BAPCPA & LEGISLATIVE REPORT LINKS (CH. 7 — CONTENTS)

BAPCPA § 102(k) ([SIC] The original text of the Act contains two paragraphs designated as § 102(k))    •    House Report 109-31    •   

BAPCPA § 719(b)(2)    •    House Report 109-31    •   

BAPCPA § 907(p)(2)(A)    •    House Report 109-31    •   

BAPCPA § 907(p)(2)(B)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 701)


LEGISLATIVE STATEMENTS

The House amendment deletes section 701(d) of the Senate amendment. It is anticipated that the Rules of Bankruptcy Procedure will require the appointment of an interim trustee at the earliest practical moment in commodity broker bankruptcies, but no later than noon of the day after the date of the filing of the petition, due to the volatility of such cases. 

LEGISLATIVE REPORTS

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section requires the court to appoint an interim trustee. The appointment must be made from the panel of private trustees established and maintained by the Director of the Administrative Office under proposed 28 U.S.C. 604(e). 

Subsection (a) requires the appointment of an interim trustee to be made promptly after the order for relief, unless a trustee is already serving in the case, such as before a conversion from a reorganization to a liquidation case.

Subsection (b) specifies that the appointment of an interim trustee expires when the permanent trustee is elected or designated under section 702

Subsection (c) makes clear that an interim trustee is a trustee in a case under the bankruptcy code.

Subsection (d) provides that in a commodity broker case where speed is essential the interim trustee must be appointed by noon of the business day immediately following the order for relief

AMENDMENTS

1986 — Subsec. (a). Pub. L. 99-554 designated existing provisions as par. (1), substituted "the United States trustee shall appoint" for "the court shall appoint", "586(a)(1)" for "604(f)", "that is serving" for "that was serving", and added par. (2). 

EFFECTIVE DATES

1986 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 303, 322, 348, 557, 703 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 702)


LEGISLATIVE STATEMENTS

The House amendment adopts section 702(a)(2) of the Senate amendment. An insubstantial equity interest does not disqualify a creditor from voting for a candidate for trustee. 

LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Subsection (a) of this section specifies which creditors may vote for a trustee. Only a creditor that holds an allowable, undisputed, fixed, liquidated, unsecured claim that is not entitled to priority, that does not have an interest materially adverse to the interest of general unsecured creditors, and that is not an insider may vote for a trustee. The phrase "materially adverse" is currently used in the Rules of Bankruptcy Procedure, rule 207(d). The application of the standard requires a balancing of various factors, such as the nature of the adversity. A creditor with a very small equity position would not be excluded from voting solely because he holds a small equity in the debtor. The Rules of Bankruptcy Procedure also currently provide for temporary allowance of claims, and will continue to do so for the purposes of determining who is eligible to vote under this provision. 

Subsection (b) permits creditors at the meeting of creditors to elect one person to serve as trustee in the case. Creditors holding at least 20 percent in amount of the claims specified in the preceding paragraph must request election before creditors may elect a trustee. 

Subsection (c) specifies that a candidate for trustee is elected trustee if creditors holding at least 20 percent in amount of those claims actually vote, and if the candidate receives a majority in amount of votes actually cast. 

Subsection (d) specifies that if a trustee is not elected, then the interim trustee becomes the permanent trustee and serves in the case permanently. 

AMENDMENTS

1984

Subsec. (b). Pub. L. 98-353, Sec. 472(a), inserted "held" after "meeting of creditors". 

Subsec. (c)(1). Pub. L. 98-353, Sec. 472(b)(1), inserted "of a kind" after "claims". 

Subsec. (c)(2). Pub. L. 98-353, Sec. 472(b)(2), substituted "for a trustee" for "for trustee". 

Subsec. (d). Pub. L. 98-353, Sec. 472(c), substituted "this section" for "subsection (c) of this section". 

1982 — Subsec. (a)(1). Pub. L. 97-222 substituted "726(a)(4), 752(a), 766(h), or 766(i)" for "or 726(a)(4)". 

EFFECTIVE DATES

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 322, 546, 557, 701, 703, 705, 1104 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 703)


LEGISLATIVE REPORTS

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. If the office of trustee becomes vacant during the case, this section makes provision for the selection of a successor trustee. 

The office might become vacant through death, resignation, removal, failure to qualify under section 322 by posting bond, or the reopening of a case. If it does, creditors may elect a successor in the same manner as they may elect a trustee under the previous section. Pending the election of a successor, the court may appoint an interim trustee in the usual manner if necessary to preserve or prevent loss to the estate. If creditors do not elect a successor, or if a trustee is needed in a reopened case, then the court appoints a disinterested member of the panel of private trustees to serve. 

AMENDMENTS

1986

Subsec. (b). Pub. L. 99-554 amended subsec. (b) generally, substituting "the United States trustee may appoint" for "the court may appoint" and "manner specified in section 701(a)" for "manner and subject to the provisions of section 701 of this title". 

Subsec. (c). Pub. L. 99-554 amended subsec. (c) generally, substituting "this section or" for "this section, or", "then the United States trustee" for "then the court", designating part of existing provisions as par. (1), and, as so designated, substituting "586(a)(1)" for "604(f)", "in the case; or" for "in the case.", and adding par. (2). 

1984 — Subsec. (b). Pub. L. 98-353 substituted "and subject to the provisions of section 701 of this title" for "specified in section 701(a) of this title. Sections 701(b) and 701(c) of this title apply to such interim trustee". 

EFFECTIVE DATES

1986 Acts. 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. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 322, 557 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 704)


LEGISLATIVE STATEMENTS

Section 704(8) of the Senate amendment is deleted in the House amendment. Trustees should give constructive notice of the commencement of the case in the manner specified under section 549(c) of title 11

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. The essential duties of the trustee are enumerated in this section. Others, or elaborations on these, may be prescribed by the Rules of Bankruptcy Procedure to the extent not inconsistent with those prescribed by this section. The duties are derived from section 47a of the Bankruptcy Act (section 75(a) of former title 11). 

The trustee's principal duty is to collect and reduce to money the property of the estate for which he serves, and to close up the estate as expeditiously as is compatible with the best interests of parties in interest. He must be accountable for all property received, and must investigate the financial affairs of the debtor. If a purpose would be served (such as if there are assets that will be distributed), the trustee is required to examine proofs of claims and object to the allowance of any claim that is improper. If advisable, the trustee must oppose the discharge of the debtor, which is for the benefit of general unsecured creditors whom the trustee represents. 

The trustee is responsible to furnish such information concerning the estate and its administration as is requested by a party in interest. If the business of the debtor is authorized to be operated, then the trustee is required to file with governmental units charged with the responsibility for collection or determination of any tax arising out of the operation of the business periodic reports and summaries of the operation, including a statement of receipts and disbursements, and such other information as the court requires. He is required to give constructive notice of the commencement of the case in the manner specified under section 342(b)

AMENDMENTS

2005 — Will be supplemented. 

1986

Par. (8). Pub. L. 99-554, Sec. 217(1), inserted ", with the United States trustee," after "with the court" and "the United States trustee or" after "information as". 

Par. (9). Pub. L. 99-554, Sec. 217(2), inserted "with the United States trustee" after "court".

1984

Par. (1). Pub. L. 98-353, Sec. 474, substituted "close such estate" for "close up such estate". 

