencement or continuation of a criminal action or proceeding against
the debtor;
(2) under subsection (a) of this section-
(A) of the commencement or continuation of an
action or proceeding for- (i) the establishment of paternity; or
(ii) the establishment or modification of an order
for alimony, maintenance, or support; or
(B) of the collection of alimony, maintenance,
or support from property that is not property of the estate;
(3) under subsection (a) of this section, of
any act to perfect, or to maintain or continue the perfection of, an interest
in property to the extent that the trustee's rights and powers are subject
to such perfection under section 546(b) of this title or to the extent
that such act is accomplished within the period provided under section
547(e)(2)(A) of this title;
(4) under paragraph (1), (2), (3), or (6) of
subsection (a) of this section, of the commencement or continuation of
an action or proceeding by a governmental unit or any organization exercising
authority under the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their Destruction,
opened for signature on January 13, 1993, to enforce such governmental
unit's or organization's police and regulatory power, including the enforcement
of a judgment other than a money judgment, obtained in an action or proceeding
by the governmental unit to enforce such governmental unit's or organization's
police or regulatory power;
[(5) Repealed. Pub.L. 105-277, Div. I, Title VI, §
603(1), Oct. 21, 1998, 112 Stat. 2681-886]
(6) under subsection (a) of this section, of the setoff
by a commodity broker, forward contract merchant, stockbroker, financial
institutions, or securities clearing agency of any mutual debt and claim
under or in connection with commodity contracts, as defined in
section 761 of this title, forward contracts, or securities
contracts, as defined in section 741 of this title, that constitutes the
setoff of a claim against the debtor for a margin payment, as defined
in section 101, 741, or 761 of this title, or settlement payment, as defined
in section 101 or 741 of this title, arising out of commodity contracts,
forward contracts, or securities contracts against cash, securities, or
other property held by or due from such commodity broker, forward contract
merchant, stockbroker, financial institutions, or securities clearing
agency to margin, guarantee, secure, or settle commodity contracts, forward
contracts, or securities contracts;
(7) under subsection (a) of this section, of
the setoff by a repo participant, of any mutual debt and claim under or
in connection with repurchase agreements that constitutes the setoff of
a claim against the debtor for a margin payment, as defined in section
741 or 761 of this title, or settlement payment, as defined in section
741 of this title, arising out of repurchase agreements against cash,
securities, or other property held by or due from such repo participant
to margin, guarantee, secure or settle repurchase agreements;
(8) under subsection (a) of this section, of
the commencement of any action by the Secretary of Housing and Urban Development
to foreclose a mortgage or deed of trust in any case in which the mortgage
or deed of trust held by the Secretary is insured or was formerly insured
under the National Housing Act and covers property, or combinations of
property, consisting of five or more living units;
(9) under subsection (a), of-
(A) an audit by a governmental unit to determine
tax liability;
(B) the issuance to the debtor by a governmental
unit of a notice of tax deficiency;
(C) a demand for tax returns; or
(D) the making of an assessment for any tax and
issuance of a notice and demand for payment of such an assessment (but
any tax lien that would otherwise attach to property of the estate by
reason of such an assessment shall not take effect unless such tax is
a debt of the debtor that will not be discharged in the case and such
property or its proceeds are transferred out of the estate to, or otherwise
revested in, the debtor).
(10) under subsection (a) of this section, of
any act by a lessor to the debtor under a lease of nonresidential real
property that has terminated by the expiration of the stated term of the
lease before the commencement of or during a case under this title to
obtain possession of such property;
(11) under subsection (a) of this section, of
the presentment of a negotiable instrument and the giving of notice of
and protesting dishonor of such an instrument;
(12) under subsection (a) of this section, after
the date which is 90 days after the filing of such petition, of the commencement
or continuation, and conclusion to the entry of final judgment, of an
action which involves a debtor subject to reorganization pursuant to chapter
11 of this title and which was brought by the Secretary of Transportation
under section 31325 of title 46 (including distribution of any proceeds
of sale) to foreclose a preferred ship or fleet mortgage, or a security
interest in or relating to a vessel or vessel under construction, held
by the Secretary of Transportation under section 207 or title XI of the
Merchant Marine Act, 1936, or under applicable State law;
(13) under subsection (a) of this section, after
the date which is 90 days after the filing of such petition, of the commencement
or continuation, and conclusion to the entry of final judgment, of an
action which involves a debtor subject to reorganization pursuant
to chapter 11 of this title and which was brought by
the Secretary of Commerce under section 31325 of title 46 (including distribution
of any proceeds of sale) to foreclose a preferred ship or fleet mortgage
in a vessel or a mortgage, deed of trust, or other security interest in
a fishing facility held by the Secretary of Commerce under section 207
or title XI of the Merchant Marine Act, 1936;
(14) under subsection (a) of this section, of
any action by an accrediting agency regarding the accreditation status
of the debtor as an educational institution;
(15) under subsection (a) of this section, of
any action by a State licensing body regarding the licensure of the debtor
as an educational institution;
(16) under subsection (a) of this section, of
any action by a guaranty agency, as defined in section 435(j) of the Higher
Education Act of 1965 or the Secretary of Education regarding the eligibility
of the debtor to participate in programs authorized under such Act;
(17) under subsection (a) of this section, of
the setoff by a swap participant, of any mutual debt and claim under or
in connection with any swap agreement that constitutes the setoff of a
claim against the debtor for any payment due from the debtor under or
in connection with any swap agreement against any payment due to the debtor
from the swap participant under or in connection with any swap agreement
or against cash, securities, or other property of the debtor held by or
due from such swap participant to guarantee, secure or settle any swap
agreement; or
(18) under subsection (a) of the creation or
perfection of a statutory lien for an ad valorem property tax imposed
by the District of Columbia, or a political subdivision of a State, if
such tax comes due after the filing of the petition.
The provisions of paragraphs (12) and (13) of this
subsection shall apply with respect to any such petition filed on or before
December 31, 1989.
(c) Except as provided in subsections (d), (e),
and (f) of this section-
(1) the stay of an act against property of the
estate under subsection (a) of this section continues until such property
is no longer property of the estate; and
(2) the stay of any other act under subsection
(a) of this section continues until the earliest of-
(A) the time the case is closed;
(B) the time the case is dismissed; or
(C) if the case is a case under chapter 7 of this
title concerning an individual or a case under chapter 9, 11, 12, or 13
of this title, the time a discharge is granted or denied.
(d) On request of a party in interest and after
notice and a hearing, the court shall grant relief from the stay provided
under subsection (a) of this section, such as by terminating, annulling,
modifying, or conditioning such stay-
(1) for cause, including the lack of adequate
protection of an interest in property of such party in interest;
(2) with respect to a stay of an act against
property under subsection (a) of this section, if-
(A) the debtor does not have an equity in such
property; and
(B) such property is not necessary to an effective
reorganization; or
(3) with respect to a stay of an act against single
asset real estate under subsection (a), by a creditor whose claim is secured
by an interest in such real estate, unless, not later than the date that
is 90 days after the entry of the order for relief (or such later date
as the court may determine for cause by order entered within that 90-day
period)-
(A) the debtor has filed a plan of reorganization
that has a reasonable possibility of being confirmed within a reasonable
time; or
(B) the debtor has commenced monthly payments
to each creditor whose claim is secured by such real estate (other than
a claim secured by a judgment lien or by an unmatured statutory lien),
which payments are in an amount equal to interest at a current fair market
rate on the value of the creditor's interest in the real estate.
(e) Thirty days after a request under subsection
(d) of this section for relief from the stay of any act against property
of the estate under subsection (a) of this section, such stay is terminated
with respect to the party in interest making such request, unless the
court, after notice and a hearing, orders such stay continued in effect
pending the conclusion of, or as a result of, a final hearing and determination
under subsection (d) of this section. A hearing under this subsection
may be a preliminary hearing, or may be consolidated with the final hearing
under subsection (d) of this section. The court shall order such stay
continued in effect pending the conclusion of the final hearing under
subsection (d) of this section if there is a reasonable likelihood that
the party opposing relief from such stay will prevail at the conclusion
of such final hearing. If the hearing under this subsection is a preliminary
hearing, then such final hearing shall be concluded not later than thirty
days after the conclusion of such preliminary hearing, unless the 30-day
period is extended with the consent of the parties in interest or for
a specific time which the court finds is required by compelling circumstances.
(f) Upon request of a party in interest, the
court, with or without a hearing, shall grant such relief from the stay
provided under subsection (a) of this section as is necessary to prevent
irreparable damage to the interest of an entity in property, if such interest
will suffer such damage before there is an opportunity for notice and
a hearing under subsection (d) or (e) of this section.
(g) In any hearing under subsection (d) or (e)
of this section concerning relief from the stay of any act under subsection
(a) of this section-
(1) the party requesting such relief has the burden
of proof on the issue of the debtor's equity in property; and
(2) the party opposing such relief has the burden
of proof on all other issues.
(h) An individual injured by any willful violation
of a stay provided by this section shall recover actual damages, including
costs and attorneys' fees, and, in appropriate circumstances, may recover
punitive damages.
§ 363. Use, sale, or lease of property
(a) In this section, "cash collateral" means cash,
negotiable instruments, documents of title, securities, deposit accounts,
or other cash equivalents whenever acquired in which the estate and an
entity other than the estate have an interest and includes the proceeds,
products, offspring, rents, or profits of property
and the fees, charges, accounts or other payments for the use or occupancy
of rooms and other public facilities in hotels, motels, or other lodging
properties subject to a security interest as provided in section 552(b)
of this title, whether existing before or after the commencement of a
case under this title.
(b) (1) The trustee, after notice and a hearing,
may use, sell, or lease, other than in the ordinary course of business,
property of the estate.
(2) If notification is required under subsection (a)
of section 7A of the Clayton Act in the case of a transaction under this
subsection, then-
(A) notwithstanding subsection (a) of such section,
the notification required by such subsection to be given by the debtor
shall be given by the trustee; and
(B) notwithstanding subsection (b) of such section,
the required waiting period shall end on the 15th day after the date of
the receipt, by the Federal Trade Commission and the Assistant Attorney
General in charge of the Antitrust Division of the Department of Justice,
of the notification required under such subsection (a), unless such waiting
period is extended-
(i) pursuant to subsection (e)(2) of such section,
in the same manner as such subsection (e)(2) applies to a cash tender
offer;
(ii) pursuant to subsection (g)(2) of such section;
or (iii) by the court after notice and a hearing.
(c) (1) If the business of the debtor is authorized
to be operated under section 721, 1108, 1203, 1204, or 1304 of this title
and unless the court orders otherwise, the trustee may enter into transactions,
including the sale or lease of property of the estate, in the ordinary
course of business, without notice or a hearing, and may use property
of the estate in the ordinary course of business without notice or a hearing.
(2) The trustee may not use, sell, or lease cash
collateral under paragraph (1) of this subsection unless-
(A) each entity that has an interest in such cash
collateral consents; or
(B) the court, after notice and a hearing, authorizes
such use, sale, or lease in accordance with the provisions of this section.
(3) Any hearing under paragraph (2)(B) of this
subsection may be a preliminary hearing or may be consolidated with a
hearing under subsection (e) of this section, but shall be scheduled in
accordance with the needs of the debtor. If the hearing under paragraph
(2)(B) of this subsection is a preliminary hearing, the court may authorize
such use, sale, or lease only if there is a reasonable likelihood that
the trustee will prevail at the final hearing under subsection (e) of
this section. The court shall act promptly on any request for authorization
under paragraph (2)(B) of this subsection.
(4) Except as provided in paragraph (2) of this
subsection, the trustee shall segregate and account for any cash collateral
in the trustee's possession, custody, or control.
(d) The trustee may use, sell, or lease property
under subsection (b) or (c) of this section only to the extent not inconsistent
with any relief granted under section 362(c), 362(d), 362(e), or 362(f)
of this title.
(e) Notwithstanding any other provision of this
section, at any time, on request of an entity that has an interest in
property used, sold, or leased, or proposed to be used, sold, or leased,
by the trustee, the court, with or without a hearing, shall prohibit or
condition such use, sale, or lease as is necessary to provide adequate
protection of such interest. This subsection also applies to property
that is subject to any unexpired lease of personal property (to the exclusion
of such property being subject to an order to grant relief from the stay
under section 362).
(f) The trustee may sell property under subsection
(b) or (c) of this section free and clear of any interest in such property
of an entity other than the estate, only if-
(1) applicable nonbankruptcy law permits sale
of such property free and clear of such interest;
(2) such entity consents;
(3) such interest is a lien and the price at
which such property is to be sold is greater than the aggregate value
of all liens on such property;
(4) such interest is in bona fide dispute; or
(5) such entity could be compelled, in a legal
or equitable proceeding, to accept a money satisfaction of such interest.
(g) Notwithstanding subsection (f) of this section,
the trustee may sell property under subsection (b) or (c) of this section
free and clear of any vested or contingent right in the nature of dower
or courtesy.
(h) Notwithstanding subsection (f) of this section,
the trustee may sell both the estate's interest, under subsection (b)
or (c) of this section, and the interest of any co-owner in property in
which the debtor had, at the time of the commencement of the case, an
undivided interest as a tenant in common, joint tenant, or tenant by the
entirety, only if-
(1) partition in kind of such property among
the estate and such co-owners is impracticable;
(2) sale of the estate's undivided interest in
such property would realize significantly less for the estate than sale
of such property free of the interests of such co-owners;
(3) the benefit to the estate of a sale of such
property free of the interests of co-owners outweighs the detriment, if
any, to such co-owners; and
(4) such property is not used in the production,
transmission, or distribution, for sale, of electric energy or of natural
or synthetic gas for heat, light, or power.
(i) Before the consummation of a sale of property to
which subsection (g) or (h) of this section applies, or of property of
the estate that was community property of the debtor and the debtor's
spouse immediately before the commencement of the case, the debtor's spouse,
or a co-owner of such property, as the case may be, may purchase such
property at the price at which such sale is to be consummated.
(j) After a sale of property to which subsection (g)
or (h) of this section applies, the trustee shall distribute to the debtor's
spouse or the co-owners of such property, as the case may be, and to the
estate, the proceeds of such sale, less the costs and expenses, not
including any compensation of the trustee, of such
sale, according to the interests of such spouse or co-owners, and of the
estate.
(k) At a sale under subsection (b) of this section
of property that is subject to a lien that secures an allowed claim, unless
the court for cause orders otherwise the holder of such claim may bid
at such sale, and, if the holder of such claim purchases such property,
such holder may offset such claim against the purchase price of such property.
(l) Subject to the provisions of section 365, the trustee
may use, sell, or lease property under subsection (b) or (c) of this section,
or a plan under chapter 11, 12, or 13 of this title may provide for the
use, sale, or lease of property, notwithstanding any provision in a contract,
a lease, or applicable law that is conditioned on the insolvency or financial
condition of the debtor, on the commencement of a case under this title
concerning the debtor, or on the appointment of or the taking possession
by a trustee in a case under this title or a custodian, and that effects,
or gives an option to effect, a forfeiture, modification, or termination
of the debtor's interest in such property.
(m) The reversal or modification on appeal of an authorization
under subsection (b) or (c) of this section 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.
(n) The trustee may avoid a sale under this section
if the sale price was controlled by an agreement among potential bidders
at such sale, or may recover from a party to such agreement any amount
by which the value of the property sold exceeds the price at which such
sale was consummated, and may recover any costs, attorneys' fees, or expenses
incurred in avoiding such sale or recovering such amount. In addition
to any recovery under the preceding sentence, the court may grant judgment
for punitive damages in favor of the estate and against any such party
that entered into such an agreement in willful disregard of this subsection.
(o) In any hearing under this section-
(1) the trustee has the burden of proof on the
issue of adequate protection; and
(2) the entity asserting an interest in property
has the burden of proof on the issue of the validity, priority, or extent
of such interest.
§ 364. Obtaining credit
(a) If the trustee is authorized to operate the
business of the debtor under section 721, 1108, 1203, 1204, or 1304 of
this title, unless the court orders otherwise, the trustee may obtain
unsecured credit and incur unsecured debt in the ordinary course of business
allowable under section 503(b)(1) of this title as an administrative expense.
(b) The court, after notice and a hearing, may
authorize the trustee to obtain unsecured credit or to incur unsecured
debt other than under subsection (a) of this section, allowable under
section 503(b)(1) of this title as an administrative expense.
(c) If the trustee is unable to obtain unsecured
credit allowable under section 503(b)(1) of this title as an administrative
expense, the court, after notice and a hearing, may authorize the obtaining
of credit or the incurring of debt-
(1) with priority over any or all administrative
expenses of the kind specified in section 503(b) or 507(b) of this title;
(2) secured by a lien on property of the estate
that is not otherwise subject to a lien; or
(3) secured by a junior lien on property of the
estate that is subject to a lien.
(d) (1) The court, after notice and a hearing,
may authorize the obtaining of credit or the incurring of debt secured
by a senior or equal lien on property of the estate that is subject to
a lien only if-
(A) the trustee is unable to obtain such credit
otherwise; and
(B) there is adequate protection of the interest
of the holder of the lien on the property of the estate on which such
senior or equal lien is proposed to be granted. (2) In any hearing under
this subsection, the trustee has the burden of proof on the
issue of adequate protection.
(e) The reversal or modification on appeal of
an authorization under this section to obtain credit or incur debt, or
of a grant under this section of a priority or a lien, does not affect
the validity of any debt so incurred, or any priority or lien so granted,
to an entity that extended such credit in good faith, whether or not such
entity knew of the pendency of the appeal, unless such authorization and
the incurring of such debt, or the granting of such priority or lien,
were stayed pending appeal.
(f) Except with respect to an entity that is an
underwriter as defined in section 1145(b) of this title, section 5 of
the Securities Act of 1933, the Trust Indenture Act of 1939, and any State
or local law requiring registration for offer or sale of a security or
registration or licensing of an issuer of, underwriter of, or broker or
dealer in, a security does not apply to the offer or sale under this section
of a security that is not an equity security.
§ 365. Executory contracts and unexpired leases
(a) Except as provided in sections 765 and 766
of this title and in subsections (b), (c), and (d) of this section, the
trustee, subject to the court's approval, may assume or reject any executory
contract or unexpired lease of the debtor.
(b) (1) If there has been a default in an executory
contract or unexpired lease of the debtor, the trustee may not assume
such contract or lease unless, at the time of assumption of such contract
or lease, the trustee-
(A) cures, or provides adequate assurance that
the trustee will promptly cure, such default;
(B) compensates, or provides adequate assurance
that the trustee will promptly compensate, a party other than the debtor
to such contract or lease, for any actual pecuniary loss to such party
resulting from such default; and
(C) provides adequate assurance of future performance
under such contract or lease.
(2) Paragraph (1) of this subsection does not
apply to a default that is a breach of a provision relating to-
(A) the insolvency or financial condition of
the debtor at any time before the closing of the case;
(B) the commencement of a case under this title;
(C) the appointment of or taking possession by
a trustee in a case under this title or a custodian before such commencement;
or
(D) the satisfaction of any penalty rate or provision
relating to a default arising from any failure by the debtor to perform
non-monetary obligations under the executory contract or unexpired lease.
(3) For the purposes of paragraph (1) of this
subsection and paragraph (2)(B) of subsection (f), adequate assurance
of future performance of a lease of real property in a shopping center
includes adequate assurance-
(A) of the source of rent and other consideration
due under such lease, and in the case of an assignment, that the financial
condition and operating performance of the proposed assignee and its guarantors,
if any, shall be similar to the financial condition and operating performance
of the debtor and its guarantors, if any, as of the time the debtor became
the lessee under the lease;
(B) that any percentage rent due under such lease
will not decline substantially;
(C) that assumption or assignment of such lease
is subject to all the provisions thereof, including (but not limited to)
provisions such as a radius, location, use, or exclusivity provision,
and will not breach any such provision contained in any other lease, financing
agreement, or master agreement relating to such shopping center; and
(D) that assumption or assignment of such lease
will not disrupt any tenant mix or balance in such shopping center.
