BANKRUPTCY CODE - CHAPTER 3

SUBCHAPTER I — COMMENCEMENT OF A CASE § 301 • Voluntary cases + § 302 • Joint cases § 303 • Involuntary cases + ~~§ 304 • Cases ancillary to foreign proceedings~~ + § 305 • Abstention + § 306 • Limited appearance + § 307 • United States trustee § 308 • Debtor reporting requirements SUBCHAPTER II — OFFICERS § 321 • Eligibility to serve as trustee § 322 • Qualification of trustee § 323 • Role and capacity of trustee § 324 • Removal of trustee or examiner § 325 • Effect of vacancy § 326 • Limitation on compensation of trustee § 327 • Employment of professional persons § 328 • Limitation on compensation of professional persons + § 329 • Debtor's transactions with attorneys § 330 • Compensation of officers + § 331 • Interim compensation § 332 • Consumer privacy ombudsman § 333• Appointment of patient care ombudsman SUBCHAPTER III — ADMINISTRATION § 341 • Meetings of creditors and equity security holders + § 342 • Notice + § 343 • Examination of the debtor § 344 • Self-incrimination; immunity § 345 • Money of estate § 346 • Special ~~tax~~ provisions related to the treatment of state and local taxes + § 347 • Unclaimed property § 348 • Effect of conversion + § 349 • Effect of dismissal § 350 • Closing and reopening cases § 351. Disposal of patient records SUBCHAPTER IV — ADMINISTRATIVE POWERS § 361 • Adequate protection § 362 • Automatic stay + § 363 • Use, sale, or lease of property + § 364 • Obtaining credit § 365 • Executory contracts and unexpired leases + § 366 • Utility service +

(a) An involuntary case may be commenced only under chapter 7 or 11 of this title, and only against a person, except a farmer, family farmer, or a corporation that is not a moneyed, business, or commercial corporation, that may be a debtor under the chapter under which such case is commenced. (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, or an indenture trustee representing such a holder, if such noncontingent, undisputed claims aggregate at least $10,000 [$12,300 effective April 1, 2004] more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; (2) if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee of a transfer that is voidable under section 544, 545, 547, 548, 549, or 724(a) of this title, by one or more of such holders that hold in the aggregate at least $10,000 [$12,300 effective April 1, 2004] of such claims; (3) if such person is a partnership— (A) by fewer than all of the general partners in such partnership; or (B) if relief has been ordered under this title with respect to all of the general partners in such partnership, by a general partner in such partnership, the trustee of such a general partner, or a holder of a claim against such partnership; or (4) by a foreign representative of the estate in a foreign proceeding concerning such person. (c) After the filing of a petition under this section but before the case is dismissed or relief is ordered, a creditor holding an unsecured claim that is not contingent, other than a creditor filing under subsection (b) of this section, may join in the petition with the same effect as if such joining creditor were a petitioning creditor under subsection (b) of this section. (d) The debtor, or a general partner in a partnership debtor that did not join in the petition, may file an answer to a petition under this section. (e) After notice and a hearing, and for cause, the court may require the petitioners under this section to file a bond to indemnify the debtor for such amounts as the court may later allow under subsection (i) of this section. (f) Notwithstanding section 363 of this title, except to the extent that the court orders otherwise, and until an order for relief in the case, any business of the debtor may continue to operate, and the debtor may continue to use, acquire, or dispose of property as if an involuntary case concerning the debtor had not been commenced. (g) At any time after the commencement of an involuntary case under chapter 7 of this title but before an order for relief in the case, the court, on request of a party in interest, after notice to the debtor and a hearing, and if necessary to preserve the property of the estate or to prevent loss to the estate, may order the United States trustee to appoint an interim trustee under section 701 of this title to take possession of the property of the estate and to operate any business of the debtor. Before an order for relief, the debtor may regain possession of property in the possession of a trustee ordered appointed under this subsection if the debtor files such bond as the court requires, conditioned on the debtor's accounting for and delivering to the trustee, if there is an order for relief in the case, such property, or the value, as of the date the debtor regains possession, of such property. (h) If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if— (1) the debtor is generally not paying such debtor's debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount; or (2) within 120 days before the date of the filing of the petition, a custodian, other than a trustee, receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession. (i) If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment— (1) against the petitioners and in favor of the debtor for— (A) costs; or (B) a reasonable attorney's fee; or (2) against any petitioner that filed the petition in bad faith, for— (A) any damages proximately caused by such filing; or (B) punitive damages. (j) Only after notice to all creditors and a hearing may the court dismiss a petition filed under this section— (1) on the motion of a petitioner; (2) on consent of all petitioners and the debtor; or (3) for want of prosecution. (k) Notwithstanding subsection (a) of this section, an involuntary case may be commenced against a foreign bank that is not engaged in such business in the United States only under chapter 7 of this title and only if a foreign proceeding concerning such bank is pending. (l) (1) If— (A) the petition under this section is false or contains any materially false, fictitious, or fraudulent statement; (B) the debtor is an individual; and (C) the court dismisses such petition, the court, upon the motion of the debtor, shall seal all the records of the court relating to such petition, and all references to such petition. (2) If the debtor is an individual and the court dismisses a petition under this section, the court may enter an order prohibiting all consumer reporting agencies (as defined in section 603(f) of the Fair Credit Reporting Act (15 U.S.C. 1681a(f))) from making any consumer report (as defined in section 603(d) of that Act) that contains any information relating to such petition or to the case commenced by the filing of such petition. (3) Upon the expiration of the statute of limitations described in section 3282 of title 18, for a violation of section 152 or 157 of such title, the court, upon the motion of the debtor and for good cause, may expunge any records relating to a petition filed under this section. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2559; Pub. L. 98-353, Title III, §§ 426, 427, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, Title II, §§ 204, 254, 283(b), Oct. 27, 1986, 100 Stat. 3097, 3105, 3116; Pub. L. 103-394, Title I, § 108(b), Oct. 22, 1994, 108 Stat. 4112; Pub. L. 109-8, Title III, § 332(b), Title VIII, § 802(d)(2), Title XII, § 1234(a), April 20, 2005, 119 Stat. 103, 146, 204.)

