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11 USC Chapter 1
-CITE-
11 USC CHAPTER 1 - GENERAL PROVISIONS 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
CHAPTER 1 - GENERAL PROVISIONS
-MISC1-
Sec.
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 fraudulently
prepare bankruptcy petitions.
111. Nonprofit budget and credit counseling agencies;
financial management instructional courses.
112. Prohibition on disclosure of name of minor children.
AMENDMENTS
2005 - Pub. L. 109-8, title I, Sec. 106(e)(2), title II, Sec.
233(b), Apr. 20, 2005, 119 Stat. 41, 74, added items 111 and 112.
1994 - Pub. L. 103-394, title III, Sec. 308(b), Oct. 22, 1994,
108 Stat. 4137, added item 110.
-End-
-CITE-
11 USC Sec. 101 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 101. Definitions
-STATUTE-
In this title the following definitions shall apply:
(1) The term "accountant" means accountant authorized under
applicable law to practice public accounting, and includes
professional accounting association, corporation, or partnership,
if so authorized.
(2) The term "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) The term "assisted person" means any person whose debts
consist primarily of consumer debts and the value of whose
nonexempt property is less than $150,000.
(4) The term "attorney" means attorney, professional law
association, corporation, or partnership, authorized under
applicable law to practice law.
(4A) The term "bankruptcy assistance" means any goods or
services sold or otherwise provided to an assisted person with
the express or implied purpose of providing information, advice,
counsel, document preparation, or filing, or attendance at a
creditors' meeting or appearing in a case or proceeding on behalf
of another or providing legal representation with respect to a
case or proceeding under this title.
(5) The term "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) The term "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) The term "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.
(7A) The term "commercial fishing operation" means -
(A) the catching or harvesting of fish, shrimp, lobsters,
urchins, seaweed, shellfish, or other aquatic species or
products of such species; or
(B) for purposes of section 109 and chapter 12, aquaculture
activities consisting of raising for market any species or
product described in subparagraph (A).
(7B) The term "commercial fishing vessel" means a vessel used
by a family fisherman to carry out a commercial fishing
operation.
(8) The term "consumer debt" means debt incurred by an
individual primarily for a personal, family, or household
purpose.
(9) The term "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) The term "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.
(10A) The term "current monthly income" -
(A) means the average monthly income from all sources that
the debtor receives (or in a joint case the debtor and the
debtor's spouse receive) without regard to whether such income
is taxable income, derived during the 6-month period ending on -
(i) the last day of the calendar month immediately
preceding the date of the commencement of the case if the
debtor files the schedule of current income required by
section 521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the
court for purposes of this title if the debtor does not file
the schedule of current income required by section
521(a)(1)(B)(ii); and
(B) includes any amount paid by any entity other than the
debtor (or in a joint case the debtor and the debtor's spouse),
on a regular basis for the household expenses of the debtor or
the debtor's dependents (and in a joint case the debtor's
spouse if not otherwise a dependent), but excludes benefits
received under the Social Security Act, payments to victims of
war crimes or crimes against humanity on account of their
status as victims of such crimes, and payments to victims of
international terrorism (as defined in section 2331 of title
18) or domestic terrorism (as defined in section 2331 of title
18) on account of their status as victims of such terrorism.
(11) The term "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) The term "debt" means liability on a claim.
(12A) The term "debt relief agency" means any person who
provides any bankruptcy assistance to an assisted person in
return for the payment of money or other valuable consideration,
or who is a bankruptcy petition preparer under section 110, but
does not include -
(A) any person who is an officer, director, employee, or
agent of a person who provides such assistance or of the
bankruptcy petition preparer;
(B) a nonprofit organization that is exempt from taxation
under section 501(c)(3) of the Internal Revenue Code of 1986;
(C) a creditor of such assisted person, to the extent that
the creditor is assisting such assisted person to restructure
any debt owed by such assisted person to the creditor;
(D) a depository institution (as defined in section 3 of the
Federal Deposit Insurance Act) or any Federal credit union or
State credit union (as those terms are defined in section 101
of the Federal Credit Union Act), or any affiliate or
subsidiary of such depository institution or credit union; or
(E) an author, publisher, distributor, or seller of works
subject to copyright protection under title 17, when acting in
such capacity.
(13) The term "debtor" means person or municipality concerning
which a case under this title has been commenced.
(13A) The term "debtor's principal residence" -
(A) means a residential structure if used as the principal
residence by the debtor, including incidental property, without
regard to whether that structure is attached to real property;
and
(B) includes an individual condominium or cooperative unit, a
mobile or manufactured home, or trailer if used as the
principal residence by the debtor.
(14) The term "disinterested person" means a person that -
(A) is not a creditor, an equity security holder, or an
insider;
(B) is not and was not, within 2 years before the date of the
filing of the petition, a director, officer, or employee of the
debtor; and
(C) 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 for any other reason.
(14A) The term "domestic support obligation" means a debt that
accrues before, on, or after the date of the order for relief in
a case under this title, including interest that accrues on that
debt as provided under applicable nonbankruptcy law
notwithstanding any other provision of this title, that is -
(A) owed to or recoverable by -
(i) a spouse, former spouse, or child of the debtor or such
child's parent, legal guardian, or responsible relative; or
(ii) a governmental unit;
(B) in the nature of alimony, maintenance, or support
(including assistance provided by a governmental unit) of such
spouse, former spouse, or child of the debtor or such child's
parent, without regard to whether such debt is expressly so
designated;
(C) established or subject to establishment before, on, or
after the date of the order for relief in a case under this
title, by reason of applicable provisions of -
(i) a separation agreement, divorce decree, or property
settlement agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance with applicable
nonbankruptcy law by a governmental unit; and
(D) not assigned to a nongovernmental entity, unless that
obligation is assigned voluntarily by the spouse, former
spouse, child of the debtor, or such child's parent, legal
guardian, or responsible relative for the purpose of collecting
the debt.
(15) The term "entity" includes person, estate, trust,
governmental unit, and United States trustee.
(16) The term "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) The term "equity security holder" means holder of an
equity security of the debtor.
(18) The term "family farmer" means -
(A) individual or individual and spouse engaged in a farming
operation whose aggregate debts do not exceed $3,237,000 and
not less than 50 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 -
(i) the taxable year preceding; or
(ii) each of the 2d and 3d taxable years 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 $3,237,000 and not
less than 50 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) The term "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.
(19A) The term "family fisherman" means -
(A) an individual or individual and spouse engaged in a
commercial fishing operation -
(i) 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 commercial fishing
operation), on the date the case is filed, arise out of a
commercial fishing operation owned or operated by such
individual or such individual and spouse; and
(ii) who receive from such commercial fishing operation
more than 50 percent of such individual's or such
individual's 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) a corporation or partnership -
(i) in which more than 50 percent of the outstanding stock
or equity is held by -
(I) 1 family that conducts the commercial fishing
operation; or
(II) 1 family and the relatives of the members of such
family, and such family or such relatives conduct the
commercial fishing operation; and
(ii)(I) more than 80 percent of the value of its assets
consists of assets related to the commercial fishing
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 1 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 commercial fishing
operation), on the date the case is filed, arise out of a
commercial fishing operation owned or operated by such
corporation or such partnership; and
(III) if such corporation issues stock, such stock is not
publicly traded.
(19B) The term "family fisherman with regular annual income"
means a family fisherman whose annual income is sufficiently
stable and regular to enable such family fisherman to make
payments under a plan under chapter 12 of this title.
(20) The term "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) The term "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.
(21A) The term "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) The term "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" means -
(A) a Federal reserve bank, or an entity that is a commercial
or savings bank, industrial savings bank, savings and loan
association, trust company, federally-insured credit union, or
receiver, liquidating agent, or conservator for such entity
and, when any such Federal reserve bank, receiver, liquidating
agent, conservator or entity is acting as agent or custodian
for a customer (whether or not a "customer", as defined in
section 741) in connection with a securities contract (as
defined in section 741) such customer; or
(B) in connection with a securities contract (as defined in
section 741) an investment company registered under the
Investment Company Act of 1940.
(22A) The term "financial participant" means -
(A) an entity that, at the time it enters into a securities
contract, commodity contract, swap agreement, repurchase
agreement, or forward contract, or at the time of the date of
the filing of the petition, has one or more agreements or
transactions described in paragraph (1), (2), (3), (4), (5), or
(6) of section 561(a) with the debtor or any other entity
(other than an affiliate) of a total gross dollar value of not
less than $1,000,000,000 in notional or actual principal amount
outstanding (aggregated across counterparties) at such time or
on any day during the 15-month period preceding the date of the
filing of the petition, or has gross mark-to-market positions
of not less than $100,000,000 (aggregated across
counterparties) in one or more such agreements or transactions
with the debtor or any other entity (other than an affiliate)
at such time or on any day during the 15-month period preceding
the date of the filing of the petition; or
(B) a clearing organization (as defined in section 402 of the
Federal Deposit Insurance Corporation Improvement Act of 1991).
(23) The term "foreign proceeding" means a collective judicial
or administrative proceeding in a foreign country, including an
interim proceeding, under a law relating to insolvency or
adjustment of debt in which proceeding the assets and affairs of
the debtor are subject to control or supervision by a foreign
court, for the purpose of reorganization or liquidation.
(24) The term "foreign representative" means a person or body,
including a person or body appointed on an interim basis,
authorized in a foreign proceeding to administer the
reorganization or the liquidation of the debtor's assets or
affairs or to act as a representative of such foreign proceeding.
(25) The term "forward contract" means -
(A) a contract (other than a commodity contract, as defined
in section 761) 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 or reverse repurchase transaction (whether or not
such repurchase or reverse repurchase transaction is a
"repurchase agreement", as defined in this section) (!1)
consignment, lease, swap, hedge transaction, deposit, loan,
option, allocated transaction, unallocated transaction, or any
other similar agreement;
(B) any combination of agreements or transactions referred to
in subparagraphs (A) and (C);
(C) any option to enter into an agreement or transaction
referred to in subparagraph (A) or (B);
(D) a master agreement that provides for an agreement or
transaction referred to in subparagraph (A), (B), or (C),
together with all supplements to any such master agreement,
without regard to whether such master agreement provides for an
agreement or transaction that is not a forward contract under
this paragraph, except that such master agreement shall be
considered to be a forward contract under this paragraph only
with respect to each agreement or transaction under such master
agreement that is referred to in subparagraph (A), (B), or (C);
or
(E) any security agreement or arrangement, or other credit
enhancement related to any agreement or transaction referred to
in subparagraph (A), (B), (C), or (D), including any guarantee
or reimbursement obligation by or to a forward contract
merchant or financial participant in connection with any
agreement or transaction referred to in any such subparagraph,
but not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section
562.
(26) The term "forward contract merchant" means a Federal
reserve bank, or an entity the business of which consists in
whole or in part of entering into forward contracts as or with
merchants in a commodity (as defined in section 761) 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) The term "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.
(27A) The term "health care business" -
(A) means any public or private entity (without regard to
whether that entity is organized for profit or not for profit)
that is primarily engaged in offering to the general public
facilities and services for -
(i) the diagnosis or treatment of injury, deformity, or
disease; and
(ii) surgical, drug treatment, psychiatric, or obstetric
care; and
(B) includes -
(i) any -
(I) general or specialized hospital;
(II) ancillary ambulatory, emergency, or surgical
treatment facility;
(III) hospice;
(IV) home health agency; and
(V) other health care institution that is similar to an
entity referred to in subclause (I), (II), (III), or (IV);
and
(ii) any long-term care facility, including any -
(I) skilled nursing facility;
(II) intermediate care facility;
(III) assisted living facility;
(IV) home for the aged;
(V) domiciliary care facility; and
(VI) health care institution that is related to a
facility referred to in subclause (I), (II), (III), (IV),
or (V), if that institution is primarily engaged in
offering room, board, laundry, or personal assistance with
activities of daily living and incidentals to activities of
daily living.
(27B) The term "incidental property" means, with respect to a
debtor's principal residence -
(A) property commonly conveyed with a principal residence in
the area where the real property is located;
(B) all easements, rights, appurtenances, fixtures, rents,
royalties, mineral rights, oil or gas rights or profits, water
rights, escrow funds, or insurance proceeds; and
(C) all replacements or additions.
(28) The term "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) The term "indenture trustee" means trustee under an
indenture.
(30) The term "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) The term "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) The term "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 is -
(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) The term "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) The term "insured credit union" has the meaning given it
in section 101(7) of the Federal Credit Union Act.
(35) The term "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) The term "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.
(36) The term "judicial lien" means lien obtained by judgment,
levy, sequestration, or other legal or equitable process or
proceeding.
(37) The term "lien" means charge against or interest in
property to secure payment of a debt or performance of an
obligation.
(38) The term "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.
(38A) The term "master netting agreement" -
(A) means an agreement providing for the exercise of rights,
including rights of netting, setoff, liquidation, termination,
acceleration, or close out, under or in connection with one or
more contracts that are described in any one or more of
paragraphs (1) through (5) of section 561(a), or any security
agreement or arrangement or other credit enhancement related to
one or more of the foregoing, including any guarantee or
reimbursement obligation related to 1 or more of the foregoing;
and
(B) if the agreement contains provisions relating to
agreements or transactions that are not contracts described in
paragraphs (1) through (5) of section 561(a), shall be deemed
to be a master netting agreement only with respect to those
agreements or transactions that are described in any one or
more of paragraphs (1) through (5) of section 561(a).
(38B) The term "master netting agreement participant" means an
entity that, at any time before the date of the filing of the
petition, is a party to an outstanding master netting agreement
with the debtor.
(39) The term "mask work" has the meaning given it in section
901(a)(2) of title 17.
(39A) The term "median family income" means for any year -
(A) the median family income both calculated and reported by
the Bureau of the Census in the then most recent year; and
(B) if not so calculated and reported in the then current
year, adjusted annually after such most recent year until the
next year in which median family income is both calculated and
reported by the Bureau of the Census, to reflect the percentage
change in the Consumer Price Index for All Urban Consumers
during the period of years occurring after such most recent
year and before such current year.
(40) The term "municipality" means political subdivision or
public agency or instrumentality of a State.
(40A) The term "patient" means any individual who obtains or
receives services from a health care business.
(40B) The term "patient records" means any record relating to a
patient, including a written document or a record recorded in a
magnetic, optical, or other form of electronic medium.
(41) The term "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.
(41A) The term "personally identifiable information" means -
(A) if provided by an individual to the debtor in connection
with obtaining a product or a service from the debtor primarily
for personal, family, or household purposes -
(i) the first name (or initial) and last name of such
individual, whether given at birth or time of adoption, or
resulting from a lawful change of name;
(ii) the geographical address of a physical place of
residence of such individual;
(iii) an electronic address (including an e-mail address)
of such individual;
(iv) a telephone number dedicated to contacting such
individual at such physical place of residence;
(v) a social security account number issued to such
individual; or
(vi) the account number of a credit card issued to such
individual; or
(B) if identified in connection with 1 or more of the items
of information specified in subparagraph (A) -
(i) a birth date, the number of a certificate of birth or
adoption, or a place of birth; or
(ii) any other information concerning an identified
individual that, if disclosed, will result in contacting or
identifying such individual physically or electronically.
(42) The term "petition" means petition filed under section
301, 302, 303 and (!2) 1504 of this title, as the case may be,
commencing a case under this title.
(42A) The term "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) The term "purchaser" means transferee of a voluntary
transfer, and includes immediate or mediate transferee of such a
transferee.
(44) The term "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) The term "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) The term "repo participant" means an entity that, at any
time before the filing of the petition, has an outstanding
repurchase agreement with the debtor.
(47) The term "repurchase agreement" (which definition also
applies to a reverse repurchase agreement) -
(A) means -
(i) an agreement, including related terms, which provides
for the transfer of one or more certificates of deposit,
mortgage related securities (as defined in section 3 of the
Securities Exchange Act of 1934), mortgage loans, interests
in mortgage related securities or mortgage loans, eligible
bankers' acceptances, qualified foreign government securities
(defined as a security that is a direct obligation of, or
that is fully guaranteed by, the central government of a
member of the Organization for Economic Cooperation and
Development), or securities that are direct obligations of,
or that are fully guaranteed 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, securities, mortgage loans, or
interests, with a simultaneous agreement by such transferee
to transfer to the transferor thereof certificates of
deposit, eligible bankers' acceptance, securities, mortgage
loans, or interests of the kind described in this clause, at
a date certain not later than 1 year after such transfer or
on demand, against the transfer of funds;
(ii) any combination of agreements or transactions referred
to in clauses (i) and (iii);
(iii) an option to enter into an agreement or transaction
referred to in clause (i) or (ii);
(iv) a master agreement that provides for an agreement or
transaction referred to in clause (i), (ii), or (iii),
together with all supplements to any such master agreement,
without regard to whether such master agreement provides for
an agreement or transaction that is not a repurchase
agreement under this paragraph, except that such master
agreement shall be considered to be a repurchase agreement
under this paragraph only with respect to each agreement or
transaction under the master agreement that is referred to in
clause (i), (ii), or (iii); or
(v) any security agreement or arrangement or other credit
enhancement related to any agreement or transaction referred
to in clause (i), (ii), (iii), or (iv), including any
guarantee or reimbursement obligation by or to a repo
participant or financial participant in connection with any
agreement or transaction referred to in any such clause, but
not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section
562 of this title; and
(B) does not include a repurchase obligation under a
participation in a commercial mortgage loan.
(48) The term "securities clearing agency" means person that is
registered as a clearing agency under section 17A of the
Securities Exchange Act of 1934, or exempt from such registration
under such section pursuant to an order of the Securities and
Exchange Commission, 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.
(48A) The term "securities self regulatory organization" means
either a securities association registered with the Securities
and Exchange Commission under section 15A of the Securities
Exchange Act of 1934 or a national securities exchange registered
with the Securities and Exchange Commission under section 6 of
the Securities Exchange Act of 1934.
(49) The term "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) The term "security agreement" means agreement that creates
or provides for a security interest.
(51) The term "security interest" means lien created by an
agreement.
(51A) The term "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) The term "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 who
is not a family farmer 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.
(51C) The term "small business case" means a case filed under
chapter 11 of this title in which the debtor is a small business
debtor.
(51D) The term "small business debtor" -
(A) subject to subparagraph (B), means a person engaged in
commercial or business activities (including any affiliate of
such person that is also a debtor under this title and
excluding a person whose primary activity is the business of
owning or operating real property or activities incidental
thereto) that has aggregate noncontingent liquidated secured
and unsecured debts as of the date of the filing of the
petition or the date of the order for relief in an amount not
more than $2,000,000 (excluding debts owed to 1 or more
affiliates or insiders) for a case in which the United States
trustee has not appointed under section 1102(a)(1) a committee
of unsecured creditors or where the court has determined that
the committee of unsecured creditors is not sufficiently active
and representative to provide effective oversight of the
debtor; and
(B) does not include any member of a group of affiliated
debtors that has aggregate noncontingent liquidated secured and
unsecured debts in an amount greater than $2,000,000 (excluding
debt owed to 1 or more affiliates or insiders).
(52) The term "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) The term "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) The term "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) The term "swap agreement" -
(A) means -
(i) any agreement, including the terms and conditions
incorporated by reference in such agreement, which is -
(I) an interest rate swap, option, future, or forward
agreement, including a rate floor, rate cap, rate collar,
cross-currency rate swap, and basis swap;
(II) a spot, same day-tomorrow, tomorrow-next, forward,
or other foreign exchange, precious metals, or other
commodity agreement;
(III) a currency swap, option, future, or forward
agreement;
(IV) an equity index or equity swap, option, future, or
forward agreement;
(V) a debt index or debt swap, option, future, or forward
agreement;
(VI) a total return, credit spread or credit swap,
option, future, or forward agreement;
(VII) a commodity index or a commodity swap, option,
future, or forward agreement;
(VIII) a weather swap, option, future, or forward
agreement;
(IX) an emissions swap, option, future, or forward
agreement; or
(X) an inflation swap, option, future, or forward
agreement;
(ii) any agreement or transaction that is similar to any
other agreement or transaction referred to in this paragraph
and that -
(I) is of a type that has been, is presently, or in the
future becomes, the subject of recurrent dealings in the
swap or other derivatives markets (including terms and
conditions incorporated by reference therein); and
(II) is a forward, swap, future, option, or spot
transaction on one or more rates, currencies, commodities,
equity securities, or other equity instruments, debt
securities or other debt instruments, quantitative measures
associated with an occurrence, extent of an occurrence, or
contingency associated with a financial, commercial, or
economic consequence, or economic or financial indices or
measures of economic or financial risk or value;
(iii) any combination of agreements or transactions
referred to in this subparagraph;
(iv) any option to enter into an agreement or transaction
referred to in this subparagraph;
(v) a master agreement that provides for an agreement or
transaction referred to in clause (i), (ii), (iii), or (iv),
together with all supplements to any such master agreement,
and without regard to whether the master agreement contains
an agreement or transaction that is not a swap agreement
under this paragraph, except that the master agreement shall
be considered to be a swap agreement under this paragraph
only with respect to each agreement or transaction under the
master agreement that is referred to in clause (i), (ii),
(iii), or (iv); or
(vi) any security agreement or arrangement or other credit
enhancement related to any agreements or transactions
referred to in clause (i) through (v), including any
guarantee or reimbursement obligation by or to a swap
participant or financial participant in connection with any
agreement or transaction referred to in any such clause, but
not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section
562; and
(B) is applicable for purposes of this title only, and shall
not be construed or applied so as to challenge or affect the
characterization, definition, or treatment of any swap
agreement under any other statute, regulation, or rule,
including the Gramm-Leach-Bliley Act, the Legal Certainty for
Bank Products Act of 2000, the securities laws (as such term is
defined in section 3(a)(47) of the Securities Exchange Act of
1934) and the Commodity Exchange Act.