(4) Notwithstanding any other provision of this
section, if there has been a default in an unexpired lease of the debtor,
other than a default of a kind specified in paragraph (2) of this subsection,
the trustee may not require a lessor to provide services or supplies incidental
to such lease before assumption of such lease unless the lessor is compensated
under the terms of such lease for any services and supplies provided under
such lease before assumption of such lease.
(c) The trustee may not assume or assign any executory
contract or unexpired lease of the debtor, whether or not such contract
or lease prohibits or restricts assignment of rights or delegation of
duties, if-
(1) (A) applicable law excuses a party, other
than the debtor, to such contract or lease from accepting performance
from or rendering performance to an entity other than the debtor or the
debtor in possession, whether or not such contract or lease prohibits
or restricts assignment of rights or delegation of duties; and
(B) such party does not consent to such assumption
or assignment; or
(2) such contract is a contract to make a loan,
or extend other debt financing or financial accommodations, to or for
the benefit of the debtor, or to issue a security of the debtor;
(3) such lease is of nonresidential real property
and has been terminated under applicable nonbankruptcy law prior to the
order for relief; or
(4) such lease is of nonresidential real property under
which the debtor is the lessee of an aircraft terminal or aircraft gate
at an airport at which the debtor is the lessee under one or more additional
nonresidential leases of an aircraft terminal or aircraft gate and the
trustee, in connection with such assumption or assignment, does not assume
all such leases or does not assume and assign all of such leases to the
same person, except that the trustee may assume or assign less than all
of such leases with the airport operator's written consent.
(d) (1) In a case under chapter 7 of this title, if
the trustee does not assume or reject an executory contract or unexpired
lease of residential real property or of personal property of the debtor
within 60 days after the order for relief, or within such additional time
as the court, for cause, within such 60- day period, fixes, then such
contract or lease is deemed rejected.
(2) In a case under chapter 9, 11, 12, or 13
of this title, the trustee may assume or reject an executory contract
or unexpired lease of residential real property or of personal property
of the debtor at any time before the confirmation of a plan but the court,
on the request of any party to such contract or lease, may order the trustee
to determine within a specified period of time whether to assume or reject
such contract or lease.
(3) The trustee shall timely perform all the
obligations of the debtor, except those specified in section 365(b)(2),
arising from and after the order for relief under any unexpired lease
of nonresidential real property, until such lease is assumed or rejected,
notwithstanding section 503(b)(1) of this title. The court may extend,
for cause, the time for performance of any such obligation that arises
within 60 days after the date of the order for relief, but the time for
performance shall not be extended beyond such 60-day period.
This subsection shall not be deemed to affect the trustee's
obligations under the provisions of subsection (b) or (f) of this section.
Acceptance of any such performance does not constitute waiver or relinquishment
of the lessor's rights under such lease or under this title.
(4) Notwithstanding paragraphs (1) and (2), in
a case under any chapter of this title, if the trustee does not assume
or reject an unexpired lease of nonresidential real property under which
the debtor is the lessee within 60 days after the date of the order for
relief, or within such additional time as the court, for cause, within
such 60-day period, fixes, then such lease is deemed rejected, and the
trustee shall immediately surrender such nonresidential real property
to the lessor.
(5) Notwithstanding paragraphs (1) and (4) of
this subsection, in a case under any chapter of this title, if the trustee
does not assume or reject an unexpired lease of nonresidential real property
under which the debtor is an affected air carrier that is the lessee of
an aircraft terminal or aircraft gate before the occurrence of a termination
event, then (unless the court orders the trustee to assume such unexpired
leases within 5 days after the termination event), at the option of the
airport operator, such lease is deemed rejected 5 days after the occurrence
of a termination event and the trustee shall immediately surrender possession
of the premises to the airport operator; except that the lease shall not
be deemed to be rejected unless the airport operator first waives the
right to damages related to the rejection. In the event that the lease
is deemed to be rejected under this paragraph, the airport operator shall
provide the affected air carrier adequate
opportunity after the surrender of the premises to
remove the fixtures and equipment installed by the affected air carrier.
(6) For the purpose of paragraph (5) of this
subsection and paragraph (f)(1) of this section, the occurrence of a termination
event means, with respect to a debtor which is an affected air carrier
that is the lessee of an aircraft terminal or aircraft gate-
(A) the entry under section 301 or 302 of this
title of an order for relief under chapter 7 of this title;
(B) the conversion of a case under any chapter
of this title to a case under chapter 7 of this title; or
(C) the granting of relief from the stay provided
under section 362(a) of this title with respect to aircraft, aircraft
engines, propellers, appliances, or spare parts, as defined in section
40102(a) of title 49, except for property of the debtor found by the court
not to be necessary to an effective reorganization.
(7) Any order entered by the court pursuant to
paragraph (4) extending the period within which the trustee of an affected
air carrier must assume or reject an unexpired lease of nonresidential
real property shall be without prejudice to-
(A) the right of the trustee to seek further extensions
within such additional time period granted by the court pursuant to paragraph
(4); and
(B) the right of any lessor or any other party
in interest to request, at any time, a shortening or termination of the
period within which the trustee must assume or reject an unexpired lease
of nonresidential real property.
(8) The burden of proof for establishing cause
for an extension by an affected air carrier under paragraph (4) or the
maintenance of a previously granted extension under paragraph (7)(A) and
(B) shall at all times remain with the trustee.
(9) For purposes of determining cause under paragraph
(7) with respect to an unexpired lease of nonresidential real property
between the debtor that is an affected air carrier and an airport operator
under which such debtor is the lessee of an airport terminal or an airport
gate, the court shall consider, among other relevant factors, whether
substantial harm will result to the airport operator or airline passengers
as a result of the extension or the maintenance of a previously granted
extension. In making the determination of substantial harm, the court
shall consider, among other relevant factors, the level of actual use
of the terminals or gates which are the subject of the lease, the public
interest in actual use of such terminals or gates, the existence of competing
demands for the use of such terminals or gates, the effect of the court's
extension or termination of the period of time to assume or reject the
lease on such debtor's ability to successfully reorganize under chapter
11 of this title, and whether the trustee of the affected air carrier
is capable of continuing to comply with its obligations under section
365(d)(3) of this title.
(10) The trustee shall timely perform all of the
obligations of the debtor, except those specified in section 365(b)(2),
first arising from or after 60 days after the order for relief in a case
under chapter 11 of this title under an unexpired lease of personal property
(other than personal property leased to an individual primarily for personal,
family, or household purposes), until such lease is assumed or rejected
notwithstanding section 503(b)(1) of this title, unless the court, after
notice and a hearing and based on the equities of the case, orders otherwise
with respect to the obligations or timely performance thereof. This subsection
shall not be deemed to affect the trustee's
obligations under the provisions of subsection (b)
or (f). Acceptance of any such performance does not constitute waiver
or relinquishment of the lessor's rights under such lease or under this
title.
(e) (1) Notwithstanding a provision in an executory
contract or unexpired lease, or in applicable law, an executory contract
or unexpired lease of the debtor may not be terminated or modified, and
any right or obligation under such contract or lease may not be terminated
or modified, at any time after the commencement of the case solely because
of a provision in such contract or lease that is conditioned on-
(A) the insolvency or financial condition of
the debtor at any time before the closing of the case;
(B) the commencement of a case under this title;
or
(C) the appointment of or taking possession by
a trustee in a case under this title or a custodian before such commencement.
(2) Paragraph (1) of this subsection does not apply
to an executory contract or unexpired lease of the debtor, whether or
not such contract or lease prohibits or restricts assignment of rights
or delegation of duties, if-
(A)(i) applicable law excuses a party, other than the
debtor, to such contract or lease from accepting performance from or rendering
performance to the trustee or to an assignee of such contract or lease,
whether or not such contract or lease prohibits or restricts assignment
of rights or delegation of duties; and
(ii) such party does not consent to such assumption
or assignment; or (B) such contract is a contract to make a loan, or extend
other debt financing or financial accommodations, to or for the benefit
of the debtor, or to issue a security of the debtor.
(f) (1) Except as provided in subsection (c)
of this section, notwithstanding a provision in an executory contract
or unexpired lease of the debtor, or in applicable law, that prohibits,
restricts, or conditions the assignment of such contract or lease, the
trustee may assign such contract or lease under paragraph (2) of this
subsection; except that the trustee may not assign an unexpired lease
of nonresidential real property under which the debtor is an affected
air carrier that is the lessee of an aircraft terminal or aircraft gate
if there has occurred a termination event.
(2) The trustee may assign an executory contract
or unexpired lease of the debtor only if-
(A) the trustee assumes such contract or lease
in accordance with the provisions of this section; and
(B) adequate assurance of future performance
by the assignee of such contract or lease is provided, whether or not
there has been a default in such contract or lease.
(3) Notwithstanding a provision in an executory
contract or unexpired lease of the debtor, or in applicable law that terminates
or modifies, or permits a party other than the debtor to terminate or
modify, such contract or lease or a right or obligation under such contract
or lease on account of an assignment of such contract or lease, such contract,
lease, right, or obligation may not be terminated or modified under such
provision because of the assumption or assignment of such contract or
lease by the trustee.
(g) Except as provided in subsections (h)(2) and (i)(2)
of this section, the rejection of an executory contract or unexpired lease
of the debtor constitutes a breach of such contract or lease-
(1) if such contract or lease has not been assumed
under this section or under a plan confirmed under chapter 9, 11, 12,
or 13 of this title, immediately before the date of the filing of the
petition; or
(2) if such contract or lease has been assumed
under this section or under a plan confirmed under chapter 9, 11, 12,
or 13 of this title-
(A) if before such rejection the case has not
been converted under section 1112, 1208, or 1307 of this title, at the
time of such rejection; or
(B) if before such rejection the case has been
converted under section 1112, 1208, or 1307 of this title-
(i) immediately before the date of such conversion,
if such contract or lease was assumed before such conversion; or
(ii) at the time of such rejection, if such contract
or lease was assumed after such conversion.
(h) (1) (A) If the trustee rejects an unexpired lease
of real property under which the
debtor is the lessor and-
(i) if the rejection by the trustee amounts to such
a breach as would entitle the lessee to treat such lease as terminated
by virtue of its terms, applicable nonbankruptcy law, or any agreement
made by the lessee, then the lessee under such lease may treat such lease
as terminated by the rejection; or
(ii) if the term of such lease has commenced, the lessee
may retain its rights under such lease (including rights such as those
relating to the amount and timing of payment of rent and other amounts
payable by the lessee and any right of use, possession, quiet enjoyment,
subletting, assignment, or hypothecation) that are in or appurtenant to
the real property for the balance of the term of such lease and for any
renewal or extension of such rights to the extent that such rights are
enforceable under applicable nonbankruptcy law.
(B) If the lessee retains its rights under subparagraph
(A)(ii), the lessee may offset against the rent reserved under such lease
for the balance of the term after the date of the rejection of such lease
and for the term of any renewal or extension of such lease, the value
of any damage caused by the nonperformance after the date of such rejection,
of any obligation of the debtor under such lease, but the lessee shall
not have any other right against the estate or the debtor on account of
any damage occurring after such date caused by such nonperformance.
(C) The rejection of a lease of real property
in a shopping center with respect to which the lessee elects to retain
its rights under subparagraph (A)(ii) does not affect the enforceability
under applicable nonbankruptcy law of any provision in the lease pertaining
to radius, location, use, exclusivity, or tenant mix or balance.
(D) In this paragraph, "lessee" includes any
successor, assign, or mortgagee permitted under the terms of such lease.
(2) (A) If the trustee rejects a timeshare interest
under a timeshare plan under which the debtor is the timeshare interest
seller and-
(i) if the rejection amounts to such a breach as would
entitle the timeshare interest purchaser to treat the timeshare plan as
terminated under its terms, applicable nonbankruptcy law, or any agreement
made by timeshare interest purchaser, the timeshare interest purchaser
under the timeshare plan may treat the timeshare plan as terminated by
such rejection; or
(ii) if the term of such timeshare interest has commenced,
then the timeshare
interest purchaser may retain its rights in such timeshare
interest for the balance
of such term and for any term of renewal or extension
of such timeshare interest
to the extent that such rights are enforceable under
applicable nonbankruptcy law.
(B) If the timeshare interest purchaser retains its
rights under subparagraph (A),
such timeshare interest purchaser may offset against
the moneys due for such
timeshare interest for the balance of the term after
the date of the rejection of such
timeshare interest, and the term of any renewal or
extension of such timeshare
interest, the value of any damage caused by the nonperformance
after the date of such
rejection, of any obligation of the debtor under such
timeshare plan, but the timeshare
interest purchaser shall not have any right against
the estate or the debtor on account
of any damage occurring after such date caused by such
nonperformance.
(i) (1) If the trustee rejects an executory contract
of the debtor for the sale of real property or for the sale of a timeshare
interest under a timeshare plan, under which the purchaser is in possession,
such purchaser may treat such contract as terminated, or, in the alternative,
may remain in possession of such real property or timeshare interest.
(2) If such purchaser remains in possession-
(A) such purchaser shall continue to make all
payments due under such contract, but may, [sic] offset against
such payments any damages occurring after the date of the rejection of
such contract caused by the nonperformance of any obligation of the debtor
after such date, but such purchaser does not have any rights against the
estate on account of any damages arising after such date from such rejection,
other than such offset; and
(B) the trustee shall deliver title to such purchaser
in accordance with the provisions of such contract, but is relieved of
all other obligations to perform under such contract.
(j) A purchaser that treats an executory contract as
terminated under subsection (i) of this section, or a party whose executory
contract to purchase real property from the debtor is rejected and under
which such party is not in possession, has a lien on the interest of the
debtor in such property for the recovery of any portion of the purchase
price that such purchaser or party has paid.
(k) Assignment by the trustee to an entity of a contract
or lease assumed under this section relieves the trustee and the estate
from any liability for any breach of such contract or lease occurring
after such assignment.
(l) If an unexpired lease under which the debtor is
the lessee is assigned pursuant to this section, the lessor of the property
may require a deposit or other security for the
performance of the debtor's obligations under the lease
substantially the same as would have been required by the landlord upon
the initial leasing to a similar tenant.
(m) For purposes of this section 365 and sections 541(b)(2)
and 362(b)(10), leases of real property shall include any rental agreement
to use real property.
(n) (1) If the trustee rejects an executory contract
under which the debtor is a licensor of a right to intellectual property,
the licensee under such contract may elect-
(A) to treat such contract as terminated by such
rejection if such rejection by the trustee amounts to such a breach as
would entitle the licensee to treat such contract as terminated by virtue
of its own terms, applicable nonbankruptcy law, or an agreement made by
the licensee with another entity; or
(B) to retain its rights (including a right to
enforce any exclusivity provision of such contract, but excluding any
other right under applicable nonbankruptcy law to specific performance
of such contract) under such contract and under any agreement supplementary
to such contract, to such intellectual property (including any embodiment
of such intellectual property to the extent protected by applicable nonbankruptcy
law), as such rights existed immediately before the case commenced, for-
(i) the duration of such contract; and
(ii) any period for which such contract may be extended
by the licensee as of right under applicable nonbankruptcy law.
(2) If the licensee elects to retain its rights,
as described in paragraph (1)(B) of this subsection, under such contract-
(A) the trustee shall allow the licensee to exercise
such rights;
(B) the licensee shall make all royalty payments
due under such contract for the duration of such contract and for any
period described in paragraph (1)(B) of this subsection for which the
licensee extends such contract; and
(C) the licensee shall be deemed to waive-
(i) any right of setoff it may have with respect to
such contract under this title or applicable nonbankruptcy law; and
(ii) any claim allowable under section 503(b) of this
title arising from the performance of such contract.
(3) If the licensee elects to retain its rights,
as described in paragraph (1)(B) of this subsection, then on the written
request of the licensee the trustee shall-
(A) to the extent provided in such contract,
or any agreement supplementary to such contract, provide to the licensee
any intellectual property (including such embodiment) held by the trustee;
and
(B) not interfere with the rights of the licensee
as provided in such contract, or any agreement supplementary to such contract,
to such intellectual property (including such embodiment) including any
right to obtain such intellectual property (or such embodiment) from another
entity.
(4) Unless and until the trustee rejects such
contract, on the written request of the licensee the trustee shall-
(A) to the extent provided in such contract or any
agreement supplementary to such contract-
(i) perform such contract; or
(ii) provide to the licensee such intellectual property
(including any embodiment of such intellectual property to the extent
protected by applicable nonbankruptcy law) held by the trustee; and
(B) not interfere with the rights of the licensee as
provided in such contract, or any agreement supplementary to such contract,
to such intellectual property (including such embodiment), including any
right to obtain such intellectual property (or such embodiment) from another
entity.
(o) In a case under chapter 11 of this title, the trustee
shall be deemed to have assumed (consistent with the debtor's other obligations
under section 507), and shall immediately cure any deficit under, any
commitment by the debtor to a Federal depository institutions regulatory
agency (or predecessor to such agency) to maintain the capital of an insured
depository institution, and any claim for a subsequent breach of the obligations
thereunder shall be entitled to priority under section 507. This subsection
shall not extend any commitment that would otherwise be terminated by
any act of such an agency.
[(p) Repealed. Pub.L. 103-394, Title V, § 501(d)(10)(E),
Oct. 22, 1994, 108 Stat. 4145]
§ 366. Utility service
(a) Except as provided in subsection (b) of this
section, a utility may not alter, refuse, or discontinue service to, or
discriminate against, the trustee or the debtor solely on the basis of
the commencement of a case under this title or that a debt owed by the
debtor to such utility for service rendered before the order for relief
was not paid when due.
(b) Such utility may alter, refuse, or discontinue
service if neither the trustee nor the debtor, within 20 days after the
date of the order for relief, furnishes adequate assurance of payment,
in the form of a deposit or other security, for service after such date.
On request of a party in interest and after notice and a hearing, the
court may order reasonable modification of the amount of the deposit or
other security necessary to provide adequate assurance of payment.
Chapter 5- Creditors, the Debtor, and the Estate
SUBCHAPTER I, CREDITORS & CLAIMS
§ 501. Filing of proofs of claims or interests
(a) A creditor or an indenture trustee may file
a proof of claim. An equity security holder may file a proof of interest.
(b) If a creditor does not timely file a proof
of such creditor's claim, an entity that is liable to such creditor with
the debtor, or that has secured such creditor, may file a proof of such
claim.
(c) If a creditor does not timely file a proof
of such creditor's claim, the debtor or the trustee may file a proof of
such claim.
(d) A claim of a kind specified in section 502(e)(2),
502(f), 502(g), 502(h) or 502(i) of this title may be filed under subsection
(a), (b), or (c) of this section the same as if such claim were a claim
against the debtor and had arisen before the date of the filing of the
petition.
§ 502. Allowance of claims or interests
(a) A claim or interest, proof of which is filed
under section 501 of this title, is deemed allowed, unless a party in
interest, including a creditor of a general partner in a partnership that
is a debtor in a case under chapter 7 of this title, objects.