(a) A case ancillary to a foreign proceeding is commenced by the filing with the bankruptcy court of a petition under this section by a foreign representative. (b) Subject to the provisions of subsection (c) of this section, if a party in interest does not timely controvert the petition, or after trial, the court may— (1) enjoin the commencement or continuation of— (A) any action against— (i) a debtor with respect to property involved in such foreign proceeding; or (ii) such property; or (B) the enforcement of any judgment against the debtor with respect to such property, or any act or the commencement or continuation of any judicial proceeding to create or enforce a lien against the property of such estate; (2) order turnover of the property of such estate, or the proceeds of such property, to such foreign representative; or (3) order other appropriate relief. (c) In determining whether to grant relief under subsection (b) of this section, the court shall be guided by what will best assure an economical and expeditious administration of such estate, consistent with— (1) just treatment of all holders of claims against or interests in such estate; (2) protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding; (3) prevention of preferential or fraudulent dispositions of property of such estate; (4) distribution of proceeds of such estate substantially in accordance with the order prescribed by this title; (5) comity; and (6) if appropriate, the provision of an opportunity for a fresh start for the individual that such foreign proceeding concerns. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2560;Pub. L. 109-8., 109-8, Title VIII, § 802(d)(3), April 20, 2005, 119 Stat. 146.)

(a) The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if— (1) the interests of creditors and the debtor would be better served by such dismissal or suspension; or (2)(A) ~~there is pending a foreign proceeding~~ a petition under section 1515 for recognition of a foreign proceeding has been granted; and (B) the ~~factors specified in section 304(c)~~ purposes of chapter 15 of this title ~~warrant~~ would be best served by such dismissal or suspension. (b) A foreign representative may seek dismissal or suspension under subsection (a)(2) of this section. (c) An order under subsection (a) of this section dismissing a case or suspending all proceedings in a case, or a decision not so to dismiss or suspend, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of title 28 or by the Supreme Court of the United States under section 1254 of title 28. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2561; Pub. L. 101-650, Title III, § 309(a), Dec. 1, 1990, 104 Stat. 5113; Pub. L. 102-198, § 5, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 109-8, Title VIII, § 802(d)(6), April 20, 2005, 119 Stat. 146.)