(53C) The term "swap participant" means an entity that, at any
time before the filing of the petition, has an outstanding swap
agreement with the debtor.
(56A) (!3) The term "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.
(53D) The term "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) The term "transfer" means -
(A) the creation of a lien;
(B) the retention of title as a security interest;
(C) the foreclosure of a debtor's equity of redemption; or
(D) each mode, direct or indirect, absolute or conditional,
voluntary or involuntary, of disposing of or parting with -
(i) property; or
(ii) an interest in property.
(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.
(55) The term "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.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2549; Pub. L. 97-222, Sec.
1, July 27, 1982, 96 Stat. 235; Pub. L. 98-353, title III, Secs.
391, 401, 421, July 10, 1984, 98 Stat. 364, 366, 367; Pub. L. 99-
554, title II, Secs. 201, 251, 283(a), Oct. 27, 1986, 100 Stat.
3097, 3104, 3116; Pub. L. 100-506, Sec. 1(a), Oct. 18, 1988, 102
Stat. 2538; Pub. L. 100-597, Sec. 1, Nov. 3, 1988, 102 Stat. 3028;
Pub. L. 101-311, title I, Sec. 101, title II, Sec. 201, June 25,
1990, 104 Stat. 267, 268; Pub. L. 101-647, title XXV, Sec. 2522(e),
Nov. 29, 1990, 104 Stat. 4867; Pub. L. 102-486, title XXX, Sec.
3017(a), Oct. 24, 1992, 106 Stat. 3130; Pub. L. 103-394, title I,
Sec. 106, title II, Secs. 208(a), 215, 217(a), 218(a), title III,
Sec. 304(a), title V, Sec. 501(a), (b)(1), (d)(1), Oct. 22, 1994,
108 Stat. 4111, 4124, 4126-4128, 4132, 4141-4143; Pub. L. 106-554,
Sec. 1(a)(5) [title I, Sec. 112(c)(3), (4)], Dec. 21, 2000, 114
Stat. 2763, 2763A-393, 2763A-394; Pub. L. 109-8, title I, Sec.
102(b), (k), title II, Secs. 211, 226(a), 231(b), title III, Sec.
306(c), title IV, Secs. 401(a), 414, 432(a), title VIII, Sec.
802(b), title IX, Sec. 907(a)(1), (b), (c), title X, Secs. 1004,
1005, 1007(a), title XI, Sec. 1101(a), (b), title XII, Sec. 1201,
Apr. 20, 2005, 119 Stat. 32, 35, 50, 66, 73, 80, 104, 107, 110,
145, 170, 175, 186, 187, 189, 192; Pub. L. 109-390, Sec. 5(a)(1),
Dec. 12, 2006, 120 Stat. 2695; Pub. L. 111-327, Sec. 2(a)(1), Dec.
22, 2010, 124 Stat. 3557.)
-STATAMEND-
ADJUSTMENT OF DOLLAR AMOUNTS
For adjustment of certain dollar amounts specified in this
section, that is not reflected in text, see Adjustment of Dollar
Amounts note below.
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Section 101(2) defines "affiliate." The House amendment contains
a provision that is a compromise between the definition in the
House-passed version of H.R. 8200 and the Senate amendment in the
nature of a substitute to H.R. 8200. Subparagraphs (A) and (B) are
derived from the Senate amendment and subparagraph (D) is taken
from the House bill, while subparagraph (C) represents a
compromise, taking the House position with respect to a person
whose business is operated under a lease or an operating agreement
by the debtor and with respect to a person substantially all of
whose property is operated under an operating agreement by the
debtor and with respect to a person substantially all of whose
property is operated under an operating agreement by the debtor and
the Senate position on leased property. Thus, the definition of
"affiliate" excludes persons substantially all of whose property is
operated under a lease agreement by a debtor, such as a small
company which owns equipment all of which is leased to a larger
nonrelated company.
Section 101(4)(B) represents a modification of the House-passed
bill to include the definition of "claim" a right to an equitable
remedy for breach of performance if such breach gives rise to a
right to payment. This is intended to cause the liquidation or
estimation of contingent rights of payment for which there may be
an alternative equitable remedy with the result that the equitable
remedy will be susceptible to being discharged in bankruptcy. For
example, in some States, a judgment for specific performance may be
satisfied by an alternative right to payment, in the event
performance is refused; in that event, the creditor entitled to
specific performance would have a "claim" for purposes of a
proceeding under title 11.
On the other hand, rights to an equitable remedy for a breach of
performance with respect to which such breach does not give rise to
a right to payment are not "claims" and would therefore not be
susceptible to discharge in bankruptcy.
In a case under chapter 9 to title 11, "claim" does not include a
right to payment under an industrial development bond issued by a
municipality as a matter of convenience for a third party.
Municipalities are authorized, under section 103(c) of the
Internal Revenue Code of 1954, as amended [title 26], to issue tax-
exempt industrial development revenue bonds to provide for the
financing of certain projects for privately owned companies. The
bonds are sold on the basis of the credit of the company on whose
behalf they are issued, and the principal, interest, and premium,
if any, are payable solely from payments made by the company to the
trustee under the bond indenture and do not constitute claims on
the tax revenues or other funds of the issuing municipalities. The
municipality merely acts as the vehicle to enable the bonds to be
issued on a tax-exempt basis. Claims that arise by virtue of these
bonds are not among the claims defined by this paragraph and
amounts owed by private companies to the holders of industrial
development revenue bonds are not to be included among the assets
of the municipality that would be affected by the plan.
Section 101(6) defines "community claim" as provided by the
Senate amendment in order to indicate that a community claim exists
whether or not there is community property in the estate as of the
commencement of the case.
Section 101(7) of the House amendment contains a definition of
consumer debt identical to the definition in the House bill and
Senate amendment. A consumer debt does not include a debt to any
extent the debt is secured by real property.
Section 101(9) of the Senate amendment contained a definition of
"court." The House amendment deletes the provision as unnecessary
in light of the pervasive jurisdiction of a bankruptcy court under
all chapters of title 11 as indicated in title II of the House
amendment to H.R. 8200.
Section 101(11) defines "debt" to mean liability on a claim, as
was contained in the House-passed version of H.R. 8200. The Senate
amendment contained language indicating that "debt" does not
include a policy loan made by a life insurance company to the
debtor. That language is deleted in the House amendment as
unnecessary since a life insurance company clearly has no right to
have a policy loan repaid by the debtor, although such company does
have a right of offset with respect to such policy loan. Clearly,
then, a "debt" does not include a policy loan made by a life
insurance company. Inclusion of the language contained in the
Senate amendment would have required elaboration of other legal
relationships not arising by a liability on a claim. Further the
language would have required clarification that interest on a
policy loan made by a life insurance company is a debt, and that
the insurance company does have right to payment to that interest.
Section 101(14) adopts the definition of "entity" contained in
the Senate-passed version of H.R. 8200. Since the Senate amendment
to H.R. 8200 deleted the U.S. trustee, a corresponding definitional
change is made in chapter 15 of the House amendment for U.S.
trustees under the pilot program. Adoption by the House amendment
of a pilot program for U.S. trustees under chapter 15 requires
insertion of "United States trustee" in many sections. Several
provisions in chapter 15 of the House amendment that relate to the
U.S. trustee were not contained in the Senate amendment in the
nature of a substitute.
Section 101(17) defines "farmer," as in the Senate amendment with
an income limitation percentage of 80 percent instead of 75
percent.
Section 101(18) contains a new definition of "farming operation"
derived from present law and the definition of "farmer" in the
Senate amendment. This definition gives a broad construction to the
term "farming operation".
Section 101(20) contains a definition of "foreign
representative". It clarifies the House bill and Senate amendment
by indicating that a foreign representative must be duly selected
in a foreign proceeding.
Section 101(35) defines "security" as contained in the Senate
amendment. H.R. 8200 as adopted by the House excluded certain
commercial notes from the definition of "security", and that
exclusion is deleted.
Section 101(40) defines "transfer" as in the Senate amendment.
The definition contained in H.R. 8200 as passed by the House
included "setoff" in the definition of "transfer". Inclusion of
"setoff" is deleted. The effect is that a "setoff" is not subject
to being set aside as a preferential "transfer" but will be subject
to special rules.
SENATE REPORT NO. 95-989
Section 101 of title 11 contains 40 definitions:
Paragraph (1) defines "accountant" as an accountant authorized
under applicable law to practice accounting. The term includes a
professional accounting association, corporation, or partnership if
applicable law authorizes such a unit to practice accounting.
Paragraph (2) defines "affiliate." An affiliate is an entity with
a close relationship to the debtor. It includes a 20 percent parent
or subsidiary of the debtor, whether a corporate, partnership,
individual, or estate parent.
The use of "directly or indirectly" in subparagraphs (A) and (B)
is intended to cover situations in which there is an opportunity to
control, and where the existence of that opportunity operates as
indirect control.
"Affiliate" is defined primarily for use in the definition of
insider, infra, and for use in the chapter 11 reorganization cases.
The definition of "affiliate" does not include an entity acting in
a fiduciary or agency capacity if the entity does not have the sole
discretionary power to vote 20 percent of the voting securities but
hold them solely as security and have not exercised the power to
vote. This restriction applies to a corporate affiliate under
subparagraph (B) of paragraph (2).
Subsections (C) and (D) of paragraph (2) define affiliate also as
those persons and entities whose business or substantially all of
whose property is operated under a lease or operating agreement by
a debtor and whose business or property is more than 50 percent
under the control of the debtor.
The definition of "attorney" in paragraph (3) is similar to the
definition of accountant.
Paragraph (4) defines "claim." The effect of the definition is a
significant departure from present law. Under present law, "claim"
is not defined in straight bankruptcy. Instead it is simply used,
along with the concept of provability in section 63 of the
Bankruptcy Act [section 103 of former title 11], to limit the kinds
of obligations that are payable in a bankruptcy case. The term is
defined in the debtor rehabilitation chapters of present law far
more broadly. The definition in paragraph (4) adopts an even
broader definition of claim than is found in the present debtor
rehabilitation chapters. The definition is any right to payment,
whether or not reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured. The definition also includes as a
claim an equitable right to performance that does not give rise to
a right to payment. By this broadest possible definition and by the
use of the term throughout the title 11, especially in subchapter I
of chapter 5, the bill contemplates that all legal obligations of
the debtor, no matter how remote or contingent, will be able to be
dealt with in the bankruptcy case. It permits the broadest possible
relief in the bankruptcy court.
Paragraph (5) defines "commodity broker" by reference to various
terms used and defined in subchapter IV of chapter 7, Commodity
Broker Liquidation. The terms are described in connection with
section 761, infra.
Paragraph (6) defines "community claim" for those eight States
that have community property laws. The definition is keyed to the
liability of the debtor's property for a claim against either the
debtor or the debtor's spouse. If the debtor's property is liable
for a claim against either, that claim is a community claim.
Paragraph (7) defines "consumer debt". The definition is adapted
from the definition used in various consumer protection laws. It
encompasses only a debt incurred by an individual primarily for a
personal, family, or household purpose.
The definition of "corporation" in paragraph (8) is similar to
the definition in current law, section 1(8) [section 1(8) of former
title 11]. The term encompasses any association having the power or
privilege that a private corporation, but not an individual or
partnership, has; partnership associations organized under a law
that makes only the capital subscribed responsible for the debts of
the partnership; joint-stock company; unincorporated company or
association; and business trust. "Unincorporated association" is
intended specifically to include a labor union, as well as other
bodies that come under that phrase as used under current law. The
exclusion of limited partnerships is explicit, and not left to the
case law.
Paragraph (9) defines "court" as the bankruptcy judge in the
district in which the case is pending except in municipal
adjustment and railroad reorganization cases, where "court" means
the Federal district judge.
Paragraph (10) [enacted as (9)] defines "creditor" to include
holders of prepetition claims against the debtor. However, it also
encompasses certain holders of claims that are deemed to arise
before the date of the filing of the petition, such as those
injured by the rejection of an executory contract or unexpired
lease, certain investment tax credit recapture claim holders,
"involuntary gap" creditors, and certain holders of the right of
setoff. The term also includes the holder of a prepetition
community claim. A guarantor of or surety for a claim against the
debtor is also a creditor, because he holds a contingent claim
against the debtor that becomes fixed when he pays the creditor
whose claim he has guaranteed or insured.
Paragraph (11) [enacted as (10)] defines "custodian." There is no
similar definition in current law. It is defined to facilitate
drafting, and means a prepetition liquidator of the debtor's
property, such as an assignee for the benefit of creditors, a
receiver of the debtor's property, or administrator of the debtor's
property. The definition of custodian to include a receiver or
trustee is descriptive, and not meant to be limited to court
officers with those titles. The definition is intended to include
other officers of the court if their functions are substantially
similar to those of a receiver or trustee.
"Debt" is defined in paragraph (12) [enacted as (11)] as a
liability on a claim. The terms "debt" and "claim" are coextensive:
a creditor has a "claim" against the debtor; the debtor owes a
"debt" to the creditor. This definition of "debt" and the
definition of "claim" on which it is based, proposed 11 U.S.C.
101(4), does not include a transaction such as a policy loan on an
insurance policy. Under that kind of transaction, the debtor is not
liable to the insurance company for repayment; the amount owed is
merely available to the company for setoff against any benefits
that become payable under the policy. As such, the loan is not a
claim (it is not a right to payment) that the company can assert
against the estate; nor is the debtor's obligation a debt (a
liability on a claim) that will be discharged under proposed 11
U.S.C. 523 or 524.
Paragraph (13) [enacted as (12)] defines "debtor." Debtor means
person or municipality concerning which a case under title II has
been commenced. This is a change in terminology from present law,
which identifies the person by or against whom a petition is filed
in a straight bankruptcy liquidation case as the "bankrupt", and a
person or municipality that is proceeding under a debtor
rehabilitation chapter (chapters VIII through XIII of the
Bankruptcy Act) [chapters 8 through 13 of former title 11] as a
"debtor." The term "debtor" is used for both kinds of cases in this
bill, for ease of reference in chapters 1, 3, and 5 (which apply to
straight bankruptcy and reorganization cases).
Paragraph (14) [enacted as (13)] defines "disinterested person."
The definition is adapted from section 158 of chapter X of current
law [section 558 of former title 11], though it is expanded and
modified in some respects. A person is a disinterested person if
the person is not a creditor, equity security holder, or insider;
is not and was not an investment banker of the debtor for any
outstanding security of the debtor (the change from underwriter in
current law to investment banker is to make the term more
descriptive and to avoid conflict with the definition of
underwriter in section 2(11) of the Securities Act of 1933 (15
U.S.C. 77b(11)); has not been an investment banker for a security
of the debtor within 3 years before the date of the filing of the
petition (the change from five years to three years here conforms
the definition with the statute of limitations in the Securities
Act of 1933) [15 U.S.C. 77m], or an attorney for such an investment
banker; is not an insider of the debtor or of such an investment
banker; and does not have an interest materially adverse to the
estate.
"Entity" is defined, for convenience, in paragraph (15) [enacted
as (14)], to include person, estate, trust, and governmental unit.
It is the most inclusive of the various defined terms relating to
bodies or units.
Paragraph (16) defines "equity security." The term includes a
share or stock in a corporation, a limited partner's interest in a
limited partnership, and a warrant or right to subscribe to an
equity security. The term does not include a security, such as a
convertible debenture, that is convertible into equity security,
but has not been converted.
Paragraph (17) [enacted as (15)] defines "equity security holder"
for convenience as the holder of an equity securing of the debtor.
Paragraph (18) [enacted as (17)] defines "farmer". It encompasses
only those persons for whom farming operations contribute 75
percent or more of their total income.
Paragraphs (19) and (20) define "foreign proceeding" and "foreign
representative". A foreign proceeding is a proceeding in another
country in which the debtor has some substantial connection for the
purpose of liquidating the estate of the debtor or the purpose of
financial rehabilitation of the debtor. A foreign representative is
the representative of the estate in a foreign proceeding, such as a
trustee or administrator.
Paragraph (21) defines "governmental unit" in the broadest sense.
The definition encompasses the United States, a State,
Commonwealth, District, Territory, municipality, or foreign state,
and a department, agency, or instrumentality of any of those
entities. "Department, agency, or instrumentality" does not include
an entity that owes its existence to State action, such as the
granting of a charter or a license but that has no other connection
with a State or local government or the Federal Government. The
relationship must be an active one in which the department, agency,
or instrumentality is actually carrying out some governmental
function.
Paragraph (22) defines "indenture." It is similar to the
definition of indenture in the Trust Indenture Act of 1939 [15
U.S.C. 77ccc(7)]. An indenture is the instrument under which
securities, either debt or equity, of the debtor are outstanding.
Paragraph (23) defines "indenture trustee" as the trustee under
an indenture.
Paragraph (24) defines "individual with regular income." The
effect of this definition, and of its use in section 109(e), is to
expand substantially the kinds of individuals that are eligible for
relief under chapter 13, Adjustment of Debts of an Individual with
Regular Income. Chapter XIII [chapter 13 of former title 11] is now
available only for wage earners. The definition encompasses all
individuals with incomes that are sufficiently stable and regular
to enable them to make payments under a chapter 13 plan. Thus,
individuals on welfare, social security, fixed pension incomes, or
who live on investment incomes, will be able to work out repayment
plans with their creditors rather than being forced into straight
bankruptcy. Also, self-employed individuals will be eligible to use
chapter 13 if they have regular incomes.
However, the definition excludes certain stockbrokers and
commodity brokers, in order to prohibit them from proceeding under
chapter 13 and avoiding the customer protection provisions of
chapter 7.
"Insider", defined in paragraph (25), is a new term. An insider
is one who has a sufficiently close relationship with the debtor
that his conduct is made subject to closer scrutiny than those
dealing at arms length with the debtor. If the debtor is an
individual, then a relative of the debtor, a partnership in which
the debtor is a general partner, a general partner of the debtor,
and a corporation controlled by the debtor are all insiders. If the
debtor is a corporation, then a controlling person, a relative of a
controlling person, a partnership in which the debtor is a general
partner, and a general partner of the debtor are all insiders. If
the debtor is a partnership, then a general partner of or in the
debtor, a relative of a general partner in the debtor, and a person
in control are all insiders. If the debtor is a municipality, then
an elected official of the debtor is an insider. In addition,
affiliates of the debtor and managing agents are insiders.
The definition of "insolvent" in paragraph (26) is adopted from
section 1(19) of current law [section 1(19) of former title 11]. An
entity is insolvent if its debts are greater than its assets, at a
fair valuation, exclusive of property exempted or fraudulently
transferred. It is the traditional bankruptcy balance sheet test of
insolvency. For a partnership, the definition is modified to
account for the liability of a general partner for the
partnership's debts. The difference in this definition from that in
current law is in the exclusion of exempt property for all purposes
in the definition of insolvent.
Paragraph (27) defines "judicial lien." It is one of three kinds
of liens defined in this section. A judicial lien is a lien
obtained by judgment, levy, sequestration, or other legal or
equitable process or proceeding.
Paragraph (28) defines "lien." The definition is new and is very
broad. A lien is defined as a charge against or interest in
property to secure payment of a debt or performance of an
obligation. It includes inchoate liens. In general, the concept of
lien is divided into three kinds of liens: judicial liens, security
interests, and statutory liens. Those three categories are mutually
exclusive and are exhaustive except for certain common law liens.
Paragraph (29) defines "municipality." The definition is adapted
from the terms used in the chapter IX (municipal bankruptcy)
[chapter 9 of former title 11] amendment to the Bankruptcy Act
enacted in 1976 (Pub. L. 94-260). That amendment spoke in terms of
"political subdivision or public agency or instrumentality of a
State". Bankruptcy Act Sec. 84 [section 404 of former title 11].
The term municipality is defined by those three terms for
convenience. It does not include the District of Columbia or any
territories of the United States.
"Person" is defined in paragraph (30). The definition is a change
in wording, but not in substance, from the definition in section
1(23) of the Bankruptcy Act [section 1(23) of former title 11]. The
definition is also similar to the one contained in 1 U.S.C. sec. 1,
but is repeated here for convenience and ease of reference. Person
includes individual partnership, and corporation. The exclusion of
governmental units is made explicit in order to avoid any confusion
that may arise if, for example, a municipality is incorporated and
thus is legally a corporation as well as governmental unit. The
definition does not include an estate or a trust, which are
included only in the definition of "entity" in proposed 11 U.S.C.
101(14).
"Petition" is defined for convenience in paragraph (31). Petition
is a petition under section 301, 302, 303, or 304 of the bankruptcy
code - that is, a petition that commences a case under title 11.
Paragraph (32) defines purchaser as a transferee of a voluntary
transfer, such as a sale or gift, and includes an immediate or
mediate transferee of a purchaser.
The definition of "railroad" in paragraph (33) is derived from
section 77 of the Bankruptcy Act [section 205 of former title 11].
A railroad is a common carrier by railroad engaged in the
transportation of individuals or property, or an owner of trackage
facilities leased by such a common carrier. The effect of the
definition and the use of the term in section 109(d) is to
eliminate the limitation now found in section 77 of the Bankruptcy
Act that only railroads engaged in interstate commerce may proceed
under the railroad reorganization provisions. The limitation may
have been inserted because of a doubt that the commerce power could
not reach intrastate railroads. Be that as it may, this bill is
enacted under the bankruptcy power.