Pars. (3) to (9). Pub. L. 98-353, Sec. 311(a), added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), respectively. 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1986 Acts. 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. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 782, 1106, 1202, 1302, 1304 of this title; title 29 section 1342. 


FOOTNOTES (11 U.S.C. § 704)

29 U.S.C. § 1002    •   

42 U.S.C. § 664 & 666    •   


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 704)

BAPCPA § 102(c)(1)    •    House Report 109-31    •   

BAPCPA § 102(c)(2)    •    House Report 109-31    •   

BAPCPA § 219(a)(1)(A)    •    House Report 109-31    •   

BAPCPA § 219(a)(1)(B)    •    House Report 109-31    •   

BAPCPA § 219(a)(1)(C) & § 446(b)(1);  BAPCPA § 219(a)(1)(C), which added the language in BC §  704(a)(10), added the "and" at the end.  The "and" was deleted by BAPCPA § 446(b)(1)    •    House Report 109-31 (§ 219)    •    House Report 109-31 (§ 446).    •   

BAPCPA § 219(a)(2)    •    House Report 109-31    •   

BAPCPA § 446(b)(2)    •    House Report 109-31    •   

BAPCPA § 1105(a)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 705)


LEGISLATIVE STATEMENTS

Section 705(a) of the House amendment adopts a provision contained in the Senate amendment that limits a committee of creditors to not more than 11; the House bill contained no maximum limitation. 

LEGISLATIVE REPORTS

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is derived from section 44b of the Bankruptcy Act (section 72(b) of former title 11) without substantial change. It permits election by general unsecured creditors of a committee of not fewer than 3 members and not more than 11 members to consult with the trustee in connection with the administration of the estate, to make recommendations to the trustee respecting the performance of his duties, and to submit to the court any question affecting the administration of the estate. There is no provision for compensation or reimbursement of its counsel. 

AMENDMENTS

1986 — Subsec. (b). Pub. L. 99-554 inserted "or the United States trustee" in three places. 

EFFECTIVE DATES

1986 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 782 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 706)


LEGISLATIVE STATEMENTS

Section 706(a) of the House amendment adopts a provision contained in the Senate amendment indicating that a waiver of the right to convert a case under section 706(a) is unenforceable. The explicit reference in title 11 forbidding the waiver of certain rights is not intended to imply that other rights, such as the right to file a voluntary bankruptcy case under section 301, may be waived. 

Section 706 of the House amendment adopts a similar provision contained in H.R. 8200 as passed by the House. Competing proposals contained in section 706(c) and section 706(d) of the Senate amendment are rejected. 

LEGISLATIVE REPORTS

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. The policy of the provision is that the debtor should always be given the opportunity to repay his debts, and a waiver of the right to convert a case is unenforceable. 

Subsection (b) permits the court, on request of a party in interest and after notice and a hearing, to convert the case to chapter 11 at any time. The decision whether to convert is left in the sound discretion of the court, based on what will most inure to the benefit of all parties in interest. 

Subsection (c) is part of the prohibition against involuntary chapter 13 cases, and prohibits the court from converting a case to chapter 13 without the debtor's consent. 

Subsection (d) reinforces section 109 by prohibiting conversion to a chapter unless the debtor is eligible to be a debtor under that chapter. 

AMENDMENTS

1994 — Subsec. (a). Pub. L. 103-394 substituted "1208, or 1307" for "1307, or 1208". 

1986

Subsec. (a). Pub. L. 99-554, Sec. 257(q)(1), inserted references to chapter 12 and section 1208 of this title. 

Subsec. (c). Pub. L. 99-554, Sec. 257(q)(2), inserted reference to chapter 12. 

EFFECTIVE DATES

1994 Acts. 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. 

1986 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 348, 1146, 1208, 1231, 1307 of this title. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 706)

BAPCPA §101    •     House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 707)


LEGISLATIVE STATEMENTS

Section 707 of the House amendment indicates that the court may dismiss a case only after notice and a hearing

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section authorizes the court to dismiss a liquidation case only for cause, such as unreasonable delay by the debtor that is prejudicial to creditors or nonpayment of any fees and charges required under chapter 123 (Sec. 1911 et seq.) of title 28. These causes are not exhaustive, but merely illustrative. The section does not contemplate, however, that the ability of the debtor to repay his debts in whole or in part constitutes adequate cause for dismissal. To permit dismissal on that ground would be to enact a non-uniform mandatory chapter 13, in lieu of the remedy of bankruptcy. 

AMENDMENTS

2005 — Will be supplemented. 

1998 — Subsec. (b). Pub. L. 105-183 inserted at end "In making a determination whether to dismiss a case under this section, the court may not take into consideration whether a debtor has made, or continues to make, charitable contributions (that meet the definition of 'charitable contribution' under section 548(d)(3)) to any qualified religious or charitable entity or organization (as that term is defined in section 548(d)(4))." 

1986

Subsec. (a)(3). Pub. L. 99-554, Sec. 219(a), added par. (3)

Subsec. (b). Pub. L. 99-554, Sec. 219(b), substituted "motion or on a motion by the United States trustee, but" for "motion and". 

1984 — Pub. L. 98-353 designated existing provisions as subsec. (a) and in pars. (1) and (2) substituted "or" for "and", and added subsec. (b)

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1998 Acts. Amendment by Pub. L. 105-183 applicable to any case brought under an applicable provision of this title that is pending or commenced on or after June 19, 1998, see section 5 of Pub. L. 105-183, set out as a note under section 544 of this title. 

1986 Acts. 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. 

1984 Acts. 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. 

RULES PROMULGATED BY SUPREME COURT

United States Supreme Court to prescribe general rules implementing the practice and procedure to be followed under subsec. (b) of this section, with section 2075 of Title 28, Judiciary and Judicial Procedure, to apply with respect to such general rules, see section 320 of Pub. L. 98-353, set out as a note under section 2075 of Title 28


FOOTNOTES (11 U.S.C. § 707)

42 U.S.C. § 10401, et seq.    •   


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 707)

BAPCPA § 102(a)(1) ([SIC] So in the original.  The Act deletes the section symbol (§) and uses the "Sec." abbreviation.  All other section headings in the code use a section symbol (§).    •    House Report 109-31    •   

BAPCPA § 102(a)(2)(A)    •    House Report 109-31    •   

BAPCPA § 102(a)(2)(B)(i)(I)    •    House Report 109-31    •   

BAPCPA § 102(a)(2)(B)(i)(II)    •    House Report 109-31    •   

BAPCPA § 102(a)(2)(B)(i)(III)    •    House Report 109-31    •   

BAPCPA § 102(a)(2)(C)    •    House Report 109-31    •      -  707(b)(2)  -  707(b)(3)  -  707(b)(4)  -  707(b)(5)  -  707(b)(6)  -  707(b)(7)

Also see, BAPCPA §102(e) (House Report 109-31) which contains the following uncodified provision:0

(e) Nonlimitation of Information.—Nothing in this title 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, bankruptcy administrator or trustee.

Accordingly, even if a creditor or other interested person is prohibited from filing a dismissal motion pursuant to BC § 707(b)(6), that person may, without prior solicitation, communicate information related to an allegedly abusive filing directly to the Court, U.S. Trustee or panel trustee.