(a) For purposes of this section, the term "profitability" means, with respect to a debtor, the amount of money that the debtor has earned or lost during current and recent fiscal periods. (b) A small business debtor shall file periodic financial and other reports containing information including— (1) the debtor's profitability; (2) reasonable approximations of the debtor's projected cash receipts and cash disbursements over a reasonable period; (3) comparisons of actual cash receipts and disbursements with projections in prior reports; (4)(A) whether the debtor is— (i) in compliance in all material respects with postpetition requirements imposed by this title and the Federal Rules of Bankruptcy Procedure; and (ii) timely filing tax returns and other required government filings and paying taxes and other administrative expenses when due; (B) if the debtor is not in compliance with the requirements referred to in subparagraph (A)(i) or filing tax returns and other required government filings and making the payments referred to in subparagraph (A)(ii), what the failures are and how, at what cost, and when the debtor intends to remedy such failures; and (C) such other matters as are in the best interests of the debtor and creditors, and in the public interest in fair and efficient procedures under chapter 11 of this title. (Added Pub. L. 109-8, Title IV, Subtitle B, § 434(a)(1), April 20, 2005, 119 Stat. 111.)

(a) A person may serve as trustee in a case under this title only if such person is— (1) an individual that is competent to perform the duties of trustee and, in a case under chapter 7, 12, or 13 of this title, resides or has an office in the judicial district within which the case is pending, or in any judicial district adjacent to such district; or (2) a corporation authorized by such corporation's charter or bylaws to act as trustee, and, in a case under chapter 7, 12, or 13 of this title, having an office in at least one of such districts. (b) A person that has served as an examiner in the case may not serve as trustee in the case. (c) The United States trustee for the judicial district in which the case is pending is eligible to serve as trustee in the case if necessary. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2561; Pub. L. 98-353, Title III, § 428, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, Title II, §§ 206, 257(c), Oct. 27, 1986, 100 Stat. 3098, 3114.)

(a) Except as provided in subsection (b)(1), a person selected under section 701, 702, 703, 323, 1163, 1202, or 1302 of this title to serve as trustee in a case under this title qualifies if before five days after such selection, and before beginning official duties, such person has filed with the court a bond in favor of the United States conditioned on the faithful performance of such official duties. (b)(1) The United States trustee qualifies wherever such trustee serves as trustee in a case under this title. (2) The United States trustee shall determine— (A) the amount of a bond required to be filed under subsection (a) of this section; and (B) the sufficiency of the surety on such bond. (c) A trustee is not liable personally or on such trustee's bond in favor of the United States for any penalty or forfeiture incurred by the debtor. (d) A proceeding on a trustee's bond may not be commenced after two years after the date on which such trustee was discharged. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2562; Pub. L. 98-353, Title III, § 429, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, Title II, §§ 207, 257(d), Oct. 27, 1986, 100 Stat. 3098, 3114; Pub. L. 103-394, Title V, § 501(d)(3), Oct. 22, 1994, 108 Stat. 4143.)

(a) In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee's services, payable after the trustee renders such services, not to exceed 25 percent on the first $5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of $1,000,000, and reasonable compensation not to exceed 3 percent of such moneys in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. (b) In a case under chapter 12 or 13 of this title, the court may not allow compensation for services or reimbursement of expenses of the United States trustee or of a standing trustee appointed under section 586(b) of title 28, but may allow reasonable compensation under section 330 of this title of a trustee appointed under section 1202(a) or 1302(a) of this title for the trustee's services, payable after the trustee renders such services, not to exceed five percent upon all payments under the plan. (c) If more than one person serves as trustee in the case, the aggregate compensation of such persons for such service may not exceed the maximum compensation prescribed for a single trustee by subsection (a) or (b) of this section, as the case may be. (d) The court may deny allowance of compensation for services or reimbursement of expenses of the trustee if the trustee failed to make diligent inquiry into facts that would permit denial of allowance under section 328(c) of this title or, with knowledge of such facts, employed a professional person under section 327 of this title. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2562; Pub. L. 98-353, Title III, § 430(a), (b), July 10, 1984, 98 Stat. 369; Pub. L. 99-554, Title II, § 209, Oct. 27, 1986, 100 Stat. 3098; Pub. L. 103-394, Title I, § 107, Oct. 22, 1994, 108 Stat. 4111.)