Paragraph (34) defines "relative" as an individual related by
affinity or consanguinity within the third degree as determined by
the common law, and includes individuals in a step or adoptive
relationship. The definition is similar to current law, but adds
the latter phrase. This definition should be applied as of the time
when the transaction that it concerns took place. Thus, a former
spouse is not a relative, but if, for example, for purposes of the
preference section, proposed 11 U.S.C. 547(b)(4)(B), the transferee
was a spouse of the debtor at the time of the transfer sought to be
avoided, then the transferee would be relative and subject to the
insider rules, even if the transferee was no longer married to the
debtor at the time of the commencement of the case or at the time
of the commencement of the preference recovery proceeding.
Paragraph (35) defines "security." The definition is new and is
modeled on the most recent draft of the American Law Institute's
proposed securities code, with some exceptions. The interest of a
limited partner in a limited partnership is included in order to
make sure that everything that is defined as an equity security is
also a "security." The definition, as with the definition of
"entity", "insider", and "person", is open-ended because the term
is not susceptible of precise specification. Thus the courts will
be able to use the characterization provided in this definition to
treat with new kinds of documents on a flexible basis.
Paragraphs (36) and (37) defined "security agreement" and
"security interest." A security interest is one of the kinds of
liens. It is a lien created by an agreement. Security agreement is
defined as the agreement creating the security interest. Though
these terms are similar to the same terms in the Uniform Commercial
Code, article IX, they are broader. For example, the U.C.C. does
not cover real property mortgages. Under this definition, such a
mortgage is included, as are all other liens created by agreement,
even though not covered by the U.C.C. All U.C.C. security interests
and security agreements are, however, security interests and
security agreements under this definition. Whether a consignment or
a lease constitutes a security interest under the bankruptcy code
will depend on whether it constitutes a security interest under
applicable State or local law.
Paragraph (38) defines another kind of lien, "statutory lien."
The definition, derived from current law, states that a statutory
lien is a lien arising solely by force of statute on specified
circumstances or conditions and includes a lien of distress for
rent (whether statutory, common law, or otherwise). The definition
excludes judicial liens and security interests, whether or not they
are provided for or are dependent on a statute, and whether or not
they are made fully effective by statute. A statutory lien is only
one that arises automatically, and is not based on an agreement to
give a lien or on judicial action. Mechanics', materialmen's, and
warehousemen's liens are examples. Tax liens are also included in
the definition of statutory lien.
"Stockbroker" is defined in paragraph (39) as a person engaged in
the business of effecting transactions in securities for the
account of others or with members of the general public from or for
such person's own account, if the person has a customer, as
defined. Thus, the definition, derived from a combination of the
definitions of "broker" and "dealer" in the Securities Exchange Act
of 1934 [15 U.S.C. 78c], encompasses both brokers and dealers. The
definition is used in section 109 and in subchapter III of chapter
7, Stockholder Liquidation. The term does not encompass an employee
who acts for a principal that "effects" transaction or deals with
the public, because such an employee will not have a "customer".
Paragraph (40) defines "transfer." It is derived and adapted,
with stylistic changes, from section 1(30) of the Bankruptcy Act
[section 1(30) of former title 11]. A transfer is a disposition of
an interest in property. The definition of transfer is as broad as
possible. Many of the potentially limiting words in current law are
deleted, and the language is simplified. Under this definition, any
transfer of an interest in property is a transfer, including a
transfer of possession, custody, or control even if there is no
transfer of title, because possession, custody, and control are
interests in property. A deposit in a bank account or similar
account is a transfer.
-REFTEXT-
REFERENCES IN TEXT
The Social Security Act, referred to in par. (10A)(B), is act
Aug. 14, 1935, ch. 531, 49 Stat. 620, which is classified generally
to chapter 7 (Sec. 301 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the Code, see
section 1305 of Title 42 and Tables.
The Internal Revenue Code of 1986, referred to in pars. (12A)(B)
and (41)(C), is classified generally to Title 26, Internal Revenue
Code.
Section 3 of the Federal Deposit Insurance Act, referred to in
pars. (12A)(D), (21B)(A), (33)(A), (35)(A), and (54A), is
classified to section 1813 of Title 12, Banks and Banking.
Sections 101 and 206(r) of the Federal Credit Union Act, referred
to in pars. (12A)(D), (33)(B), and (34), are classified to sections
1752 and 1786(r), respectively, of Title 12, Banks and Banking.
The Investment Company Act of 1940, referred to in par. (22)(B),
is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is
classified generally to subchapter I (Sec. 80a-1 et seq.) of
chapter 2D of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see section 80a-51 of Title
15 and Tables.
Section 402 of the Federal Deposit Insurance Corporation
Improvement Act of 1991, referred to in par. (22A)(B), is
classified to section 4402 of Title 12, Banks and Banking.
The Securities Exchange Act of 1934, referred to in pars.
(47)(A)(i), (48), (48A), and (53B)(B), is act June 6, 1934, ch.
404, 48 Stat. 881, which is classified principally to chapter 2B
(Sec. 78a et seq.) of Title 15, Commerce and Trade. Sections 3, 6,
15A, and 17A of the Act are classified to sections 78c, 78f, 78o-3
and 78q-1, respectively, of Title 15. For complete classification
of this Act to the Code, see section 78a of Title 15 and Tables.
The Securities Act of 1933, referred to in par. (49)(A)(xii), is
act May 27, 1933, ch. 38, title I, 48 Stat. 74, which is classified
generally to subchapter I (Sec. 77a et seq.) of chapter 2A of Title
15, Commerce and Trade. Section 3(b) of the Act is classified to
section 77c(b) of Title 15. For complete classification of this Act
to the Code, see section 77a of Title 15 and Tables.
The Gramm-Leach-Bliley Act, referred to in par. (53B)(B), is Pub.
L. 106-102, Nov. 12, 1999, 113 Stat. 1338. For complete
classification of this Act to the Code, see Short Title of 1999
Amendment note set out under section 1811 of Title 12, Banks and
Banking, and Tables.
The Legal Certainty for Bank Products Act of 2000, referred to in
par. (53B)(B), is title IV of H.R. 5660, as enacted by Pub. L. 106-
554, Sec. 1(a)(5), Dec. 21, 2000, 114 Stat. 2763, 2763A-457, which
is classified to sections 27 to 27f of Title 7, Agriculture. For
complete classification of this Act to the Code, see Short Title of
2000 Amendment note set out under section 1 of Title 7 and Tables.
The Commodity Exchange Act, referred to in par. (53B)(B), is act
Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified
generally to chapter 1 (Sec. 1 et seq.) of Title 7, Agriculture.
For complete classification of this Act to the Code, see section 1
of Title 7 and Tables.
-MISC2-
AMENDMENTS
2010 - Par. (13A)(A). Pub. L. 111-327, Sec. 2(a)(1)(A)(i),
inserted "if used as the principal residence by the debtor" after
"a residential structure".
Par. (13A)(B). Pub. L. 111-327, Sec. 2(a)(1)(A)(ii), inserted "if
used as the principal residence by the debtor" before period at
end.
Par. (35)(B). Pub. L. 111-327, Sec. 2(a)(1)(B), substituted
"paragraphs (21B) and (33)(A)" for "paragraphs (23) and (35)".
Par. (40B). Pub. L. 111-327, Sec. 2(a)(1)(C), substituted "record
relating to a patient, including a written document or a" for
"written document relating to a patient or a".
Par. (42). Pub. L. 111-327, Sec. 2(a)(1)(D), which directed
substitution of "303 and 1504" for "303, and 304", was executed by
making the substitution for "303, or 304" to reflect the probable
intent of Congress.
Par. (51B). Pub. L. 111-327, Sec. 2(a)(1)(E), inserted "thereto"
before period at end.
Par. (51D)(A). Pub. L. 111-327, Sec. 2(a)(1)(F), inserted "of the
filing" after "as of the date".
2006 - Par. (22)(A). Pub. L. 109-390, Sec. 5(a)(1)(A), struck out
"(domestic or foreign)" after "an entity" and inserted "(whether or
not a 'customer', as defined in section 741)" after "custodian for
a customer".
Par. (22A)(A). Pub. L. 109-390, Sec. 5(a)(1)(B), inserted
"(aggregated across counterparties)" after "principal amount
outstanding" and substituted "at such time or on any day during the
15-month period preceding the date of the filing of the petition"
for "on any day during the previous 15-month period" in two places.
Par. (25)(A). Pub. L. 109-390, Sec. 5(a)(1)(C), inserted ", as
defined in section 761" after "commodity contract" and substituted
"repurchase or reverse repurchase transaction (whether or not such
repurchase or reverse repurchase transaction is a 'repurchase
agreement', as defined in this section)" for "repurchase
transaction, reverse repurchase transaction,".
Par. (53B)(A)(i)(II). Pub. L. 109-390, Sec. 5(a)(1)(D)(i)(I),
substituted ", precious metals, or other commodity" for "or
precious metals".
Par. (53B)(A)(i)(VIII). Pub. L. 109-390, Sec. 5(a)(1)(D)(i)(III),
substituted "option, future, or forward agreement" for "weather
derivative, or weather option".
Par. (53B)(A)(i)(IX), (X). Pub. L. 109-390, Sec.
5(a)(1)(D)(i)(II), (IV), added subcls. (IX) and (X).
Par. (53B)(A)(ii). Pub. L. 109-390, Sec. 5(a)(1)(D)(ii), inserted
"or other derivatives" after "dealings in the swap" in subcl. (I)
and substituted "future, option, or spot transaction" for "future,
or option" in subcl. (II).
Par. (53B)(B). Pub. L. 109-390, Sec. 5(a)(1)(E), substituted "the
Gramm-Leach-Bliley Act, the Legal Certainty for Bank Products Act
of 2000, the securities laws (as such term is defined in section
3(a)(47) of the Securities Exchange Act of 1934) and the Commodity
Exchange Act" for "the Securities Act of 1933, the Securities
Exchange Act of 1934, the Public Utility Holding Company Act of
1935, the Trust Indenture Act of 1939, the Investment Company Act
of 1940, the Investment Advisers Act of 1940, the Securities
Investor Protection Act of 1970, the Commodity Exchange Act, the
Gramm-Leach-Bliley Act, and the Legal Certainty for Bank Products
Act of 2000".
2005 - Pub. L. 109-8, Sec. 1201(1), substituted "In this title
the following definitions shall apply:" for "In this title - " in
introductory provisions.
Pars. (1), (2). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Par. (3). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 226(a)(1), added par. (3).
Par. (4). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (4A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 226(a)(2), added par. (4A).
Pars. (5) to (7). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Pars. (7A), (7B). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Pub. L. 109-8, Sec. 1007(a)(1), added pars. (7A) and (7B).
Pars. (8) to (10). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (10A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 102(b), added par. (10A).
Pars. (11), (12). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Par. (12A). Pub. L. 109-8, Sec. 1201(8), which directed the
substitution of a period for a semicolon at end, could not be
executed because par. (12A) ended in a period after amendment by
Pub. L. 109-8, Sec. 226(a)(3). See below.
Pub. L. 109-8, Sec. 1201(2), inserted "The term" after par.
designation.
Pub. L. 109-8, Secs. 211(1), 226(a)(3), added par. (12A) and
struck out former par. (12A) which read as follows: " '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;".
Par. (13). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (13A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 306(c)(1), added par. (13A).
Par. (14). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 414, amended par. (14) generally. Prior to
amendment, par. (14) consisted of subpars. (A) to (E) defining
"disinterested person".
Par. (14A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 211(2), added par. (14A).
Pars. (15) to (17). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (18). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (18)(A). Pub. L. 109-8, Sec. 1005, substituted "for -
"(i) the taxable year preceding; or
"(ii) each of the 2d and 3d taxable years preceding;
the taxable year" for "for the taxable year preceding the taxable
year".
Pub. L. 109-8, Sec. 1004(1), substituted "$3,237,000" for
"$1,500,000" and "not less than 50 percent" for "not less than 80
percent".
Par. (18)(B)(ii). Pub. L. 109-8, Sec. 1004(2), substituted
"$3,237,000" for "$1,500,000" and "50 percent" for "80 percent".
Par. (19). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pars. (19A), (19B). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Pub. L. 109-8, Sec. 1007(a)(2), added pars. (19A) and (19B).
Pars. (20) to (21B). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (22). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(b)(1), added par. (22) and struck out
former par. (22) which consisted of introductory provisions and
subpars. (A) and (B) defining "financial institution".
Par. (22A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(b)(2), added par. (22A).
Pars. (23), (24). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Pub. L. 109-8, Sec. 802(b), added pars. (23) and (24) and struck
out former pars. (23) and (24) which read as follows:
"(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;".
Par. (25). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(a)(1)(A), substituted "means - " for
"means", designated subsequent provisions as subpar. (A),
substituted ", or any other similar agreement" for ", or any
combination thereof or option thereon", and added subpars. (B) to
(E).
Par. (26). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(b)(3), added par. (26) and struck out
former par. (26) which read as follows: " '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;".
Par. (27). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (27A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 1101(a)(2), added par. (27A). Former par.
(27A) redesignated (27B).
Pub. L. 109-8, Sec. 306(c)(2), added par. (27A).
Par. (27B). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 1101(a)(1), redesignated par. (27A) as (27B).
Pars. (28) to (34). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (35). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (35)(B). Pub. L. 109-8, Sec. 1201(3), substituted
"paragraphs (23) and (35)" for "paragraphs (21B) and (33)(A)".
Par. (35A). Pub. L. 109-8, Sec. 1201(2), (4), inserted "The term"
after par. designation and substituted a period for "; and" at end.
Pars. (36), (37). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The
term" after par. designation and substituted a period for semicolon
at end.
Par. (38). Pub. L. 109-8, Sec. 1201(2), (4), inserted "The term"
after par. designation and substituted a period for "; and" at end.
Pars. (38A), (38B). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Pub. L. 109-8, Sec. 907(c), added pars. (38A) and (38B).
Par. (39). Pub. L. 109-8, Sec. 1201(2), inserted "The term" after
par. designation.
Par. (39A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 102(k), added par. (39A).
Par. (40). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pars. (40A), (40B). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Pub. L. 109-8, Sec. 1101(b), added pars. (40A) and (40B).
Par. (41). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (41A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 231(b), added par. (41A).
Pars. (42) to (45). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (46). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(a)(1)(B), substituted "at any time
before" for "on any day during the period beginning 90 days before
the date of".
Par. (47). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(a)(1)(C), amended par. (47) generally.
Prior to amendment, par. (47) read as follows: " '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;".
Par. (48). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(a)(1)(D), inserted ", or exempt from such
registration under such section pursuant to an order of the
Securities and Exchange Commission," after "1934".
Par. (48A). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 401(a), added par. (48A).
Pars. (49) to (51A). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (51B). Pub. L. 109-8, Sec. 1201(2), (5), (8), inserted "The
term" after par. designation and "who is not a family farmer" after
"income of a debtor" and substituted a period for "thereto having
aggregate noncontingent, liquidated secured debts in an amount no
more than $4,000,000;".
Pars. (51C), (51D). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Pub. L. 109-8, Sec. 432(a), added pars. (51C) and (51D) and
struck out former par. (51C) which read as follows: " '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;".
Pars. (52) to (53A). Pub. L. 109-8, Sec. 1201(2), (8), inserted
"The term" after par. designation and substituted a period for
semicolon at end.
Par. (53B). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Pub. L. 109-8, Sec. 907(a)(1)(E), amended par. (53B) generally.
Prior to amendment, par. (53B) consisted of introductory provisions
and subpars. (A) to (C) defining "swap agreement".
Par. (53C). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (53D). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (54). Pub. L. 109-8, Sec. 1201(8), substituted a period for
semicolon at end.
Pub. L. 109-8, Sec. 1201(6), added par. (54) and struck out
former par. (54) which read as follows: "The term '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;".
Pub. L. 109-8, Sec. 1201(2), inserted "The term" after par.
designation.
Par. (54A). Pub. L. 109-8, Sec. 1201(8), which directed the
substitution of a period for semicolon at end, could not be
executed because par. (54A) ended in a period after amendment by
Pub. L. 109-8, Sec. 1201(4). See below.
Pub. L. 109-8, Sec. 1201(4), (7), substituted "The term" for "the
term", realigned left margin, and substituted a period for "; and"
at end.
Par. (55). Pub. L. 109-8, Sec. 1201(2), (8), inserted "The term"
after par. designation and substituted a period for semicolon at
end.
Par. (56A). Pub. L. 109-8, Sec. 1201(8), which directed the
substitution of a period for semicolon "in each of paragraphs (40)
through (55)" at end, was executed to par. (56A), to reflect the
probable intent of Congress, because par. (56A) follows par. (53C)
in text.
Pub. L. 109-8, Sec. 1201(2), inserted "The term" after par.
designation.
2000 - Par. (22). Pub. L. 106-554, Sec. 1(a)(5) [title I, Sec.
112(c)(3)], amended par. (22) generally. Prior to amendment par.
(22) read as follows: " 'financial institution' means a person that
is a commercial or savings bank, industrial savings bank, savings
and loan association, or trust company and, when any such person is
acting as agent or custodian for a customer in connection with a
securities contract, as defined in section 741 of this title, such
customer;".
Par. (54A). Pub. L. 106-554, Sec. 1(a)(5) [title I, Sec.
112(c)(4)], added par. (54A).
1994 - Par. (3). Pub. L. 103-394, Sec. 501(a)(1), redesignated
par. (3) as (21B) and inserted it after par. (21A).
Par. (6). Pub. L. 103-394, Sec. 501(b)(1)(A), substituted
"section 761" for "section 761(9)" after "customer, as defined in".
Par. (12A). Pub. L. 103-394, Sec. 304(a), added par. (12A).
Par. (21B). Pub. L. 103-394, Sec. 501(a)(1), redesignated par.
(3) as (21B).
Par. (22). Pub. L. 103-394, Sec. 501(b)(1)(B), substituted
"section 741" for "section 741(7)".
Par. (33)(A). Pub. L. 103-394, Sec. 501(d)(1)(A)(i), struck out
"(12 U.S.C. 1813(u))" after "section 3(u) of the Federal Deposit
Insurance Act".
Par. (33)(B). Pub. L. 103-394, Sec. 501(d)(1)(A)(ii), struck out
"(12 U.S.C. 1786(r))" after "Act".
Par. (34). Pub. L. 103-394, Sec. 501(d)(1)(B), struck out "(12
U.S.C. 1752(7))" after "Act".
Par. (35). Pub. L. 103-394, Sec. 501(b)(1)(C), (d)(1)(C), struck
out "(12 U.S.C. 1813(c)(2))" after "Act" in subpar. (A) and
substituted "paragraphs (21B)" for "paragraphs (3)" in subpar. (B).
Par. (35A). Pub. L. 103-394, Sec. 501(a)(4), redesignated par.
(56) defining "intellectual property" as (35A) and inserted it
after par. (35).
Par. (39). Pub. L. 103-394, Sec. 501(a)(5), redesignated par.
(57) defining "mask work" as (39) and inserted it after par. (38).
Former par. (39) redesignated (51A).
Par. (41). Pub. L. 103-394, Sec. 106, amended par. (41)
generally. Prior to amendment, par. (41) read as follows: "
'person' includes individual, partnership, and corporation, but
does not include governmental unit, Provided, however, That any
governmental unit that acquires an asset from a person as a result
of operation of a loan guarantee agreement, or as receiver or
liquidating agent of a person, will be considered a person for
purposes of section 1102 of this title."
Par. (42A). Pub. L. 103-394, Sec. 208(a)(1), added par. (42A).
Par. (48). Pub. L. 103-394, Sec. 501(d)(1)(D), struck out "(15
U.S.C. 78q-1)" after "Act of 1934" and "(15 U.S.C. 78c(12))" after
"such Act".
Par. (49)(A)(xii). Pub. L. 103-394, Sec. 501(d)(1)(E)(i), struck
out "(15 U.S.C. 77a et seq.)" after "Act of 1933" and "(15 U.S.C.
77c(b))" after "such Act".
Par. (49)(B). Pub. L. 103-394, Sec. 501(b)(1)(D), (d)(1)(E)(ii),
substituted "section 761" for "section 761(13)" in cl. (ii) and
struck out "(15 U.S.C. 77c(b))" after "Act of 1933" in cl. (vi).
Par. (51A). Pub. L. 103-394, Sec. 501(a)(2), redesignated par.
(39) as (51A) and inserted it after par. (51).
Par. (51B). Pub. L. 103-394, Sec. 218(a), added par. (51B).
Par. (51C). Pub. L. 103-394, Sec. 217(a), added par. (51C).
Par. (53A). Pub. L. 103-394, Sec. 501(a)(3), (b)(1)(E),
redesignated par. (54) defining "stockbroker" as (53A) and
substituted "section 741" for "section 741(2)" in subpar. (A).
Par. (53B). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(55) defining "swap agreement" as (53B).
Par. (53C). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(56) defining "swap participant" as (53C).
Par. (53D). Pub. L. 103-394, Sec. 501(a)(3), (d)(1)(F),
redesignated par. (57) defining "timeshare plan" as (53D) and
substituted semicolon for period at end.
Par. (54). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(54) defining "stockbroker" as (53A).
Par. (55). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(55) defining "swap agreement" as (53B).