BAPCPA § 102(f)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 721)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is derived from section 2a(5) of the Bankruptcy Act (section 11(a)(5) of former title 11). It permits the court to authorize the operation of any business of the debtor for a limited period, if the operation is in the best interest of the estate and consistent with orderly liquidation of the estate. An example is the operation of a watch company to convert watch movements and cases into completed watches which will bring much higher prices than the component parts would have brought. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 327, 363, 364 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 722)


LEGISLATIVE STATEMENTS

Section 722 of the House amendment adopts the position taken in H.R. 8200 as passed by the House and rejects the alternative contained in section 722 of the Senate amendment. 

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is new and is broader than rights of redemption under the Uniform Commercial Code. It authorizes an individual debtor to redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a nonpurchase money dischargeable consumer debt. It applies only if the debtor's interest in the property is exempt or has been abandoned. 

This right to redeem is a very substantial change from current law. To prevent abuses such as may occur when the debtor deliberately allows the property to depreciate in value, the debtor will be required to pay the fair market value of the goods or the amount of the claim if the claim is less. The right is personal to the debtor and not assignable. 

House Report No. 95-595. This section is new and is broader than rights of redemption under the Uniform Commercial Code. It authorizes an individual debtor to redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt. It applies only if the debtor's interest in the property is exempt or has been abandoned. 

The right to redeem extends to the whole of the property, not just the debtor's exempt interest in it. Thus, for example, if a debtor owned a $2,000 car, subject to a $1,200 lien, the debtor could exempt his $800 interest in the car. The debtor is permitted a $1,500 exemption in a car, proposed 11 U.S.C. 522(d)(2). This section permits him to pay the holder of the lien $1,200 and redeem the entire car, not just the remaining $700 of his exemption. The redemption is accomplished by paying the holder of the lien the amount of the allowed claim secured by the lien. The provision amounts to a right of first refusal for the debtor in consumer goods that might otherwise be repossessed. The right of redemption under this section is not waivable. 

AMENDMENTS

2005 — Will be supplemented. 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 106 of this title. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 722)

BAPCPA § 304(2)    •    House Report 109-31     •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 723)


LEGISLATIVE STATEMENTS

Section 723(c) of the House amendment is a compromise between similar provisions contained in the House bill and Senate amendment. The section makes clear that the trustee of a partnership has a claim against each general partner for the full amount of all claims of creditors allowed in the case concerning the partnership. By restricting the trustee's rights to claims of "creditors," the trustee of the partnership will not have a claim against the general partners for administrative expenses or claims allowed in the case concerning the partnership. As under present law, sections of the Bankruptcy Act (former title 11) applying to codebtors and sureties apply to the relationship of a partner with respect to a partnership debtor. See sections 501(b), 501(e), 506(d)(2), 509, 524(d), and 1301 of title 11

LEGISLATIVE REPORTS

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is a significant departure from present law. It repeals the jingle rule, which, for ease of administration, denied partnership creditors their rights against general partners by permitting general partners' individual creditors to share in their estates first to the exclusion of partnership creditors. The result under this section more closely tracks generally applicable partnership law, without a significant administrative burden. 

Subsection (a) specifies that each general partner in a partnership debtor is liable to the partnership's trustee for any deficiency of partnership property to pay in full all administrative expenses and all claims against the partnership. 

Subsection (b) requires the trustee to seek recovery of the deficiency from any general partner that is not a debtor in a bankruptcy case. The court is empowered to order that partner to indemnify the estate or not to dispose of property pending a determination of the deficiency. The language of the subsection is directed to cases under the bankruptcy code. However, if, during the early stages of the transition period, a partner in a partnership is proceeding under the Bankruptcy Act (former title 11) while the partnership is proceeding under the bankruptcy code, the trustee should not first seek recovery against the Bankruptcy Act partner. Rather, the Bankruptcy Act partner should be deemed for the purposes of this section and the rights of the trustee to be proceeding under title 11

Subsection (c) requires the partnership trustee to seek recovery of the full amount of the deficiency from the estate of each general partner that is a debtor in a bankruptcy case. The trustee will share equally with the partners' individual creditors in the assets of the partners' estates. Claims of partnership creditors who may have filed against the partner will be disallowed to avoid double counting. 

Subsection (d) provides for the case where the total recovery from all of the bankrupt general partners is greater than the deficiency of which the trustee sought recovery. This case would most likely occur for a partnership with a large number of general partners. If the situation arises, the court is required to determine an equitable redistribution of the surplus to the estate of the general partners. The determination will be based on factors such as the relative liability of each of the general partners under the partnership agreement and the relative rights of each of the general partners in the profits of the enterprise under the partnership agreement. 

AMENDMENTS

1994 — Subsec. (a). Pub. L. 103-394 substituted "to the extent that under applicable nonbankruptcy law such general partner is personally liable for such deficiency" for "for the full amount of the deficiency". 

1984

Subsec. (a). Pub. L. 98-353, Sec. 476, substituted provisions that the trustee shall have a claim for the full amount of the deficiency against a general partner who is personally liable with respect to claims concerning partnerships which are allowed in a case under this chapter, for provisions that each general partner in the partnership would be liable to the trustee for the full amount of such deficiency. 

Subsec. (c). Pub. L. 98-353, Sec. 476(b), substituted "such partner's case" for "such case" in two places, "by property of such partnership" for "be property of such partnership", and "a kind specified in such section" for "the kind specified in such section". 

EFFECTIVE DATES

1994 Acts. 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. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 541 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 724)


LEGISLATIVE STATEMENTS

Section 724 of the House amendment adopts the provision taken in the House bill and rejects the provision taken in the Senate amendment. In effect, a tax claim secured by a lien is treated as a claim between the fifth and sixth priority in a case under chapter 7 rather than as a secured claim

Treatment of certain liens: The House amendment modifies present law by requiring the subordination of tax liens on both real and personal property to the payment of claims having a priority. This means that assets are to be distributed from the debtor's estate to pay higher priority claims before the tax claims are paid, even though the tax claims are properly secured. Under present law and the Senate amendment only tax liens on personal property, but not on real property, are subordinated to the payment of claims having a priority above the priority for tax claims

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1994 Acts (Pub. L. 103-394). House Report No. 103-835.

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Subsection (a) of section 724 permits the trustee to avoid a lien that secures a fine, penalty, forfeiture, or multiple, punitive, or exemplary damages claim to the extent that the claim is not compensation for actual pecuniary loss. The subsection follows the policy found in section 57j of the Bankruptcy Act (section 93(j) of former title 11) of protecting unsecured creditors from the debtor's wrongdoing, but expands the protection afforded. The lien is made voidable rather than void in chapter 7, in order to permit the lien to be revived if the case is converted to chapter 11 under which penalty liens are not voidable. To make the lien void would be to permit the filing of a chapter 7, the voiding of the lien, and the conversion to a chapter 11, simply to avoid a penalty lien, which should be valid in a reorganization case. 