(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title. (b) If the trustee is authorized to operate the business of the debtor under section 721, 1202, or 1108 of this title, and if the debtor has regularly employed attorneys, accountants, or other professional persons on salary, the trustee may retain or replace such professional persons if necessary in the operation of such business. (c) In a case under chapter 7, 12, or 11 of this title, a person is not disqualified for employment under this section solely because of such person's employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest. (d) The court may authorize the trustee to act as attorney or accountant for the estate if such authorization is in the best interest of the estate. (e) The trustee, with the court's approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed. (f) The trustee may not employ a person that has served as an examiner in the case. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2563; Pub. L. 98-353, Title III, § 430(c), July 10, 1984, 98 Stat. 370; Pub. L. 99-554, Title II, §§ 210, 257(e), Oct. 27, 1986, 100 Stat. 3099, 3114.)

(a) The trustee, or a committee appointed under section 1102 of this title, with the court's approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. (b) If the court has authorized a trustee to serve as an attorney or accountant for the estate under section 327(d) of this title, the court may allow compensation for the trustee's services as such attorney or accountant only to the extent that the trustee performed services as attorney or accountant for the estate and not for performance of any of the trustee's duties that are generally performed by a trustee without the assistance of an attorney or accountant for the estate. (c) Except as provided in section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 or 1103 of this title if, at any time during such professional person's employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2563; amended Pub. L. 98-353, Title III, § 431, July 10, 1984, 98 Stat. 370; Pub. L. 109-8, Title XII, § 1206, April 20, 2005, 119 Stat. 194.)

(a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation. (b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to— (1) the estate, if the property transferred— (A) would have been property of the estate; or (B) was to be paid by or on behalf of the debtor under a plan under chapter 11, 12, or 13 of this title; or (2) the entity that made such payment. struck between moderation in the interest of the estate and its security holders and the need to be "generous enough to encourage" lawyers and others to render the necessary and exacting services that bankruptcy cases often require. Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2564; Pub. L. 98-353, Title III, § 432, July 10, 1984, 98 Stat. 370; Pub. L. 99-554, Title II, § 257(c), Oct. 27, 1986, 100 Stat. 3114.)

(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a consumer privacy ombudsman appointed under section 332, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103— (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. (2) The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested. (3)~~(A)~~ In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; ~~and~~ (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and ~~(E)~~(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. (4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for— (i) unnecessary duplication of services; or (ii) services that were not— (I) reasonably likely to benefit the debtor's estate; or (II) necessary to the administration of the case. (B) In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor's attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. (5) The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate. (6) Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application. (7) In determining the amount of reasonable compensation to be awarded to a trustee, the court shall treat such compensation as a commission, based on section 326. (b)(1) There shall be paid from the filing fee in a case under chapter 7 of this title $45 to the trustee serving in such case, after such trustee's services are rendered. (2) The Judicial Conference of the United States— (A) shall prescribe additional fees of the same kind as prescribed under section 1914(b) of title 28; and (B) may prescribe notice of appearance fees and fees charged against distributions in cases under this title; to pay $15 to trustees serving in cases after such trustees' services are rendered. Beginning 1 year after the date of the enactment of the Bankruptcy Reform Act of 1994, such $15 shall be paid in addition to the amount paid under paragraph (1). (c) Unless the court orders otherwise, in a case under chapter 12 or 13 of this title the compensation paid to the trustee serving in the case shall not be less than $5 per month from any distribution under the plan during the administration of the plan. (d) In a case in which the United States trustee serves as trustee, the compensation of the trustee under this section shall be paid to the clerk of the bankruptcy court and deposited by the clerk into the United States Trustee System Fund established by section 589a of title 28. (Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2564; Pub. L. 98-353, Title III, §§ 433, 434, July 10, 1984, 98 Stat. 370; Pub. L. 99-554, Title II, §§ 211, 257(f), Oct. 27, 1986, 100 Stat. 3099, 3114; Pub. L. 103-394, Title I, § 117, Title II, § 224(b), Oct. 22, 1994, 108 Stat. 4119, 4130; Pub. L. 109-08, Title II, Subtitle C, § 232(b), Title IV, Subtitle A, §§ 407, 415, Title XI, § 1104(b), April 20, 2005, 119 Stat. 74, 106, 107, 192.)