Pub. L. 103-394, Sec. 215, inserted "spot foreign exchange
agreement," after "forward foreign exchange agreement,".
Par. (56). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(56) defining "swap participant" as (53C).
Pub. L. 103-394, Sec. 501(a)(4), redesignated par. (56) defining
"intellectual property" as (35A) and inserted it after par. (35).
Par. (56A). Pub. L. 103-394, Sec. 208(a)(2), added par. (56A) and
inserted it after par. defining "swap participant".
Par. (57). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.
(57) defining "timeshare plan" as (53D).
Pub. L. 103-394, Sec. 501(a)(5), redesignated par. (57) defining
"mask work" as (39) and inserted it after par. (38).
1992 - Par. (21A). Pub. L. 102-486 added par. (21A).
1990 - Par. (3). Pub. L. 101-647, Sec. 2522(e)(4), added par.
(3). Former par. (3) redesignated (4).
Pars. (4) to (23). Pub. L. 101-647, Sec. 2522(e)(3), redesignated
pars. (3) to (22) as (4) to (23), respectively. Former par. (23)
redesignated (24).
Par. (24). Pub. L. 101-647, Sec. 2522(e)(3), redesignated par.
(23) as (24). Former par. (24) redesignated (25).
Pub. L. 101-311, Sec. 201(1), inserted "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," after "transfer of
commodity," and ", 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" after "entered into".
Par. (25). Pub. L. 101-647, Sec. 2522(e)(3), redesignated par.
(24) as (25). Former par. (25) redesignated (26).
Pub. L. 101-311, Sec. 201(2), substituted "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" for "commodities".
Pars. (26) to (32). Pub. L. 101-647, Sec. 2522(e)(3),
redesignated pars. (25) to (31) as (26) to (32), respectively.
Former par. (32) redesignated (36).
Par. (33). Pub. L. 101-647, Sec. 2522(e)(2), added par. (33).
Former par. (33) redesignated (37).
Par. (34). Pub. L. 101-647, Sec. 2522(e)(2), added par. (34).
Former par. (34) redesignated (38).
Pub. L. 101-311, Sec. 201(4), added par. (34). Former par. (34)
redesignated (36).
Par. (35). Pub. L. 101-647, Sec. 2522(e)(2), added par. (35).
Former par. (35) redesignated (39).
Pub. L. 101-311, Sec. 201(4), added par. (35). Former par. (35)
redesignated (37).
Par. (36). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(32) as (36). Former par. (36) redesignated (40).
Pub. L. 101-311, Sec. 201(3), redesignated par. (34) as (36).
Former par. (36) redesignated (38).
Pars. (37) to (48). Pub. L. 101-647, Sec. 2522(e)(1),
redesignated pars. (33) to (44) as (37) to (48), respectively.
Former pars. (45) to (48) redesignated (49) to (52), respectively.
Pub. L. 101-311, Sec. 201(3), redesignated pars. (35) to (46) as
(37) to (48), respectively. Former pars. (47) and (48) redesignated
(49) and (50), respectively.
Pars. (49), (50). Pub. L. 101-647, Sec. 2522(e)(1), redesignated
pars. (45) and (46) as (49) and (50), respectively. Former pars.
(49) and (50) redesignated (53) and (54) defining "stockbroker",
respectively.
Pub. L. 101-311, Sec. 201(3), redesignated pars. (47) and (48) as
(49) and (50), respectively. Former pars. (49) and (50)
redesignated (51) and (52), respectively.
Pub. L. 101-311, Sec. 101(2), added pars. (49) and (50). Former
pars. (49) and (50) redesignated (51) and (52), respectively.
Par. (51). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(47) as (51). Former par. (51) redesignated (55) defining "swap
agreement".
Pub. L. 101-311, Sec. 201(3), redesignated par. (49) as (51).
Former par. (51) redesignated (53).
Pub. L. 101-311, Sec. 101(1), redesignated par. (49) as (51).
Former par. (51) redesignated (53).
Par. (52). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(48) as (52). Former par. (52) redesignated (56) defining "swap
participant".
Pub. L. 101-311, Sec. 201(3), redesignated par. (50) as (52).
Former par. (52) redesignated (54) defining "transfer".
Pub. L. 101-311, Sec. 101(1), redesignated par. (50) as (52).
Former par. (52) redesignated (54).
Par. (53). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(49) as (53). Former par. (53) redesignated (57) defining
"timeshare plan".
Pub. L. 101-311, Sec. 201(3), redesignated par. (51) as (53).
Former par. (53) redesignated (55) defining "United States".
Pub. L. 101-311, Sec. 101(1), redesignated par. (51) as (53).
Former par. (53) redesignated (55).
Par. (54). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(50) as (54) defining "stockbroker".
Pub. L. 101-311, Sec. 201(3), redesignated par. (52) as (54)
defining "transfer". Former par. (54) redesignated (56) defining
"intellectual property".
Pub. L. 101-311, Sec. 101(1), redesignated par. (52) as (54).
Par. (55). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(51) as (55) defining "swap agreement".
Pub. L. 101-311, Sec. 201(3), redesignated par. (53) as (55)
defining "United States". Former par. (55) redesignated (57)
defining "mask work".
Pub. L. 101-311, Sec. 101(1), redesignated par. (53) as (55).
Par. (56). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(52) as (56) defining "swap participant".
Pub. L. 101-311, Sec. 201(3), redesignated par. (54) as (56)
defining "intellectual property".
Par. (57). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.
(53) as (57) defining "timeshare plan".
Pub. L. 101-311, Sec. 201(3), redesignated par. (55) as (57)
defining "mask work".
1988 - Par. (31). Pub. L. 100-597 inserted "and a municipality"
after "partnership" in subpar. (A) and added subpar. (C).
Pars. (52), (53). Pub. L. 100-506 added pars. (52) and (53).
1986 - Par. (14). Pub. L. 99-554, Sec. 201(1), substituted
"governmental unit, and United States trustee" for "and
governmental unit".
Pars. (17), (18). Pub. L. 99-554, Sec. 251(2), (3), added pars.
(17) and (18) and redesignated former pars. (17) and (18) as (19)
and (20), respectively.
Par. (19). Pub. L. 99-554, Sec. 251(1), (2), redesignated former
par. (17) as (19) and inserted "(except when such term appears in
the term 'family farmer')". Former par. (19) redesignated (21).
Pars. (20) to (25). Pub. L. 99-554, Sec. 251(2), redesignated
former pars. (18) to (23) as (20) to (25), respectively. Former
pars. (24) and (25) redesignated (26) and (27), respectively.
Par. (26). Pub. L. 99-554, Sec. 201(2), inserted "(but not a
United States trustee while serving as a trustee in a case under
this title)".
Pub. L. 99-554, Sec. 251(2), redesignated former par. (24) as
(26). Former par. (26) redesignated (28).
Pars. (27) to (42). Pub. L. 99-554, Sec. 251(2), redesignated
former pars. (25) to (40) as (27) to (42), respectively. Former
pars. (41) and (42) redesignated (43) and (44), respectively.
Par. (43). Pub. L. 99-554, Sec. 251(2), redesignated former par.
(41) as (43). Former par. (43) redesignated (45).
Par. (43)(A)(xv). Pub. L. 99-554, Sec. 283(a)(1), substituted
"security" for "secuity".
Pars. (44) to (50). Pub. L. 99-554, Sec. 251(2), redesignated
former pars. (42) to (48) as (44) to (50), respectively. Former
par. (49) redesignated (51).
Par. (51). Pub. L. 99-554, Sec. 283(a)(2), substituted a period
for the semicolon at the end thereof.
Pub. L. 99-554, Sec. 251(2), redesignated former par. (49) as
(51).
1984 - Par. (2)(D). Pub. L. 98-353, Sec. 421(a), struck out "or
all" after "business".
Par. (8)(B). Pub. L. 98-353, Sec. 421(b), substituted a semicolon
for the colon at end of subpar. (B).
Par. (9)(B). Pub. L. 98-353, Sec. 421(c), inserted reference to
section 348(d).
Par. (14). Pub. L. 98-353, Sec. 421(d), inserted "and" after
"trust,".
Pars. (19) to (21). Pub. L. 98-353, Sec. 421(j)(3), (4), added
par. (19) and redesignated former pars. (19), (20), and (21) as
(20), (21), and (24), respectively.
Pars. (22), (23). Pub. L. 98-353, Sec. 421(j)(2), (5), added
pars. (22) and (23) and redesignated former pars. (22) and (23) as
(25) and (26), respectively.
Pars. (24) to (26). Pub. L. 98-353, Sec. 421(j)(2), redesignated
former pars. (21) to (23) as (24) to (26), respectively. Former
pars. (24) to (26) redesignated (27) to (29), respectively.
Par. (27). Pub. L. 98-353, Sec. 421(e), (j)(2), redesignated
former par. (24) as (27) and substituted "stockbroker" for "stock
broker". Former par. (27) redesignated (30).
Par. (28). Pub. L. 98-353, Sec. 421(j)(2), redesignated former
par. (25) as (28). Former par. (28) redesignated (31).
Par. (29). Pub. L. 98-353, Sec. 421(f), (j)(2), redesignated
former par. (26) as (29) and, in subpar. (B)(ii), substituted
"nonpartnership" and "(A)" for "separate" and "(A)(ii)",
respectively, wherever appearing. Former par. (29) redesignated
(32).
Pars. (30) to (32). Pub. L. 98-353, Sec. 421(j)(2), redesignated
former pars. (27) to (29) as (30) to (32), respectively. Former
pars. (30) to (32) redesignated (33) to (35), respectively.
Par. (33). Pub. L. 98-353, Sec. 421(g), (j)(2), redesignated
former par. (30) as (33) and amended definition of "person"
generally, thereby inserting proviso relating to consideration of
certain governmental units as persons for purposes of section 1102
of this title. Former par. (33) redesignated (36).
Par. (34). Pub. L. 98-353, Sec. 421(j)(2), redesignated former
par. (31) as (34). Former par. (34) redesignated (37).
Pars. (35), (36). Pub. L. 98-353, Sec. 421(j)(2), redesignated
former pars. (32) and (33) as (35) and (36), respectively. Former
pars. (35) and (36), as added by Pub. L. 98-353, Sec. 391(2),
redesignated (38) and (39), respectively.
Pub. L. 98-353, Sec. 391, added pars. (35) and (36), and
redesignated former pars. (35) and (36) as (37) and (38) which were
again redesignated as (40) and (41), respectively.
Par. (37). Pub. L. 98-353, Sec. 421(j)(2), redesignated former
par. (34) as (37). Former par. (37) redesignated successively as
(39) and again as (42).
Par. (38). Pub. L. 98-353, Secs. 391(2), 421(j)(2), added par.
(35) and redesignated such par. (35) as (38). Former par. (38)
redesignated successively as (40) and again as (43).
Par. (39). Pub. L. 98-353, Secs. 391(2), 421(j)(2), added par.
(36) and redesignated such par. (36) as (39). Former par. (39)
redesignated successively as (41) and again as (45).
Par. (40). Pub. L. 98-353, Secs. 391(1), 421(j)(2), redesignated
successively former par. (35) as (37) and again as (40). Former
par. (40) redesignated successively as (42) and again as (46).
Par. (41). Pub. L. 98-353, Secs. 391(1), 401(1), 421(h), (j)(2),
redesignated successively former par. (36) as (38) and again as
(41), and, in subpar. (B)(vi), substituted "certificate of a kind
specified in subparagraph (A)(xii)" for "certificate specified in
clause (xii) of subparagraph (A)" and substituted "required to be
the subject of a registration statement" for "the subject of such
registration statement". Former par. (41) redesignated successively
as (43), again as (44), and again as (48).
Par. (42). Pub. L. 98-353, Secs. 391(1), 421(j)(2), redesignated
successively former par. (37) as (39) and again as (42).
Par. (43). Pub. L. 98-353, Secs. 391(1), 421(j)(2), redesignated
successively former par. (38) as (40) and again as (43).
Pub. L. 98-353, Sec. 401, redesignated former par. (43),
originally par. (41), as (44), and added another par. (43) which
was redesignated (47).
Par. (44). Pub. L. 98-353, Sec. 421(j)(6), added par. (44).
Former par. (44) originally was par. (41) and was redesignated
successively as (43), again as (44), and again as (48).
Pars. (45), (46). Pub. L. 98-353, Secs. 391(1), 421(j)(1),
redesignated successively former pars. (39) and (40) as (41) and
(42), and again as (45) and (46), respectively.
Par. (47). Pub. L. 98-353, Secs. 401(2), 421(j)(1), added par.
(43) and redesignated such par. (43) as (47).
Par. (48). Pub. L. 98-353, Secs. 391(1), 401(1), 421(i), (j)(1),
redesignated successively former par. (41) as (43), again as (44),
and again as (48), and substituted "and foreclosure of the debtor's
equity of redemption; and" for the period at the end.
Par. (49). Pub. L. 98-353, Sec. 421(j)(7), added par. (49).
1982 - Par. (35). Pub. L. 97-222, Sec. 1(a)(2), added par. (35).
Former par. (35) redesignated (36).
Par. (36). Pub. L. 97-222, Sec. 1(a)(1), (b), (c), redesignated
par. (35) as (36) and substituted "is required to be the subject of
a registration statement" for "is the subject of a registration
statement" in subpar. (A)(xii) and substituted "forward contract"
for "forward commodity contract" in subpar. (B)(iii). Former par.
(36) redesignated (37).
Pars. (37) to (39). Pub. L. 97-222, Sec. 1(a)(1), redesignated
pars. (36) to (38) as (37) to (39), respectively. Former par. (39)
redesignated (40).
Pars. (40), (41). Pub. L. 97-222, Sec. 1(a)(1), (d), redesignated
former par. (39) as (40) and restructured its provisions by
dividing the former introductory provisions into subpars. (A) and
(B) and by redesignating former subpars. (A) and (B) as cls. (i)
and (ii), respectively, of subpar. (B). Former par. (40)
redesignated (41).
EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109-390, Sec. 7, Dec. 12, 2006, 120 Stat. 2700, provided
that: "The amendments made by this Act [see Short Title of 2006
Amendment note set out under this section] shall not apply to any
cases commenced under title 11, United States Code, or appointments
made under any Federal or State law, before the date of the
enactment of this Act [Dec. 12, 2006]."
EFFECTIVE DATE OF 2005 AMENDMENT
Pub. L. 109-8, title XV, Sec. 1501, Apr. 20, 2005, 119 Stat. 216,
provided that:
"(a) Effective Date. - Except as otherwise provided in this Act,
this Act [see Tables for classification] and the amendments made by
this Act shall take effect 180 days after the date of enactment of
this Act [Apr. 20, 2005].
"(b) Application of Amendments. -
"(1) In general. - Except as otherwise provided in this Act and
paragraph (2), the amendments made by this Act shall not apply
with respect to cases commenced under title 11, United States
Code, before the effective date of this Act.
"(2) Certain limitations applicable to debtors. - The
amendments made by sections 308, 322, and 330 [amending sections
104, 522, 727, 1141, 1228, and 1328 of this title] shall apply
with respect to cases commenced under title 11, United States
Code, on or after the date of the enactment of this Act [Apr. 20,
2005]."
EFFECTIVE DATE OF 1994 AMENDMENT
Section 702 of Pub. L. 103-394 provided that:
"(a) Effective Date. - Except as provided in subsection (b), this
Act [see Tables for classification] shall take effect on the date
of the enactment of this Act [Oct. 22, 1994].
"(b) Application of Amendments. - (1) Except as provided in
paragraph (2), the amendments made by this Act shall not apply with
respect to cases commenced under title 11 of the United States Code
before the date of the enactment of this Act.
"(2)(A) Paragraph (1) shall not apply with respect to the
amendment made by section 111 [amending section 524 of this title].
"(B) The amendments made by sections 113 and 117 [amending
sections 106 and 330 of this title] shall apply with respect to
cases commenced under title 11 of the United States Code before,
on, and after the date of the enactment of this Act.
"(C) Section 1110 of title 11, United States Code, as amended by
section 201 of this Act, shall apply with respect to any lease, as
defined in such section 1110(c) as so amended, entered into in
connection with a settlement of any proceeding in any case pending
under title 11 of the United States Code on the date of the
enactment of this Act.
"(D) The amendments made by section 305 [amending sections 1123,
1222, and 1322 of this title] shall apply only to agreements
entered into after the date of enactment of this Act."
EFFECTIVE DATE OF 1992 AMENDMENT
Section 3017(c) of Pub. L. 102-486 provided that:
"(1) Except as provided in paragraph (2), the amendments made by
this section [amending this section and section 541 of this title]
shall take effect on the date of the enactment of this Act [Oct.
24, 1992].
"(2) The amendments made by this section shall not apply with
respect to cases commenced under title 11 of the United States Code
before the date of the enactment of this Act."
EFFECTIVE DATE OF 1988 AMENDMENTS
Section 12 of Pub. L. 100-597 provided that:
"(a) Effective Date. - Except as provided in subsection (b), this
Act and the amendments made by this Act [enacting sections 927 to
929 of this title, amending this section and sections 109, 901,
902, 922, 926, and 943 of this title, and renumbering section 927
of this title as 930] shall take effect on the date of the
enactment of this Act [Nov. 3, 1988].
"(b) Application of Amendments. - The amendments made by this Act
shall not apply with respect to cases commenced under title 11 of
the United States Code before the date of the enactment of this Act
[Nov. 3, 1988]."
Section 2 of Pub. L. 100-506 provided that:
"(a) Effective Date. - Except as provided in subsection (b), this
Act and the amendments made by this Act [amending this section and
section 365 of this title] shall take effect on the date of the
enactment of this Act [Oct. 18, 1988].
"(b) Application of Amendments. - The amendments made by this Act
shall not apply with respect to any case commenced under title 11
of the United States Code before the date of the enactment of this
Act [Oct. 18, 1988]."
EFFECTIVE DATE OF 1986 AMENDMENT
Effective date and applicability of amendment by section 201 of
Pub. L. 99-554 dependent upon the judicial district involved, see
section 302(d), (e) of Pub. L. 99-554, set out as a note under
section 581 of Title 28, Judiciary and Judicial Procedure.
Amendment by section 251 of Pub. L. 99-554 effective 30 days
after Oct. 27, 1986, but not applicable to cases commenced under
this title before that date, see section 302(a), (c)(1) of Pub. L.
99-554.
Amendment by section 283 of Pub. L. 99-554 effective 30 days
after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554.
EFFECTIVE DATE OF 1984 AMENDMENT
Section 552, formerly Sec. 553, of title III (Secs. 301-553) of
Pub. L. 98-353, as renumbered by Pub. L. 98-531, Sec. 1(2), Oct.
19, 1984, 98 Stat. 2704, provided that:
"(a) Except as otherwise provided in this section the amendments
made by this title [see Tables for classification] shall become
effective to cases filed 90 days after the date of enactment of
this Act [July 10, 1984].
"(b) The amendments made by section 426(b) [amending section 303
of this title] shall become effective upon the date of enactment of
this Act.
"(c) The amendments made by subtitle J [enacting section 1113 of
this title], shall become effective as provided in section 541(c)
[set out as an Effective Date note under section 1113 of this
title]."
SHORT TITLE OF 2010 AMENDMENT
Pub. L. 111-327, Sec. 1, Dec. 22, 2010, 124 Stat. 3557, provided
that: "This Act [amending this section, sections 103, 105 to 107,
109 to 111, 303, 308, 348, 362, 363, 505, 507, 521 to 524, 526,
527, 541, 554, 704, 707, 723, 724, 726, 901, 1104, 1106, 1111,
1112, 1127, 1129, 1141, 1145, 1202, 1302, 1304, 1307, 1308, 1322,
1325, 1511, 1519, 1521, and 1529 of this title, section 157 of
Title 18, Crimes and Criminal Procedure, sections 158, 159, and 586
of Title 28, Judiciary and Judicial Procedure, and provisions set
out as a note under section 507 of this title] may be cited as the
'Bankruptcy Technical Corrections Act of 2010'."
SHORT TITLE OF 2009 AMENDMENT
Pub. L. 111-16, Sec. 1, May 7, 2009, 123 Stat. 1607, provided
that: "This Act [amending sections 109, 322, 332, 342, 521, 704,
749, and 764 of this title, sections 983, 1514, 1963, 2252A, 2339B,
3060, 3432, 3509, and 3771 of Title 18, Crimes and Criminal
Procedure, section 7 of the Classified Information Procedures Act
set out in the Appendix to Title 18, section 853 of Title 21, Food
and Drugs, and sections 636, 1453, and 2107 of Title 28, Judiciary
and Judicial Procedure, and enacting provisions set out as a note
under section 109 of this title] may be cited as the 'Statutory
Time-Periods Technical Amendments Act of 2009'."
SHORT TITLE OF 2008 AMENDMENT
Pub. L. 110-438, Sec. 1, Oct. 20, 2008, 122 Stat. 5000, provided
that: "This Act [amending section 707 of this title and enacting
provisions set out as a note under section 707 of this title] may
be cited as the 'National Guard and Reservists Debt Relief Act of
2008'."
SHORT TITLE OF 2006 AMENDMENT
Pub. L. 109-439, Sec. 1, Dec. 20, 2006, 120 Stat. 3285, provided
that: "This Act [amending section 1325 of this title] may be cited
as the 'Religious Liberty and Charitable Donation Clarification Act
of 2006'."