Subsection (b) governs tax liens. This provision retains the rule of present bankruptcy law (Sec. 67(C)(3) of the Bankruptcy Act (section 107(c)(3) of former title 11)) that a tax lien on personal property, if not avoidable by the trustee, is subordinated in payment to unsecured claims having a higher priority than unsecured tax claims. Those other claims may be satisfied from the amount that would otherwise have been applied to the tax lien, and any excess of the amount of the lien is then applied to the tax. Any personal property (or sale proceeds) remaining is to be used to satisfy claims secured by liens which are junior to the tax lien. Any proceeds remaining are next applied to pay any unpaid balance of the tax lien

Subsection (d) specifies that any statutory lien whose priority is determined in the same manner as a tax lien is to be treated as a tax lien under this section, even if the lien does not secure a claim for taxes. An example is the ERISA (29 U.S.C. 1001 et seq.) lien

House Report No. 95-595. Subsection (b) governs tax liens. It is derived from section 67c(3) of the Bankruptcy Act (section 107(c)(3) of former title 11), without substantial modification in result. It subordinates tax liens to administrative expense and wage claims, and solves certain circuity of liens problems that arise in connection with the subordination. The order of distribution of property subject to a tax lien is as follows: First, to holders of liens senior to the tax lien; second, to administrative expenses, wage claims, and consumer creditors that are granted priority, but only to the extent of the amount of the allowed tax claim secured by the lien. In other words, the priority claimants step into the shoes of the tax collector. Third, to the tax claimant, to the extent that priority claimants did not use up his entire claim. Fourth, to junior lien holders. Fifth, to the tax collector to the extent that he was not paid under paragraph (3). Finally, any remaining property goes to the estate. The result of these provisions are to leave senior and junior lienors and holders of unsecured claims undisturbed. If there are any liens that are equal in status to the tax lien, they share pari passu with the tax lien under the distribution provisions of this subsection. 

AMENDMENTS

2005 — Will be supplemented. 

1994

Subsec. (b)(2). Pub. L. 103-394, Sec. 304(h)(4), substituted "507(a)(6), or 507(a)(7)" for "or 507(a)(6)". 

Subsec. (d). Pub. L. 103-394, Sec. 501(d)(23), substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954 (26 U.S.C. 6323)". 

1986 — Subsec. (b)(2). Pub. L. 99-554 inserted reference to section 507(a)(6) of this title. 

1984

Subsec. (b). Pub. L. 98-353, Sec. 477(a)(1), substituted "a tax" for "taxes" in provisions preceding par. (1)

Subsec. (b)(2). Pub. L. 98-353, Sec. 477(a)(2), substituted "any holder of a claim of a kind specified" for "claims specified", "section 507(a)(1)" for "sections 507(a)(1)", and "or 507(a)(5) of this title" for "and 507(a)(5) of this title". 

Subsec. (b)(3). Pub. L. 98-353, Sec. 477(a)(3), substituted "allowed tax claim" for "allowed claim". 

Subsec. (c). Pub. L. 98-353, Sec. 477(b), substituted "holder of a claim is entitled" for "creditor is entitled" and "holders" for "creditors" in two places. 

Subsec. (d). Pub. L. 98-353, Sec. 477(c), substituted "the priority of which" for "whose priority" and "the same as if such lien were a tax lien" for "the same as a tax lien". 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1994 Acts. 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. 

1986 Acts. Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. 

1984 Acts. 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. 

REFERENCES IN TEXT

Section 6323 of the Internal Revenue Code of 1986, referred to in subsec. (d), is classified to section 6323 of Title 26, Internal Revenue Code. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 106, 303, 349, 502, 522, 550, 551, 764 of this title; title 26 sections 6327, 7437. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 724)

BAPCPA § 701(a)(1)    •    House Report 109-31    •   

BAPCPA § 701(a)(2)    •    House Report 109-31    •   

BAPCPA § 701(a)(3)    •    House Report 109-31    •      -  724(e)  -  724(f)


HISTORICAL AND REVISION NOTES (11 U.S.C. § 725)


LEGISLATIVE STATEMENTS

Section 725 of the House amendment adopts the substance contained in both the House bill and Senate amendment but transfers an administrative function to the trustee in accordance with the general thrust of this legislation to separate the administrative and the judicial functions where appropriate. 

LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section requires the court to determine the appropriate disposition of property in which the estate and an entity other than the estate have an interest. It would apply, for example, to property subject to a lien or property co-owned by the estate and another entity. The court must make the determination with respect to property that is not disposed of under another section of the bankruptcy code, such as by abandonment under section 554, by sale or distribution under 363, or by allowing foreclosure by a secured creditor by lifting the stay under section 362. The purpose of the section is to give the court appropriate authority to ensure that collateral or its proceeds is returned to the proper secured creditor, that consigned or bailed goods are returned to the consignor or bailor and so on. Current law is curiously silent on this point, though case law has grown to fill the void. The section is in lieu of a section that would direct a certain distribution to secured creditors. It gives the court greater flexibility to meet the circumstances, and it is broader, permitting disposition of property subject to a co-ownership interest. 

AMENDMENTS

1984 — Pub. L. 98-353 substituted "distribution of property of the estate" for "distribution". 

EFFECTIVE DATES

1984 Acts. 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. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 726)


LEGISLATIVE STATEMENTS

Section 726(a)(4) adopts a provision contained in the Senate amendment subordinating prepetition penalties and penalties arising in the involuntary gap period to the extent the penalties are not compensation for actual pecuniary laws. 

The House amendment deletes a provision following section 726(a)(6) of the Senate amendment providing that the term "claim" includes interest due owed before the date of the filing of the petition as unnecessary since a right to payment for interest due is a right to payment which is within the definition of "claim" in section 101(4) of the House amendment. 

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1994 Acts (Pub. L. 103-394). House Report No. 103-835.

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is the general distribution section for liquidation cases. It dictates the order in which distribution of property of the estate, which has usually been reduced to money by the trustee under the requirements of section 704(1)

First, property is distributed among priority claimants, as determined by section 507, and in the order prescribed by section 507. Second, distribution is to general unsecured creditors. This class excludes priority creditors and the two classes of subordinated creditors specified below. The provision is written to permit distribution to creditors that tardily file claims if their tardiness was due to lack of notice or knowledge of the case. Though it is in the interest of the estate to encourage timely filing, when tardy filing is not the result of a failure to act by the creditor, the normal subordination penalty should not apply. Third distribution is to general unsecured creditors who tardily file. Fourth distribution is to holders of fine, penalty, forfeiture, or multiple, punitive, or exemplary damage claims. More of these claims are disallowed entirely under present law. They are simply subordinated here. 

Paragraph (4) provides that punitive penalties, including prepetition tax penalties, are subordinated to the payment of all other classes of claims, except claims for interest accruing during the case. In effect, these penalties are payable out of the estate's assets only if and to the extent that a surplus of assets would otherwise remain at the close of the case for distribution back to the debtor

Paragraph (5) provides that postpetition interest on prepetition claims is also to be paid to the creditor in a subordinated position. Like prepetition penalties, such interest will be paid from the estate only if and to the extent that a surplus of assets would otherwise remain for return to the debtor at the close of the case. 

This section also specifies that interest accrued on all claims (including priority and nonpriority tax claims) which accrued before the date of the filing of the title 11 petition is to be paid in the same order of distribution of the estate's assets as the principal amount of the related claims. Any surplus is paid to the debtor under paragraph (6). 

Subsection (b) follows current law. It specifies that claims within a particular class are to be paid pro rata. This provision will apply, of course, only when there are inadequate funds to pay the holders of claims of a particular class in full. The exception found in the section, which also follows current law, specifies that liquidation administrative expenses are to be paid ahead of reorganization administrative expenses if the case has been converted from a reorganization case to a liquidation case, or from an individual repayment plan case to a liquidation case. 