(b) Except as provided in subsections (e)(2),
(f), (g), (h) and (i) of this section, if such objection to a claim is
made, the court, after notice and a hearing, shall determine the amount
of such claim in lawful currency of the United States as of the date of
the filing of the petition, and shall allow such claim in such amount,
except to the extent that-
(1) such claim is unenforceable against the debtor
and property of the debtor, under any agreement or applicable law for
a reason other than because such claim is contingent or unmatured;
(2) such claim is for unmatured interest;
(3) if such claim is for a tax assessed against
property of the estate, such claim exceeds the value of the interest of
the estate in such property;
(4) if such claim is for services of an insider
or attorney of the debtor, such claim exceeds the reasonable value of
such services;
(5) such claim is for a debt that is unmatured
on the date of the filing of the petition and that is excepted from discharge
under section 523(a)(5) of this title;
(6) if such claim is the claim of a lessor for
damages resulting from the termination of a lease of real property, such
claim exceeds-
(A) the rent reserved by such lease, without
acceleration, for the greater of one year, or 15 percent, not to exceed
three years, of the remaining term of such lease, following the earlier
of-
(i) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed, or
the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without
acceleration, on the earlier of such dates;
(7) if such claim is the claim of an employee
for damages resulting from the termination of an employment contract,
such claim exceeds-
(A) the compensation provided by such contract,
without acceleration, for one year following the earlier of-
(i) the date of the filing of the petition; or
(ii) the date on which the employer directed the employee
to terminate, or such employee terminated, performance under such contract;
plus
(B) any unpaid compensation due under such contract,
without acceleration, on the earlier of such dates;
(8) such claim results from a reduction, due
to late payment, in the amount of an otherwise applicable credit available
to the debtor in connection with an employment tax on wages, salaries,
or commissions earned from the debtor; or
(9) proof of such claim is not timely filed,
except to the extent tardily filed as permitted under paragraph (1), (2),
or (3) of section 726(a) of this title or under the Federal Rules of Bankruptcy
Procedure, except that a claim of a governmental unit shall be timely
filed if it is filed before 180 days after the date of the order for relief
or such later time as the Federal Rules of Bankruptcy Procedure may provide.
(c) There shall be estimated for purpose of allowance
under this section-
(1) any contingent or unliquidated claim, the
fixing or liquidation of which, as the case may be, would unduly delay
the administration of the case; or
(2) any right to payment arising from a right
to an equitable remedy for breach of performance.
(d) Notwithstanding subsections (a) and (b) of
this section, the court shall disallow any claim of any entity from which
property is recoverable under section 542, 543, 550, or 553 of this title
or that is a transferee of a transfer avoidable under section 522(f),
522(h), 544, 545, 547, 548, 549, or 724(a) of this title, unless such
entity or transferee has paid the amount, or turned over any such property,
for which such entity or transferee is liable under section 522(i), 542,
543, 550, or 553 of this title.
(e) (1) Notwithstanding subsections (a), (b),
and (c) of this section and paragraph (2) of this subsection, the court
shall disallow any claim for reimbursement or contribution of an entity
that is liable with the debtor on or has secured, the claim of a creditor,
to the extent that-
(A) such creditor's claim against the estate is
disallowed;
(B) such claim for reimbursement or contribution
is contingent as of the time of allowance or disallowance of such claim
for reimbursement or contribution; or
(C) such entity asserts a right of subrogation
to the rights of such creditor under section 509 of this title.
(2) A claim for reimbursement or contribution of such
an entity that becomes fixed after the commencement of the case shall
be determined, and shall be allowed under subsection (a), (b), or (c)
of this section, or disallowed under subsection (d) of this section, the
same as if such claim had become fixed before the date of the filing of
the petition.
(f) In an involuntary case, a claim arising in
the ordinary course of the debtor's business or financial affairs after
the commencement of the case but before the earlier of the appointment
of a trustee and the order for relief shall be determined as of the date
such claim arises, and shall be allowed under subsection (a), (b), or
(c) of this section or disallowed under subsection (d) or (e) of this
section, the same as if such claim had arisen before the date of the filing
of the petition.
(g) A claim arising from the rejection, under
section 365 of this title or under a plan under chapter 9, 11, 12, or
13 of this title, of an executory contract or unexpired lease of the
debtor that has not been assumed shall be determined,
and shall be allowed under subsection (a), (b), or (c) of this section
or disallowed under subsection (d) or (e) of this section, the same as
if such claim had arisen before the date of the filing of the petition.
(h) A claim arising from the recovery of property under
section 522, 550, or 553 of this title shall be determined, and shall
be allowed under subsection (a), (b), or (c) of this section, or disallowed
under subsection (d) or (e) of this section, the same as if such claim
had arisen before the date of the filing of the petition.
(i) A claim that does not arise until after the commencement
of the case for a tax entitled to priority under section 507(a)(8) of
this title shall be determined, and shall be allowed under subsection
(a), (b), or (c) of this section, or disallowed under subsection (d) or
(e) of this section, the same as if such claim had arisen before the date
of the filing of the petition.
(j) A claim that has been allowed or disallowed may
be reconsidered for cause. A reconsidered claim may be allowed or disallowed
according to the equities of the case. Reconsideration of a claim under
this subsection does not affect the validity of any payment or transfer
from the estate made to a holder of an allowed claim on account of such
allowed claim that is not reconsidered, but if a reconsidered claim is
allowed and is of the same class as such holder's claim, such holder may
not receive any additional payment or transfer from the estate on account
of such holder's allowed claim until the holder of such reconsidered and
allowed claim receives payment on account of such claim proportionate
in value to that already received by such other holder. This subsection
does not alter or modify the trustee's right to recover from a creditor
any excess payment or transfer made to such creditor.
§ 503. Allowance of administrative expenses
(a) An entity may timely file a request for payment
of an administrative expense, or may tardily file such request if permitted
by the court for cause.
(b) After notice and a hearing, there shall be
allowed, administrative expenses, other than claims allowed under section
502(f) of this title, including-
(1) (A) the actual, necessary costs and expenses
of preserving the estate, including wages, salaries, or commissions for
services rendered after the commencement of the case;
(B) any tax-
(i) incurred by the estate, except a tax of a kind
specified in section 507(a)(8) of this title; or
(ii) attributable to an excessive allowance of a tentative
carryback adjustment that the estate received, whether the taxable year
to which such adjustment relates ended before or after the commencement
of the case; and
(C) any fine, penalty, or reduction in credit
relating to a tax of a kind specified in subparagraph (B) of this paragraph;
(2) compensation and reimbursement awarded under
section 330(a) of this title;
(3) the actual, necessary expenses, other than
compensation and reimbursement specified in paragraph (4) of this subsection,
incurred by-
(A) a creditor that files a petition under section
303 of this title;
(B) a creditor that recovers, after the court's
approval, for the benefit of the estate any property transferred or concealed
by the debtor;
(C) a creditor in connection with the prosecution
of a criminal offense relating to the case or to the business or property
of the debtor;
(D) a creditor, an indenture trustee, an equity
security holder, or a committee representing creditors or equity security
holders other than a committee appointed under section 1102 of this title,
in making a substantial contribution in a case under chapter 9 or 11 of
this title;
(E) a custodian superseded under section 543
of this title, and compensation for the services of such custodian; or
(F) a member of a committee appointed under section
1102 of this title, if such expenses are incurred in the performance of
the duties of such committee;
(4) reasonable compensation for professional
services rendered by an attorney or an accountant of an entity whose expense
is allowable under paragraph (3) of this subsection, based on the time,
the nature, the extent, and the value of such services, and the cost of
comparable services other than in a case under this title, and reimbursement
for actual, necessary expenses incurred by such attorney or accountant;
(5) reasonable compensation for services rendered
by an indenture trustee in making a substantial contribution in a case
under chapter 9 or 11 of this title, based on the time, the nature, the
extent, and the value of such services, and the cost of comparable services
other than in a case under this title; and
(6) the fees and mileage payable under chapter
119 of title 28.
§ 504. Sharing of compensation
(a) Except as provided in subsection (b) of this
section, a person receiving compensation or reimbursement under section
503(b)(2) or 503(b)(4) of this title may not share or agree to share-
(1) any such compensation or reimbursement with
another person; or
(2) any compensation or reimbursement received
by another person under such sections.
(b) (1) A member, partner, or regular associate
in a professional association, corporation, or partnership may share compensation
or reimbursement received under section 503(b)(2) or 503(b)(4) of this
title with another member, partner, or regular associate in such association,
corporation, or partnership, and may share in any compensation or reimbursement
received under such sections by another member, partner, or regular associate
in such association, corporation, or partnership.
(2) An attorney for a creditor that files a petition
under section 303 of this title may share compensation and reimbursement
received under section 503(b)(4) of this title with any other attorney
contributing to the services rendered or expenses incurred by such creditor's
attorney.
§ 505. Determination of tax liability
(a) (1) Except as provided in paragraph (2) of
this subsection, the court may determine the amount or legality of any
tax, any fine or penalty relating to a tax, or any addition to tax, whether
or not previously assessed, whether or not paid, and whether or not contested
before and adjudicated by a judicial or administrative tribunal of competent
jurisdiction.
(2) The court may not so determine-
(A) the amount or legality of a tax, fine, penalty,
or addition to tax if such amount or legality was contested before and
adjudicated by a judicial or administrative tribunal of competent jurisdiction
before the commencement of the case under this title; or
(B) any right of the estate to a tax refund, before
the earlier of-
(i) 120 days after the trustee properly requests such
refund from the governmental unit from which such refund is claimed; or
(ii) a determination by such governmental unit of such
request.
(b) A trustee may request a determination of any
unpaid liability of the estate for any tax incurred during the administration
of the case by submitting a tax return for such tax and a request for
such a determination to the governmental unit charged with responsibility
for collection or determination of such tax. Unless such return is fraudulent,
or contains a material misrepresentation, the trustee, the debtor, and
any successor to the debtor are discharged from any liability for such
tax-
(1) upon payment of the tax shown on such return,
if-
(A) such governmental unit does not notify the
trustee, within 60 days after such request, that such return has been
selected for examination; or
(B) such governmental unit does not complete such
an examination and notify the trustee of any tax due, within 180 days
after such request or within such additional time as the court, for cause,
permits;
(2) upon payment of the tax determined by the
court, after notice and a hearing, after completion by such governmental
unit of such examination; or
(3) upon payment of the tax determined by such
governmental unit to be due.
(c) Notwithstanding section 362 of this title,
after determination by the court of a tax under this section, the governmental
unit charged with responsibility for collection of such tax may assess
such tax against the estate, the debtor, or a successor to the debtor,
as the case may be, subject to any otherwise applicable law.
§ 506. Determination of secured status
(a) An allowed claim of a creditor secured by a lien
on property in which the estate has an interest, or that is subject to
setoff under section 553 of this title, is a secured claim to the extent
of the value of such creditor's interest in the estate's interest in such
property, or to the extent of the amount subject to setoff, as the case
may be, and is an unsecured claim to the extent that the value of such
creditor's interest or the amount so subject to setoff is less than the
amount of such allowed claim. Such value shall be determined in light
of the purpose of the valuation and of the proposed disposition or use
of such property, and in
conjunction with any hearing on such disposition or
use or on a plan affecting such creditor's interest.
(b) To the extent that an allowed secured claim
is secured by property the value of which, after any recovery under subsection
(c) of this section, is greater than the amount of such claim, there shall
be allowed to the holder of such claim, interest on such claim, and any
reasonable fees, costs, or charges provided for under the agreement under
which such claim arose.
(c) The trustee may recover from property securing
an allowed secured claim the reasonable, necessary costs and expenses
of preserving, or disposing of, such property to the extent of any benefit
to the holder of such claim.
(d) To the extent that a lien secures a claim
against the debtor that is not an allowed secured claim, such lien is
void, unless-
(1) such claim was disallowed only under section
502(b)(5) or 502(e) of this title; or
(2) such claim is not an allowed secured claim
due only to the failure of any entity to file a proof of such claim under
section 501 of this title.
§ 507. Priorities
(a) The following expenses and claims have priority
in the following order:
(1) First, administrative expenses allowed under
section 503(b) of this title, and any fees and charges assessed against
the estate under chapter 123 of title 28.
(2) Second, unsecured claims allowed under section
502(f) of this title.
(3) Third, allowed unsecured claims, but only
to the extent of $4,000 [$4,650] for each individual or corporation, as
the case may be, earned within 90 days before the date of the filing of
the petition or the date of the cessation of the debtor's business, whichever
occurs first, for-
(A) wages, salaries, or commissions, including
vacation, severance, and sick leave pay earned by an individual; or
(B) sales commissions earned by an individual
or by a corporation with only 1 employee, acting as an independent contractor
in the sale of goods or services for the debtor in the ordinary course
of the debtor's business if, and only if, during the 12 months preceding
that date, at least 75 percent of the amount that the individual or corporation
earned by acting as an independent contractor in the sale of goods or
services was earned from the debtor;
(4) Fourth, allowed unsecured claims for contributions
to an employee benefit plan-
(A) arising from services rendered within 180
days before the date of the filing of the petition or the date of the
cessation of the debtor's business, whichever occurs first; but only
(B) for each such plan, to the extent of-
(i) the number of employees covered by each such plan
multiplied by $4,000 [$4,650]; less
(ii) the aggregate amount paid to such employees under
paragraph (3) of this subsection, plus the aggregate amount paid by the
estate on behalf of such employees to any other employee benefit plan.
(5) Fifth, allowed unsecured claims of persons-
(A) engaged in the production or raising of grain,
as defined in section 557(b) of this title, against a debtor who owns
or operates a grain storage facility, as defined in section 557(b) of
this title, for grain or the proceeds of grain, or
(B) engaged as a United States fisherman against
a debtor who has acquired fish or fish produce from a fisherman through
a sale or conversion, and who is engaged in operating a fish produce storage
or processing facility-
but only to the extent of $4,000 [$4,650] for each
such individual.
(6) Sixth, allowed unsecured claims of individuals,
to the extent of $1,800 [$2,100] for each such individual, arising from
the deposit, before the commencement of the case, of money in connection
with the purchase, lease, or rental of property, or the purchase of services,
for the personal, family, or household use of such individuals, that were
not delivered or provided.
(7) Seventh, allowed claims for debts to a spouse,
former spouse, or child of the debtor, for alimony to, maintenance for,
or support of such spouse or child, in connection with a separation agreement,
divorce decree or other order of a court of record, determination made
in accordance with State or territorial law by a governmental unit, or
property settlement agreement, but not to the extent that such debt-
(A) is assigned to another entity, voluntarily,
by operation of law, or otherwise; or
(B) includes a liability designated as alimony,
maintenance, or support, unless such liability is actually in the nature
of alimony, maintenance or support.
(8) Eighth, allowed unsecured claims of governmental
units, only to the extent that such claims are for-
(A) a tax on or measured by income or gross receipts-
(i) for a taxable year ending on or before the date
of the filing of the petition for which a return, if required, is last
due, including extensions, after three years before the date of the filing
of the petition;
(ii) assessed within 240 days, plus any time plus 30
days during which an offer in compromise with respect to such tax that
was made within 240 days after such assessment was pending, before the
date of the filing of the petition; or
(iii) other than a tax of a kind specified in section
523(a)(1)(B) or 523(a)(1)(C) of this title, not assessed before, but assessable,
under applicable law or by agreement, after, the commencement of the case;
(B) a property tax assessed before the commencement
of the case and last payable without penalty after one year before the
date of the filing of the petition;
(C) a tax required to be collected or withheld
and for which the debtor is liable in whatever capacity;
(D) an employment tax on a wage, salary, or commission
of a kind specified in paragraph (3) of this subsection earned from the
debtor before the date of the filing of the petition, whether or not actually
paid before such date, for which a return is last due, under applicable
law or under any extension, after three years before the date of the filing
of the petition;
(E) an excise tax on-
(i) a transaction occurring before the date of the
filing of the petition for which a return, if required, is last due, under
applicable law or under any extension, after three years before the date
of the filing of the petition; or
(ii) if a return is not required, a transaction occurring
during the three years immediately preceding the date of the filing of
the petition;
(F) a customs duty arising out of the importation
of merchandise-
(i) entered for consumption within one year before
the date of the filing of the petition;
(ii) covered by an entry liquidated or reliquidated
within one year before the date of the filing of the petition; or
(iii) entered for consumption within four years before
the date of the filing of the petition but unliquidated on such date,
if the Secretary of the Treasury certifies that failure to liquidate such
entry was due to an investigation pending on such date into assessment
of antidumping or countervailing duties or fraud, or if information needed
for the proper appraisement or classification of such merchandise was
not available to the appropriate customs officer before such date; or
(G) a penalty related to a claim of a kind specified
in this paragraph and in compensation for actual pecuniary loss.
(9) Ninth, allowed unsecured claims based upon any
commitment by the debtor to a Federal depository institutions regulatory
agency (or predecessor to such agency), to maintain the capital of an
insured depository institution.
(b) If the trustee, under section 362, 363, or
364 of this title, provides adequate protection of the interest of a holder
of a claim secured by a lien on property of the debtor and if, notwithstanding
such protection, such creditor has a claim allowable under subsection
(a)(1) of this section arising from the stay of action against such property
under section 362 of this title, from the use, sale, or lease of such
property under section 363 of this title, or from the granting of a lien
under section 364(d) of this title, then such creditor's claim under such
subsection shall have priority over every other claim allowable under
such subsection.
(c) For the purpose of subsection (a) of this
section, a claim of a governmental unit arising from an erroneous refund
or credit of a tax has the same priority as a claim for the tax to which
such refund or credit relates.
(d) An entity that is subrogated to the rights
of a holder of a claim of a kind specified in subsection (a)(3), (a)(4),
(a)(5), (a)(6), (a)(7), (a)(8), or (a)(9) of this section is not subrogated
to the right of the holder of such claim to priority under such subsection.
§ 508. Effect of distribution other than under this
title
(a) If a creditor receives, in a foreign proceeding,
payment of, or a transfer of property on account of, a claim that is allowed
under this title, such creditor may not receive any payment under this
title on account of such claim until each of the other holders of claims
on account of which such holders are entitled to share equally with such
creditor under this title has received payment under this title equal
in value to the consideration received by such creditor in such foreign
proceeding.
(b) If a creditor of a partnership debtor receives,
from a general partner that is not a debtor in a case under chapter 7
of this title, payment of, or a transfer of property on account of, a
claim that is allowed under this title and that is not secured by a lien
on property of such partner, such creditor may not receive any payment
under this title on account of such claim until each of the other holders
of claims on account of which such holders are entitled to share equally
with such creditor under this title has received payment under this title
equal in value to the consideration received by such creditor from such
general partner.
§ 509. Claims of codebtors
(a) Except as provided in subsection (b) or (c)
of this section, an entity that is liable with the debtor on, or that
has secured, a claim of a creditor against the debtor, and that pays such
claim, is subrogated to the rights of such creditor to the extent of such
payment.
(b) Such entity is not subrogated to the rights
of such creditor to the extent that-
(1) a claim of such entity for reimbursement
or contribution on account of such payment of such creditor's claim is-
(A) allowed under section 502 of this title;
(B) disallowed other than under section 502(e)
of this title; or
(C) subordinated under section 510 of this title;
or
(2) as between the debtor and such entity, such
entity received the consideration for the claim held by such creditor.
(c) The court shall subordinate to the claim
of a creditor and for the benefit of such creditor an allowed claim, by
way of subrogation under this section, or for reimbursement or contribution,
of an entity that is liable with the debtor on, or that has secured, such
creditor's claim, until such creditor's claim is paid in full, either
through payments under this title or otherwise.
§ 510. Subordination
(a) A subordination agreement is enforceable in
a case under this title to the same extent that such agreement is enforceable
under applicable nonbankruptcy law.
(b) For the purpose of distribution under this
title, a claim arising from rescission of a purchase or sale of a security
of the debtor or of an affiliate of the debtor, for damages arising from
the purchase or sale of such a security, or for reimbursement or contribution
allowed under section 502 on account of such a claim, shall be subordinated
to all claims or interests that are senior to or equal the claim or interest
represented by such security, except that if such security is common stock,
such claim has the same priority as common stock.
(c) Notwithstanding subsections (a) and (b) of
this section, after notice and a hearing, the court may-
(1) under principles of equitable subordination, subordinate
for purposes of distribution all or part of an allowed claim to all or
part of another allowed claim or all or part of an allowed interest to
all or part of another allowed interest; or
(2) order that any lien securing such a subordinated
claim be transferred to the estate.