Pub. L. 109-390, Sec. 1, Dec. 12, 2006, 120 Stat. 2692, provided
that: "This Act [amending this section, sections 362, 546, and 741
of this title, sections 1787, 1821, 4403, and 4404 of Title 12,
Banks and Banking, and section 78eee of Title 15, Commerce and
Trade, and enacting provisions set out as notes under this section]
may be cited as the 'Financial Netting Improvements Act of 2006'."
SHORT TITLE OF 2005 AMENDMENT
Pub. L. 109-8, Sec. 1(a), Apr. 20, 2005, 119 Stat. 23, provided
that: "This Act [see Tables for classification] may be cited as the
'Bankruptcy Abuse Prevention and Consumer Protection Act of 2005'."
Pub. L. 109-8, title III, Sec. 332(a), Apr. 20, 2005, 119 Stat.
103, provided that: "This section [amending section 303 of this
title and section 157 of Title 18, Crimes and Criminal Procedure]
may be cited as the 'Involuntary Bankruptcy Improvement Act of
2005'."
SHORT TITLE OF 2004 AMENDMENT
Pub. L. 108-369, Sec. 1, Oct. 25, 2004, 118 Stat. 1749, provided
that: "This Act [amending sections 1201 to 1208 and 1221 to 1231 of
this title and enacting and amending provisions set out as notes
under section 1201 of this title] may be cited as the 'Family
Farmer Bankruptcy Relief Act of 2004'."
SHORT TITLE OF 2003 AMENDMENT
Pub. L. 108-73, Sec. 1, Aug. 15, 2003, 117 Stat. 891, provided
that: "This Act [amending sections 1201 to 1208 and 1221 to 1231 of
this title and enacting and amending provisions set out as notes
under section 1201 of this title] may be cited as the 'Family
Farmer Bankruptcy Relief Act of 2003'."
SHORT TITLE OF 2002 AMENDMENT
Pub. L. 107-377, Sec. 1, Dec. 19, 2002, 116 Stat. 3115, provided
that: "This Act [amending sections 1201 to 1208 and 1221 to 1231 of
this title, and enacting and amending provisions set out as notes
under section 1201 of this title] may be cited as the 'Protection
of Family Farmers Act of 2002'."
SHORT TITLE OF 1998 AMENDMENT
Pub. L. 105-183, Sec. 1, June 19, 1998, 112 Stat. 517, provided
that: "This Act [amending sections 544, 546, 548, 707, and 1325 of
this title and enacting provisions set out as notes under section
544 of this title] may be cited as the 'Religious Liberty and
Charitable Donation Protection Act of 1998'."
SHORT TITLE OF 1994 AMENDMENT
Section 1(a) of Pub. L. 103-394 provided that: "This Act [see
Tables for classification] may be cited as the 'Bankruptcy Reform
Act of 1994'."
SHORT TITLE OF 1990 AMENDMENTS
Pub. L. 101-581, Sec. 1, Nov. 15, 1990, 104 Stat. 2865, and
section 3101 of title XXXI of Pub. L. 101-647, provided
respectively that such Act and such title [amending sections 523
and 1328 of this title and enacting provisions set out as a note
under section 523 of this title] may be cited as the "Criminal
Victims Protection Act of 1990".
SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100-334, Sec. 1, June 16, 1988, 102 Stat. 610, provided
that: "This Act [enacting section 1114 of this title, amending
section 1129 of this title, enacting provisions set out as a note
under section 1114 of this title, and amending and repealing
provisions set out as notes under section 1106 of this title] may
be cited as the 'Retiree Benefits Bankruptcy Protection Act of
1988'."
SHORT TITLE OF 1984 AMENDMENT
Section 361 of subtitle C (Secs. 361-363) of title III of Pub. L.
98-353 provided that: "This subtitle [amending sections 362, 365,
and 541 of this title] may be cited as the 'Leasehold Management
Bankruptcy Amendments Act of 1983'."
SAVINGS PROVISION
Pub. L. 109-8, title IX, Sec. 912, as added Pub. L. 109-390, Sec.
5(d), Dec. 12, 2006, 120 Stat. 2698, provided that: "The meanings
of terms used in this title [see Tables for classification] are
applicable for the purposes of this title only, and shall not be
construed or applied so as to challenge or affect the
characterization, definition, or treatment of any similar terms
under any other statute, regulation, or rule, including the Gramm-
Leach-Bliley Act [Pub. L. 106-102, see Short Title of 1999
Amendment note set out under section 1811 of Title 12, Banks and
Banking], the Legal Certainty for Bank Products Act of 2000 [7
U.S.C. 27 to 27f], the securities laws (as such term is defined in
section 3(a)(47) of the Securities Exchange Act of 1934 [15 U.S.C.
78c(a)(47)]), and the Commodity Exchange Act [7 U.S.C. 1 et seq.]."
SEPARABILITY
Section 701 of Pub. L. 103-394 provided that: "If any provision
of this Act [see Tables for classification] or amendment made by
this Act or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remaining provisions of and amendments made by this Act and the
application of such other provisions and amendments to any person
or circumstance shall not be affected thereby."
Section 551 of title III (Secs. 301-553) of Pub. L. 98-353
provided that: "If any provision of this title or any amendment
made by this title [see Tables for classification], or the
application thereof to any person or circumstance is held invalid,
the provisions of every other part, and their application shall not
be affected thereby."
CONSTRUCTION
Pub. L. 109-8, title X, Sec. 1007(e), Apr. 20, 2005, 119 Stat.
188, provided that: "Nothing in this section [amending this section
and sections 109, 1203, and 1206 of this title] shall change,
affect, or amend the Fishery Conservation and Management Act of
1976 (16 U.S.C. 1801 et seq.)."
Pub. L. 109-8, title XI, Sec. 1101(c), Apr. 20, 2005, 119 Stat.
189, provided that: "The amendments made by subsection (a) of this
section [amending this section] shall not affect the interpretation
of section 109(b) of title 11, United States Code."
NONLIMITATION OF INFORMATION
Pub. L. 109-8, title I, Sec. 102(e), Apr. 20, 2005, 119 Stat. 33,
provided that: "Nothing in this title [see Tables for
classification] shall limit the ability of a creditor to provide
information to a judge (except for information communicated ex
parte, unless otherwise permitted by applicable law), United States
trustee (or bankruptcy administrator, if any), or trustee."
JUDICIAL EDUCATION
Pub. L. 109-8, title XII, Sec. 1226, Apr. 20, 2005, 119 Stat.
199, provided that: "The Director of the Federal Judicial Center,
in consultation with the Director of the Executive Office for
United States Trustees, shall develop materials and conduct such
training as may be useful to courts in implementing this Act [see
Short Title of 2005 Amendment note above] and the amendments made
by this Act, including the requirements relating to the means test
under section 707(b), and reaffirmation agreements under section
524, of title 11 of the United States Code, as amended by this
Act."
ADJUSTMENT OF DOLLAR AMOUNTS
The dollar amounts specified in this section were adjusted by
notices of the Judicial Conference of the United States pursuant to
section 104 of this title as follows:
By notice dated Feb. 19, 2010, 75 F.R. 8747, effective Apr. 1,
2010, in par. (3), dollar amount "164,250" was adjusted to
"175,750"; in par. (18)(A), (B)(ii), dollar amount "3,544,525" was
adjusted to "3,792,650" each time it appeared; in par. (19A)(A)(i),
(B)(ii)(II), dollar amount "1,642,500" was adjusted to "1,757,475"
each time it appeared; and, in par. (51D)(A), (B), dollar amount
"2,190,000" was adjusted to "2,343,300" each time it appeared. See
notice of the Judicial Conference of the United States set out as a
note under section 104 of this title.
By notice dated Feb. 7, 2007, 72 F.R. 7082, effective Apr. 1,
2007, in par. (3), dollar amount "150,000" was adjusted to
"164,250"; in par. (18), dollar amount "3,237,000" was adjusted to
"3,544,525" each time it appeared; in par. (19A), dollar amount
"1,500,000" was adjusted to "1,642,500" each time it appeared; and,
in par. (51D), dollar amount "2,000,000" was adjusted to
"2,190,000" each time it appeared.
-FOOTNOTE-
(!1) So in original. Probably should be followed by a comma.
(!2) So in original. Probably should be "or". See 2010 Amendment
note below.
(!3) So in original.
-End-
-CITE-
11 USC Sec. 102 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 102. Rules of construction
-STATUTE-
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.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2554; Pub. L. 98-353, title
III, Sec. 422, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title
II, Sec. 202, Oct. 27, 1986, 100 Stat. 3097.)
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Section 102 specifies various rules of construction but is not
exclusive. Other rules of construction that are not set out in
title 11 are nevertheless intended to be followed in construing the
bankruptcy code. For example, the phrase "on request of a party in
interest" or a similar phrase, is used in connection with an action
that the court may take in various sections of the Code. The phrase
is intended to restrict the court from acting sua sponte. Rules of
bankruptcy procedure or court decisions will determine who is a
party in interest for the particular purposes of the provision in
question, but the court will not be permitted to act on its own.
Although "property" is not construed in this section, it is used
consistently throughout the code in its broadest sense, including
cash, all interests in property, such as liens, and every kind of
consideration including promises to act or forbear to act as in
section 548(d).
Section 102(1) expands on a rule of construction contained in
H.R. 8200 as passed by the House and in the Senate amendment. The
phrase "after notice and a hearing", or a similar phrase, is
intended to be construed according to the particular proceeding to
mean after such notice as is appropriate in the particular
circumstances, and such opportunity, if any, for a hearing as is
appropriate in the particular circumstances. If a provision of
title 11 authorizes an act to be taken "after notice and a hearing"
this means that if appropriate notice is given and no party to whom
such notice is sent timely requests a hearing, then the act sought
to be taken may be taken without an actual hearing.
In very limited emergency circumstances, there will be
insufficient time for a hearing to be commenced before an action
must be taken. The action sought to be taken may be taken if
authorized by the court at an ex parte hearing of which a record is
made in open court. A full hearing after the fact will be available
in such an instance.
In some circumstances, such as under section 1128, the bill
requires a hearing and the court may act only after a hearing is
held. In those circumstances the judge will receive evidence before
ruling. In other circumstances, the court may take action "after
notice and a hearing," if no party in interest requests a hearing.
In that event a court order authorizing the action to be taken is
not necessary as the ultimate action taken by the court implies
such an authorization.
Section 102(8) is new. It contains a rule of construction
indicating that a definition contained in a section in title 11
that refers to another section of title 11 does not, for the
purposes of such reference, take the meaning of a term used in the
other section. For example, section 522(a)(2) defines "value" for
the purposes of section 522. Section 548(d)(2) defines "value" for
purposes of section 548. When section 548 is incorporated by
reference in section 522, this rule of construction makes clear
that the definition of "value" in section 548 governs its meaning
in section 522 notwithstanding a different definition of "value" in
section 522(a)(2).
SENATE REPORT NO. 95-989
Section 102 provides seven rules of construction. Some are
derived from current law; others are derived from 1 U.S.C. 1; a few
are new. They apply generally throughout proposed title 11. These
are terms that are not appropriate for definition, but that require
an explanation.
Paragraph (1) defines the concept of "after notice and a
hearing." The concept is central to the bill and to the separation
of the administrative and judicial functions of bankruptcy judges.
The phrase means after such notice as is appropriate in the
particular circumstances (to be prescribed by either the Rules of
Bankruptcy Procedure or by the court in individual circumstances
that the Rules do not cover. In many cases, the Rules will provide
for combined notice of several proceedings), and such opportunity
for a hearing as is appropriate in the particular circumstances.
Thus, a hearing will not be necessary in every instance. If there
is no objection to the proposed action, the action may go ahead
without court action. This is a significant change from present
law, which requires the affirmative approval of the bankruptcy
judge for almost every action. The change will permit the
bankruptcy judge to stay removed from the administration of the
bankruptcy or reorganization case, and to become involved only when
there is a dispute about a proposed action, that is, only when
there is an objection. The phrase "such opportunity for a hearing
as is appropriate in the particular circumstances" is designed to
permit the Rules and the courts to expedite or dispense with
hearings when speed is essential. The language "or similar phrase"
is intended to cover the few instances in the bill where "after
notice and a hearing" is interrupted by another phrase, such as
"after notice to the debtor and a hearing."
Paragraph (2) specifies that "claim against the debtor" includes
claim against property of the debtor. This paragraph is intended to
cover nonrecourse loan agreements where the creditor's only rights
are against property of the debtor, and not against the debtor
personally. Thus, such an agreement would give rise to a claim that
would be treated as a claim against the debtor personally, for the
purposes of the bankruptcy code.
Paragraph (3) is a codification of American Surety Co. v.
Marotta, 287 U.S. 513 (1933). It specifies that "includes" and
"including" are not limiting.
Paragraph (4) specifies that "may not" is prohibitive and not
permissive (such as in "might not").
Paragraph (5) specifies that "or" is not exclusive. Thus, if a
party "may do (a) or (b)", then the party may do either or both.
The party is not limited to a mutually exclusive choice between the
two alternatives.
Paragraph (6) makes clear that "order for relief" means entry of
an order for relief. If the court orally orders relief, but the
order is not entered until a later time, then any time measurements
in the bill are from entry, not from the oral order. In a voluntary
case, the entry of the order for relief is the filing of the
petition commencing the voluntary case.
Paragraph (7) specifies that the singular includes the plural.
The plural, however, generally does not include the singular. The
bill uses only the singular, even when the item in question most
often is found in plural quantities, in order to avoid the
confusion possible if both rules of construction applied. When an
item is specified in the plural, the plural is intended.
AMENDMENTS
1986 - Par. (9). Pub. L. 99-554 added par. (9).
1984 - Par. (8). Pub. L. 98-353 substituted "contained" for
"continued".
EFFECTIVE DATE OF 1986 AMENDMENT
Effective date and applicability of amendment by Pub. L. 99-554
dependent upon the judicial district involved, see section 302(d),
(e) of Pub. L. 99-554, set out as a note under section 581 of Title
28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective with respect to cases filed
90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,
set out as a note under section 101 of this title.
-End-
-CITE-
11 USC Sec. 103 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 103. Applicability of chapters
-STATUTE-
(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(o), 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.
(k) Chapter 15 applies only in a case under such chapter, except
that -
(1) sections 1505, 1513, and 1514 apply in all cases under this
title; and
(2) section 1509 applies whether or not a case under this title
is pending.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 97-222, Sec.
2, July 27, 1982, 96 Stat. 235; Pub. L. 98-353, title III, Sec.
423, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title II, Sec.
252, Oct. 27, 1986, 100 Stat. 3104; Pub. L. 106-554, Sec. 1(a)(5)
[title I, Sec. 112(c)(5)(A)], Dec. 21, 2000, 114 Stat. 2763, 2763A-
394; Pub. L. 109-8, title VIII, Sec. 802(a), Apr. 20, 2005, 119
Stat. 145; Pub. L. 111-327, Sec. 2(a)(2), Dec. 22, 2010, 124 Stat.
3557.)
-MISC1-
HISTORICAL AND REVISION NOTES
SENATE REPORT NO. 95-989
Section 103 prescribes which chapters of the proposed bankruptcy
code apply in various cases. All cases, other than cases ancillary
to foreign proceedings, are filed under chapter 7, 9, 11, or 13,
the operative chapters of the proposed bankruptcy code. The general
provisions that apply no matter which chapter a case is filed under
are found in chapters 1, 3, and 5. Subsection (a) makes this
explicit, with an exception for chapter 9. The other provisions,
which are self-explanatory, provide the special rules for
Stockbroker Liquidations, Commodity Broker Liquidations, Municipal
Debt Adjustments, and Railroad Reorganizations.
-REFTEXT-
REFERENCES IN TEXT
Section 25A of the Federal Reserve Act, referred to in subsec.
(e), popularly known as the Edge Act, is classified to subchapter
II (Sec. 611 et seq.) of chapter 6 of Title 12, Banks and Banking.
For complete classification of this Act to the Code, see Short
Title note set out under section 611 of Title 12 and Tables.
Section 409 of the Federal Deposit Insurance Corporation
Improvement Act of 1991, referred to in subsec. (e), is classified
to section 4422 of Title 12, Banks and Banking.
-MISC2-
AMENDMENTS
2010 - Subsec. (a). Pub. L. 111-327 substituted "362(o)" for
"362(n)".
2005 - Subsec. (a). Pub. L. 109-8, Sec. 802(a)(1), inserted ",
and this chapter, sections 307, 362(n), 555 through 557, and 559
through 562 apply in a case under chapter 15" before period.
Subsec. (k). Pub. L. 109-8, Sec. 802(a)(2), added subsec. (k).
2000 - Subsecs. (e) to (j). Pub. L. 106-554 added subsec. (e) and
redesignated former subsecs. (e) to (i) as (f) to (j),
respectively.
1986 - Subsec. (a). Pub. L. 99-554, Sec. 252(1), inserted
reference to chapter 12.
Subsec. (i). Pub. L. 99-554, Sec. 252(2), added subsec. (i).
1984 - Subsec. (c). Pub. L. 98-353 substituted "stockbroker" for
"stockholder".
1982 - Subsec. (d). Pub. L. 97-222 struck out "except with
respect to section 746(c) which applies to margin payments made by
any debtor to a commodity broker or forward contract merchant"
after "concerning a commodity broker".
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,
1986, but not applicable to cases commenced under this title before
that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as
a note under section 581 of Title 28, Judiciary and Judicial
Procedure.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective with respect to cases filed
90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,
set out as a note under section 101 of this title.
-End-
-CITE-
11 USC Sec. 104 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 104. Adjustment of dollar amounts
-STATUTE-
(a) On April 1, 1998, and at each 3-year interval ending on April
1 thereafter, each dollar amount in effect under sections 101(3),
101(18), 101(19A), 101(51D), 109(e), 303(b), 507(a), 522(d),
522(f)(3) and 522(f)(4), 522(n), 522(p), 522(q), 523(a)(2)(C),
541(b), 547(c)(9), 707(b), 1322(d), 1325(b), and 1326(b)(3) of this
title and section 1409(b) of title 28 immediately before such April
1 shall be adjusted -
(1) 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
(2) to round to the nearest $25 the dollar amount that
represents such change.
(b) 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 101(3),
101(18), 101(19A), 101(51D), 109(e), 303(b), 507(a), 522(d),
522(f)(3) and 522(f)(4), 522(n), 522(p), 522(q), 523(a)(2)(C),
541(b), 547(c)(9), 707(b), 1322(d), 1325(b), and 1326(b)(3) of this
title and section 1409(b) of title 28.
(c) Adjustments made in accordance with subsection (a) shall not
apply with respect to cases commenced before the date of such
adjustments.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 103-394,
title I, Sec. 108(e), Oct. 22, 1994, 108 Stat. 4112; Pub. L. 109-8,
title I, Sec. 102(j), title II, Secs. 224(e)(2), 226(b), title III,
Sec. 322(b), title IV, Sec. 432(c), title X, Sec. 1002, title XII,
Sec. 1202, Apr. 20, 2005, 119 Stat. 35, 65, 67, 97, 110, 186, 193;
Pub. L. 110-406, Sec. 7, Oct. 13, 2008, 122 Stat. 4293.)
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Section 104 represents a compromise between the House bill and
the Senate amendment with respect to the adjustment of dollar
amounts in title 11. The House amendment authorizes the Judicial
Conference of the United States to transmit a recommendation for
the uniform percentage of adjustment for each dollar amount in
title 11 and in 28 U.S.C. 1930 to the Congress and to the President
before May 1, 1985, and before May 1 of every sixth year
thereafter. The requirement in the House bill that each such
recommendation be based only on any change in the cost-of-living
increase during the period immediately preceding the recommendation
is deleted.
SENATE REPORT NO. 95-989
This section requires that the Director of the Administrative
Office of the U. S. Courts report to Congress and the President
before Oct. 1, 1985, and before May 1 every 6 years thereafter a
recommendation for adjustment in dollar amounts found in this
title. The Committee feels that regular adjustment of the dollar
amounts by the Director will conserve congressional time and yet
assure that the relative dollar amounts used in the bill are
maintained. Changes in the cost of living should be a significant,
but not necessarily the only, factor considered by the Director.
The fact that there has been an increase in the cost of living does
not necessarily mean that an adjustment of dollar amounts would be
needed or warranted.
HOUSE REPORT NO. 95-595
This section requires the Judicial Conference to report to the
Congress every four years after the effective date of the
bankruptcy code any changes that have occurred in the cost of
living during the preceding four years, and the appropriate
adjustments to the dollar amounts in the bill. The dollar amounts
are found primarily in the exemption section (11 U.S.C. 522), the
wage priority (11 U.S.C. 507), and the eligibility for chapter 13
(11 U.S.C. 109). This section requires that the Conference
recommend uniform percentage changes in these amounts based solely
on cost of living changes. The dollar amounts in the bill would not
change on that recommendation, absent Congressional veto. Instead,
Congress is required to take affirmative action, by passing a law
amending the appropriate section, if it wishes to accomplish the
change.
If the Judicial Conference has policy recommendations concerning
the appropriate dollar amounts in the bankruptcy code based other
than on cost of living considerations there are adequate channels
through which it may communicate its views. This section is solely
for the housekeeping function of maintaining the dollar amounts in
the code at fairly constant real dollar levels.
AMENDMENTS
2008 - Pub. L. 110-406 redesignated subsec. (b)(1) as (a),
subpars. (A) and (B) of subsec. (b)(1) as pars. (1) and (2),
respectively, of subsec. (a), and pars. (2) and (3) of subsec. (b)
as subsecs. (b) and (c), respectively, substituted "subsection (a)"
for "paragraph (1)" in subsec. (c), and struck out former subsec.