Subsection (c) governs distributions in cases in which there is community property and other property of the estate. The section requires the two kinds of property to be segregated. The distribution is as follows: First, administrative expenses are to be paid, as the court determines on any reasonable equitable basis, from both kinds of property. The court will divide administrative expenses according to such factors as the amount of each kind of property in the estate, the cost of preservation and liquidation of each kind of property, and whether any particular administrative expenses are attributable to one kind of property or the other. Second, claims are to be paid as provided under subsection (a) (the normal liquidation case distribution rules) in the following order and manner: First, community claims against the debtor or the debtor's spouse are paid from community property, except such as is liable solely for the debts of the debtor

Second, community claims against the debtor, to the extent not paid under the first provision, are paid from community property that is solely liable for the debts of the debtor. Third, community claims, to the extent they remain unpaid, and all other claims against the debtor, are paid from noncommunity property. Fourth, if any community claims against the debtor or the debtor's spouse remain unpaid, they are paid from whatever property remains in the estate. This would occur if community claims against the debtor's spouse are large in amount and most of the estate's property is property solely liable, under nonbankruptcy law, for debts of the debtor

The marshalling rules in this section apply only to property of the estate. However, they will provide a guide to the courts in the interpretation of proposed 11 U.S.C. 725, relating to distribution of collateral, in cases in which there is community property. If a secured creditor has a lien on both community and noncommunity property, the marshalling rules here — by analogy would dictate that the creditor be satisfied first out of community property, and then out of separate property. 

AMENDMENTS

2005 — Will be supplemented. 

1994

Subsec. (a)(1). Pub. L. 103-394, Sec. 213(b), inserted before semicolon at end ", proof of which is timely filed under section 501 of this title or tardily filed before the date on which the trustee commences distribution under this section". 

Subsec. (b). Pub. L. 103-394, Sec. 304(h)(5), 501(d)(24), substituted ", (7), or (8)" for "or (7)" and "chapter under section 1009,* 1112," for "chapter under section 1112". 

1986 — Subsec. (b). Pub. L. 99-554, Sec. 283(s), inserted reference to par. (7) of section 507(a) of this title.

Pub. L. 99-554, Sec. 257(r), inserted reference to section 1208 of this title. 

1984

Subsec. (b). Pub. L. 98-353, Sec. 479(a), substituted "each such particular paragraph" for "a particular paragraph", "a claim allowed under section 503(b) of this title" for "administrative expenses" in two places, and "has priority over" for "have priority over". 

Subsec. (c)(1). Pub. L. 98-353, Sec. 479(b)(1), substituted "Claims allowed under section 503 of this title" for "Administrative expenses". 

Subsec. (c)(2). Pub. L. 98-353, Sec. 479(b)(2), substituted "Allowed claims, other than claims allowed under section 503 of this title," for "Claims other than for administrative expenses". 

* Sic.  This title does not contain a section 1009.

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1994 Acts. 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. 

1986 Acts. Amendment by section 257 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, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. 

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.

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 106, 347, 502, 702, 705, 723, 724, 725, 752, 766 of this title; title 15 section 78fff; title 20 section 1087-2. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 726)

BAPCPA § 713    •    House Report 109-31    •   

BAPCPA § 1215    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 727)


LEGISLATIVE STATEMENTS

Sections 727(a)(8) and (9) of the House amendment represent a compromise between provisions contained in section 727(a)(8) of the House bill and Senate amendment. Section 727(a)(8) of the House amendment adopts section 727(a)(8) of the House bill. However, section 727(a)(9) of the House amendment contains a compromise based on section 727(a)(8) of the Senate amendment with respect to the circumstances under which a plan by way of composition under Chapter XIII of the Bankruptcy Act (chapter 13 of former title 11) should be a bar to discharge in a subsequent proceeding under title 11. The paragraph provides that a discharge under section 660 or 661 of the Bankruptcy Act (section 1060 or 1061 of former title 11) or section 1328 of title 11 in a case commenced within 6 years before the date of the filing of the petition in a subsequent case, operates as a bar to discharge unless, first, payments under the plan totaled at least 100 percent of the allowed unsecured claims in the case; or second, payments under the plan totaled at least 70 percent of the allowed unsecured claims in the case and the plan was proposed by the debtor in good faith and was the debtor's best effort. 

It is expected that the Rules of Bankruptcy Procedure will contain a provision permitting the debtor to request a determination of whether a plan is the debtor's "best effort" prior to confirmation of a plan in a case under chapter 13 of title 11. In determining whether a plan is the debtor's "best effort" the court will evaluate several factors. Different facts and circumstances in cases under chapter 13 operate to make any rule of thumb of limited usefulness. The court should balance the debtor's assets, including family income, health insurance, retirement benefits, and other wealth, a sum which is generally determinable, against the foreseeable necessary living expenses of the debtor and the debtor's dependents, which unfortunately is rarely quantifiable. In determining the expenses of the debtor and the debtor's dependents, the court should consider the stability of the debtor's employment, if any, the age of the debtor, the number of the debtor's dependents and their ages, the condition of equipment and tools necessary to the debtor's employment or to the operation of his business, and other foreseeable expenses that the debtor will be required to pay during the period of the plan, other than payments to be made to creditors under the plan. 

Section 727(a)(10) of the House amendment clarifies a provision contained in section 727(a)(9) of the House bill and Senate amendment indicating that a discharge may be barred if the court approves a waiver of discharge executed in writing by the debtor after the order for relief under chapter 7

Section 727(b) of the House amendment adopts a similar provision contained in the Senate amendment modifying the effect of discharge. The provision makes clear that the debtor is discharged from all debts that arose before the date of the order for relief under chapter 7 in addition to any debt which is determined under section 502 as if it were a prepetition claim. Thus, if a case is converted from chapter 11 or chapter 13 to a case under chapter 7, all debts prior to the time of conversion are discharged, in addition to debts determined after the date of conversion of a kind specified in section 502, that are to be determined as prepetition claims. This modification is particularly important with respect to an individual debtor who files a petition under chapter 11 or chapter 13 of title 11 if the case is converted to chapter 7. The logical result of the House amendment is to equate the result that obtains whether the case is converted from another chapter to chapter 7, or whether the other chapter proceeding is dismissed and a new case is commenced by filing a petition under chapter 7

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. This section is the heart of the fresh start provisions of the bankruptcy law. Subsection (a) requires the court to grant a debtor a discharge unless one of nine conditions is met. The first condition is that the debtor is not an individual. This is a change from present law, under which corporations and partnerships may be discharged in liquidation cases, though they rarely are. The change in policy will avoid trafficking in corporate shells and in bankrupt partnerships. "Individual" includes a deceased individual, so that if the debtor dies during the bankruptcy case, he will nevertheless be released from his debts, and his estate will not be liable for them. Creditors will be entitled to only one satisfaction — from the bankruptcy estate and not from the probate estate. 

The next three grounds for denial of discharge center on the debtor's wrongdoing in or in connection with the bankruptcy case. They are derived from Bankruptcy Act Sec. 14c (section 32(c) of former title 11). If the debtor, with intent to hinder, delay, or defraud his creditors or an officer of the estate, has transferred, removed, destroyed, mutilated, or concealed, or has permitted any such action with respect to, property of the debtor within the year preceding the case, or property of the estate after the commencement of the case, then the debtor is denied discharge. The debtor is also denied discharge if he has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any books and records from which his financial condition might be ascertained, unless the act or failure to act was justified under all the circumstances of the case. The fourth ground for denial of discharge is the commission of a bankruptcy crime, although the standard of proof is preponderance of the evidence rather than proof beyond a reasonable doubt. These crimes include the making of a false oath or account, the use or presentation of a false claim, the giving or receiving of money for acting or forbearing to act, and the withholding from an officer of the estate entitled to possession of books and records relating to the debtor's financial affairs. 