SUBCHAPTER II - DEBTOR'S DUTIES AND BENEFITS
§ 521. Debtor's duties
The debtor shall-
(1) file a list of creditors, and unless the court
orders otherwise, a schedule of assets and liabilities, a schedule of
current income and current expenditures, and a statement of the debtor's
financial affairs;
(2) if an individual debtor's schedule of assets
and liabilities includes consumer debts which are secured by property
of the estate-
(A) within thirty days after the date of the filing
of a petition under chapter 7 of this title or on or before the date of
the meeting of creditors, whichever is earlier, or within such additional
time as the court, for cause, within such period fixes, the debtor shall
file with the clerk a statement of his intention with respect to the retention
or surrender of such property and, if applicable, specifying that such
property is claimed as exempt, that the debtor intends to redeem such
property, or that the debtor intends to reaffirm debts secured by such
property;
(B) within forty-five days after the filing of
a notice of intent under this section, or within such additional time
as the court, for cause, within such forty-five day period fixes, the
debtor shall perform his intention with respect to such property, as specified
by subparagraph (A) of this paragraph; and
(C) nothing in subparagraphs (A) and (B) of this
paragraph shall alter the debtor's or the trustee's rights with regard
to such property under this title;
(3) if a trustee is serving in the case, cooperate
with the trustee as necessary to enable the trustee to perform the trustee's
duties under this title;
(4) if a trustee is serving in the case, surrender
to the trustee all property of the estate and any recorded information,
including books, documents, records, and papers, relating to property
of the estate, whether or not immunity is granted under section 344 of
this title; and
(5) appear at the hearing required under section
524(d) of this title.
§ 522. Exemptions
(a) In this section-
(1) "dependent" includes spouse, whether or not
actually dependent; and
(2) "value" means fair market value as of the
date of the filing of the petition or, with respect to property that becomes
property of the estate after such date, as of the date such property becomes
property of the estate.
(b) Notwithstanding section 541 of this title,
an individual debtor may exempt from property of the estate the property
listed in either paragraph (1) or, in the alternative, paragraph (2) of
this subsection. In joint cases filed under section 302 of this title
and individual cases filed under section 301 or 303 of this title by or
against debtors who are husband and wife, and whose estates are ordered
to be jointly administered under Rule 1015(b) of the Federal Rules of
Bankruptcy Procedure, one debtor may not elect to exempt property listed
in paragraph (1) and the other debtor elect to exempt property
listed in paragraph (2) of this subsection. If the
parties cannot agree on the alternative to be elected, they shall be deemed
to elect paragraph (1), where such election is permitted under the law
of the jurisdiction where the case is filed. Such property is-
(1) property that is specified under subsection
(d) of this section, unless the State law that is applicable to the debtor
under paragraph (2)(A) of this subsection specifically does not so authorize;
or, in the alternative,
(2) (A) any property that is exempt under Federal
law, other than subsection (d) of this section, or State or local law
that is applicable on the date of the filing of the petition at the place
in which the debtor's domicile has been located for the 180 days immediately
preceding the date of the filing of the petition, or for a longer portion
of such 180-day period than in any other place; and
(B) any interest in property in which the debtor had,
immediately before the commencement of the case, an interest as a tenant
by the entirety or joint tenant to the extent that such interest as a
tenant by the entirety or joint tenant is exempt from process under applicable
nonbankruptcy law.
(c) Unless the case is dismissed, property exempted
under this section is not liable during or after the case for any debt
of the debtor that arose, or that is determined under section 502 of this
title as if such debt had arisen, before the commencement of the case,
except-
(1) a debt of a kind specified in section 523(a)(1)
or 523(a)(5) of this title;
(2) a debt secured by a lien that is-
(A)(i) not avoided under subsection (f) or (g) of this
section or under section 544, 545, 547, 548, 549, or 724(a) of this title;
and
(ii) not void under section 506(d) of this title; (B)
a tax lien, notice of which is properly filed; or
(3) a debt of a kind specified in section 523(a)(4)
or 523(a)(6) of this title owed by an institution-affiliated party of
an insured depository institution to a Federal depository institutions
regulatory agency acting in its capacity as conservator, receiver, or
liquidating agent for such institution; or
(4) a debt in connection with fraud in the obtaining
or providing of any scholarship, grant, loan, tuition, discount, award,
or other financial assistance for purposes of financing an education at
an institution of higher education (as that term is defined in section
101 of the Higher Education Act of 1965 (20 U.S.C. 1001)).
(d) The following property may be exempted under
subsection (b)(1) of this section:
(1) The debtor's aggregate interest, not to exceed
$15,000 [$17,425] in value, in real property or personal property that
the debtor or a dependent of the debtor uses as a residence, in a cooperative
that owns property that the debtor or a dependent of the debtor uses as
a residence, or in a burial plot for the debtor or a dependent of the
debtor.
(2) The debtor's interest, not to exceed $2,400
[$2,775] in value, in one motor vehicle.
(3) The debtor's interest, not to exceed $400
[$450] in value in any particular item or $8,000 [$9,300] in aggregate
value, in household furnishings, household goods, wearing apparel, appliances,
books, animals, crops, or musical instruments, that are held primarily
for the personal, family, or household use of the debtor or a dependent
of the debtor.
(4) The debtor's aggregate interest, not to exceed
$1,000 [$1,150] in value, in jewelry held primarily for the personal,
family, or household use of the debtor or a dependent of the debtor.
(5) The debtor's aggregate interest in any property,
not to exceed in value $800 [$925] plus up to $7,500 [$8,725] of any unused
amount of the exemption provided under paragraph (1) of this subsection.
(6) The debtor's aggregate interest, not to exceed
$1,500 [$1,750] in value, in any implements, professional books, or tools,
of the trade of the debtor or the trade of a dependent of the debtor.
(7) Any unmatured life insurance contract owned
by the debtor, other than a credit life insurance contract.
(8) The debtor's aggregate interest, not to exceed
in value $8,000 [$9,300] less any amount of property of the estate transferred
in the manner specified in section 542(d) of this title, in any accrued
dividend or interest under, or loan value of, any unmatured life insurance
contract owned by the debtor under which the insured is the debtor or
an individual of whom the debtor is a dependent.
(9) Professionally prescribed health aids for
the debtor or a dependent of the debtor.
(10) The debtor's right to receive-
(A) a social security benefit, unemployment compensation,
or a local public assistance benefit;
(B) a veterans' benefit;
(C) a disability, illness, or unemployment benefit;
(D) alimony, support, or separate maintenance,
to the extent reasonably necessary for the support of the debtor and any
dependent of the debtor;
(E) a payment under a stock bonus, pension, profitsharing,
annuity, or similar plan or contract on account of illness, disability,
death, age, or length of service, to the extent reasonably necessary for
the support of the debtor and any dependent of the debtor, unless-
(i) such plan or contract was established by or under
the auspices of an insider that employed the debtor at the time the debtor's
rights under such plan or contract arose;
(ii) such payment is on account of age or length of
service; and (iii) such plan or contract does not qualify under section
401 (a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986.
(11) The debtor's right to receive, or property
that is traceable to-
(A) an award under a crime victim's reparation
law;
(B) a payment on account of the wrongful death
of an individual of whom the debtor was a dependent, to the extent reasonably
necessary for the support of the debtor and any dependent of the debtor;
(C) a payment under a life insurance contract
that insured the life of an individual of whom the debtor was a dependent
on the date of such individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(D) a payment, not to exceed $15,000, [$17,425]
on account of personal bodily injury, not including pain and suffering
or compensation for actual pecuniary loss, of the debtor or an individual
of whom the debtor is a dependent; or
(E) a payment in compensation of loss of future earnings
of the debtor or an individual of whom the debtor is or was a dependent,
to the extent reasonably necessary for the support of the debtor and any
dependent of the debtor.
(e) A waiver of an exemption executed in favor
of a creditor that holds an unsecured claim against the debtor is unenforceable
in a case under this title with respect to such claim against property
that the debtor may exempt under subsection (b) of this section. A waiver
by the debtor of a power under subsection (f) or (h) of this section to
avoid a transfer, under subsection (g) or (i) of this section to exempt
property, or under subsection (i) of this section to recover property
or to preserve a transfer, is unenforceable in a case under this title.
(f) (1) Notwithstanding any waiver of exemptions
but subject to paragraph (3), the debtor may avoid the fixing of a lien
on an interest of the debtor in property to the extent that such lien
impairs an exemption to which the debtor would have been entitled under
subsection (b) of this section, if such lien is-
(A) a judicial lien, other than a judicial lien
that secures a debt-
(i) to a spouse, former spouse, or child of the debtor,
for alimony to, maintenance for, or support of such spouse or child, in
connection with a separation agreement, divorce decree or other order
of a court of record, determination made in accordance with State or territorial
law by a governmental unit, or property settlement agreement; and
(ii) to the extent that such debt-
(I) is not assigned to another entity, voluntarily,
by operation of law, or otherwise; and
(II) includes a liability designated as alimony,
maintenance, or support, unless such liability is actually in the nature
of alimony, maintenance or support. [sic]; or
(B) a nonpossessory, nonpurchase-money security
interest in any-
(i) household furnishings, household goods, wearing
apparel, appliances, books, animals, crops, musical instruments, or jewelry
that are held primarily for the personal, family, or household use of
the debtor or a dependent of the debtor;
(ii) implements, professional books, or tools, of the
trade of the debtor or the trade of a dependent of the debtor; or
(iii) professionally prescribed health aids for the
debtor or a dependent of the debtor.
(2) (A) For the purposes of this subsection, a lien
shall be considered to impair an exemption to the extent that the sum
of- (i) the lien;
(ii) all other liens on the property; and
(iii) the amount of the exemption that the debtor could
claim if there were no liens on the property; exceeds the value that the
debtor's interest in the property would have in the absence of any liens.
(B) In the case of a property subject to more than
1 lien, a lien that has been avoided shall not be considered in making
the calculation under subparagraph (A) with respect to other liens.
(C) This paragraph shall not apply with respect to
a judgment arising out of a mortgage foreclosure. (3) In a case in which
State law that is applicable to the debtor-
(A) permits a person to voluntarily waive a right
to claim exemptions under subsection (d) or prohibits a debtor from claiming
exemptions under subsection (d); and
(B) either permits the debtor to claim exemptions
under State law without limitation in amount, except to the extent that
the debtor has permitted the fixing of a consensual lien on any property
or prohibits avoidance of a consensual lien on property otherwise eligible
to be claimed as exempt property;
the debtor may not avoid the fixing of a lien on an
interest of the debtor or a dependent of the debtor in property if the
lien is a nonpossessory, nonpurchase-money security interest in implements,
professional books, or tools of the trade of the debtor or a dependent
of the debtor or farm animals or crops of the debtor or a dependent of
the debtor to the extent the value of such implements, professional books,
tools of the trade, animals, and crops exceeds $5,000.
(g) Notwithstanding sections 550 and 551 of this title,
the debtor may exempt under subsection (b) of this section property that
the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553
of this title, to the extent that the debtor could have exempted such
property under subsection (b) of this section if such property had not
been transferred, if-
(1) (A) such transfer was not a voluntary transfer
of such property by the debtor; and (B) the debtor did not conceal such
property; or
(2) the debtor could have avoided such transfer
under subsection (f)(2) of this section.
(h) The debtor may avoid a transfer of property of
the debtor or recover a setoff to the extent that the debtor could have
exempted such property under subsection (g)(1) of this section if the
trustee had avoided such transfer, if-
(1) such transfer is avoidable by the trustee
under section 544, 545, 547, 548, 549, or 724(a) of this title or recoverable
by the trustee under section 553 of this title; and
(2) the trustee does not attempt to avoid such
transfer.
(i) (1) If the debtor avoids a transfer or recovers
a setoff under subsection (f) or (h) of this section, the debtor may recover
in the manner prescribed by, and subject to the limitations of, section
550 of this title, the same as if the trustee had avoided such transfer,
and may exempt any property so recovered under subsection (b) of this
section.
(2) Notwithstanding section 551 of this title, a transfer
avoided under section 544, 545, 547, 548, 549, or 724(a) of this title,
under subsection (f) or (h) of this section, or property recovered under
section 553 of this title, may be preserved for the benefit of the debtor
to the extent that the debtor may exempt such property under subsection
(g) of this section or paragraph (1) of this subsection.
(j) Notwithstanding subsections (g) and (i) of this
section, the debtor may exempt a particular kind of property under subsections
(g) and (i) of this section only to the extent
that the debtor has exempted less property in value
of such kind than that to which the debtor is entitled under subsection
(b) of this section.
(k) Property that the debtor exempts under this section
is not liable for payment of any administrative expense except-
(1) the aliquot share of the costs and expenses
of avoiding a transfer of property that the debtor exempts under subsection
(g) of this section, or of recovery of such property, that is attributable
to the value of the portion of such property exempted in relation to the
value of the property recovered; and
(2) any costs and expenses of avoiding a transfer
under subsection (f) or (h) of this section, or of recovery of property
under subsection (i)(1) of this section, that the debtor has not paid.
(l) The debtor shall file a list of property that the
debtor claims as exempt under subsection (b) of this section. If the debtor
does not file such a list, a dependent of the debtor may file such a list,
or may claim property as exempt from property of the estate on behalf
of the debtor. Unless a party in interest objects, the property claimed
as exempt on such list is exempt.
(m) Subject to the limitation in subsection (b), this
section shall apply separately with respect to each debtor in a joint
case.
§ 523. Exceptions to discharge
(a) A discharge under section 727, 1141, 1228(a), 1228(b),
or 1328(b) of this title does not discharge an individual debtor from
any debt-
(1) for a tax or a customs duty-
(A) of the kind and for the periods specified
in section 507(a)(2) or 507(a)(8) of this title, whether or not a claim
for such tax was filed or allowed;
(B) with respect to which a return, if required-
(i) was not filed; or
(ii) was filed after the date on which such return
was last due, under applicable law or under any extension, and after two
years before the date of the filing of the petition; or
(C) with respect to which the debtor made a fraudulent
return or willfully attempted in any manner to evade or defeat such tax;
(2) for money, property, services, or an extension,
renewal, or refinancing of credit, to the extent obtained by-
(A) false pretenses, a false representation,
or actual fraud, other than a statement respecting the debtor's or an
insider's financial condition;
(B) use of a statement in writing- (i) that is
materially false;
(ii) respecting the debtor's or an insider's financial
condition; (iii) on which the creditor to whom the debtor is liable for
such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published
with intent to deceive; or
(C) for purposes of subparagraph (A) of this paragraph,
consumer debts owed to a single creditor and aggregating more than $1,000
[$1,150] for "luxury goods or services" incurred by an individual debtor
on or within 60 days before the order for relief under this title, or
cash advances aggregating more than $1,000 [$1,150] that are extensions
of consumer credit under an open end credit plan obtained by an individual
debtor on or within 60 days before the order for relief under this title,
are presumed to be nondischargeable; "luxury goods or services" do not
include goods or services reasonably acquired for the support or maintenance
of the debtor or a dependent of the debtor; an extension of consumer credit
under an open end credit plan is to be defined for purposes of this subparagraph
as it is defined in the Consumer Credit Protection Act;
(3) neither listed nor scheduled under section
521(1) of this title, with the name, if known to the debtor, of the creditor
to whom such debt is owed, in time to permit-
(A) if such debt is not of a kind specified in
paragraph (2), (4), or (6) of this subsection, timely filing of a proof
of claim, unless such creditor had notice or actual knowledge of the case
in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph
(2), (4), or (6) of this subsection, timely filing of a proof of claim
and timely request for a determination of dischargeability of such debt
under one of such paragraphs, unless such creditor had notice or actual
knowledge of the case in time for such timely filing and request;
(4) for fraud or defalcation while acting in
a fiduciary capacity, embezzlement, or larceny;
(5) to a spouse, former spouse, or child of the
debtor, for alimony to, maintenance for, or support of such spouse or
child, in connection with a separation agreement, divorce decree or other
order of a court of record, determination made in accordance with State
or territorial law by a governmental unit, or property settlement agreement,
but not to the extent that-
(A) such debt is assigned to another entity,
voluntarily, by operation of law, or otherwise (other than debts assigned
pursuant to section 408(a)(3) of the Social Security Act, or any such
debt which has been assigned to the Federal Government or to a State or
any political subdivision of such State); or
(B) such debt includes a liability designated
as alimony, maintenance, or support, unless such liability is actually
in the nature of alimony, maintenance, or support;
(6) for willful and malicious injury by the debtor
to another entity or to the property of another entity;
(7) to the extent such debt is for a fine, penalty,
or forfeiture payable to and for the benefit of a governmental unit, and
is not compensation for actual pecuniary loss, other than a tax penalty-
(A) relating to a tax of a kind not specified
in paragraph (1) of this subsection; or
(B) imposed with respect to a transaction or event
that occurred before three years before the date of the filing of the
petition;
(8) for an educational benefit overpayment or
loan made, insured or guaranteed by a governmental unit, or made under
any program funded in whole or in part by a governmental unit or nonprofit
institution, or for an obligation to repay funds received as an educational
benefit, scholarship or stipend, unless excepting such debt from discharge
under this paragraph will impose an undue hardship
on the debtor and the debtor's dependents;
(9) for death or personal injury caused by the
debtor's operation of a motor vehicle if such operation was unlawful because
the debtor was intoxicated from using alcohol, a drug, or another substance;
(10) that was or could have been listed or scheduled
by the debtor in a prior case concerning the debtor under this title or
under the Bankruptcy Act in which the debtor waived discharge, or was
denied a discharge under section 727(a)(2), (3), (4), (5), (6), or (7)
of this title, or under section 14c(1), (2), (3), (4), (6), or (7) of
such Act;
(11) provided in any final judgment, unreviewable
order, or consent order or decree entered in any court of the United States
or of any State, issued by a Federal depository institutions regulatory
agency, or contained in any settlement agreement entered into by the debtor,
arising from any act of fraud or defalcation while acting in a fiduciary
capacity committed with respect to any depository institution or insured
credit union;
(12) for malicious or reckless failure to fulfill
any commitment by the debtor to a Federal depository institutions regulatory
agency to maintain the capital of an insured depository institution, except
that this paragraph shall not extend any such commitment which would otherwise
be terminated due to any act of such agency;; [sic] or
(13) for any payment of an order of restitution
issued under title 18, United States Code;
(14) incurred to pay a tax to the United States
that would be nondischargeable pursuant to paragraph (1);
(15) not of the kind described in paragraph (5)
that is incurred by the debtor in the course of a divorce or separation
or in connection with a separation agreement, divorce decree or other
order of a court of record, a determination made in accordance with State
or territorial law by a governmental unit unless-
(A) the debtor does not have the ability to pay such
debt from income or property of the debtor not reasonably necessary to
be expended for the maintenance or support of the debtor or a dependent
of the debtor and, if the debtor is engaged in a business, for the payment
of expenditures necessary for the continuation, preservation, and operation
of such business; or
(B) discharging such debt would result in a benefit
to the debtor that outweighs the detrimental consequences to a spouse,
former spouse, or child of the debtor;
(16) for a fee or assessment that becomes due
and payable after the order for relief to a membership association with
respect to the debtor's interest in a dwelling unit that has condominium
ownership or in a share of a cooperative housing corporation, but only
if such fee or assessment is payable for a period during which-
(A) the debtor physically occupied a dwelling
unit in the condominium or cooperative project; or
(B) the debtor rented the dwelling unit to a tenant
and received payments from the tenant for such period,
but nothing in this paragraph shall except from discharge
the debt of a debtor for a membership association fee or assessment for
a period arising before entry of the order for relief in a pending or
subsequent bankruptcy case;
(17) for a fee imposed by a court for the filing
of a case, motion, complaint, or appeal, or for other costs and expenses
assessed with respect to such filing, regardless of an
assertion of poverty by the debtor under section 1915(b)
or (f) of title 28, or the debtor's status as a prisoner, as defined in
section 1915(h) of title 28; or (18) owed under State law to a State or
municipality that is-
(A) in the nature of support, and
(B) enforceable under part D of title IV of the
Social Security Act (42 U.S.C. 601 et seq.).