(a) which read as follows: "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."
2005 - Subsec. (b)(1). Pub. L. 109-8, Sec. 1202(1)-(4), in
introductory provisions, inserted "101(19A)," after "101(18),",
"522(f)(3) and 522(f)(4)," after "522(d),", and "541(b),
547(c)(9)," after "523(a)(2)(C)," and substituted "1322(d),
1325(b), and 1326(b)(3) of this title and section 1409(b) of title
28" for "and 1325(b)(3)".
Pub. L. 109-8, Sec. 1002, inserted "101(18)," after "101(3)," in
introductory provisions.
Pub. L. 109-8, Sec. 432(c), inserted "101(51D)," after "101(3),"
in introductory provisions.
Pub. L. 109-8, Sec. 322(b), inserted "522(p), 522(q)," after
"522(n)," in introductory provisions.
Pub. L. 109-8, Sec. 226(b), inserted "101(3)," after "sections"
in introductory provisions.
Pub. L. 109-8, Sec. 224(e)(2), inserted "522(n)," after "522(d),"
in introductory provisions.
Pub. L. 109-8, Sec. 102(j), substituted "523(a)(2)(C), 707(b),
and 1325(b)(3)" for "and 523(a)(2)(C)" in introductory provisions.
Subsec. (b)(2). Pub. L. 109-8, Sec. 1202(1)-(3), (5), inserted
"101(19A)," after "101(18),", "522(f)(3) and 522(f)(4)," after
"522(d),", and "541(b), 547(c)(9)," after "523(a)(2)(C)," and
substituted "1322(d), 1325(b), and 1326(b)(3) of this title and
section 1409(b) of title 28" for "and 1325(b)(3) of this title".
Pub. L. 109-8, Sec. 1002, inserted "101(18)," after "101(3),".
Pub. L. 109-8, Sec. 432(c), inserted "101(51D)," after "101(3),".
Pub. L. 109-8, Sec. 322(b), inserted "522(p), 522(q)," after
"522(n),".
Pub. L. 109-8, Sec. 226(b), inserted "101(3)," after "sections".
Pub. L. 109-8, Sec. 224(e)(2), inserted "522(n)," after
"522(d),".
Pub. L. 109-8, Sec. 102(j), substituted "523(a)(2)(C), 707(b),
and 1325(b)(3)" for "and 523(a)(2)(C)".
1994 - Pub. L. 103-394 designated existing provisions as subsec.
(a) and added subsec. (b).
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, with amendments by sections 102(j), 224(e)(2), 226(b),
432(c), 1002, and 1202 of Pub. L. 109-8 not applicable with respect
to cases commenced under this title before such effective date,
except as otherwise provided, and amendment by section 322(b) of
Pub. L. 109-8 applicable with respect to cases commenced under this
title on or after Apr. 20, 2005, see section 1501 of Pub. L. 109-8,
set out as a note under section 101 of this title.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not
applicable with respect to cases commenced under this title before
Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a
note under section 101 of this title.
ADJUSTMENT OF DOLLAR AMOUNTS
By notice dated Feb. 19, 2010, 75 F.R. 8747, the Judicial
Conference of the United States adjusted the dollar amounts in
provisions specified in subsec. (a) of this section, effective Apr.
1, 2010, as follows:
28 U.S.C. Dollar amount to be New (adjusted)
adjusted dollar amount
--------------------------------------------------------------------
1409(b) - a trustee
may commence a
proceeding arising
in or related to a
case to recover
(1) - money $1,100 $1,175
judgment of or
property worth
less than
(2) - a consumer 16,425 17,575
debt less than
(3) - a non 10,950 11,725
consumer debt
against a non
insider less than
--------------------------------------------------------------------
11 U.S.C. Dollar amount to be New (adjusted)
adjusted dollar amount
--------------------------------------------------------------------
101(3) - definition $164,250 $175,750
of assisted person
101(18)(A) & 3,544,525 (each 3,792,650 (each
(B)(ii) - time it appears) time it appears).
definition of
family farmer
101(19A)(A)(i) & 1,642,500 (each 1,757,475 (each
(b)(ii)(II) - time it appears) time it appears).
definition of
family fisherman
101(51D)(A) & (B) - 2,190,000 (each 2,343,300 (each
definition of small time it appears) time it appears).
business debtor
109(e) - allowable 336,900 (each time 360,475 (each time
debt limits for it appears) it appears).
individual filing
bankruptcy under
chapter 13
1,010,650 (each
time it appears)
1,081,400 (each
time it appears).
303(b) - minimum
aggregate claims
needed for the
commencement of
involuntary chapter
7 or chapter 11
bankruptcy
(1) - in 13,475 14,425
paragraph (1)
(2) - in 13,475 14,425
paragraph (2)
507(a) - priority
expenses and claims
(1) - in 10,950 11,725
paragraph (4)
(2) - in 10,950 11,725
paragraph (5)
(3) - in 5,400 5,775
paragraph (6)
(4) - in 2,425 2,600
paragraph (7)
522(d) - value of
property exemptions
allowed to the
debtor
(1) - in 20,200 21,625
paragraph (1)
(2) - in 3,225 3,450
paragraph (2)
(3) - in 525 550
paragraph (3)
10,775
11,525
(4) - in 1,350 1,450
paragraph (4)
(5) - in 1,075 1,150
paragraph (5)
10,125
10,825
(6) - in 2,025 2,175
paragraph (6)
(7) - in 10,775 11,525
paragraph (8)
(8) - in 20,200 21,625
paragraph (11)(D)
522(f)(3)(B) - 5,475 5,850
exception to lien
avoidance under
certain state laws
522(f)(4)(B) - 550 (each time it 600 (each time it
items excluded from appears) appears).
definition of
household goods for
lien avoidance
purposes
522(n) - maximum 1,095,000 1,171,650
aggregate value of
assets in
individual
retirement accounts
exempted
522(p)(1) - 136,875 146,450
qualified homestead
exemption
522(q)(1) - state 136,875 146,450
homestead exemption
523(a)(2)(C) -
exceptions to
discharge
in subclause 550 600
(i)(I) - consumer
debts, incurred <
= 90 days before
filing owed to a
single creditor
in the aggregate
in subclause 825 875
(i)(II) - cash
advances incurred
< = 70 days
before filing in
the aggregate
541(b) - property
of the estate
exclusions
(1) - in 5,475 5,850
paragraph (5)(C)
- education IRA
funds in the
aggregate
(2) - in 5,475 5,850
paragraph (6)(C)
- pre-purchased
tuition credits
in the aggregate
547(c)(9) - 5,475 5,850
preferences,
trustee may not
avoid a transfer
if, in a case filed
by a debtor whose
debts are not
primarily consumer
debts, the
aggregate value of
property is less
than
707(b) - dismissal
of a case or
conversion to a
case under chapter
11 or 13 (means
test)
(1) - in 6,575 7,025
paragraph
(2)(A)(i)(I)
(2) - in 10,950 11,725
paragraph
(2)(A)(i)(II)
(3) - in 1,650 1,775
paragraph
(2)(A)(ii)(IV)
(4) - in 6,575 7,025
paragraph
(2)(B)(iv)(I)
(5) - in 10,950 11,725
paragraph
(2)(B)(iv)(II)
(6) - in 1,100 1,175
paragraph (5)(B)
(7) - in 575 625
paragraph 6(C)
(8) - in 575 625
paragraph 7(A)(iii
1322(d)(1)(c)[(C)] 575 (each time it 625 (each time it
& (2)(c)[(C)] - appears) appears).
contents of chapter
13 plan, monthly
income
1325(b)(3) & (b)(4) 575 (each time it 625 (each time it
- chapter 13 appears) appears).
confirmation of
plan, disposable
income
1326(b)(3)(B) - 25 25
payments to former
chapter 7 trustee
--------------------------------------------------------------------
Similar notices by the Judicial Conference of the United States
adjusting the dollar amounts in provisions specified in subsec. (a)
of this section were contained in the following:
Feb. 7, 2007, 72 F.R. 7082, effective Apr. 1, 2007.
Feb. 18, 2004, 69 F.R. 8482, effective Apr. 1, 2004.
Feb. 13, 2001, 66 F.R. 10910, effective Apr. 1, 2001.
Feb. 3, 1998, 63 F.R. 7179, effective Apr. 1, 1998.
-End-
-CITE-
11 USC Sec. 105 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 105. Power of court
-STATUTE-
(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 -
(1) shall hold such status conferences as are necessary to
further the expeditious and economical resolution of the case;
and
(2) unless inconsistent with another provision of this title or
with applicable Federal Rules of Bankruptcy Procedure, may 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.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 98-353, title
I, Sec. 118, July 10, 1984, 98 Stat. 344; Pub. L. 99-554, title II,
Sec. 203, Oct. 27, 1986, 100 Stat. 3097; Pub. L. 103-394, title I,
Sec. 104(a), Oct. 22, 1994, 108 Stat. 4108; Pub. L. 109-8, title
IV, Sec. 440, Apr. 20, 2005, 119 Stat. 114; Pub. L. 111-327, Sec.
2(a)(3), Dec. 22, 2010, 124 Stat. 3557.)
-MISC1-
HISTORICAL AND REVISION NOTES
SENATE REPORT NO. 95-989
Section 105 is derived from section 2a (15) of present law
[section 11(a)(15) of former title 11], with two changes. First,
the limitation on the power of a bankruptcy judge (the power to
enjoin a court being reserved to the district judge) is removed as
inconsistent with the increased powers and jurisdiction of the new
bankruptcy court. Second, the bankruptcy judge is prohibited from
appointing a receiver in a case under title 11 under any
circumstances. The bankruptcy code has ample provision for the
appointment of a trustee when needed. Appointment of a receiver
would simply circumvent the established procedures.
This section is also an authorization, as required under 28
U.S.C. 2283, for a court of the United States to stay the action of
a State court. As such, Toucey v. New York Life Insurance Company,
314 U.S. 118 (1941), is overruled.
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Bankruptcy Procedure, referred to in subsec.
(d)(2), are set out in the Appendix to this title.
-MISC2-
AMENDMENTS
2010 - Subsec. (d)(2). Pub. L. 111-327 inserted "may" after
"Procedure," in introductory provisions.
2005 - Subsec. (d). Pub. L. 109-8, Sec. 440(1), struck out ",
may" after "party in interest" in introductory provisions.
Subsec. (d)(1). Pub. L. 109-8, Sec. 440(2), added par. (1) and
struck out former par. (1) which read as follows: "hold a status
conference regarding any case or proceeding under this title after
notice to the parties in interest; and".
1994 - Subsec. (d). Pub. L. 103-394 added subsec. (d).
1986 - Subsec. (a). Pub. L. 99-554 inserted at end "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."
1984 - Subsecs. (a), (b). Pub. L. 98-353, Sec. 118(1), struck out
"bankruptcy" before "court".
Subsec. (c). Pub. L. 98-353, Sec. 118(2), added subsec. (c).
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not
applicable with respect to cases commenced under this title before
Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a
note under section 101 of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Effective date and applicability of amendment by Pub. L. 99-554
dependent upon the judicial district involved, see section 302(d),
(e) of Pub. L. 99-554, set out as a note under section 581 of Title
28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective July 10, 1984, see section
122(a) of Pub. L. 98-353, set out as an Effective Date note under
section 151 of Title 28, Judiciary and Judicial Procedure.
-End-
-CITE-
11 USC Sec. 106 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 106. Waiver of sovereign immunity
-STATUTE-
(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, 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.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 103-394,
title I, Sec. 113, Oct. 22, 1994, 108 Stat. 4117; Pub. L. 111-327,
Sec. 2(a)(4), Dec. 22, 2010, 124 Stat. 3557.)
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Section 106(c) relating to sovereign immunity is new. The
provision indicates that the use of the term "creditor," "entity,"
or "governmental unit" in title 11 applies to governmental units
notwithstanding any assertion of sovereign immunity and that an
order of the court binds governmental units. The provision is
included to comply with the requirement in case law that an express
waiver of sovereign immunity is required in order to be effective.
Section 106(c) codifies In re Gwilliam, 519 F.2d 407 (9th Cir.,
1975), and In re Dolard, 519 F.2d 282 (9th Cir., 1975), permitting
the bankruptcy court to determine the amount and dischargeability
of tax liabilities owing by the debtor or the estate prior to or
during a bankruptcy case whether or not the governmental unit to
which such taxes are owed files a proof of claim. Except as
provided in sections 106(a) and (b), subsection (c) is not limited
to those issues, but permits the bankruptcy court to bind
governmental units on other matters as well. For example, section
106(c) permits a trustee or debtor in possession to assert avoiding
powers under title 11 against a governmental unit; contrary
language in the House report to H.R. 8200 is thereby overruled.
SENATE REPORT NO. 95-989
Section 106 provides for a limited waiver of sovereign immunity
in bankruptcy cases. Though Congress has the power to waive
sovereign immunity for the Federal government completely in
bankruptcy cases, the policy followed here is designed to achieve
approximately the same result that would prevail outside of
bankruptcy. Congress does not, however, have the power to waive
sovereign immunity completely with respect to claims of a bankrupt
estate against a State, though it may exercise its bankruptcy power
through the supremacy clause to prevent or prohibit State action
that is contrary to bankruptcy policy.
There is, however, a limited change from the result that would
prevail in the absence of bankruptcy; the change is two-fold and is
within Congress' power vis-a-vis both the Federal Government and
the States. First, the filing of a proof of claim against the
estate by a governmental unit is a waiver by that governmental unit
of sovereign immunity with respect to compulsory counterclaims, as
defined in the Federal Rules of Civil Procedure [title 28,
appendix], that is, counterclaims arising out of the same
transaction or occurrence. The governmental unit cannot receive a
distribution from the estate without subjecting itself to any
liability it has to the estate within the confines of a compulsory
counterclaim rule. Any other result would be one-sided. The
counterclaim by the estate against the governmental unit is without
limit.
Second, the estate may offset against the allowed claim of a
governmental unit, up to the amount of the governmental unit's
claim, any claim that the debtor, and thus the estate, has against
the governmental unit, without regard to whether the estate's claim
arose out of the same transaction or occurrence as the government's
claim. Under this provision, the setoff permitted is only to the
extent of the governmental unit's claim. No affirmative recovery is
permitted. Subsection (a) governs affirmative recovery.
Though this subsection creates a partial waiver of immunity when
the governmental unit files a proof of claim, it does not waive
immunity if the debtor or trustee, and not the governmental unit,
files proof of a governmental unit's claim under proposed 11 U.S.C.
501(c).
This section does not confer sovereign immunity on any
governmental unit that does not already have immunity. It simply
recognizes any immunity that exists and prescribes the proper
treatment of claims by and against that sovereign.
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Bankruptcy Procedure, referred to in subsec.
(a)(3), (5), are set out in the Appendix to this title.
-MISC2-
AMENDMENTS
2010 - Subsec. (a)(1). Pub. L. 111-327 struck out "728," after
"726,".
1994 - Pub. L. 103-394 amended section generally. Prior to
amendment, section read as follows:
"(a) A governmental unit is deemed to have waived sovereign
immunity with respect to any claim against such governmental unit
that is property of the estate and that arose out of the same
transaction or occurrence out of which such governmental unit's
claim arose.
"(b) There shall be offset against an allowed claim or interest
of a governmental unit any claim against such governmental unit
that is property of the estate.
"(c) Except as provided in subsections (a) and (b) of this
section and notwithstanding any assertion of sovereign immunity -
"(1) a provision of this title that contains 'creditor',
'entity', or 'governmental unit' applies to governmental units;
and
"(2) a determination by the court of an issue arising under
such a provision binds governmental units."
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and
applicable with respect to cases commenced under this title before,
on, and after Oct. 22, 1994, see section 702(a), (b)(2)(B) of Pub.
L. 103-394, set out as a note under section 101 of this title.
-End-
-CITE-
11 USC Sec. 107 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 107. Public access to papers
-STATUTE-
(a) Except as provided in subsections (b) and (c) and subject to
section 112, 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.
(c)(1) The bankruptcy court, for cause, may protect an
individual, with respect to the following types of information to
the extent the court finds that disclosure of such information
would create undue risk of identity theft or other unlawful injury
to the individual or the individual's property:
(A) Any means of identification (as defined in section 1028(d)
of title 18) contained in a paper filed, or to be filed, in a
case under this title.
(B) Other information contained in a paper described in
subparagraph (A).
(2) Upon ex parte application demonstrating cause, the court
shall provide access to information protected pursuant to paragraph
(1) to an entity acting pursuant to the police or regulatory power
of a domestic governmental unit.
(3) The United States trustee, bankruptcy administrator, trustee,
and any auditor serving under section 586(f) of title 28 -
(A) shall have full access to all information contained in any
paper filed or submitted in a case under this title; and
(B) shall not disclose information specifically protected by
the court under this title.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 109-8, title
II, Secs. 233(c), 234(a), (c), Apr. 20, 2005, 119 Stat. 74, 75;
Pub. L. 111-327, Sec. 2(a)(5), Dec. 22, 2010, 124 Stat. 3557.)
-MISC1-
HISTORICAL AND REVISION NOTES
SENATE REPORT NO. 95-989
Subsection (a) of this section makes all papers filed in a
bankruptcy case and the dockets of the bankruptcy court public and
open to examination at reasonable times without charge. "Docket"
includes the claims docket, the proceedings docket, and all papers
filed in a case.
Subsection (b) permits the court, on its own motion, and requires
the court, on the request of a party in interest, to protect trade
secrets, confidential research, development, or commercial
information, and to protect persons against scandalous or
defamatory matter.
AMENDMENTS
2010 - Subsec. (a). Pub. L. 111-327 substituted "subsections (b)
and (c)" for "subsection (b) of this section".
2005 - Subsec. (a). Pub. L. 109-8, Sec. 234(c), which directed
the substitution of "subsections (b) and (c)," for "subsection
(b),", could not be executed because "subsection (b)," did not
appear in text.
Pub. L. 109-8, Sec. 233(c), inserted "and subject to section 112"
after "section".
Subsec. (c). Pub. L. 109-8, Sec. 234(a), added subsec. (c).
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
-End-
-CITE-
11 USC Sec. 108 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 108. Extension of time
-STATUTE-
(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.
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 98-353, title
III, Sec. 424, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title
II, Sec. 257(b), Oct. 27, 1986, 100 Stat. 3114; Pub. L. 109-8,
title XII, Sec. 1203, Apr. 20, 2005, 119 Stat. 193.)
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Extension of time: The House amendment adopts section 108(c)(1)
of the Senate amendment which expressly includes any special
suspensions of statutes of limitation periods on collection outside
bankruptcy when assets are under the authority of a court. For
example, section 6503(b) of the Internal Revenue Code [title 26]
suspends collection of tax liabilities while the debtor's assets
are in the control or custody of a court, and for 6 months
thereafter. By adopting the language of the Senate amendment, the
House amendment insures not only that the period for collection of
the taxes outside bankruptcy will not expire during the title 11
proceedings, but also that such period will not expire until at
least 6 months thereafter, which is the minimum suspension period
provided by the Internal Revenue Code [title 26].
SENATE REPORT NO. 95-989
Subsections (a) and (b), derived from Bankruptcy Act section 11
[section 29 of former title 11], permit the trustee, when he steps
into the shoes of the debtor, an extension of time for filing an
action or doing some other act that is required to preserve the
debtor's rights. Subsection (a) extends any statute of limitation
for commencing or continuing an action by the debtor for two years
after the date of the order for relief, unless it would expire
later. Subsection (b) gives the trustee 60 days to take other
actions not covered under subsection (a), such as filing a
pleading, demand, notice, or proof of claim or loss (such as an
insurance claim), unless the period for doing the relevant act
expires later than 60 days after the date of the order for relief.
Subsection (c) extends the statute of limitations for creditors.
Thus, if a creditor is stayed from commencing or continuing an
action against the debtor because of the bankruptcy case, then the
creditor is permitted an additional 30 days after notice of the
event by which the stay is terminated, whether that event be relief
from the automatic stay under proposed 11 U.S.C. 362 or 1301, the
closing of the bankruptcy case (which terminates the stay), or the
exception from discharge of the debts on which the creditor claims.
In the case of Federal tax liabilities, the Internal Revenue Code
[title 26] suspends the statute of limitations on a tax liability
of a taxpayer from running while his assets are in the control or
custody of a court and for 6 months thereafter (sec. 6503(b) of the
Code [title 26]). The amendment applies this rule in a title 11
proceeding. Accordingly, the statute of limitations on collection
of a nondischargeable Federal tax liability of a debtor will resume
running after 6 months following the end of the period during which
the debtor's assets are in the control or custody of the bankruptcy
court. This rule will provide the Internal Revenue Service adequate
time to collect nondischargeable taxes following the end of the
title 11 proceedings.
AMENDMENTS
2005 - Subsec. (c)(2). Pub. L. 109-8 substituted "922, 1201, or"
for "922, or".
1986 - Subsec. (b). Pub. L. 99-554, Sec. 257(b)(1), inserted
reference to section 1201 of this title.
Subsec. (c). Pub. L. 99-554, Sec. 257(b)(2)(A), inserted
reference to section 1201 of this title in provisions preceding
par. (1).
Subsec. (c)(2). Pub. L. 99-554, Sec. 257(b)(2)(B), which directed
the amendment of subsec. (c) by inserting "1201," after "722,"
could not be executed because "722," did not appear in text.