The fifth ground for denial of discharge is the failure of the debtor to explain satisfactorily any loss of assets or deficiency of assets to meet the debtor's liabilities. The sixth ground concerns refusal to testify. It is a change from present law, under which the debtor may be denied discharge for legitimately exercising his right against self-incrimination. Under this provision, the debtor may be denied discharge if he refuses to obey any lawful order of the court, or if he refuses to testify after having been granted immunity or after improperly invoking the constitutional privilege against self-incrimination. 

The seventh ground for denial of discharge is the commission of an act specified in grounds two through six during the year before the debtor's case in connection with another bankruptcy case concerning an insider

The eighth ground for denial of discharge is derived from Sec. 14c(5) of the Bankruptcy Act (section 32(c)(5) of former title 11). 

If the debtor has been granted a discharge in a case commenced within 6 years preceding the present bankruptcy case, he is denied discharge. This provision, which is no change from current law with respect to straight bankruptcy, is the 6-year bar to discharge. Discharge under chapter 11 will bar a discharge for 6 years. As under current law, confirmation of a composition wage earner plan under chapter 13 is a basis for invoking the 6-year bar. 

The ninth ground is approval by the court of a waiver of discharge. 

Subsection (b) specifies that the discharge granted under this section discharges the debtor from all debts that arose before the date of the order for relief. It is irrelevant whether or not a proof of claim was filed with respect to the debt, and whether or not the claim based on the debt was allowed. 

Subsection (c) permits the trustee, or a creditor, to object to discharge. It also permits the court, on request of a party in interest, to order the trustee to examine the acts and conduct of the debtor to determine whether a ground for denial of discharge exists. 

Subsection (d) requires the court to revoke a discharge already granted in certain circumstances. If the debtor obtained the discharge through fraud, if he acquired and concealed property of the estate, or if he refused to obey a court order or to testify, the discharge is to be revoked. 

Subsection (e) permits the trustee or a creditor to request revocation of a discharge within 1 year after the discharge is granted, on the grounds of fraud, and within one year of discharge or the date of the closing of the case, whichever is later, on other grounds. 

AMENDMENTS

2005 — Will be supplemented. 

1986

Subsec. (a)(9). Pub. L. 99-554, Sec. 257(s), inserted reference to section 1228 of this title. 

Subsec. (c). Pub. L. 99-554, Sec. 220, amended subsec. (c) generally, substituting "The trustee, a creditor, or the United States trustee may object" for "The trustee or a creditor may object" in par. (1). 

Subsec. (d). Pub. L. 99-554, Sec. 220, amended subsec. (d) generally, substituting ", a creditor, or the United States trustee," for "or a creditor," in provisions preceding par. (1) and "acquisition of or entitlement to such property" for "acquisition of, or entitlement to, such property" in par. (2)

Subsec. (e). Pub. L. 99-554, Sec. 220, amended subsec. (e) generally, substituting "The trustee, a creditor, or the United States trustee may" for "The trustee or a creditor may" in provisions preceding par. (1), "section within" for "section, within" and "discharge is granted" for "discharge was granted" in par. (1), "section before" for "section, before" in provisions of par. (2) preceding subpar. (A), and "discharge; and" for "discharge; or" in par. (2)(A)

1984

Subsec. (a)(6)(C). Pub. L. 98-353, Sec. 480(a)(1), substituted "properly" for "property". 

Subsec. (a)(7). Pub. L. 98-353, Sec. 480(a)(2), inserted ", under this title or under the Bankruptcy Act," after "another case". 

Subsec. (a)(8). Pub. L. 98-353, Sec. 480(a)(3), substituted "371," for "371". 

Subsec. (c)(1). Pub. L. 98-353, Sec. 480(b), substituted "to the granting of a discharge" for "to discharge". 

Subsec. (e)(2)(A). Pub. L. 98-353, Sec. 480(c), substituted "or" for "and". 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

Pub. L. 109-8, Title III, § 330(a) added section 727(a)(12) to provide for the denial of a discharge if "the court after notice and a hearing held not more than 10 days before the date of the entry of the order granting the discharge finds that there is reasonable cause to believe that—

"(A) section 522(q)(1) may be applicable to the debtor; and 

"(B) there is pending any proceeding in which the debtor may be found guilty of a felony of the kind described in section 522(q)(1) or liable for a debt of the kind described in section 522(q)(1)(B)."

Pursuant to  Pub. L. 109-8, Title VI, § 1501(b)(2), these additions "apply with respect to cases commenced under title 11, United States Code, on or after the date of the enactment of this Act." 

Pub. L. 109-8, Title III, § 603(d)(3) added section 727(d)(4) to provide for the revocation of a discharge "if the debtor has failed to explain satisfactorily—

"(A) a material misstatement in an audit referred to in section 586(f) of title 28; or 

"(B) a failure to make available for inspection all necessary accounts, papers, documents, financial records, files, and all other papers, things, or property belonging to the debtor that are requested for an audit referred to in section 586(f) of title 28."  

Pursuant to  Pub. L. 109-8, Title III, § 603(e), these additions "shall take effect 18 months after the date of enactment of this Act."

1986 Acts. Amendment by section 257 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, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. 

Effective date and applicability of amendment by section 220 of Pub. L. 99-554 dependent upon the judicial district involved, see section 302(d), (e) of Pub. L. 99-554.

1984 Acts. 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. 

REFERENCES IN TEXT

The Bankruptcy Act, referred to in subsec. (a)(7), is act July 1, 1898, ch. 541, 30 Stat. 544, as amended, which was classified generally to former Title 11

Sections 14, 371, and 476 of the Bankruptcy Act, referred to in subsec. (a)(8), are section 14 of act July 1, 1898, ch. 541, 30 Stat. 550, section 371 of act July 1, 1898, ch. 541, as added June 22, 1938, ch. 575, Sec. 1, 52 Stat. 912, and section 476 of act July 1, 1898, ch. 541, as added June 22, 1938, ch. 575, Sec. 1, 52 Stat. 924, which were classified to sections 32, 771, and 876 of former Title 11

Sections 660 and 661 of the Bankruptcy Act, referred to in subsec. (a)(9), are sections 660 and 661 of act July 1, 1898, ch. 541, as added June 22, 1938, ch. 575, Sec. 1, 52 Stat. 935, 936, which were classified to sections 1060 and 1061 of former Title 11

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 348, 523, 524, 1141 of this title; title 12 section 1715z-1a. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 727)

BAPCPA § 106(b)(1)    •    House Report 109-31    •   

BAPCPA § 106(b)(2) and § 330(a)(1);  BAPCPA § 106(b)(2) struck the "." and inserted the "; or".  BAPCPA § 330(a)(1) struck the "or".    •    House Report 109-31 (§ 106)    •    House Report 109-31 (§ 330)    •   

BAPCPA § 106(b)(3) and § 330(a)(2);  BAPCPA § 106(b)(3) added BC § 727(a)(11); BAPCPA § 330(a)(2) struck the "." at the end of BC § 727(a)(11) and inserted the "; or".    •    House Report 109-31 (§ 106)    •    House Report 109-31 (§ 330)    •   