(b) Notwithstanding subsection (a) of this section,
a debt that was excepted from discharge under subsection (a)(1), (a)(3),
or (a)(8) of this section, under section 17a(1), 17a(3), or 17a(5) of
the Bankruptcy Act, under section 439A of the Higher Education Act of
1965, or under section 733(g) of the Public Health Service Act in a prior
case concerning the debtor under this title, or under the Bankruptcy Act,
is dischargeable in a case under this title unless, by the terms of subsection
(a) of this section, such debt is not dischargeable in the case under
this title.
(c) (1) Except as provided in subsection (a)(3)(B)
of this section, the debtor shall be discharged from a debt of a kind
specified in paragraph (2), (4), (6), or (15) of subsection (a) of this
section, unless, on request of the creditor to whom such debt is owed,
and after notice and a hearing, the court determines such debt to be excepted
from discharge under paragraph (2), (4), (6), or (15), as the case may
be, of subsection (a) of this section.
(2) Paragraph (1) shall not apply in the case of a
Federal depository institutions regulatory agency seeking, in its capacity
as conservator, receiver, or liquidating agent for an insured depository
institution, to recover a debt described in subsection (a)(2), (a)(4),
(a)(6), or (a)(11) owed to such institution by an institution-affiliated
party unless the receiver, conservator, or liquidating agent was appointed
in time to reasonably comply, or for a Federal depository institutions
regulatory agency acting in its corporate capacity as a successor to such
receiver, conservator, or liquidating agent to reasonably comply, with
subsection (a)(3)(B) as a creditor of such institution-affiliated party
with respect to such debt.
(d) If a creditor requests a determination of
dischargeability of a consumer debt under subsection (a)(2) of this section,
and such debt is discharged, the court shall grant judgment in favor of
the debtor for the costs of, and a reasonable attorney's fee for, the
proceeding if the court finds that the position of the creditor was not
substantially justified, except that the court shall not award such costs
and fees if special circumstances would make the award unjust.
(e) Any institution-affiliated party of a insured
depository institution shall be considered to be acting in a fiduciary
capacity with respect to the purposes of subsection (a)(4) or (11).
§ 524. Effect of discharge
(a) A discharge in a case under this title-
(1) voids any judgment at any time obtained, to the
extent that such judgment is a determination of the personal liability
of the debtor with respect to any debt discharged
under section 727, 944, 1141, 1228, or 1328 of this
title, whether or not discharge of such debt is waived;
(2) operates as an injunction against the commencement
or continuation of an action, the employment of process, or an act, to
collect, recover or offset any such debt as a personal liability of the
debtor, whether or not discharge of such debt is waived; and
(3) operates as an injunction against the commencement
or continuation of an action, the employment of process, or an act, to
collect or recover from, or offset against, property of the debtor of
the kind specified in section 541(a)(2) of this title that is acquired
after the commencement of the case, on account of any allowable community
claim, except a community claim that is excepted from discharge under
section 523, 1228(a)(1), or 1328(a)(1) of this title, or that would be
so excepted, determined in accordance with the provisions of sections
523(c) and 523(d) of this title, in a case concerning the debtor's spouse
commenced on the date of the filing of the petition in the case concerning
the debtor, whether or not discharge of the debt based on such community
claim is waived.
(b) Subsection (a)(3) of this section does not
apply if-
(1) (A) the debtor's spouse is a debtor in a
case under this title, or a bankrupt or a debtor in a case under the Bankruptcy
Act, commenced within six years of the date of the filing of the petition
in the case concerning the debtor; and
(B) the court does not grant the debtor's spouse a
discharge in such case concerning the debtor's spouse; or
(2) (A) the court would not grant the debtor's
spouse a discharge in a case under chapter 7 of this title concerning
such spouse commenced on the date of the filing of the petition in the
case concerning the debtor; and
(B) a determination that the court would not so grant
such discharge is made by the bankruptcy court within the time and in
the manner provided for a determination under section 727 of this title
of whether a debtor is granted a discharge.
(c) An agreement between a holder of a claim
and the debtor, the consideration for which, in whole or in part, is based
on a debt that is dischargeable in a case under this title is enforceable
only to any extent enforceable under applicable nonbankruptcy law, whether
or not discharge of such debt is waived, only if-
(1) such agreement was made before the granting
of the discharge under section 727, 1141, 1228, or 1328 of this title;
(2) (A) such agreement contains a clear and conspicuous
statement which advises the debtor that the agreement may be rescinded
at any time prior to discharge or within sixty days after such agreement
is filed with the court, whichever occurs later, by giving notice of rescission
to the holder of such claim; and
(B) such agreement contains a clear and conspicuous
statement which advises the debtor that such agreement is not required
under this title, under nonbankruptcy law, or under any agreement not
in accordance with the provisions of this subsection;
(3) such agreement has been filed with the court
and, if applicable, accompanied by a declaration or an affidavit of the
attorney that represented the debtor during the course of negotiating
an agreement under this subsection, which states that-
(A) such agreement represents a fully informed
and voluntary agreement by the debtor;
(B) such agreement does not impose an undue hardship
on the debtor or a dependent of the debtor; and
(C) the attorney fully advised the debtor of the
legal effect and consequences of- (i) an agreement of the kind specified
in this subsection; and
(ii) any default under such an agreement;
(4) the debtor has not rescinded such agreement
at any time prior to discharge or within sixty days after such agreement
is filed with the court, whichever occurs later, by giving notice of rescission
to the holder of such claim;
(5) the provisions of subsection (d) of this section
have been complied with; and
(6) (A) in a case concerning an individual who
was not represented by an attorney during the course of negotiating an
agreement under this subsection, the court approves such agreement as-
(i) not imposing an undue hardship on the debtor or
a dependent of the debtor; and
(ii) in the best interest of the debtor.
(B) Subparagraph (A) shall not apply to the extent
that such debt is a consumer debt secured by real property.
(d) In a case concerning an individual, when the
court has determined whether to grant or not to grant a discharge under
section 727, 1141, 1228, or 1328 of this title, the court may hold a hearing
at which the debtor shall appear in person. At any such hearing, the court
shall inform the debtor that a discharge has been granted or the reason
why a discharge has not been granted. If a discharge has been granted
and if the debtor desires to make an agreement of the kind specified in
subsection (c) of this section and was not represented by an attorney
during the course of negotiating such agreement, then the court shall
hold a hearing at which the debtor shall appear in person and at such
hearing the court shall-
(1) inform the debtor-
(A) that such an agreement is not required under
this title, under nonbankruptcy law, or under any agreement not made in
accordance with the provisions of subsection (c) of this section; and
(B) of the legal effect and consequences of-
(i) an agreement of the kind specified in subsection
(c) of this section; and (ii) a default under such an agreement; and
(2) determine whether the agreement that the
debtor desires to make complies with the requirements of subsection (c)(6)
of this section, if the consideration for such agreement is based in whole
or in part on a consumer debt that is not secured by real property of
the debtor.
(e) Except as provided in subsection (a)(3) of
this section, discharge of a debt of the debtor does not affect the liability
of any other entity on, or the property of any other entity for, such
debt.
(f) Nothing contained in subsection (c) or (d)
of this section prevents a debtor from voluntarily repaying any debt.
(g) (1) (A) After notice and hearing, a court that
enters an order confirming a plan of reorganization under chapter 11 may
issue, in connection with such order, an injunction in accordance with
this subsection to supplement the injunctive effect of a discharge under
this section.
(B) An injunction may be issued under subparagraph
(A) to enjoin entities from taking legal action for the purpose of directly
or indirectly collecting, recovering, or receiving payment or recovery
with respect to any claim or demand that, under a plan of reorganization,
is to be paid in whole or in part by a trust described in paragraph (2)(B)(i),
except such legal actions as are expressly allowed by the injunction,
the confirmation order, or the plan of reorganization.
(2) (A) Subject to subsection (h), if the requirements
of subparagraph (B) are met at the time an injunction described in paragraph
(1) is entered, then after entry of such injunction, any proceeding that
involves the validity, application, construction, or modification of such
injunction, or of this subsection with respect to such injunction, may
be commenced only in the district court in which such injunction was entered,
and such court shall have exclusive jurisdiction over any such proceeding
without regard to the amount in controversy.
(B) The requirements of this subparagraph are that-
(i) the injunction is to be implemented in connection
with a trust that, pursuant to the plan of reorganization-
(I) is to assume the liabilities of a debtor which
at the time of entry of the order for relief has been named as a defendant
in personal injury, wrongful death, or property-damage actions seeking
recovery for damages allegedly caused by the presence of, or exposure
to, asbestos or asbestos- containing products;
(II) is to be funded in whole or in part by the
securities of 1 or more debtors involved in such plan and by the obligation
of such debtor or debtors to make future payments, including dividends;
(III) is to own, or by the exercise of rights
granted under such plan would be entitled to own if specified contingencies
occur, a majority of the voting shares of-
(aa) each such debtor;
(bb) the parent corporation of each such debtor; or
(cc) a subsidiary of each such debtor that is also
a debtor; and
(IV) is to use its assets or income to pay claims
and demands; and (ii) subject to subsection (h), the court determines
that-
(I) the debtor is likely to be subject to substantial
future demands for payment arising out of the same or similar conduct
or events that gave rise to the claims that are addressed by the injunction;
(II) the actual amounts, numbers, and timing
of such future demands cannot be determined;
(III) pursuit of such demands outside the procedures
prescribed by such plan is likely to threaten the plan's purpose to deal
equitably with claims and future demands;
(IV) as part of the process of seeking confirmation
of such plan-
(aa) the terms of the injunction proposed to be issued
under paragraph (1)(A), including any provisions barring actions against
third parties pursuant to paragraph (4)(A), are set out in such plan and
in any disclosure statement supporting the plan; and
(bb) a separate class or classes of the claimants whose
claims are to be
addressed by a trust described in clause (i) is established
and votes, by at
least 75 percent of those voting, in favor of the plan;
and
(V) subject to subsection (h), pursuant to court orders
or otherwise, the
trust will operate through mechanisms such as structured,
periodic, or
supplemental payments, pro rata distributions, matrices,
or periodic review of
estimates of the numbers and values of present claims
and future demands, or
other comparable mechanisms, that provide reasonable
assurance that the trust
will value, and be in a financial position to pay,
present claims and future
demands that involve similar claims in substantially
the same manner.
(3) (A) If the requirements of paragraph (2)(B)
are met and the order confirming the plan of reorganization was issued
or affirmed by the district court that has jurisdiction over the reorganization
case, then after the time for appeal of the order that issues or affirms
the plan-
(i) the injunction shall be valid and enforceable and
may not be revoked or modified by any court except through appeal in accordance
with paragraph (6);
(ii) no entity that pursuant to such plan or thereafter
becomes a direct or indirect transferee of, or successor to any assets
of, a debtor or trust that is the subject of the injunction shall be liable
with respect to any claim or demand made against such entity by reason
of its becoming such a transferee or successor; and
(iii) no entity that pursuant to such plan or thereafter
makes a loan to such a debtor or trust or to such a successor or transferee
shall, by reason of making the loan, be liable with respect to any claim
or demand made against such entity, nor shall any pledge of assets made
in connection with such a loan be upset or impaired for that reason; (B)
Subparagraph (A) shall not be construed to-
(i) imply that an entity described in subparagraph
(A)(ii) or (iii) would, if this paragraph were not applicable, necessarily
be liable to any entity by reason of any of the acts described in subparagraph
(A);
(ii) relieve any such entity of the duty to comply
with, or of liability under, any Federal or State law regarding the making
of a fraudulent conveyance in a transaction described in subparagraph
(A)(ii) or (iii); or
(iii) relieve a debtor of the debtor's obligation to
comply with the terms of the plan of reorganization, or affect the power
of the court to exercise its authority under sections 1141 and 1142 to
compel the debtor to do so.
(4) (A)(i) Subject to subparagraph (B), an injunction
described in paragraph (1) shall be valid and enforceable against all
entities that it addresses.
(ii) Notwithstanding the provisions of section 524(e),
such an injunction may bar any action directed against a third party who
is identifiable from the terms of such injunction (by name or as part
of an identifiable group) and is alleged to be directly or indirectly
liable for the conduct of, claims against, or demands on the debtor to
the extent such alleged liability of such third party arises by reason
of-
(I) the third party's ownership of a financial
interest in the debtor, a past or present affiliate of the debtor, or
a predecessor in interest of the debtor;
(II) the third party's involvement in the management
of the debtor or a predecessor in interest of the debtor, or service as
an officer, director or employee of the debtor or a related party;
(III) the third party's provision of insurance
to the debtor or a related party; or
(IV) the third party's involvement in a transaction
changing the corporate structure, or in a loan or other financial transaction
affecting the financial condition, of the debtor or a related party, including
but not limited to-
(aa) involvement in providing financing (debt or equity),
or advice to an entity involved in such a transaction; or
(bb) acquiring or selling a financial interest in an
entity as part of such a transaction, (iii) As used in this subparagraph,
the term "related party" means-
(I) a past or present affiliate of the debtor;
(II) a predecessor in interest of the debtor;
or
(III) any entity that owned a financial interest
in- (aa) the debtor;
(bb) a past or present affiliate of the debtor; or
(cc) a predecessor in interest of the debtor.
(B) Subject to subsection (h), if, under a plan of
reorganization, a kind of demand described in such plan is to be paid
in whole or in part by a trust described in paragraph (2)(B)(i) in connection
with which an injunction described in paragraph (1) is to be implemented,
then such injunction shall be valid and enforceable with respect to a
demand of such kind made, after such plan is confirmed, against the debtor
or debtors involved, or against a third party described in subparagraph
(A)(ii), if-
(i) as part of the proceedings leading to issuance
of such injunction, the court appoints a legal representative for the
purpose of protecting the rights of persons that might subsequently assert
demands of such kind, and
(ii) the court determines, before entering the order
confirming such plan, that identifying such debtor or debtors, or such
third party (by name or as part of an identifiable group), in such injunction
with respect to such demands for purposes of this subparagraph is fair
and equitable with respect to the persons that might subsequently assert
such demands, in light of the benefits provided, or to be provided, to
such trust on behalf of such debtor or debtors or such third party.
(5) In this subsection, the term "demand" means
a demand for payment, present or future, that-
(A) was not a claim during the proceedings leading
to the confirmation of a plan of reorganization;
(B) arises out of the same or similar conduct
or events that gave rise to the claims addressed by the injunction issued
under paragraph (1); and
(C) pursuant to the plan, is to be paid by a trust
described in paragraph (2)(B)(i).
(6) Paragraph (3)(A)(i) does not bar an action
taken by or at the direction of an appellate court on appeal of an injunction
issued under paragraph (1) or of the order of confirmation that relates
to the injunction.
(7) This subsection does not affect the operation of
section 1144 or the power of the district court to refer a proceeding
under section 157 of title 28 or any reference of a proceeding made prior
to the date of the enactment of this subsection.
(h) Application to existing injunctions.-For purposes
of subsection (g)
(1) subject to paragraph (2), if an injunction
of the kind described in subsection (g)(1)(B) was issued before the date
of the enactment of this Act, as part of a plan of reorganization confirmed
by an order entered before such date, then the injunction shall be considered
to meet the requirements of subsection (g)(2)(B) for purposes of subsection
(g)(2)(A), and to satisfy subsection (g)(4)(A)(ii), if-
(A) the court determined at the time the plan
was confirmed that the plan was fair and equitable in accordance with
the requirements of section 1129(b);
(B) as part of the proceedings leading to issuance
of such injunction and confirmation of such plan, the court had appointed
a legal representative for the purpose of protecting the rights of persons
that might subsequently assert demands described in subsection (g)(4)(B)
with respect to such plan; and
(C) such legal representative did not object
to confirmation of such plan or issuance of such injunction; and
(2) for purposes of paragraph (1), if a trust
described in subsection (g)(2)(B)(i) is subject to a court order on the
date of the enactment of this Act staying such trust from settling or
paying further claims-
(A) the requirements of subsection (g)(2)(B)(ii)(V)
shall not apply with respect to such trust until such stay is lifted or
dissolved; and
(B) if such trust meets such requirements on
the date such stay is lifted or dissolved, such trust shall be considered
to have met such requirements continuously from the date of the enactment
of this Act.
§ 525. Protection against discriminatory treatment
(a) Except as provided in the Perishable Agricultural
Commodities Act, 1930, the Packers and Stockyards Act, 1921, and section
1 of the Act entitled "An Act making appropriations for the Department
of Agriculture for the fiscal year ending June 30, 1944, and for other
purposes," approved July 12, 1943, a governmental unit may not deny, revoke,
suspend, or refuse to renew a license, permit, charter, franchise, or
other similar grant to, condition such a grant to, discriminate with respect
to such a grant against, deny employment to, terminate the employment
of, or discriminate with respect to employment against, a person that
is or has been a debtor under this title or a bankrupt or a debtor under
the Bankruptcy Act, or another person with whom such bankrupt or debtor
has been associated, solely because such bankrupt or debtor is or has
been a debtor under this title or a bankrupt or debtor under the Bankruptcy
Act, has been insolvent before the commencement of the case under this
title, or during the case but before the debtor is granted or denied a
discharge, or has not paid a debt that is dischargeable in the case under
this title or that was discharged under the Bankruptcy Act.
(b) No private employer may terminate the employment
of, or discriminate with respect to employment against, an individual
who is or has been a debtor under this title, a debtor
or bankrupt under the Bankruptcy Act, or an individual
associated with such debtor or bankrupt, solely because such debtor or
bankrupt-
(1) is or has been a debtor under this title
or a debtor or bankrupt under the Bankruptcy Act;
(2) has been insolvent before the commencement
of a case under this title or during the case but before the grant or
denial of a discharge; or
(3) has not paid a debt that is dischargeable
in a case under this title or that was discharged under the Bankruptcy
Act.
(c) (1) A governmental unit that operates a student
grant or loan program and a person engaged in a business that includes
the making of loans guaranteed or insured under a student loan program
may not deny a grant, loan, loan guarantee, or loan insurance to a person
that is or has been a debtor under this title or a bankrupt or debtor
under the Bankruptcy Act, or another person with whom the debtor or bankrupt
has been associated, because the debtor or bankrupt is or has been a debtor
under this title or a bankrupt or debtor under the Bankruptcy Act, has
been insolvent before the commencement of a case under this title or during
the pendency of the case but before the debtor is granted or denied a
discharge, or has not paid a debt that is dischargeable in the case under
this title or that was discharged under the Bankruptcy Act.
(2) In this section, "student loan program" means the
program operated under part B, D, or E of title IV of the Higher Education
Act of 1965 or a similar program operated under State or local law.
SUBCHAPTER III - THE ESTATE
§ 541. Property of the estate
(a) The commencement of a case under section 301, 302,
or 303 of this title creates an estate. Such estate is comprised of all
the following property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and
(c)(2) of this section, all legal or equitable interests of the debtor
in property as of the commencement of the case.
(2) All interests of the debtor and the debtor's
spouse in community property as of the commencement of the case that is-
(A) under the sole, equal, or joint management
and control of the debtor; or
(B) liable for an allowable claim against the
debtor, or for both an allowable claim against the debtor and an allowable
claim against the debtor's spouse, to the extent that such interest is
so liable.
(3) Any interest in property that the trustee
recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this title.