1984 - Subsec. (a). Pub. L. 98-353, Sec. 424(b), inserted
"nonbankruptcy" after "applicable" and "entered in a" in provisions
preceding par. (1).
Subsec. (a)(1). Pub. L. 98-353, Sec. 424(a), substituted "or" for
"and" after the semicolon.
Subsec. (b). Pub. L. 98-353, Sec. 424(b), inserted
"nonbankruptcy" after "applicable" and "entered in a" in provisions
preceding par. (1).
Subsec. (b)(1). Pub. L. 98-353, Sec. 424(a), substituted "or" for
"and" after the semicolon.
Subsec. (c). Pub. L. 98-353, Sec. 424(b), inserted
"nonbankruptcy" after "applicable" and "entered in a" in provisions
preceding par. (1).
Subsec. (c)(1). Pub. L. 98-353, Sec. 424(a), substituted "or" for
"and" after the semicolon.
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,
1986, but not applicable to cases commenced under this title before
that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as
a note under section 581 of Title 28, Judiciary and Judicial
Procedure.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective with respect to cases filed
90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,
set out as a note under section 101 of this title.
-End-
-CITE-
11 USC Sec. 109 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 109. Who may be a debtor
-STATUTE-
(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 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) a foreign insurance company, engaged in such business in
the United States; or
(B) a foreign bank, savings bank, cooperative bank, savings and
loan association, building and loan association, or credit union,
that has a branch or agency (as defined in section 1(b) of the
International Banking Act of 1978) 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 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 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 and noncontingent, liquidated, secured
debts of less than $750,000, 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 and noncontingent, liquidated, secured debts of less than
$750,000 may be a debtor under chapter 13 of this title.
(f) Only a family farmer or family fisherman 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.
(h)(1) Subject to paragraphs (2) and (3), and notwithstanding any
other provision of this section other than paragraph (4) of this
subsection, an individual may not be a debtor under this title
unless such individual has, during the 180-day period ending on the
date of filing of the petition by such individual, received from an
approved nonprofit budget and credit counseling agency described in
section 111(a) an individual or group briefing (including a
briefing conducted by telephone or on the Internet) that outlined
the opportunities for available credit counseling and assisted such
individual in performing a related budget analysis.
(2)(A) Paragraph (1) shall not apply with respect to a debtor who
resides in a district for which the United States trustee (or the
bankruptcy administrator, if any) determines that the approved
nonprofit budget and credit counseling agencies for such district
are not reasonably able to provide adequate services to the
additional individuals who would otherwise seek credit counseling
from such agencies by reason of the requirements of paragraph (1).
(B) The United States trustee (or the bankruptcy administrator,
if any) who makes a determination described in subparagraph (A)
shall review such determination not later than 1 year after the
date of such determination, and not less frequently than annually
thereafter. Notwithstanding the preceding sentence, a nonprofit
budget and credit counseling agency may be disapproved by the
United States trustee (or the bankruptcy administrator, if any) at
any time.
(3)(A) Subject to subparagraph (B), the requirements of paragraph
(1) shall not apply with respect to a debtor who submits to the
court a certification that -
(i) describes exigent circumstances that merit a waiver of the
requirements of paragraph (1);
(ii) states that the debtor requested credit counseling
services from an approved nonprofit budget and credit counseling
agency, but was unable to obtain the services referred to in
paragraph (1) during the 7-day period beginning on the date on
which the debtor made that request; and
(iii) is satisfactory to the court.
(B) With respect to a debtor, an exemption under subparagraph (A)
shall cease to apply to that debtor on the date on which the debtor
meets the requirements of paragraph (1), but in no case may the
exemption apply to that debtor after the date that is 30 days after
the debtor files a petition, except that the court, for cause, may
order an additional 15 days.
(4) The requirements of paragraph (1) shall not apply with
respect to a debtor whom the court determines, after notice and
hearing, is unable to complete those requirements because of
incapacity, disability, or active military duty in a military
combat zone. For the purposes of this paragraph, incapacity means
that the debtor is impaired by reason of mental illness or mental
deficiency so that he is incapable of realizing and making rational
decisions with respect to his financial responsibilities; and
"disability" means that the debtor is so physically impaired as to
be unable, after reasonable effort, to participate in an in person,
telephone, or Internet briefing required under paragraph (1).
-SOURCE-
(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2557; Pub. L. 97-320, title
VII, Sec. 703(d), Oct. 15, 1982, 96 Stat. 1539; Pub. L. 98-353,
title III, Secs. 301, 425, July 10, 1984, 98 Stat. 352, 369; Pub.
L. 99-554, title II, Sec. 253, Oct. 27, 1986, 100 Stat. 3105; Pub.
L. 100-597, Sec. 2, Nov. 3, 1988, 102 Stat. 3028; Pub. L. 103-394,
title I, Sec. 108(a), title II, Sec. 220, title IV, Sec. 402, title
V, Sec. 501(d)(2), Oct. 22, 1994, 108 Stat. 4111, 4129, 4141, 4143;
Pub. L. 106-554, Sec. 1(a)(5) [title I, Sec. 112(c)(1), (2)], Sec.
1(a)(8) [Sec. 1(e)], Dec. 21, 2000, 114 Stat. 2763, 2763A-393,
2763A-665; Pub. L. 109-8, title I, Sec. 106(a), title VIII, Sec.
802(d)(1), title X, Sec. 1007(b), title XII, Sec. 1204(1), Apr. 20,
2005, 119 Stat. 37, 146, 188, 193; Pub. L. 111-16, Sec. 2(1), May
7, 2009, 123 Stat. 1607; Pub. L. 111-327, Sec. 2(a)(6), Dec. 22,
2010, 124 Stat. 3557.)
-STATAMEND-
ADJUSTMENT OF DOLLAR AMOUNTS
For adjustment of certain dollar amounts specified in this
section, that is not reflected in text, see Adjustment of Dollar
Amounts note below.
-MISC1-
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTS
Section 109(b) of the House amendment adopts a provision
contained in H.R. 8200 as passed by the House. Railroad
liquidations will occur under chapter 11, not chapter 7.
Section 109(c) contains a provision which tracks the Senate
amendment as to when a municipality may be a debtor under chapter
11 of title 11. As under the Bankruptcy Act [former title 11],
State law authorization and prepetition negotiation efforts are
required.
Section 109(e) represents a compromise between H.R. 8200 as
passed by the House and the Senate amendment relating to the dollar
amounts restricting eligibility to be a debtor under chapter 13 of
title 11. The House amendment adheres to the limit of $100,000
placed on unsecured debts in H.R. 8200 as passed by the House. It
adopts a midpoint of $350,000 as a limit on secured claims, a
compromise between the level of $500,000 in H.R. 8200 as passed by
the House and $200,000 as contained in the Senate amendment.
SENATE REPORT NO. 95-989
This section specifies eligibility to be a debtor under the
bankruptcy laws. The first criterion, found in the current
Bankruptcy Act section 2a(1) [section 11(a)(1) of former title 11]
requires that the debtor reside or have a domicile, a place of
business, or property in the United States.
Subsection (b) defines eligibility for liquidation under chapter
7. All persons are eligible except insurance companies, and certain
banking institutions. These exclusions are contained in current
law. However, the banking institution exception is expanded in
light of changes in various banking laws since the current law was
last amended on this point. A change is also made to clarify that
the bankruptcy laws cover foreign banks and insurance companies not
engaged in the banking or insurance business in the United States
but having assets in the United States. Banking institutions and
insurance companies engaged in business in this country are
excluded from liquidation under the bankruptcy laws because they
are bodies for which alternate provision is made for their
liquidation under various State or Federal regulatory laws.
Conversely, when a foreign bank or insurance company is not engaged
in the banking or insurance business in the United States, then
those regulatory laws do not apply, and the bankruptcy laws are the
only ones available for administration of any assets found in
United States.
The first clause of subsection (b) provides that a railroad is
not a debtor except where the requirements of section 1174 are met.
Subsection (c) [enacted as (d)] provides that only a person who
may be a debtor under chapter 7 and a railroad may also be a debtor
under chapter 11, but a stockbroker or commodity broker is eligible
for relief only under chapter 7. Subsection (d) [enacted as (e)]
establishes dollar limitations on the amount of indebtedness that
an individual with regular income can incur and yet file under
chapter 13.
HOUSE REPORT NO. 95-595
Subsection (c) defines eligibility for chapter 9. Only a
municipality that is unable to pay its debts as they mature, and
that is not prohibited by State law from proceeding under chapter
9, is permitted to be a chapter 9 debtor. The subsection is derived
from Bankruptcy Act Sec. 84 [section 404 of former title 11], with
two changes. First, section 84 requires that the municipality be
"generally authorized to file a petition under this chapter by the
legislature, or by a governmental officer or organization empowered
by State law to authorize the filing of a petition." The "generally
authorized" language is unclear, and has generated a problem for a
Colorado Metropolitan District that attempted to use chapter IX
[chapter 9 of former title 11] in 1976. The "not prohibited"
language provides flexibility for both the States and the
municipalities involved, while protecting State sovereignty as
required by Ashton v. Cameron County Water District No. 1, 298 U.S.
513 (1936) [56 S.Ct. 892, 80 L.Ed. 1309, 31 Am.Bankr.Rep.N.S. 96,
rehearing denied 57 S.Ct. 5, 299 U.S. 619, 81 L.Ed. 457] and Bekins
v. United States, 304 U.S. 27 (1938) [58 S.Ct. 811, 82 L.Ed. 1137,
36 Am.Bankr.Rep.N.S. 187, rehearing denied 58 S.Ct. 1043, 1044, 304
U.S. 589, 82 L.Ed. 1549].
The second change deletes the four prerequisites to filing found
in section 84 [section 404 of former title 11]. The prerequisites
require the municipality to have worked out a plan in advance, to
have attempted to work out a plan without success, to fear that a
creditor will attempt to obtain a preference, or to allege that
prior negotiation is impracticable. The loopholes in those
prerequisites are larger than the requirement itself. It was a
compromise from pre-1976 chapter IX [chapter 9 of former title 11]
under which a municipality could file only if it had worked out an
adjustment plan in advance. In the meantime, chapter IX protection
was unavailable. There was some controversy at the time of the
enactment of current chapter IX concerning deletion of the pre-
negotiation requirement. It was argued that deletion would lead to
a rash of municipal bankruptcies. The prerequisites now contained
in section 84 were inserted to assuage that fear. They are largely
cosmetic and precatory, however, and do not offer any significant
deterrent to use of chapter IX. Instead, other factors, such as a
general reluctance on the part of any debtor, especially a
municipality, to use the bankruptcy laws, operates as a much more
effective deterrent against capricious use.
Subsection (d) permits a person that may proceed under chapter 7
to be a debtor under chapter 11, Reorganization, with two
exceptions. Railroads, which are excluded from chapter 7, are
permitted to proceed under chapter 11. Stockbrokers and commodity
brokers, which are permitted to be debtors under chapter 7, are
excluded from chapter 11. The special rules for treatment of
customer accounts that are the essence of stockbroker and commodity
broker liquidations are available only in chapter 7. Customers
would be unprotected under chapter 11. The special protective rules
are unavailable in chapter 11 because their complexity would make
reorganization very difficult at best, and unintelligible at worst.
The variety of options available in reorganization cases make it
extremely difficult to reorganize and continue to provide the
special customer protection necessary in these cases.
Subsection (e) specifies eligibility for chapter 13, Adjustment
of Debts of an Individual with Regular Income. An individual with
regular income, or an individual with regular income and the
individual's spouse, may proceed under chapter 13. As noted in
connection with the definition of the term "individual with regular
income", this represents a significant departure from current law.
The change might have been too great, however, without some
limitation. Thus, the debtor (or the debtor and spouse) must have
unsecured debts that aggregate less than $100,000, and secured
debts that aggregate less than $500,000. These figures will permit
the small sole proprietor, for whom a chapter 11 reorganization is
too cumbersome a procedure, to proceed under chapter 13. It does
not create a presumption that any sole proprietor within that range
is better off in chapter 13 than chapter 11. The conversion rules
found in section 1307 will govern the appropriateness of the two
chapters for any particular individual. The figures merely set
maximum limits.
Whether a small business operated by a husband and wife, the so-
called "mom and pop grocery store," will be a partnership and thus
excluded from chapter 13, or a business owned by an individual,
will have to be determined on the facts of each case. Even if
partnership papers have not been filed, for example, the issue will
be whether the assets of the grocery store are for the benefit of
all creditors of the debtor or only for business creditors, and
whether such assets may be the subject of a chapter 13 proceeding.
The intent of the section is to follow current law that a
partnership by estoppel may be adjudicated in bankruptcy and
therefore would not prevent a chapter 13 debtor from subjecting
assets in such a partnership to the reach of all creditors in a
chapter 13 case. However, if the partnership is found to be a
partnership by agreement, even informal agreement, than a separate
entity exists and the assets of that entity would be exempt from a
case under chapter 13.
-REFTEXT-
REFERENCES IN TEXT
Section 351 of the Small Business Investment Act of 1958,
referred to in subsec. (b)(2), is classified to section 689 of
Title 15, Commerce and Trade.
Section 301 of the Small Business Investment Act of 1958,
referred to in subsec. (b)(2), is classified to section 681 of
Title 15, Commerce and Trade.
Section 3(h) of the Federal Deposit Insurance Act, referred to in
subsec. (b)(2), is classified to section 1813(h) of Title 12, Banks
and Banking.
Section 25A of the Federal Reserve Act, referred to in subsecs.
(b)(2) and (d), popularly known as the Edge Act, is classified to
subchapter II (Sec. 611 et seq.) of chapter 6 of Title 12, Banks
and Banking. For complete classification of this Act to the Code,
see Short Title note set out under section 611 of Title 12 and
Tables.
Section 409 of the Federal Deposit Insurance Corporation
Improvement Act of 1991, referred to in subsecs. (b)(2) and (d), is
classified to section 4422 of Title 12, Banks and Banking.
Section 1(b) of the International Banking Act of 1978, referred
to in subsec. (b)(3)(B), is classified to section 3101 of Title 12,
Banks and Banking.
-MISC2-
AMENDMENTS
2010 - Subsec. (b)(3)(B). Pub. L. 111-327, Sec. 2(a)(6)(A),
inserted closing parenthesis after "1978".
Subsec. (h)(1). Pub. L. 111-327, Sec. 2(a)(6)(B), inserted "other
than paragraph (4) of this subsection" after "this section" and
substituted "ending on" for "preceding".
2009 - Subsec. (h)(3)(A)(ii). Pub. L. 111-16 substituted "7-day"
for "5-day".
2005 - Subsec. (b)(2). Pub. L. 109-8, Sec. 1204(1), struck out
"subsection (c) or (d) of" before "section 301".
Subsec. (b)(3). Pub. L. 109-8, Sec. 802(d)(1), added par. (3) and
struck out former par. (3) which read as follows: "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."
Subsec. (f). Pub. L. 109-8, Sec. 1007(b), inserted "or family
fisherman" after "family farmer".
Subsec. (h). Pub. L. 109-8, Sec. 106(a), added subsec. (h).
2000 - Subsec. (b)(2). Pub. L. 106-554, Sec. 1(a)(8) [Sec. 1(e)],
inserted "a New Markets Venture Capital company as defined in
section 351 of the Small Business Investment Act of 1958," after
"homestead association,".
Pub. L. 106-554, Sec. 1(a)(5) [title I, Sec. 112(c)(1)],
substituted ", 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" for "; or".
Subsec. (d). Pub. L. 106-554, Sec. 1(a)(5) [title I, Sec.
112(c)(2)], amended subsec. (d) generally. Prior to amendment,
subsec. (d) read as follows: "Only a person that may be a debtor
under chapter 7 of this title, except a stockbroker or a commodity
broker, and a railroad may be a debtor under chapter 11 of this
title."
1994 - Subsec. (b)(2). Pub. L. 103-394, Secs. 220, 501(d)(2),
inserted "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," after "homestead
association," and struck out "(12 U.S.C. 1813(h))" after "Insurance
Act".
Subsec. (c)(2). Pub. L. 103-394, Sec. 402, substituted
"specifically authorized, in its capacity as a municipality or by
name," for "generally authorized".
Subsec. (e). Pub. L. 103-394, Sec. 108(a), substituted "$250,000"
and "$750,000" for "$100,000" and "$350,000", respectively, in two
places.
1988 - Subsec. (c)(3). Pub. L. 100-597 struck out "or unable to
meet such entity's debts as such debts mature" after "insolvent".
1986 - Subsec. (f). Pub. L. 99-554, Sec. 253(1)(B), (2), added
subsec. (f) and redesignated former subsec. (f) as (g).
Subsec. (g). Pub. L. 99-554, Sec. 253(1), redesignated former
subsec. (f) as (g) and inserted reference to family farmer.
1984 - Subsec. (a). Pub. L. 98-353, Sec. 425(a), struck out "in
the United States," after "only a person that resides".
Subsec. (c)(5)(D). Pub. L. 98-353, Sec. 425(b), substituted
"transfer that is avoidable under section 547 of this title" for
"preference".
Subsec. (d). Pub. L. 98-353, Sec. 425(c), substituted
"stockbroker" for "stockholder".
Subsec. (f). Pub. L. 98-353, Sec. 301, added subsec. (f).
1982 - Subsec. (b)(2). Pub. L. 97-320 inserted reference to
industrial banks or similar institutions which are insured banks as
defined in section 3(h) of the Federal Deposit Insurance Act (12
U.S.C. 1813(h)).
EFFECTIVE DATE OF 2009 AMENDMENT
Pub. L. 111-16, Sec. 7, May 7, 2009, 123 Stat. 1609, provided
that: "The amendments made by this Act [amending this section,
sections 322, 332, 342, 521, 704, 749, and 764 of this title,
sections 983, 1514, 1963, 2252A, 2339B, 3060, 3432, 3509, and 3771
of Title 18, Crimes and Criminal Procedure, section 7 of the
Classified Information Procedures Act set out in the Appendix to
Title 18, section 853 of Title 21, Food and Drugs, and sections
636, 1453, and 2107 of Title 28, Judiciary and Judicial Procedure]
shall take effect on December 1, 2009."
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not
applicable with respect to cases commenced under this title before
Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a
note under section 101 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-597 effective Nov. 3, 1988, but not
applicable to any case commenced under this title before that date,
see section 12 of Pub. L. 100-597, set out as a note under section
101 of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,
1986, but not applicable to cases commenced under this title before
that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as
a note under section 581 of Title 28, Judiciary and Judicial
Procedure.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective with respect to cases filed
90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,
set out as a note under section 101 of this title.
ADJUSTMENT OF DOLLAR AMOUNTS
The dollar amounts specified in this section were adjusted by
notices of the Judicial Conference of the United States pursuant to
section 104 of this title as follows:
By notice dated Feb. 19, 2010, 75 F.R. 8747, effective Apr. 1,
2010, in subsec. (e), dollar amounts "336,900" and "1,010,650" were
adjusted to "360,475" and "1,081,400", respectively, each time they
appeared. See notice of the Judicial Conference of the United
States set out as a note under section 104 of this title.
By notice dated Feb. 7, 2007, 72 F.R. 7082, effective Apr. 1,
2007, in subsec. (e), dollar amounts "307,675" and "922,975" were
adjusted to "336,900" and "1,010,650", respectively, each time they
appeared.
By notice dated Feb. 18, 2004, 69 F.R. 8482, effective Apr. 1,
2004, in subsec. (e), dollar amounts "290,525" and "871,550" were
adjusted to "307,675" and "922,975", respectively, each time they
appeared.
By notice dated Feb. 13, 2001, 66 F.R. 10910, effective Apr. 1,
2001, in subsec. (e), dollar amounts "269,250" and "807,750" were
adjusted to "290,525" and "871,550", respectively, each time they
appeared.
By notice dated Feb. 3, 1998, 63 F.R. 7179, effective Apr. 1,
1998, in subsec. (e), dollar amounts "250,000" and "750,000" were
adjusted to "269,250" and "807,750", respectively, each time they
appeared.
-End-
-CITE-
11 USC Sec. 110 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 110. Penalty for persons who negligently or fraudulently
prepare bankruptcy petitions
-STATUTE-
(a) In this section -
(1) "bankruptcy petition preparer" means a person, other than
an attorney for the debtor or an employee of such attorney under
the direct supervision of such 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. If a bankruptcy petition preparer is
not an individual, then an officer, principal, responsible person,
or partner of the bankruptcy petition preparer shall be required to
-
(A) sign the document for filing; and
(B) print on the document the name and address of that officer,
principal, responsible person, or partner.
(2)(A) Before preparing any document for filing or accepting any
fees from or on behalf of a debtor, the bankruptcy petition
preparer shall provide to the debtor a written notice which shall
be on an official form prescribed by the Judicial Conference of the
United States in accordance with rule 9009 of the Federal Rules of
Bankruptcy Procedure.
(B) The notice under subparagraph (A) -
(i) shall inform the debtor in simple language that a
bankruptcy petition preparer is not an attorney and may not
practice law or give legal advice;
(ii) may contain a description of examples of legal advice that
a bankruptcy petition preparer is not authorized to give, in
addition to any advice that the preparer may not give by reason
of subsection (e)(2); and
(iii) shall -
(I) be signed by the debtor and, under penalty of perjury, by
the bankruptcy petition preparer; and
(II) be filed with any document for filing.
(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)(A) Subject to subparagraph (B), 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.