BAPCPA § 312(1)    •    House Report 109-31 (§ 106)    •   

BAPCPA § 330(a)(3)    •    House Report 109-31 (§ 106)    •    BAPCPA § 1501 provides as follows:

(a) Effective Date.—Except as otherwise provided in this Act, this Act and the amendments made by this Act shall take effect 180 days after the date of enactment of this Act.    •   

(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 shall apply with respect to cases commenced under title 11, United States Code, on or after the date of the enactment of this Act.    •   

BAPCPA § 603(d)(1)    •    House Report 109-31    •   

BAPCPA § 603(d)(2)    •    House Report 109-31    •   

BAPCPA § 603(d)(3)    •    House Report 109-31    •    BAPCPA § 603(e) contains the following uncodified provision:

(e) Effective Date.—The amendments made by this section shall take effect 18 months after the date of enactment of this Act.    •   

BAPCPA § 1228(a) contains the following uncodified provision:

(a) Chapter 7 Cases—The court shall not grant a discharge in the case of an individual who is a debtor in a case under chapter 7 of title 11, United States Code, unless requested tax documents have been provided to the court.    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 728) (REPEALED)


LEGISLATIVE STATEMENTS

Section 728 of the House amendment adopts a provision contained in the House bill that was deleted by the Senate amendment. 

Liquidations: The House bill contained special tax provisions concerning the treatment of liquidations cases for State and local tax laws. These provisions deal with the taxable years of an individual debtor, return-filing requirements, and rules allocating State and local tax liabilities and refunds between a bankrupt partner and the partnership of which he is a member. The Senate amendment deleted these rules pending consideration of the Federal tax treatment of bankruptcy in the next Congress. The House amendment returns these provisions to the bill in order that they may be studied by the bankruptcy and tax bars who may wish to submit comments to Congress in connection with its consideration of these provisions in the next Congress. 

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 728 of title 11 applies only to state and local taxation. This provision contains four subsections which embody special tax provisions that apply in a case under chapter 7. Subsection (a) terminates the taxable year of an individual debtor on the date of the order for relief under chapter 7 of title 11. The date of termination of the individual's taxable year is the date on which the estate first becomes a separate taxable entity. If the case was originally filed under chapter 11 of title 11, then the estate would have been made a separate taxable entity on the date of the order for relief under that chapter. In the rare case of a multiple conversion, then the date of the order for relief under the first chapter under which the estate was a separate taxable entity is controlling. 

Subsection (b) permits the trustee of the estate of an individual debtor or a corporation in a case under chapter 7 of title 11 to make a tax return only if the estate or corporation has net taxable income for the entire case. If the estate or corporation has net taxable income at the close of the case, then the trustee files an income tax return for each tax year during which the case was pending. The trustee of a partnership debtor must always file returns for each such taxable period. 

Subsection (c) sets forth a marshalling rule pertaining to tax claims against a partner and a partnership in a case under chapter 7 of title 11. To the extent that the income tax liability arose from the inclusion of undistributed earnings in the partner's taxable income, the court is required to disallow the tax claim against the partner's estate and to allow such claim against the partnership estate. No burden is placed on the taxing authority; the taxing authority should file a complete proof of claim in each case and the court will execute the marshalling. If the partnership's assets are insufficient to satisfy partnership creditors in full, then section 723(c) of title 11 will apply, notwithstanding this subsection, to allow any unsatisfied tax claims to be asserted by the partnership trustee against the estate of the partner. The marshalling rule under this subsection applies only for purposes of allowance and distribution. Thus the tax claim may be nondischargeable with respect to an individual partner. 

Subsection (d) requires the court to apportion any tax refund or reduction of tax between the estate of a partner and the estate of his partnership. The standard of apportionment entitles the partnership estate to receive that part of the tax refund or reduction that is attributable to losses sustained by the partnership that were deducted by the partner but for which the partner never reimbursed the partnership. The partner's estate receives any part not allocated to the partnership estate. The section applies notwithstanding section 541 of title 11, which includes the partner's right to a tax refund or to reduction of tax as property of the partner's estate. 

AMENDMENTS

1986 — Subsec. (a). Pub. L. 99-554 inserted reference to section 1208 of this title. 

1984

Subsec. (c). Pub. L. 98-353, Sec. 481(a), substituted "taxable income" for "taxable income,". 

Subsec. (d)(2). Pub. L. 98-353, Sec. 481(b), substituted "is otherwise property of the estate of such partner" for "is property of the estate of such partner otherwise". 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1986 Acts. 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. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 106, 346, 348, 723 of this title. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 728)

BAPCPA § 719(b)(1)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 741)


LEGISLATIVE STATEMENTS

Section 741(6) of the House bill and Senate amendment is deleted by the House amendment since the defined term is used only in section 741(4)(A)(iii). A corresponding change is made in that section. 

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1994 Acts (Pub. L. 103-394). House Report No. 103-835.

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 741 sets forth definitions for subchapter III of chapter 7.

Paragraph (1) defines "Commission" to mean the Securities and Exchange Commission. 

Paragraph (2) defines "customer" to include anybody that interacts with the debtor in a capacity that concerns securities transactions. The term embraces cash or margin customers of a broker or dealer in the broadest sense. 

Paragraph (3) defines "customer name security" in a restrictive fashion to include only non-transferable securities that are registered, or in the process of being registered in a customer's own name. The securities must not be endorsed by the customer and the stockbroker must not be able to legally transfer the securities by delivery, by a power of attorney, or otherwise. 

Paragraph (4) defines "customer property" to include all property of the debtor that has been segregated for customers or property that should have been segregated but was unlawfully converted. Clause (i) refers to customer property not properly segregated by the debtor or customer property converted and then recovered so as to become property of the estate. Unlawfully converted property that has been transferred to a third party is excluded until it is recovered as property of the estate by virtue of the avoiding powers. The concept excludes customer name securities that have been delivered to or reclaimed by a customer and any property properly belonging to the stockholder, such as money deposited by a customer to pay for securities that the stockholder has distributed to such customer

Paragraph (5) (enacted as (6)) defines "net equity" to establish the extent to which a customer will be entitled to share in the single and separate fund. Accounts of a customer are aggregated and offset only to the extent the accounts are held by the customer in the same capacity. Thus, a personal account is separate from an account held as trustee. In a community property state an account held for the community is distinct from an account held as separate property. 

The net equity is computed by liquidating all securities positions in the accounts and crediting the account with any amount due to the customer. Regardless of the actual dates, if any, of liquidation, the customer is only entitled to the liquidation value at the time of the filing of the petition. To avoid double counting, the liquidation value of customer name securities belonging to a customer is excluded from net equity. Thus, clause (ii) includes claims against a customer resulting from the liquidation of a security under clause (i). The value of a security on which trading has been suspended at the time of the filing of the petition will be estimated. Once the net liquidation value is computed, any amount that the customer owes to the stockbroker is subtracted including any amount that would be owing after the hypothetical liquidation, such as brokerage fees. Debts owed by the customer to the debtor, other than in a securities related transaction, will not reduce the net equity of the customer

Finally, net equity is increased by any payment by the customer to the debtor actually paid within 60 days after notice. The principal reason a customer would make such a payment is to reclaim customer name securities under Sec. 751

Paragraph (6) defines "1934 Act" to mean the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.). 