(4) Any interest in property preserved for the
benefit of or ordered transferred to the estate under section 510(c) or
551 of this title.
(5) Any interest in property that would have
been property of the estate if such interest had been an interest of the
debtor on the date of the filing of the petition, and that the debtor
acquires or becomes entitled to acquire within 180 days after such date-
(A) by bequest, devise, or inheritance;
(B) as a result of a property settlement agreement
with the debtor's spouse, or of an interlocutory or final divorce decree;
or
(C) as a beneficiary of a life insurance policy
or of a death benefit plan.
(6) Proceeds, product, offspring, rents, or profits
of or from property of the estate, except such as are earnings from services
performed by an individual debtor after the commencement of the case.
(7) Any interest in property that the estate
acquires after the commencement of the case.
(b) Property of the estate does not include-
(1) any power that the debtor may exercise solely
for the benefit of an entity other than the debtor;
(2) any interest of the debtor as a lessee under
a lease of nonresidential real property that has terminated at the expiration
of the stated term of such lease before the commencement of the case under
this title, and ceases to include any interest of the debtor as a lessee
under a lease of nonresidential real property that has terminated at the
expiration of the stated term of such lease during the case;
(3) any eligibility of the debtor to participate
in programs authorized under the Higher Education Act of 1965 (20 U.S.C.
1001 et seq.; 42 U.S.C. 2751 et seq.), or any accreditation status or
State licensure of the debtor as an educational institution;
(4) any interest of the debtor in liquid or gaseous
hydrocarbons to the extent that-
(A) (i) the debtor has transferred or has agreed
to transfer such interest pursuant to a farmout agreement or any written
agreement directly related to a farmout agreement; and
(ii) but for the operation of this paragraph, the estate
could include the interest referred to in clause (i) only by virtue of
section 365 or 544(a)(3) of this title; or
(B) (i) the debtor has transferred such interest
pursuant to a written conveyance of a production payment to an entity
that does not participate in the operation of the property from which
such production payment is transferred; and
(ii) but for the operation of this paragraph, the estate
could include the interest referred to in clause (i) only by virtue of
section 542 of this title; or
(5) any interest in cash or cash equivalents
that constitute proceeds of a sale by the debtor of a money order that
is made-
(A) on or after the date that is 14 days prior
to the date on which the petition is filed; and
(B) under an agreement with a money order issuer
that prohibits the commingling of such proceeds with property of the debtor
(notwithstanding that, contrary to the agreement, the proceeds may have
been commingled with property of the debtor), unless the money order issuer
had not taken action, prior to the filing of the petition, to require
compliance with the prohibition.
Paragraph (4) shall not be construed to exclude from
the estate any consideration the debtor retains, receives, or is entitled
to receive for transferring an interest in liquid or gaseous hydrocarbons
pursuant to a farmout agreement.
(c) (1) Except as provided in paragraph (2) of
this subsection, an interest of the debtor in property becomes property
of the estate under subsection (a)(1), (a)(2), or (a)(5) of this
section notwithstanding any provision in an agreement,
transfer instrument, or applicable nonbankruptcy law-
(A) that restricts or conditions transfer of such
interest by the debtor; or
(B) that is conditioned on the insolvency or financial
condition of the debtor, on the commencement of a case under this title,
or on the appointment of or taking possession by a trustee in a case under
this title or a custodian before such commencement, and that effects or
gives an option to effect a forfeiture, modification, or termination of
the debtor's interest in property.
(2) A restriction on the transfer of a beneficial interest
of the debtor in a trust that is enforceable under applicable nonbankruptcy
law is enforceable in a case under this title.
(d) Property in which the debtor holds, as of the commencement
of the case, only legal title and not an equitable interest, such as a
mortgage secured by real property, or an interest in such a mortgage,
sold by the debtor but as to which the debtor retains legal title to service
or supervise the servicing of such mortgage or interest, becomes property
of the estate under subsection (a)(1) or (2) of this section only to the
extent of the debtor's legal title to such property, but not to the extent
of any equitable interest in such property that the debtor does not hold.
§ 542. Turnover of property to the estate
(a) Except as provided in subsection (c) or (d)
of this section, an entity, other than a custodian, in possession, custody,
or control, during the case, of property that the trustee may use, sell,
or lease under section 363 of this title, or that the debtor may exempt
under section 522 of this title, shall deliver to the trustee, and account
for, such property or the value of such property, unless such property
is of inconsequential value or benefit to the estate.
(b) Except as provided in subsection (c) or (d)
of this section, an entity that owes a debt that is property of the estate
and that is matured, payable on demand, or payable on order, shall pay
such debt to, or on the order of, the trustee, except to the extent that
such debt may be offset under section 553 of this title against a claim
against the debtor.
(c) Except as provided in section 362(a)(7) of
this title, an entity that has neither actual notice nor actual knowledge
of the commencement of the case concerning the debtor may transfer property
of the estate, or pay a debt owing to the debtor, in good faith and other
than in the manner specified in subsection (d) of this section, to an
entity other than the trustee, with the same effect as to the entity making
such transfer or payment as if the case under this title concerning the
debtor had not been commenced.
(d) A life insurance company may transfer property
of the estate or property of the debtor to such company in good faith,
with the same effect with respect to such company as if the case under
this title concerning the debtor had not been commenced, if such transfer
is to pay a premium or to carry out a nonforfeiture insurance option,
and is required to be made automatically, under a life insurance contract
with such company that was entered into before the date of the filing
of the petition and that is property of the estate.
(e) Subject to any applicable privilege, after notice
and a hearing, the court may order an attorney, accountant, or other person
that holds recorded information, including books, documents, records,
and papers, relating to the debtor's property or financial affairs, to
turn over or disclose such recorded information to the trustee.
§ 543. Turnover of property by a custodian
(a) A custodian with knowledge of the commencement
of a case under this title concerning the debtor may not make any disbursement
from, or take any action in the administration of, property of the debtor,
proceeds, product, offspring, rents, or profits of such property, or property
of the estate, in the possession, custody, or control of such custodian,
except such action as is necessary to preserve such property.
(b) A custodian shall-
(1) deliver to the trustee any property of the
debtor held by or transferred to such custodian, or proceeds, product,
offspring, rents, or profits of such property, that is in such custodian's
possession, custody, or control on the date that such custodian acquires
knowledge of the commencement of the case; and
(2) file an accounting of any property of the
debtor, or proceeds, product, offspring, rents, or profits of such property,
that, at any time, came into the possession, custody, or control of such
custodian.
(c) The court, after notice and a hearing, shall-
(1) protect all entities to which a custodian
has become obligated with respect to such property or proceeds, product,
offspring, rents, or profits of such property;
(2) provide for the payment of reasonable compensation
for services rendered and costs and expenses incurred by such custodian;
and
(3) surcharge such custodian, other than an assignee
for the benefit of the debtor's creditors that was appointed or took possession
more than 120 days before the date of the filing of the petition, for
any improper or excessive disbursement, other than a disbursement that
has been made in accordance with applicable law or that has been approved,
after notice and a hearing, by a court of competent jurisdiction before
the commencement of the case under this title.
(d) After notice and hearing, the bankruptcy court-
(1) may excuse compliance with subsection (a),
(b), or (c) of this section if the interests of creditors and, if the
debtor is not insolvent, of equity security holders would be better served
by permitting a custodian to continue in possession, custody, or control
of such property, and
(2) shall excuse compliance with subsections
(a) and (b)(1) of this section if the custodian is an assignee for the
benefit of the debtor's creditors that was appointed or took possession
more than 120 days before the date of the filing of the petition, unless
compliance with such subsections is necessary to prevent fraud or injustice.
§ 544. Trustee as lien creditor and as successor to
certain creditors and purchasers
(a) The trustee shall have, as of the commencement
of the case, and without regard to any knowledge of the trustee or of
any creditor, the rights and powers of, or may avoid any transfer of property
of the debtor or any obligation incurred by the debtor that is voidable
by-
(1) a creditor that extends credit to the debtor
at the time of the commencement of the case, and that obtains, at such
time and with respect to such credit, a judicial lien on all property
on which a creditor on a simple contract could have obtained such a judicial
lien, whether or not such a creditor exists;
(2) a creditor that extends credit to the debtor
at the time of the commencement of the case, and obtains, at such time
and with respect to such credit, an execution against the debtor that
is returned unsatisfied at such time, whether or not such a creditor exists;
or
(3) a bona fide purchaser of real property, other
than fixtures, from the debtor, against whom applicable law permits such
transfer to be perfected, that obtains the status of a bona fide purchaser
and has perfected such transfer at the time of the commencement of the
case, whether or not such a purchaser exists.
(b) (1) Except as provided in paragraph (2),
the trustee may avoid any transfer of an interest of the debtor in property
or any obligation incurred by the debtor that is voidable under applicable
law by a creditor holding an unsecured claim that is allowable under section
502 of this title or that is not allowable only under section 502(e) of
this title.
(2) Paragraph (1) shall not apply to a transfer of
a charitable contribution (as that term is defined in section 548(d)(3))
that is not covered under section 548(a)(1)(B), by reason of section 548(a)(2).
Any claim by any person to recover a transferred contribution described
in the preceding sentence under Federal or State law in a Federal or State
court shall be preempted by the commencement of the case.
§ 545. Statutory liens
The trustee may avoid the fixing of a statutory lien
on property of the debtor to the extent that such lien-
(1) first becomes effective against the debtor-
(A) when a case under this title concerning the
debtor is commenced;
(B) when an insolvency proceeding other than
under this title concerning the debtor is commenced;
(C) when a custodian is appointed or authorized
to take or takes possession;
(D) when the debtor becomes insolvent;
(E) when the debtor's financial condition fails
to meet a specified standard; or
(F) at the time of an execution against property
of the debtor levied at the instance of an entity other than the holder
of such statutory lien;
(2) is not perfected or enforceable at the time
of the commencement of the case against a bona fide purchaser that purchases
such property at the time of the commencement of the case, whether or
not such a purchaser exists;
(3) is for rent; or
(4) is a lien of distress for rent.
§ 546. Limitations on avoiding powers
(a) An action or proceeding under section 544,
545, 547, 548, or 553 of this title may not be commenced after the earlier
of-
(1) the later of-
(A) 2 years after the entry of the order for relief;
or
(B) 1 year after the appointment or election
of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this
title if such appointment or such election occurs before the expiration
of the period specified in subparagraph (A); or
(2) the time the case is closed or dismissed.
(b) (1) The rights and powers of a trustee under
sections 544, 545, and 549 of this title are subject to any generally
applicable law that-
(A) permits perfection of an interest in property
to be effective against an entity that acquires rights in such property
before the date of perfection; or
(B) provides for the maintenance or continuation
of perfection of an interest in property to be effective against an entity
that acquires rights in such property before the date on which action
is taken to effect such maintenance or continuation.
(2) If-
(A) a law described in paragraph (1) requires
seizure of such property or commencement of an action to accomplish such
perfection, or maintenance or continuation of perfection of an interest
in property; and
(B) such property has not been seized or such
an action has not been commenced before the date of the filing of the
petition; such interest in such property shall be perfected, or perfection
of such interest shall be maintained or continued, by giving notice within
the time fixed by such law for such seizure or such commencement.
(c) Except as provided in subsection (d) of this
section, the rights and powers of a trustee under sections 544(a), 545,
547, and 549 of this title are subject to any statutory or common-law
right of a seller of goods that has sold goods to the debtor, in the ordinary
course of such seller's business, to reclaim such goods if the debtor
has received such goods while insolvent, but-
(1) such a seller may not reclaim any such goods
unless such seller demands in writing -reclamation of such goods-
(A) before 10 days after receipt of such goods
by the debtor; or
(B) if such 10-day period expires after the commencement
of the case, before 20 days after receipt of such goods by the debtor;
and
(2) the court may deny reclamation to a seller
with such a right of reclamation that has made such a demand only if the
court-
(A) grants the claim of such a seller priority
as a claim of a kind specified in section 503(b) of this title; or
(B) secures such claim by a lien.
(d) In the case of a seller who is a producer
of grain sold to a grain storage facility, owned or operated by the debtor,
in the ordinary course of such seller's business (as such terms are defined
in section 557 of this title) or in the case of a United States fisherman
who has caught fish sold to a fish processing facility owned or operated
by the debtor in the
ordinary course of such fisherman's business, the rights
and powers of the trustee under sections 544(a), 545, 547, and 549 of
this title are subject to any statutory or common law right of such producer
or fisherman to reclaim such grain or fish if the debtor has received
such grain or fish while insolvent, but-
(1) such producer or fisherman may not reclaim
any grain or fish unless such producer or fisherman demands, in writing,
reclamation of such grain or fish before ten days after receipt thereof
by the debtor; and
(2) the court may deny reclamation to such a
producer or fisherman with a right of reclamation that has made such a
demand only if the court secures such claim by a lien.
(e) Notwithstanding sections 544, 545, 547, 548(a)(1)(B),
and 548(b) of this title, the trustee may not avoid a transfer that is
a margin payment, as defined in section 101, 741, or 761 of this title,
or settlement payment, as defined in section 101 or 741 of this title,
made by or to a commodity broker, forward contract merchant, stockbroker,
financial institution, or securities clearing agency, that is made before
the commencement of the case, except under section 548(a)(1)(A) of this
title.
(f) Notwithstanding sections 544, 545, 547, 548(a)(1)(B),
and 548(b) of this title, the trustee may not avoid a transfer that is
a margin payment, as defined in section 741 or 761 of this title, or settlement
payment, as defined in section 741 of this title, made by or to a repo
participant, in connection with a repurchase agreement and that is made
before the commencement of the case, except under section 548(a)(1)(A)
of this title.
(g) [sic] Notwithstanding sections 544,
545, 547, 548(a)(1)(B) and 548(b) of this title, the trustee may not avoid
a transfer under a swap agreement, made by or to a swap participant, in
connection with a swap agreement and that is made before the commencement
of the case, except under section 548(a)(1)(A) of this title.
(g) [sic] Notwithstanding the rights and powers
of a trustee under sections 544(a), 545, 547, 549, and 553, if the court
determines on a motion by the trustee made not later than 120 days after
the date of the order for relief in a case under chapter 11 of this title
and after notice and a hearing, that a return is in the best interests
of the estate, the debtor, with the consent of a creditor, may return
goods shipped to the debtor by the creditor before the commencement of
the case, and the creditor may offset the purchase price of such goods
against any claim of the creditor against the debtor that arose before
the commencement of the case.
§ 547. Preferences
(a) In this section-
(1) "inventory" means personal property leased
or furnished, held for sale or lease, or to be furnished under a contract
for service, raw materials, work in process, or materials used or consumed
in a business, including farm products such as crops or livestock, held
for sale or lease;
(2) "new value" means money or money's worth
in goods, services, or new credit, or release by a transferee of property
previously transferred to such transferee in a transaction that is neither
void nor voidable by the debtor or the trustee under any
applicable law, including proceeds of such property,
but does not include an obligation substituted for an existing obligation;
(3) "receivable" means right to payment, whether
or not such right has been earned by performance; and
(4) a debt for a tax is incurred on the day when
such tax is last payable without penalty, including any extension.
(b) Except as provided in subsection (c) of this
section, the trustee may avoid any transfer of an interest of the debtor
in property-
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed
by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made-
(A) on or within 90 days before the date of the
filing of the petition; or
(B) between ninety days and one year before the
date of the filing of the petition, if such creditor at the time of such
transfer was an insider; and
(5) that enables such creditor to receive more
than such creditor would receive if-
(A) the case were a case under chapter 7 of this
title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt
to the extent provided by the provisions of this title.
(c) The trustee may not avoid under this section
a transfer-
(1) to the extent that such transfer was-
(A) intended by the debtor and the creditor to
or for whose benefit such transfer was made to be a contemporaneous exchange
for new value given to the debtor; and
(B) in fact a substantially contemporaneous exchange;
(2) to the extent that such transfer was-
(A) in payment of a debt incurred by the debtor
in the ordinary course of business or financial affairs of the debtor
and the transferee;
(B) made in the ordinary course of business or
financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms;
(3) that creates a security interest in property
acquired by the debtor-
(A) to the extent such security interest secures
new value that was-
(i) given at or after the signing of a security agreement
that contains a description of such property as collateral;
(ii) given by or on behalf of the secured party under
such agreement; (iii) given to enable the debtor to acquire such property;
and (iv) in fact used by the debtor to acquire such property; and
(B) that is perfected on or before 20 days after
the debtor receives possession of such property;
(4) to or for the benefit of a creditor, to the
extent that, after such transfer, such creditor gave new value to or for
the benefit of the debtor-
(A) not secured by an otherwise unavoidable security
interest; and
(B) on account of which new value the debtor did not
make an otherwise unavoidable transfer to or for the benefit of such creditor;
(5) that creates a perfected security interest
in inventory or a receivable or the proceeds of either, except to the
extent that the aggregate of all such transfers to the transferee caused
a reduction, as of the date of the filing of the petition and to the prejudice
of other creditors holding unsecured claims, of any amount by which the
debt secured by such security interest exceeded the value of all security
interests for such debt on the later of-
(A)(i) with respect to a transfer to which subsection
(b)(4)(A) of this section applies, 90 days before the date of the filing
of the petition; or
(ii) with respect to a transfer to which subsection
(b)(4)(B) of this section applies, one year before the date of the filing
of the petition; or
(B) the date on which new value was first given under
the security agreement creating such security interest;
(6) that is the fixing of a statutory lien that
is not avoidable under section 545 of this title;
(7) to the extent such transfer was a bona fide
payment of a debt to a spouse, former spouse, or child of the debtor,
for alimony to, maintenance for, or support of such spouse or child, in
connection with a separation agreement, divorce decree or other order
of a court of record, determination made in accordance with State or territorial
law by a governmental unit, or property settlement agreement, but not
to the extent that such debt-
(A) is assigned to another entity, voluntarily,
by operation of law, or otherwise; or
(B) includes a liability designated as alimony,
maintenance, or support, unless such liability is actually in the nature
of alimony, maintenance or support; or
(8) if, in a case filed by an individual debtor
whose debts are primarily consumer debts, the aggregate value of all property
that constitutes or is affected by such transfer is less than $600.
(d) The trustee may avoid a transfer of an interest
in property of the debtor transferred to or for the benefit of a surety
to secure reimbursement of such a surety that furnished a bond or other
obligation to dissolve a judicial lien that would have been avoidable
by the trustee under subsection (b) of this section. The liability of
such surety under such bond or obligation shall be discharged to the extent
of the value of such property recovered by the trustee or the amount paid
to the trustee.
(e) (1) For the purposes of this section-
(A) a transfer of real property other than fixtures,
but including the interest of a seller or purchaser under a contract for
the sale of real property, is perfected when a bona fide purchaser of
such property from the debtor against whom applicable law permits such
transfer to be perfected cannot acquire an interest that is superior to
the interest of the transferee; and
(B) a transfer of a fixture or property other
than real property is perfected when a creditor on a simple contract cannot
acquire a judicial lien that is superior to the interest of the transferee.
(2) For the purposes of this section, except
as provided in paragraph (3) of this subsection, a transfer is made-
(A) at the time such transfer takes effect between
the transferor and the transferee, if such transfer is perfected at, or
within 10 days after, such time, except as provided in subsection (c)(3)(B);
(B) at the time such transfer is perfected, if
such transfer is perfected after such 10 days; or
(C) immediately before the date of the filing
of the petition, if such transfer is not perfected at the later of-
(i) the commencement of the case; or
(ii) 10 days after such transfer takes effect between
the transferor and the transferee.
(3) For the purposes of this section, a transfer
is not made until the debtor has acquired rights in the property transferred.
(f) For the purposes of this section, the debtor
is presumed to have been insolvent on and during the 90 days immediately
preceding the date of the filing of the petition.