(B) If a bankruptcy petition preparer is not an individual, the
identifying number of the bankruptcy petition preparer shall be the
Social Security account number of the officer, principal,
responsible person, or partner of the bankruptcy petition preparer.
(d) 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.
(e)(1) A bankruptcy petition preparer shall not execute any
document on behalf of a debtor.
(2)(A) A bankruptcy petition preparer may not offer a potential
bankruptcy debtor any legal advice, including any legal advice
described in subparagraph (B).
(B) The legal advice referred to in subparagraph (A) includes
advising the debtor -
(i) whether -
(I) to file a petition under this title; or
(II) commencing a case under chapter 7, 11, 12, or 13 is
appropriate;
(ii) whether the debtor's debts will be discharged in a case
under this title;
(iii) whether the debtor will be able to retain the debtor's
home, car, or other property after commencing a case under this
title;
(iv) concerning -
(I) the tax consequences of a case brought under this title;
or
(II) the dischargeability of tax claims;
(v) whether the debtor may or should promise to repay debts to
a creditor or enter into a reaffirmation agreement with a
creditor to reaffirm a debt;
(vi) concerning how to characterize the nature of the debtor's
interests in property or the debtor's debts; or
(vii) concerning bankruptcy procedures and rights.
(f) 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.
(g) 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.
(h)(1) The Supreme Court may promulgate rules under section 2075
of title 28, or the Judicial Conference of the United States may
prescribe guidelines, for setting a maximum allowable fee
chargeable by a bankruptcy petition preparer. A bankruptcy petition
preparer shall notify the debtor of any such maximum amount before
preparing any document for filing for the debtor or accepting any
fee from or on behalf of the debtor.
(2) A declaration under penalty of perjury by the bankruptcy
petition preparer shall be filed together with the petition,
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. If rules or guidelines setting a
maximum fee for services have been promulgated or prescribed under
paragraph (1), the declaration under this paragraph shall include a
certification that the bankruptcy petition preparer complied with
the notification requirement under paragraph (1).
(3)(A) The court shall disallow and order the immediate turnover
to the bankruptcy trustee any fee referred to in paragraph (2) -
(i) found to be in excess of the value of any services rendered
by the bankruptcy petition preparer during the 12-month period
immediately preceding the date of the filing of the petition; or
(ii) found to be in violation of any rule or guideline
promulgated or prescribed under paragraph (1).
(B) All fees charged by a bankruptcy petition preparer may be
forfeited in any case in which the bankruptcy petition preparer
fails to comply with this subsection or subsection (b), (c), (d),
(e), (f), or (g).
(C) An individual may exempt any funds recovered under this
paragraph under section 522(b).
(4) The debtor, the trustee, a creditor, the United States
trustee (or the bankruptcy administrator, if any) or the court, on
the initiative of the court, may file a motion for an order under
paragraph (3).
(5) 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 petition preparer violates this section or
commits any act that the court finds to be fraudulent, unfair, or
deceptive, on the motion of the debtor, trustee, United States
trustee (or the bankruptcy administrator, if any), and after notice
and a hearing, the court 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;
(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, has not paid a penalty
imposed under this section, or failed to disgorge all fees ordered
by the court the court may enjoin the person from acting as a
bankruptcy petition preparer.
(3) The court, as part of its contempt power, may enjoin a
bankruptcy petition preparer that has failed to comply with a
previous order issued under this section. The injunction under this
paragraph may be issued on the motion of the court, the trustee, or
the United States trustee (or the bankruptcy administrator, if
any).
(4) The court shall award to a debtor, trustee, or creditor that
brings a successful action under this subsection reasonable
attorneys' 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.
(l)(1) A bankruptcy petition preparer who fails to comply with
any provision of subsection (b), (c), (d), (e), (f), (g), or (h)
may be fined not more than $500 for each such failure.
(2) The court shall triple the amount of a fine assessed under
paragraph (1) in any case in which the court finds that a
bankruptcy petition preparer -
(A) advised the debtor to exclude assets or income that should
have been included on applicable schedules;
(B) advised the debtor to use a false Social Security account
number;
(C) failed to inform the debtor that the debtor was filing for
relief under this title; or
(D) prepared a document for filing in a manner that failed to
disclose the identity of the bankruptcy petition preparer.
(3) A debtor, trustee, creditor, or United States trustee (or the
bankruptcy administrator, if any) may file a motion for an order
imposing a fine on the bankruptcy petition preparer for any
violation of this section.
(4)(A) Fines imposed under this subsection in judicial districts
served by United States trustees shall be paid to the United States
trustees, who shall deposit an amount equal to such fines in the
United States Trustee Fund.
(B) Fines imposed under this subsection in judicial districts
served by bankruptcy administrators shall be deposited as
offsetting receipts to the fund established under section 1931 of
title 28, and shall remain available until expended to reimburse
any appropriation for the amount paid out of such appropriation for
expenses of the operation and maintenance of the courts of the
United States.
-SOURCE-
(Added Pub. L. 103-394, title III, Sec. 308(a), Oct. 22, 1994, 108
Stat. 4135; amended Pub. L. 109-8, title II, Sec. 221, title XII,
Sec. 1205, Apr. 20, 2005, 119 Stat. 59, 194; Pub. L. 110-161, div.
B, title II, Sec. 212(b), Dec. 26, 2007, 121 Stat. 1914; Pub. L.
111-327, Sec. 2(a)(7), Dec. 22, 2010, 124 Stat. 3558.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Bankruptcy Procedure, referred to in subsec.
(b)(2)(A), are set out in the Appendix to this title.
-MISC1-
AMENDMENTS
2010 - Subsec. (b)(2)(A). Pub. L. 111-327, Sec. 2(a)(7)(A),
inserted "or on behalf of" after "from".
Subsec. (h)(1). Pub. L. 111-327, Sec. 2(a)(7)(B)(i), in last
sentence, substituted "filing for the debtor" for "filing for a
debtor" and inserted "or on behalf of" after "from".
Subsec. (h)(3)(A). Pub. L. 111-327, Sec. 2(a)(7)(B)(ii)(I),
struck out "found to be in excess of the value of any services"
after "paragraph (2)" in introductory provisions.
Subsec. (h)(3)(A)(i). Pub. L. 111-327, Sec. 2(a)(7)(B)(ii)(II),
inserted "found to be in excess of the value of any services" after
"(i)".
Subsec. (h)(4). Pub. L. 111-327, Sec. 2(a)(7)(B)(iii),
substituted "paragraph (3)" for "paragraph (2)".
2007 - Subsec. (l)(4)(A). Pub. L. 110-161 amended subpar. (A)
generally. Prior to amendment, subpar. (A) read as follows: "Fines
imposed under this subsection in judicial districts served by
United States trustees shall be paid to the United States trustee,
who shall deposit an amount equal to such fines in a special
account of the United States Trustee System Fund referred to in
section 586(e)(2) of title 28. Amounts deposited under this
subparagraph shall be available to fund the enforcement of this
section on a national basis."
2005 - Subsec. (a)(1). Pub. L. 109-8, Sec. 221(1), substituted
"for the debtor or an employee of such attorney under the direct
supervision of such attorney" for "or an employee of an attorney".
Subsec. (b)(1). Pub. L. 109-8, Sec. 221(2)(A), inserted at end
"If a bankruptcy petition preparer is not an individual, then an
officer, principal, responsible person, or partner of the
bankruptcy petition preparer shall be required to - " and added
subpars. (A) and (B).
Subsec. (b)(2). Pub. L. 109-8, Sec. 221(2)(B), added par. (2) and
struck out former par. (2) which read as follows: "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."
Subsec. (c)(2). Pub. L. 109-8, Sec. 221(3)(A), designated
existing provisions as subpar. (A), substituted "Subject to
subparagraph (B), for purposes" for "For purposes", and added
subpar. (B).
Subsec. (c)(3). Pub. L. 109-8, Sec. 221(3)(B), struck out par.
(3) which read as follows: "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."
Subsec. (d). Pub. L. 109-8, Sec. 221(4), struck out par. (1)
designation before "A bankruptcy petition preparer shall" and
struck out par. (2) which read as follows: "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."
Subsec. (e)(2). Pub. L. 109-8, Sec. 221(5), added par. (2) and
struck out former par. (2) which read as follows: "A bankruptcy
petition preparer may be fined not more than $500 for each document
executed in violation of paragraph (1)."
Subsec. (f). Pub. L. 109-8, Sec. 221(6), struck out par. (1)
designation before "A bankruptcy petition preparer shall not" and
struck out par. (2) which read as follows: "A bankruptcy petition
preparer shall be fined not more than $500 for each violation of
paragraph (1)."
Subsec. (g). Pub. L. 109-8, Sec. 221(7), struck out par. (1)
designation before "A bankruptcy petition preparer shall not" and
struck out par. (2) which read as follows: "A bankruptcy petition
preparer shall be fined not more than $500 for each violation of
paragraph (1)."
Subsec. (h)(1). Pub. L. 109-8, Sec. 221(8)(B), added par. (1).
Former par. (1) redesignated (2).
Subsec. (h)(2). Pub. L. 109-8, Sec. 221(8)(A), (C), redesignated
par. (1) as (2), substituted "A" for "Within 10 days after the date
of the filing of a petition, a bankruptcy petition preparer shall
file a", inserted "by the bankruptcy petition preparer shall be
filed together with the petition," after "perjury", and inserted at
end "If rules or guidelines setting a maximum fee for services have
been promulgated or prescribed under paragraph (1), the declaration
under this paragraph shall include a certification that the
bankruptcy petition preparer complied with the notification
requirement under paragraph (1)." Former par. (2) redesignated (3).
Subsec. (h)(3). Pub. L. 109-8, Sec. 221(8)(D), added par. (3) and
struck out former par. (3) which read as follows: "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)."
Pub. L. 109-8, Sec. 221(8)(A) redesignated par. (2) as (3).
Former par. (3) redesignated (4).
Subsec. (h)(4). Pub. L. 109-8, Sec. 221(8)(E), substituted "the
United States trustee (or the bankruptcy administrator, if any) or
the court, on the initiative of the court," for "or the United
States trustee".
Pub. L. 109-8, Sec. 221(8)(A) redesignated par. (3) as (4).
Former par. (4) redesignated (5).
Subsec. (h)(5). Pub. L. 109-8, Sec. 221(8)(A) redesignated par.
(4) as (5).
Subsec. (i)(1). Pub. L. 109-8, Sec. 221(9), inserted introductory
provisions and struck out former introductory provisions which read
as follows: "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 - ".
Subsec. (j)(2)(A)(i)(I). Pub. L. 109-8, Sec. 221(10)(A)(i),
struck out "a violation of which subjects a person to criminal
penalty" after "any provision of this title".
Subsec. (j)(2)(B). Pub. L. 109-8, Sec. 221(10)(A)(ii),
substituted "has not paid a penalty" for "or has not paid a
penalty" and inserted "or failed to disgorge all fees ordered by
the court" after "a penalty imposed under this section,".
Subsec. (j)(3). Pub. L. 109-8, Sec. 221(10)(C) added par. (3).
Former par. (3) redesignated (4).
Subsec. (j)(4). Pub. L. 109-8, Sec. 1205, substituted "attorneys"
for "attorney's".
Pub. L. 109-8, Sec. 221(10)(B), redesignated par. (3) as (4).
Subsec. (l). Pub. L. 109-8, Sec. 221(11), added subsec. (l).
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under this
title before such effective date, except as otherwise provided, see
section 1501 of Pub. L. 109-8, set out as a note under section 101
of this title.
EFFECTIVE DATE
Section effective Oct. 22, 1994, and not applicable with respect
to cases commenced under this title before Oct. 22, 1994, see
section 702 of Pub. L. 103-394, set out as an Effective Date of
1994 Amendment note under section 101 of this title.
-End-
-CITE-
11 USC Sec. 111 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 111. Nonprofit budget and credit counseling agencies;
financial management instructional courses
-STATUTE-
(a) The clerk shall maintain a publicly available list of -
(1) nonprofit budget and credit counseling agencies that
provide 1 or more services described in section 109(h) currently
approved by the United States trustee (or the bankruptcy
administrator, if any); and
(2) instructional courses concerning personal financial
management currently approved by the United States trustee (or
the bankruptcy administrator, if any), as applicable.
(b) The United States trustee (or bankruptcy administrator, if
any) shall only approve a nonprofit budget and credit counseling
agency or an instructional course concerning personal financial
management as follows:
(1) The United States trustee (or bankruptcy administrator, if
any) shall have thoroughly reviewed the qualifications of the
nonprofit budget and credit counseling agency or of the provider
of the instructional course under the standards set forth in this
section, and the services or instructional courses that will be
offered by such agency or such provider, and may require such
agency or such provider that has sought approval to provide
information with respect to such review.
(2) The United States trustee (or bankruptcy administrator, if
any) shall have determined that such agency or such instructional
course fully satisfies the applicable standards set forth in this
section.
(3) If a nonprofit budget and credit counseling agency or
instructional course did not appear on the approved list for the
district under subsection (a) immediately before approval under
this section, approval under this subsection of such agency or
such instructional course shall be for a probationary period not
to exceed 6 months.
(4) At the conclusion of the applicable probationary period
under paragraph (3), the United States trustee (or bankruptcy
administrator, if any) may only approve for an additional 1-year
period, and for successive 1-year periods thereafter, an agency
or instructional course that has demonstrated during the
probationary or applicable subsequent period of approval that
such agency or instructional course -
(A) has met the standards set forth under this section during
such period; and
(B) can satisfy such standards in the future.
(5) Not later than 30 days after any final decision under
paragraph (4), an interested person may seek judicial review of
such decision in the appropriate district court of the United
States.
(c)(1) The United States trustee (or the bankruptcy
administrator, if any) shall only approve a nonprofit budget and
credit counseling agency that demonstrates that it will provide
qualified counselors, maintain adequate provision for safekeeping
and payment of client funds, provide adequate counseling with
respect to client credit problems, and deal responsibly and
effectively with other matters relating to the quality,
effectiveness, and financial security of the services it provides.
(2) To be approved by the United States trustee (or the
bankruptcy administrator, if any), a nonprofit budget and credit
counseling agency shall, at a minimum -
(A) have a board of directors the majority of which -
(i) are not employed by such agency; and
(ii) will not directly or indirectly benefit financially from
the outcome of the counseling services provided by such agency;
(B) if a fee is charged for counseling services, charge a
reasonable fee, and provide services without regard to ability to
pay the fee;
(C) provide for safekeeping and payment of client funds,
including an annual audit of the trust accounts and appropriate
employee bonding;
(D) provide full disclosures to a client, including funding
sources, counselor qualifications, possible impact on credit
reports, and any costs of such program that will be paid by such
client and how such costs will be paid;
(E) provide adequate counseling with respect to a client's
credit problems that includes an analysis of such client's
current financial condition, factors that caused such financial
condition, and how such client can develop a plan to respond to
the problems without incurring negative amortization of debt;
(F) provide trained counselors who receive no commissions or
bonuses based on the outcome of the counseling services provided
by such agency, and who have adequate experience, and have been
adequately trained to provide counseling services to individuals
in financial difficulty, including the matters described in
subparagraph (E);
(G) demonstrate adequate experience and background in providing
credit counseling; and
(H) have adequate financial resources to provide continuing
support services for budgeting plans over the life of any
repayment plan.
(d) The United States trustee (or the bankruptcy administrator,
if any) shall only approve an instructional course concerning
personal financial management -
(1) for an initial probationary period under subsection (b)(3)
if the course will provide at a minimum -
(A) trained personnel with adequate experience and training
in providing effective instruction and services;
(B) learning materials and teaching methodologies designed to
assist debtors in understanding personal financial management
and that are consistent with stated objectives directly related
to the goals of such instructional course;
(C) adequate facilities situated in reasonably convenient
locations at which such instructional course is offered, except
that such facilities may include the provision of such
instructional course by telephone or through the Internet, if
such instructional course is effective;
(D) the preparation and retention of reasonable records
(which shall include the debtor's bankruptcy case number) to
permit evaluation of the effectiveness of such instructional
course, including any evaluation of satisfaction of
instructional course requirements for each debtor attending
such instructional course, which shall be available for
inspection and evaluation by the Executive Office for United
States Trustees, the United States trustee (or the bankruptcy
administrator, if any), or the chief bankruptcy judge for the
district in which such instructional course is offered; and
(E) if a fee is charged for the instructional course, charge
a reasonable fee, and provide services without regard to
ability to pay the fee; and
(2) for any 1-year period if the provider thereof has
demonstrated that the course meets the standards of paragraph (1)
and, in addition -
(A) has been effective in assisting a substantial number of
debtors to understand personal financial management; and
(B) is otherwise likely to increase substantially the
debtor's understanding of personal financial management.
(e) The district court may, at any time, investigate the
qualifications of a nonprofit budget and credit counseling agency
referred to in subsection (a), and request production of documents
to ensure the integrity and effectiveness of such agency. The
district court may, at any time, remove from the approved list
under subsection (a) a nonprofit budget and credit counseling
agency upon finding such agency does not meet the qualifications of
subsection (b).
(f) The United States trustee (or the bankruptcy administrator,
if any) shall notify the clerk that a nonprofit budget and credit
counseling agency or an instructional course is no longer approved,
in which case the clerk shall remove it from the list maintained
under subsection (a).
(g)(1) No nonprofit budget and credit counseling agency may
provide to a credit reporting agency information concerning whether
a debtor has received or sought instruction concerning personal
financial management from such agency.
(2) A nonprofit budget and credit counseling agency that
willfully or negligently fails to comply with any requirement under
this title with respect to a debtor shall be liable for damages in
an amount equal to the sum of -
(A) any actual damages sustained by the debtor as a result of
the violation; and
(B) any court costs or reasonable attorneys' fees (as
determined by the court) incurred in an action to recover those
damages.
-SOURCE-
(Added Pub. L. 109-8, title I, Sec. 106(e)(1), Apr. 20, 2005, 119
Stat. 38; amended Pub. L. 111-327, Sec. 2(a)(8), Dec. 22, 2010, 124
Stat. 3558.)
-MISC1-
AMENDMENTS
2010 - Subsec. (d)(1)(E). Pub. L. 111-327 substituted "; and" for
period at end and realigned margin.
EFFECTIVE DATE
Section effective 180 days after Apr. 20, 2005, and not
applicable with respect to cases commenced under this title before
such effective date, except as otherwise provided, see section 1501
of Pub. L. 109-8, set out as an Effective Date of 2005 Amendment
note under section 101 of this title.
DEBTOR FINANCIAL MANAGEMENT TRAINING TEST PROGRAM
Pub. L. 109-8, title I, Sec. 105, Apr. 20, 2005, 119 Stat. 36,
provided that:
"(a) Development of Financial Management and Training Curriculum
and Materials. - The Director of the Executive Office for United
States Trustees (in this section referred to as the 'Director')
shall consult with a wide range of individuals who are experts in
the field of debtor education, including trustees who serve in
cases under chapter 13 of title 11, United States Code, and who
operate financial management education programs for debtors, and
shall develop a financial management training curriculum and
materials that can be used to educate debtors who are individuals
on how to better manage their finances.
"(b) Test. -
"(1) Selection of districts. - The Director shall select 6
judicial districts of the United States in which to test the
effectiveness of the financial management training curriculum and
materials developed under subsection (a).
"(2) Use. - For an 18-month period beginning not later than 270
days after the date of the enactment of this Act [Apr. 20, 2005],
such curriculum and materials shall be, for the 6 judicial
districts selected under paragraph (1), used as the instructional
course concerning personal financial management for purposes of
section 111 of title 11, United States Code.
"(c) Evaluation. -
"(1) In general. - During the 18-month period referred to in
subsection (b), the Director shall evaluate the effectiveness of -
"(A) the financial management training curriculum and
materials developed under subsection (a); and
"(B) a sample of existing consumer education programs such as
those described in the Report of the National Bankruptcy Review
Commission (October 20, 1997) that are representative of
consumer education programs carried out by the credit industry,
by trustees serving under chapter 13 of title 11, United States
Code, and by consumer counseling groups.
"(2) Report. - Not later than 3 months after concluding such
evaluation, the Director shall submit a report to the Speaker of
the House of Representatives and the President pro tempore of the
Senate, for referral to the appropriate committees of the
Congress, containing the findings of the Director regarding the
effectiveness of such curriculum, such materials, and such
programs and their costs."
-End-
-CITE-
11 USC Sec. 112 01/07/2011
-EXPCITE-
TITLE 11 - BANKRUPTCY
CHAPTER 1 - GENERAL PROVISIONS
-HEAD-
Sec. 112. Prohibition on disclosure of name of minor children
-STATUTE-
The debtor may be required to provide information regarding a
minor child involved in matters under this title but may not be
required to disclose in the public records in the case the name of
such minor child. The debtor may be required to disclose the name
of such minor child in a nonpublic record that is maintained by the
court and made available by the court for examination by the United
States trustee, the trustee, and the auditor (if any) serving under
section 586(f) of title 28, in the case. The court, the United
States trustee, the trustee, and such auditor shall not disclose
the name of such minor child maintained in such nonpublic record.
-SOURCE-
(Added Pub. L. 109-8, title II, Sec. 233(a), Apr. 20, 2005, 119
Stat. 74.)
-MISC1-
EFFECTIVE DATE
Section effective 180 days after Apr. 20, 2005, and not
applicable with respect to cases commenced under this title before
such effective date, except as otherwise provided, see section 1501
of Pub. L. 109-8, set out as an Effective Date of 2005 Amendment
note under section 101 of this title.
-End-
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