(g) For the purposes of this section, the trustee
has the burden of proving the avoidability of a transfer under subsection
(b) of this section, and the creditor or party in interest against whom
recovery or avoidance is sought has the burden of proving the nonavoidability
of a transfer under subsection (c) of this section.
§ 548. Fraudulent transfers and obligations
(a) (1) The trustee may avoid any transfer of an interest
of the debtor in property, or any obligation incurred by the debtor, that
was made or incurred on or within one year before the date of the filing
of the petition, if the debtor voluntarily or involuntarily-
(A) made such transfer or incurred such obligation
with actual intent to hinder, delay, or defraud any entity to which the
debtor was or became, on or after the date that such transfer was made
or such obligation was incurred, indebted; or
(B)(i) received less than a reasonably equivalent value
in exchange for such transfer or obligation; and
(ii) (I) was insolvent on the date that such transfer
was made or such obligation was incurred, or became insolvent as a result
of such transfer or obligation;
(II) was engaged in business or a transaction,
or was about to engage in business or a transaction, for which any property
remaining with the debtor was an unreasonably small capital; or
(III) intended to incur, or believed that the
debtor would incur, debts that would be beyond the debtor's ability to
pay as such debts matured.
(2) A transfer of a charitable contribution to a qualified
religious or charitable entity or organization shall not be considered
to be a transfer covered under paragraph (1)(B) in any case in which.-
(A) the amount of that contribution does not exceed
15 percent of the gross annual
income of the debtor for the year in which the transfer
of the contribution is made; or
(B) the contribution made by a debtor exceeded the
percentage amount of gross annual income specified in subparagraph (A),
if the transfer was consistent with the practices of the debtor in making
charitable contributions.
(b) The trustee of a partnership debtor may avoid
any transfer of an interest of the debtor in property, or any obligation
incurred by the debtor, that was made or incurred on or within one year
before the date of the filing of the petition, to a general partner in
the debtor, if the debtor was insolvent on the date such transfer was
made or such obligation was incurred, or became insolvent as a result
of such transfer or obligation.
(c) Except to the extent that a transfer or obligation
voidable under this section is voidable under section 544, 545, or 547
of this title, a transferee or obligee of such a transfer or obligation
that takes for value and in good faith has a lien on or may retain any
interest transferred or may enforce any obligation incurred, as the case
may be, to the extent that such transferee or obligee gave value to the
debtor in exchange for such transfer or obligation.
(d) (1) For the purposes of this section, a transfer
is made when such transfer is so perfected that a bona fide purchaser
from the debtor against whom applicable law permits such transfer to be
perfected cannot acquire an interest in the property transferred that
is superior to the interest in such property of the transferee, but if
such transfer is not so perfected before the commencement of the case,
such transfer is made immediately before the date of the filing of the
petition.
(2) In this section-
(A) "value" means property, or satisfaction or
securing of a present or antecedent debt of the debtor, but does not include
an unperformed promise to furnish support to the debtor or to a relative
of the debtor;
(B) a commodity broker, forward contract merchant,
stockbroker, financial institution, or securities clearing agency that
receives a margin payment, as defined in section 101, 741, or 761 of this
title, or settlement payment, as defined in section 101 or 741 of this
title, takes for value to the extent of such payment;
(C) a repo participant that receives a margin
payment, as defined in section 741 or 761 of this title, or settlement
payment, as defined in section 741 of this title, in connection with a
repurchase agreement, takes for value to the extent of such payment; and
(D) a swap participant that receives a transfer
in connection with a swap agreement takes for value to the extent of such
transfer.
(3) In this section, the term "charitable contribution"
means a charitable contribution, as that term is defined in section 170(c)
of the Internal Revenue Code of 1986, if that contribution-
(A) is made by a natural person; and
(B) consists of.-
(i) a financial instrument (as that term is defined
in section 731(c)(2)(C) of the Internal Revenue Code of 1986); or (ii)
cash.
(4) In this section, the term "qualified religious
or charitable entity or organization" means-
(A) an entity described in section 170(c)(1) of
the Internal Revenue Code of 1986; or
(B) an entity or organization described in section
170(c)(2) of the Internal Revenue Code of 1986.
§ 549. Postpetition transactions
(a) Except as provided in subsection (b) or (c)
of this section, the trustee may avoid a transfer of property of the estate-
(1) that occurs after the commencement of the
case; and
(2) (A) that is authorized only under section
303(f) or 542(c) of this title; or (B) that is not authorized under this
title or by the court.
(b) In an involuntary case, the trustee may not
avoid under subsection (a) of this section a transfer made after the commencement
of such case but before the order for relief to the extent any value,
including services, but not including satisfaction or securing of a debt
that arose before the commencement of the case, is given after the commencement
of the case in exchange for such transfer, notwithstanding any notice
or knowledge of the case that the transferee has.
(c) The trustee may not avoid under subsection
(a) of this section a transfer of real property to a good faith purchaser
without knowledge of the commencement of the case and for present fair
equivalent value unless a copy or notice of the petition was filed, where
a transfer of such real property may be recorded to perfect such transfer,
before such transfer is so perfected that a bona fide purchaser of such
property, against whom applicable law permits such transfer to be perfected,
could not acquire an interest that is superior to the interest of such
good faith purchaser. A good faith purchaser without knowledge of the
commencement of the case and for less than present fair equivalent value
has a lien on the property transferred to the extent of any present value
given, unless a copy or notice of the petition was so filed before such
transfer was so perfected.
(d) An action or proceeding under this section
may not be commenced after the earlier of-
(1) two years after the date of the transfer sought
to be avoided; or
(2) the time the case is closed or dismissed.
§ 550. Liability of transferee of avoided transfer
(a) Except as otherwise provided in this section, to
the extent that a transfer is avoided under section 544, 545, 547, 548,
549, 553(b), or 724(a) of this title, the trustee may recover, for the
benefit of the estate, the property transferred, or, if the court so orders,
the value of such property, from-
(1) the initial transferee of such transfer or
the entity for whose benefit such transfer was made; or
(2) any immediate or mediate transferee of such
initial transferee.
(b) The trustee may not recover under section
[sic] (a)(2) of this section from-
(1) a transferee that takes for value, including
satisfaction or securing of a present or antecedent debt, in good faith,
and without knowledge of the voidability of the transfer avoided; or
(2) any immediate or mediate good faith transferee
of such transferee.
(c) If a transfer made between 90 days and one
year before the filing of the petition-
(1) is avoided under section 547(b) of this title;
and
(2) was made for the benefit of a creditor that
at the time of such transfer was an insider; the trustee may not recover
under subsection (a) from a transferee that is not an insider.
(d) The trustee is entitled to only a single satisfaction
under subsection (a) of this section.
(e) (1) A good faith transferee from whom the
trustee may recover under subsection (a) of this section has a lien on
the property recovered to secure the lesser of-
(A) the cost, to such transferee, of any improvement
made after the transfer, less the amount of any profit realized by or
accruing to such transferee from such property; and
(B) any increase in the value of such property
as a result of such improvement, of the property transferred.
(2) In this subsection, "improvement" includes-
(A) physical additions or changes to the property
transferred;
(B) repairs to such property;
(C) payment of any tax on such property;
(D) payment of any debt secured by a lien on
such property that is superior or equal to the rights of the trustee;
and
(E) preservation of such property.
(f) An action or proceeding under this section
may not be commenced after the earlier of-
(1) one year after the avoidance of the transfer
on account of which recovery under this section is sought; or
(2) the time the case is closed or dismissed.
§ 551. Automatic preservation of avoided transfer
Any transfer avoided under section 522, 544, 545, 547,
548, 549, or 724(a) of this title, or any lien void under section 506(d)
of this title, is preserved for the benefit of the estate but only with
respect to property of the estate.
§ 552. Postpetition effect of security interest
(a) Except as provided in subsection (b) of this section,
property acquired by the estate or by the debtor after the commencement
of the case is not subject to any lien resulting from any security agreement
entered into by the debtor before the commencement of the case.
(b) (1) Except as provided in sections 363, 506(c),
522, 544, 545, 547, and 548 of this title, if the debtor and an entity
entered into a security agreement before the commencement of the case
and if the security interest created by such security agreement extends
to property of the debtor acquired before the commencement of the case
and to proceeds, product, offspring, or profits of such property, then
such security interest extends to such proceeds, product, offspring, or
profits acquired by the estate after the commencement of the case to the
extent provided by such security agreement and by applicable nonbankruptcy
law, except to any extent that the court, after notice and a hearing and
based on the equities of the case, orders otherwise.
(2) Except as provided in sections 363, 506(c), 522,
544, 545, 547, and 548 of this title, and notwithstanding section 546(b)
of this title, if the debtor and an entity entered into a security agreement
before the commencement of the case and if the security interest created
by such security agreement extends to property of the debtor acquired
before the commencement of the case and to amounts paid as rents of such
property or the fees, charges, accounts, or other payments for the use
or occupancy of rooms and other public facilities in hotels, motels, or
other lodging properties, then such security interest extends to such
rents and such fees, charges, accounts, or other payments acquired by
the estate after the commencement of the case to the extent provided in
such security agreement, except to any extent that the court, after notice
and a hearing and based on the equities of the case, orders otherwise.
§ 553. Setoff
(a) Except as otherwise provided in this section
and in sections 362 and 363 of this title, this title does not affect
any right of a creditor to offset a mutual debt owing by such creditor
to the debtor that arose before the commencement of the case under this
title against a claim of such creditor against the debtor that arose before
the commencement of the case, except to the extent that-
(1) the claim of such creditor against the debtor
is disallowed;
(2) such claim was transferred, by an entity other
than the debtor, to such creditor-
(A) after the commencement of the case; or
(B) (i) after 90 days before the date of the filing
of the petition; and (ii) while the debtor was insolvent; or
(3) the debt owed to the debtor by such creditor
was incurred by such creditor-
(A) after 90 days before the date of the filing
of the petition;
(B) while the debtor was insolvent; and
(C) for the purpose of obtaining a right of setoff
against the debtor.
(b) (1) Except with respect to a setoff of a
kind described in section 362(b)(6), 362(b)(7), 362(b)(14), 365(h), 546(h),
or 365(i)(2) of this title, if a creditor offsets a mutual debt owing
to the debtor against a claim against the debtor on or within 90 days
before the date of the filing of the petition, then the trustee may recover
from such creditor the amount so offset to the extent that any insufficiency
on the date of such setoff is less than the insufficiency on the later
of-
(A) 90 days before the date of the filing of the
petition; and
(B) the first date during the 90 days immediately
preceding the date of the filing of the petition on which there is an
insufficiency.
(2) In this subsection, "insufficiency" means amount,
if any, by which a claim against the debtor exceeds a mutual debt owing
to the debtor by the holder of such claim.
(c) For the purposes of this section, the debtor is
presumed to have been insolvent on and during the 90 days immediately
preceding the date of the filing of the petition.
§ 554. Abandonment of property of the estate
(a) After notice and a hearing, the trustee may
abandon any property of the estate that is burdensome to the estate or
that is of inconsequential value and benefit to the estate.
(b) On request of a party in interest and after
notice and a hearing, the court may order the trustee to abandon any property
of the estate that is burdensome to the estate or that is of inconsequential
value and benefit to the estate.
(c) Unless the court orders otherwise, any property
scheduled under section 521(1) of this title not otherwise administered
at the time of the closing of a case is abandoned to the debtor and administered
for purposes of section 350 of this title.
(d) Unless the court orders otherwise, property
of the estate that is not abandoned under this section and that is not
administered in the case remains property of the estate.
§ 555. Contractual right to liquidate a securities
contract
The exercise of a contractual right of a stockbroker,
financial institution, or securities clearing agency to cause the liquidation
of a securities contract, as defined in section 741 of this title, because
of a condition of the kind specified in section 365(e)(1) of this title
shall not be stayed, avoided, or otherwise limited by operation of any
provision of this title or by order of a court or administrative agency
in any proceeding under this title unless such order is authorized under
the provisions of the Securities Investor Protection Act of 1970 or any
statute administered by the Securities and Exchange Commission. As used
in this section, the term "contractual right" includes a right set forth
in a rule or bylaw of a national securities exchange, a national securities
association, or a securities clearing agency.
§ 556. Contractual right to liquidate a commodities
contract or forward contract
The contractual right of a commodity broker or forward
contract merchant to cause the liquidation of a commodity contract, as
defined in section 761 of this title, or forward contract because of a
condition of the kind specified in section 365(e)(1) of this title, and
the right to a variation or maintenance margin payment received from a
trustee with respect to open commodity contracts or forward contracts,
shall not be stayed, avoided, or otherwise limited by operation of any
provision of this title or by the order of a court in any proceeding under
this title. As used in this section, the term "contractual right" includes
a right set forth in a rule or bylaw of a clearing organization or contract
market or in a resolution of the governing board thereof and a right,
whether or not evidenced in writing, arising under common law, under law
merchant or by reason of normal business practice.
§ 557. Expedited determination of interests in, and
abandonment or other disposition of grain assets
(a) This section applies only in a case concerning
a debtor that owns or operates a grain storage facility and only with
respect to grain and the proceeds of grain. This section does not affect
the application of any other section of this title to property other than
grain and proceeds of grain.
(b) In this section-
(1) "grain" means wheat, corn, flaxseed, grain
sorghum, barley, oats, rye, soybeans, other dry edible beans, or rice;
(2) "grain storage facility" means a site or
physical structure regularly used to store grain for producers, or to
store grain acquired from producers for resale; and
(3) "producer" means an entity which engages in
the growing of grain.
(c) (1) Notwithstanding sections 362, 363, 365,
and 554 of this title, on the court's own motion the court may, and on
the request of the trustee or an entity that claims an interest in grain
or the proceeds of grain the court shall, expedite the procedures for
the determination of interests in and the disposition of grain and the
proceeds of grain, by shortening to the greatest extent feasible such
time periods as are otherwise applicable for such procedures and by establishing,
by order, a timetable having a duration of not to exceed 120 days for
the completion of the applicable procedure specified in subsection
(d) of this section. Such time periods and such
timetable may be modified by the court, for cause, in accordance with
subsection (f) of this section.
(2) The court shall determine the extent to which such
time periods shall be shortened, based upon-
(A) any need of an entity claiming an interest
in such grain or the proceeds of grain for a prompt determination of such
interest;
(B) any need of such entity for a prompt disposition
of such grain;
(C) the market for such grain;
(D) the conditions under which such grain is stored;
(E) the costs of continued storage or disposition
of such grain;
(F) the orderly administration of the estate;
(G) the appropriate opportunity for an entity
to assert an interest in such grain; and
(H) such other considerations as are relevant to the
need to expedite such procedures in the case.
(d) The procedures that may be expedited under subsection
(c) of this section include- (1) the filing of and response to-
(A) a claim of ownership;
(B) a proof of claim;
(C) a request for abandonment;
(D) a request for relief from the stay of action
against property under section 362(a) of this title;
(E) a request for determination of secured status;
(F) a request for determination of whether such
grain or the proceeds of grain- (i) is property of the estate;
(ii) must be turned over to the estate; or (iii) may
be used, sold, or leased; and
(G) any other request for determination of an interest
in such grain or the proceeds of grain;
(2) the disposition of such grain or the proceeds
of grain, before or after determination of interests in such grain or
the proceeds of grain, by way of-
(A) sale of such grain;
(B) abandonment;
(C) distribution; or
(D) such other method as is equitable in the case;
(3) subject to sections 701, 702, 703, 1104, 1202,
and 1302 of this title, the appointment of a trustee or examiner and the
retention and compensation of any professional person required to assist
with respect to matters relevant to the determination of interests in
or disposition of such grain or the proceeds of grain; and
(4) the determination of any dispute concerning
a matter specified in paragraph (1), (2), or (3) of this subsection.
(e) (1) Any governmental unit that has regulatory
jurisdiction over the operation or liquidation of the debtor or the debtor's
business shall be given notice of any request made or order entered under
subsection (c) of this section.
(2) Any such governmental unit may raise, and
may appear and be heard on, any issue relating to grain or the proceeds
of grain in a case in which a request is made, or an order is entered,
under subsection (c) of this section.
(3) The trustee shall consult with such governmental
unit before taking any action relating to the disposition of grain in
the possession, custody, or control of the debtor or the estate.
(f) The court may extend the period for final
disposition of grain or the proceeds of grain under this section beyond
120 days if the court finds that-
(1) the interests of justice so require in light
of the complexity of the case; and
(2) the interests of those claimants entitled
to distribution of grain or the proceeds of grain will not be materially
injured by such additional delay.
(g) Unless an order establishing an expedited
procedure under subsection (c) of this section, or determining any interest
in or approving any disposition of grain or the proceeds of grain, is
stayed pending appeal-
(1) the reversal or modification of such order
on appeal does not affect the validity of any procedure, determination,
or disposition that occurs before such reversal or modification, whether
or not any entity knew of the pendency of the appeal; and
(2) neither the court nor the trustee may delay,
due to the appeal of such order, any proceeding in the case in which such
order is issued.
(h) (1) The trustee may recover from grain and the
proceeds of grain the reasonable and necessary costs and expenses allowable
under section 503(b) of this title attributable to preserving or disposing
of grain or the proceeds of grain, but may not recover from such grain
or the proceeds of grain any other costs or expenses.
(2) Notwithstanding section 326(a) of this title, the
dollar amounts of money specified in such section include the value, as
of the date of disposition, of any grain that the trustee distributes
in kind.
(i) In all cases where the quantity of a specific type
of grain held by a debtor operating a grain storage facility exceeds ten
thousand bushels, such grain shall be sold by the trustee and the assets
thereof distributed in accordance with the provisions of this section.
§ 558. Defenses of the estate
The estate shall have the benefit of any defense available
to the debtor as against any entity other than the estate, including statutes
of limitation, statutes of frauds, usury, and other personal defenses.
A waiver of any such defense by the debtor after the commencement of the
case does not bind the estate.
§ 559. Contractual right to liquidate a repurchase
agreement
The exercise of a contractual right of a repo participant
to cause the liquidation of a repurchase agreement because of a condition
of the kind specified in section 365(e)(1) of this title shall not be
stayed, avoided, or otherwise limited by operation of any provision of
this title or by order of a court or administrative agency in any proceeding
under this title, unless, where the debtor is a stockbroker or securities
clearing agency, such order is authorized under the provisions of the
Securities Investor Protection Act of 1970 or any statute administered
by the Securities and Exchange Commission. In the event that a repo participant
liquidates one or more repurchase agreements with a debtor and under the
terms of one or more such agreements has agreed to deliver assets subject
to repurchase agreements to the debtor, any excess of the market prices
received on liquidation of such assets (or if any such assets are not
disposed of on the date of liquidation of such repurchase agreements,
at the prices available at the time of liquidation of such repurchase
agreements from a generally recognized source or the most recent closing
bid quotation from such a source) over the sum of the stated repurchase
prices and all expenses in connection with the liquidation of such repurchase
agreements shall be deemed property of the estate, subject to the available
rights of setoff. As used in this section, the term "contractual right"
includes a right set forth in a rule or bylaw, applicable to each party
to the repurchase agreement, of a national securities exchange, a national
securities association, or a securities clearing agency, and a right,
whether or not evidenced in writing, arising under common law, under law
merchant or by reason of normal business practice.
§ 560. Contractual right to terminate a swap agreement
The exercise of any contractual right of any swap participant
to cause the termination of a swap agreement because of a condition of
the kind specified in section 365(e)(1) of this title or to offset or
net out any termination values or payment amounts arising under or in
connection with any swap agreement shall not be stayed, avoided, or otherwise
limited by operation of any provision of this title or by order of a court
or administrative agency in any proceeding under this title. As used in
this section, the term "contractual right" includes a right, whether or
not evidenced in writing, arising under common law, under law merchant,
or by reason of normal business practice.
Subchapter i - Officers and Administration
§ 701. Interim trustee
(a) (1) Promptly after the order for relief under
this chapter, the United States trustee shall appoint one disinterested
person that is a member of the panel of private trustees established under
section 586(a)(1) of title 28 or that is serving as trustee in the case
immediately before the order for relief under this chapter to serve as
interim trustee in the case.
(2) If none of the members of such panel is willing
to serve as interim trustee in the case, then the United States trustee
may serve as interim trustee in the case.
(b) The service of an interim trustee under this
section terminates when a trustee elected or designated under section
702 of this title to serve as trustee in the case qualifies under section
322 of this title.
(c) An interim trustee serving under this section
is a trustee in a case under this title.
§ 702. Election of trustee
(a) A creditor may vote for a candidate for trustee
only if such creditor-
(1) holds an allowable, undisputed, fixed, liquidated,
unsecured claim of a kind entitled to distribution under section 726(a)(2),
726(a)(3), 726(a)(4), 752(a), 766(h), or 766(i) of this title;
(2) does not have an interest materially adverse,
other than an equity interest that is not substantial in relation to such
creditor's interest as a creditor, to the interest of creditors entitled
to such distribution; and
(3) is not an insider.
(b) At the meeting of creditors held under section
341 of this title, creditors may elect one person to serve as trustee
in the case if election of a trustee is requested by creditors that may
vote under subsection (a) of this section, and that hold at least 20 percent
in amount of the claims specified in subsection (a)(1) of this section
that are held by creditors that may vote under subsection (a) of this
section.
(c) A candidate for trustee is elected trustee
if-
(1) creditors holding at least 20 percent in amount
of the claims of a kind specified in subsection (a)(1) of this section
that are held by creditors that may vote under subsection (a) of this
section vote; and
(2) such candidate receives the votes of creditors
holding a majority in amount of claims specified in subsection (a)(1)
of this section that are held by creditors that vote for a trustee.
(d) If a trustee is not elected under this section,
then the interim trustee shall serve as trustee in the case.
§ 703. Successor trustee
(a) If a trustee dies or resigns during a case,
fails to qualify under section 322 of this title, or is removed under
section 324 of this title, creditors may elect, in the manner specified
in section 702 of this title, a person to fill the vacancy in the office
of trustee.
(b) Pending election of a trustee under subsection
(a) of this section, if necessary to preserve or prevent loss to the estate,
the United States trustee may appoint an interim trustee in the manner
specified in section 701 (a).
(c) If creditors do not elect a successor trustee
under subsection (a) of this section or if a trustee is needed in a case
reopened under section 350 of this title, then the United States trustee-
(1) shall appoint one disinterested person that
is a member of the panel of private trustees established under section
586(a)(1) of title 28 to serve as trustee in the case; or
(2) may, if none of the disinterested members
of such panel is willing to serve as trustee, serve as trustee in the
case.
§ 704. Duties of trustee
The trustee shall-
(1) collect and reduce to money the property
of the estate for which such trustee serves, and close such estate as
expeditiously as is compatible with the best interests of parties in interest;
(2) be accountable for all property received;
(3) ensure that the debtor shall perform his intention
as specified in section 521(2)(B) of this title;
(4) investigate the financial affairs of the debtor;
(5) if a purpose would be served, examine proofs
of claims and object to the allowance of any claim that is improper;
(6) if advisable, oppose the discharge of the
debtor;
(7) unless the court orders otherwise, furnish
such information concerning the estate and the estate's administration
as is requested by a party in interest;
(8) if the business of the debtor is authorized
to be operated, file with the court, with the United States trustee, and
with any governmental unit charged with responsibility for collection
or determination of any tax arising out of such operation, periodic reports
and summaries of the operation of such business, including a statement
of receipts and disbursements, and such other information as the United
States trustee or the court requires; and
(9) make a final report and file a final account
of the administration of the estate with the court and with the United
States trustee.
§ 705. Creditors' committee
(a) At the meeting under section 341 (a) of this title,
creditors that may vote for a trustee under section 702(a) of this title
may elect a committee of not fewer than three, and not more than eleven,
creditors, each of whom holds an allowable unsecured claim of a kind entitled
to distribution under section 726(a)(2) of this title.
(b) A committee elected under subsection (a) of this
section may consult with the trustee or the United States trustee in connection
with the administration of the estate, make recommendations to the trustee
or the United States trustee respecting the performance of the trustee's
duties, and submit to the court or the United States trustee any question
affecting the administration of the estate.
§ 706. Conversion
(a) The debtor may convert a case under this chapter
to a case under chapter 11, 12, or 13 of this title at any time, if the
case has not been converted under section 1112, 1208, or 1307 of this
title. Any waiver of the right to convert a case under this subsection
is unenforceable.
(b) On request of a party in interest and after
notice and a hearing, the court may convert a case under this chapter
to a case under chapter 11 of this title at any time.
(c) The court may not convert a case under this
chapter to a case under chapter 12 or 13 of this title unless the debtor
requests such conversion.
(d) Notwithstanding any other provision of this
section, a case may not be converted to a case under another chapter of
this title unless the debtor may be a debtor under such chapter.
§ 707. Dismissal
(a) The court may dismiss a case under this chapter
only after notice and a hearing and only for cause, including-
(1) unreasonable delay by the debtor that is prejudicial
to creditors;
(2) nonpayment of any fees or charges required
under chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case
to file, within fifteen days or such additional time as the court may
allow after the filing of the petition commencing such case, the information
required by paragraph (1) of section 521, but only on a motion by the
United States trustee.
(b) After notice and a hearing, the court, on
its own motion or on a motion by the United States trustee, but not at
the request or suggestion of any party in interest, may dismiss a case
filed by an individual debtor under this chapter whose debts are primarily
consumer debts if it finds that the granting of relief would be a substantial
abuse of the provisions of this chapter. There shall be a presumption
in favor of granting the relief requested by the debtor. In making a determination
whether to dismiss a case under this section, the court may not take into
consideration whether a debtor has made, or continues to make, charitable
contributions (that meet the definition of "charitable contribution" under
section 548(d)(3)) to any qualified religious or charitable entity or
organization (as that term is defined in section 548(d)(4)).
subchapter ii - collection, liquidation and distribution
of
the Estate
§ 721. Authorization to operate business
The court may authorize the trustee to operate the
business of the debtor for a limited period, if such operation is in the
best interest of the estate and consistent with the orderly liquidation
of the estate.
§ 722. Redemption
An individual debtor may, whether or not the debtor
has waived the right to redeem under this section, redeem tangible personal
property intended primarily for personal, family, or household use, from
a lien securing a dischargeable consumer debt, if such property is exempted
under section 522 of this title or has been abandoned under section 554
of this title, by paying the holder of such lien the amount of the allowed
secured claim of such holder that is secured by such lien.
§ 723. Rights of partnership trustee against general
partners
(a) If there is a deficiency of property of the
estate to pay in full all claims which are allowed in a case under this
chapter concerning a partnership and with respect to which a general partner
of the partnership is personally liable, the trustee shall have a claim
against such general partner to the extent that under applicable nonbankruptcy
law such general partner is personally liable for such deficiency.
(b) To the extent practicable, the trustee shall
first seek recovery of such deficiency from any general partner in such
partnership that is not a debtor in a case under this title. Pending determination
of such deficiency, the court may order any such partner to provide the
estate with indemnity for, or assurance of payment of, any deficiency
recoverable from such partner, or not to dispose of property.
(c) Notwithstanding section 728(c) of this title,
the trustee has a claim against the estate of each general partner in
such partnership that is a debtor in a case under this title for the full
amount of all claims of creditors allowed in the case concerning such
partnership. Notwithstanding section 502 of this title, there shall not
be allowed in such partner's case a claim against such partner on which
both such partner and such partnership are liable, except to any extent
that such claim is secured only by property of such partner and not by
property of such partnership. The claim of the trustee under this subsection
is entitled to distribution in such partner's case under section 726(a)
of this title the same as any other claim of a kind specified in such
section.
(d) If the aggregate that the trustee recovers
from the estates of general partners under subsection (c) of this section
is greater than any deficiency not recovered under subsection (b) of this
section, the court, after notice and a hearing, shall determine an equitable
distribution of the surplus so recovered, and the trustee shall distribute
such surplus to the estates of the general partners in such partnership
according to such determination.
§ 724. Treatment of certain liens
(a) The trustee may avoid a lien that secures
a claim of a kind specified in section 726(a)(4) of this title.
(b) Property in which the estate has an interest
and that is subject to a lien that is not avoidable under this title and
that secures an allowed claim for a tax, or proceeds of such property,
shall be distributed-
(1) first, to any holder of an allowed claim secured
by a lien on such property that is not avoidable under this title and
that is senior to such tax lien;
(2) second, to any holder of a claim of a kind
specified in section 507(a)(1), 507(a)(2), 507(a)(3), 507(a)(4), 507(a)(5),
507(a)(6), or 507(a)(7) of this title, to the extent of the amount of
such allowed tax claim that is secured by such tax lien;
(3) third, to the holder of such tax lien, to
any extent that such holder's allowed tax claim that is secured by such
tax lien exceeds any amount distributed under paragraph (2) of this subsection;
(4) fourth, to any holder of an allowed claim
secured by a lien on such property that is not avoidable under this title
and that is junior to such tax lien;
(5) fifth, to the holder of such tax lien, to
the extent that such holder's allowed claim secured by such tax lien is
not paid under paragraph (3) of this subsection; and
(6) sixth, to the estate.
(c) If more than one holder of a claim is entitled
to distribution under a particular paragraph of subsection (b) of this
section, distribution to such holders under such paragraph shall be in
the same order as distribution to such holders would have been other than
under this section.
(d) A statutory lien the priority of which is
determined in the same manner as the priority of a tax lien under section
6323 of the Internal Revenue Code of 1986 shall be treated under subsection
(b) of this section the same as if such lien were a tax lien.
§ 725. Disposition of certain property
After the commencement of a case under this chapter,
but before final distribution of property of the estate under section
726 of this title, the trustee, after notice and a hearing, shall dispose
of any property in which an entity other than the estate has an interest,
such as a lien, and that has not been disposed of under another section
of this title.
§ 726. Distribution of property of the estate
(a) Except as provided in section 510 of this title,
property of the estate shall be distributed-
(1) first, in payment of claims of the kind specified
in, and in the order specified in, section 507 of this title, proof of
which is timely filed under section 501 of this title or tardily filed
before the date on which the trustee commences distribution under this
section;
(2) second, in payment of any allowed unsecured
claim, other than a claim of a kind specified in paragraph (1), (3), or
(4) of this subsection, proof of which is-
(A) timely filed under section 501 (a) of this title;
(B) timely filed under section 501(b) or 501(c)
of this title; or
(C) tardily filed under section 501 (a) of this
title, if-
(i) the creditor that holds such claim did not have
notice or actual knowledge of the case in time for timely filing of a
proof of such claim under section 501 (a) of this title; and
(ii) proof of such claim is filed in time to permit
payment of such claim;
(3) third, in payment of any allowed unsecured
claim proof of which is tardily filed under section 501 (a) of this title,
other than a claim of the kind specified in paragraph (2)(C) of this subsection;
(4) fourth, in payment of any allowed claim,
whether secured or unsecured, for any fine, penalty, or forfeiture, or
for multiple, exemplary, or punitive damages, arising before the earlier
of the order for relief or the appointment of a trustee, to the extent
that such fine, penalty, forfeiture, or damages are not compensation for
actual pecuniary loss suffered by the holder of such claim;
(5) fifth, in payment of interest at the legal
rate from the date of the filing of the petition, on any claim paid under
paragraph (1), (2), (3), or (4) of this subsection; and
(6) sixth, to the debtor.
(b) Payment on claims of a kind specified in paragraph
(1), (2), (3), (4), (5), (6), (7), or (8) of section 507(a) of this title,
or in paragraph (2), (3), (4), or (5) of subsection (a) of this section,
shall be made pro rata among claims of the kind specified in each such
particular paragraph, except that in a case that has been converted to
this chapter under section 1009, 1112, 1208, or 1307 of this title, a
claim allowed under section 503(b) of this title incurred under this chapter
after such conversion has priority over a claim allowed under section
503(b) of this title incurred under any other chapter of this title or
under this chapter before such conversion and over any expenses of a custodian
superseded under section 543 of this title.
(c) Notwithstanding subsections (a) and (b) of
this section, if there is property of the kind specified in section 541(a)(2)
of this title, or proceeds of such property, in the estate, such property
or proceeds shall be segregated from other property of the estate, and
such property or proceeds and other property of the estate shall be distributed
as follows:
(1) Claims allowed under section 503 of this title
shall be paid either from property of the kind specified in section 541(a)(2)
of this title, or from other property of the estate, as the interest of
justice requires.
(2) Allowed claims, other than claims allowed
under section 503 of this title, shall be paid in the order specified
in subsection (a) of this section, and, with respect to claims of a kind
specified in a particular paragraph of section 507 of this title or subsection
(a) of this section, in the following order and manner:
(A) First, community claims against the debtor
or the debtor's spouse shall be paid from property of the kind specified
in section 541(a)(2) of this title, except to the extent that such property
is solely liable for debts of the debtor.
(B) Second, to the extent that community claims
against the debtor are not paid under subparagraph (A) of this paragraph,
such community claims shall be paid from property of the kind specified
in section 541(a)(2) of this title that is solely liable for debts of
the debtor.
(C) Third, to the extent that all claims against
the debtor including community claims against the debtor are not paid
under subparagraph (A) or (B) of this paragraph such claims shall be paid
from property of the estate other than property of the kind specified
in section 541(a)(2) of this title.
(D) Fourth, to the extent that community claims
against the debtor or the debtor's spouse are not paid under subparagraph
(A), (B), or (C) of this paragraph, such claims shall be paid from all
remaining property of the estate.
§ 727. Discharge
(a) The court shall grant the debtor a discharge, unless-
(1) the debtor is not an individual;
(2) the debtor, with intent to hinder, delay,
or defraud a creditor or an officer of the estate charged with custody
of property under this title, has transferred, removed, destroyed, mutilated,
or concealed, or has permitted to be transferred, removed, destroyed,
mutilated, or concealed-
(A) property of the debtor, within one year before
the date of the filing of the petition; or
(B) property of the estate, after the date of
the filing of the petition;
(3) the debtor has concealed, destroyed, mutilated,
falsified, or failed to keep or preserve any recorded information, including
books, documents, records, and papers, from which the debtor's financial
condition or business transactions might be ascertained, unless such act
or failure to act was justified under all of the circumstances of the
case;
(4) the debtor knowingly and fraudulently, in
or in connection with the case-
(A) made a false oath or account;
(B) presented or used a false claim;
(C) gave, offered, received, or attempted to obtain
money, property, or advantage, or a promise of money, property, or advantage,
for acting or forbearing to act; or
(D) withheld from an officer of the estate entitled
to possession under this title, any recorded information, including books,
documents, records, and papers, relating to the debtor's property or financial
affairs;
(5) the debtor has failed to explain satisfactorily,
before determination of denial of discharge under this paragraph, any
loss of assets or deficiency of assets to meet the debtor's liabilities;
(6) the debtor has refused, in the case-
(A) to obey any lawful order of the court, other
than an order to respond to a material question or to testify;
(B) on the ground of privilege against self-incrimination,
to respond to a material question approved by the court or to testify,
after the debtor has been granted immunity with respect to the matter
concerning which such privilege was invoked; or
(C) on a ground other than the properly invoked
privilege against self-incrimination, to respond to a material question
approved by the court or to testify;
(7) the debtor has committed any act specified
in paragraph (2), (3), (4), (5), or (6) of this subsection, on or within
one year before the date of the filing of the petition, or during the
case, in connection with another case, under this title or under the Bankruptcy
Act, concerning an insider;
(8) the debtor has been granted a discharge under
this section, under section 1141 of this title, or under section 14, 371,
or 476 of the Bankruptcy Act, in a case commenced within six years before
the date of the filing of the petition;
(9) the debtor has been granted a discharge under
section 1228 or 1328 of this title, or under section 660 or 661 of the
Bankruptcy Act, in a case commenced within six years before the date of
the filing of the petition, unless payments under the plan in such case
totaled at least-
(A) 100 percent of the allowed unsecured claims
in such case; or
(B) (i) 70 percent of such claims; and
(ii) the plan was proposed by the debtor in good faith,
and was the debtor's best effort; or
(10) the court approves a written waiver of discharge
executed by the debtor after the order for relief under this chapter.
(b) Except as provided in section 523 of this
title, a discharge under subsection (a) of this section discharges the
debtor from all debts that arose before the date of the order for relief
under this chapter, and any liability on a claim that is determined under
section 502 of this title as if such claim had arisen before the commencement
of the case, whether or not a proof of claim based on any such debt or
liability is filed under section 501 of this title, and whether or not
a claim based on any such debt or liability is allowed under section 502
of this title.
(c) (1) The trustee, a creditor, or the United
States trustee may object to the granting of a discharge under subsection
(a) of this section.
(2) On request of a party in interest, the court may
order the trustee to examine the acts and conduct of the debtor to determine
whether a ground exists for denial of discharge.
(d) On request of the trustee, a creditor, or
the United States trustee, and after notice and a hearing, the court shall
revoke a discharge granted under subsection (a) of this section if-
(1) such discharge was obtained through the fraud
of the debtor, and the requesting party did not know of such fraud until
after the granting of such discharge;
(2) the debtor acquired property that is property
of the estate, or became entitled to acquire property that would be property
of the estate, and knowingly and fraudulently failed to report the acquisition
of or entitlement to such property, or to deliver or surrender such property
to the trustee; or
(3) the debtor committed an act specified in subsection
(a)(6) of this section.
(e) The trustee, a creditor, or the United States
trustee may request a revocation of a discharge-
(1) under subsection (d)(1) of this section within
one year after such discharge is granted; or
(2) under subsection (d)(2) or (d)(3) of this
section before the later of-
(A) one year after the granting of such discharge;
and
(B) the date the case is closed.
§ 728. Special tax provisions
(a) For the purposes of any State or local law
imposing a tax on or measured by income, the taxable period of a debtor
that is an individual shall terminate on the date of the order for relief
under this chapter, unless the case was converted under section 1112 or
1208 of this title.
(b) Notwithstanding any State or local law imposing
a tax on or measured by income, the trustee shall make tax returns of
income for the estate of an individual debtor in a case under this chapter
or for a debtor that is a corporation in a case under this chapter only
if such estate or corporation has net taxable income for the entire period
after the order for relief under this chapter during which the case is
pending. If such entity has such income, or if the debtor is a partnership,
then the trustee shall make and file a return of income for each taxable
period during which the case was pending after the order for relief under
this chapter.
(c) If there are pending a case under this chapter
concerning a partnership and a case under this chapter concerning a partner
in such partnership, a governmental unit's claim for any unpaid liability
of such partner for a State or local tax on or measured by income, to
the extent that such liability arose from the inclusion in such partner's
taxable income of earnings of such partnership that were not withdrawn
by such partner, is a claim only against such partnership.
(d) Notwithstanding section 541 of this title,
if there are pending a case under this chapter concerning a partnership
and a case under this chapter concerning a partner in such partnership,
then any State or local tax refund or reduction of tax of such partner
that would have otherwise been property of the estate of such partner
under section 541 of this title-
(1) is property of the estate of such partnership
to the extent that such tax refund or reduction of tax is fairly apportionable
to losses sustained by such partnership and not reimbursed by such partner;
and
(2) is otherwise property of the estate of such
partner.
SUBCHAPTER III-STOCKBROKER LIQUIDATION
§ 741. Definitions for this subchapter
In this subchapter-
(1) "Commission" means Securities and Exchange
Commission;
(2) "customer" includes-
(A) entity with whom a person deals as principal or
agent and that has a claim against such person on account of a security
received,