Paragraph (7) (enacted as (9)) defines "SIPC" to mean the Securities Investor Protection Corporation. 

AMENDMENTS

2005 — Will be supplemented. 

1994 — Par. (4)(A)(iii). Pub. L. 103-394 struck out "(15 U.S.C. 78a et seq.)" after "Act of 1934". 

1984

Par. (2)(A). Pub. L. 98-353, Sec. 482(1), substituted "with whom a person deals" for "with whom the debtor deals", "that has a claim" for "that holds a claim", "against such person" for "against the debtor", "held by such person" for "held by the debtor", and "such person's business as a stockbroker," for "business as a stockbroker". 

Par. (2)(B). Pub. L. 98-353, Sec. 482(2)(A), (B), substituted "has a claim" for "holds a claim" and "against a person" for "against the debtor" in provisions preceding cl. (i). 

Par. (2)(B)(ii). Pub. L. 98-353, Sec. 482(2)(C), substituted "such person" for "the debtor". 

Par. (4)(A)(i). Pub. L. 98-353, Sec. 482(3), substituted "from and that is the lawful" for "and that is". 

Par. (6)(A)(i). Pub. L. 98-353, Sec. 482(4), inserted a comma after "petition" and "any" after "except". 

Par. (7). Pub. L. 98-353, Sec. 482(5), amended par. (7) generally, inserting provisions relating to options for the purchase or sale of certificates of deposit, or a group or index of securities (including any interest therein or based on the value thereof), or any option entered into on a national securities exchange relating to foreign currencies. 

Par. (8). Pub. L. 98-353, Sec. 482(6), inserted "a final settlement payment,". 

1982

Par. (4). Pub. L. 97-222, Sec. 8(1), struck out "at any time" after "security, or property," in provisions preceding subpar. (A), and inserted "of a customer" after "claim" in subpar. (A)(ii). 

Par. (5). Pub. L. 97-222, Sec. 8(3), added par. (5). Former par. (5) redesignated (6). 

Par. (6). Pub. L. 97-222, Sec. 8(2), (4), redesignated former par. (5) as (6), in provisions preceding subpar. (A), substituted "all accounts of a customer that such customer has" for "the aggregate of all of a customer's accounts that such customer holds", in subpar. (A)(2) inserted "in such capacity", and in subpar. (B) inserted "in such capacity". Former par. (6) redesignated (9). 

Pars. (7), (8). Pub. L. 97-222, Sec. 8(5), added pars. (7) and (8). 

Par. (9). Pub. L. 97-222, Sec. 8(2), (6), redesignated former par. (6) as (9) and substituted "Securities" for "Security". 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1994 Acts. 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. 

1984 Acts. 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. 

REFERENCES IN TEXT

The Securities Exchange Act of 1934, referred to in par. (4)(A)(iii), is act June 6, 1934, ch. 404, 48 Stat. 881, as amended, which is classified principally to chapter 2B (Sec. 78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 362, 546, 548, 555, 752 of this title; title 12 sections 1787, 1821. 


FOOTNOTES(11 U.S.C. § 741)

15 U.S.C. § 78a, et seq. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 741)

BAPCPA § 907(a)(2)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 742)


LEGISLATIVE STATEMENTS

Section 742 of the House amendment deletes a sentence contained in the Senate amendment requiring the trustee in an interstate stock-brokerage liquidation to comply with the provisions of subchapter IV of chapter 7 if the debtor is also a commodity broker. The House amendment expands the requirement to require the SIPC trustee to perform such duties, if the debtor is a commodity broker, under section 7(b) of the Securities Investor Protection Act (15 U.S.C. 78ggg(b)). The requirement is deleted from section 742 since the trustee of an intrastate stockbroker will be bound by the provisions of subchapter IV of chapter 7 if the debtor is also a commodity broker by reason of section 103 of title 11

LEGISLATIVE REPORTS

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1982 Acts (Pub. L. 97-222). House Report No. 97-420.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 742 indicates that the automatic stay does not prevent SIPC from filing an application for a protective decree under SIPA. If SIPA does file such an application, then all bankruptcy proceedings are suspended until the SIPC action is completed. If SIPC completes liquidation of the stockbroker then the bankruptcy case is dismissed. 

AMENDMENTS

1994 — Pub. L. 103-394 struck out "(15 U.S.C. 78aaa et seq.)" after "Act of 1970". 

1982 — Pub. L. 97-222 substituted "title" for "chapter" after "all proceedings in the case under this". 

EFFECTIVE DATES

1994 Acts. 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. 

REFERENCES IN TEXT

The Securities Investor Protection Act of 1970, referred to in text, is Pub. L. 91-598, Dec. 30, 1970, 84 Stat. 1636, as amended, which is classified generally to chapter 2B-1 (Sec. 78aaa et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78aaa of Title 15 and Tables. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 349 of this title. 


FOOTNOTES(11 U.S.C. § 742)

15 U.S.C. § 78aaa, et seq. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 743)


LEGISLATIVE REPORTS

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1986 Acts (Pub. L. 99-554). House Report No. 99-764 and House Conference Report No. 99-958.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 743 requires that notice of the order for relief be given to SIPC and to the SEC in every stockbroker case. 

AMENDMENTS

1994 — Pub. L. 103-394 substituted "342" for "342(a)". 

1986 — Pub. L. 99-554, which directed the amendment of this section by striking "(d)", rather than "(a)", could not be executed because "(d)" did not appear in text. See 1994 Amendment note above. 

EFFECTIVE DATES

1994 Acts. 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. 

1986 Acts. Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 744)


LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 744 instructs the court to give the trustee a reasonable time, not to exceed 30 days, to assume or reject any executory contract of the stockbroker to buy or sell securities. Any contract not assumed within the time fixed by the court is considered to be rejected. 

AMENDMENTS

1982 — Pub. L. 97-222 inserted "but" after "relief,". 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 106 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 745)


LEGISLATIVE REPORTS

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1982 Acts (Pub. L. 97-222). House Report No. 97-420.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 745(a) indicates that each account held by a customer in a separate capacity is to be considered a separate account. This prevents the offset of accounts held in different capacities. 

Subsection (b) indicates that a bank or another stockbroker that is a customer of a debtor is considered to hold its customers accounts in separate capacities. Thus a bank or other stockbroker is not treated as a mutual fund for purposes of bulk investment. This protects unrelated customers of a bank or other stockholder from having their accounts offset. 

Subsection (c) effects the same result with respect to a trust so that each beneficiary is treated as the customer of the debtor rather than the trust itself. This eliminates any doubt whether a trustee holds a personal account in a separate capacity from his trustee's account. 

AMENDMENTS

1994 — Subsec. (c). Pub. L. 103-394 substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.)". 

1984 — Subsec. (a). Pub. L. 98-353 inserted "the debtor for" after "by". 

1982 — Subsec. (c). Pub. L. 97-222 substituted "Each" for "A". 

EFFECTIVE DATES

1994 Acts. 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. 

1984 Acts. 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. 

REFERENCES IN TEXT

The Internal Revenue Code of 1986, referred to in subsec. (c), is classified generally to Title 26, Internal Revenue Code. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 746)


LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 746(a) protects entities who deal in good faith with the debtor after the filing of the petition and before a trustee is appointed by deeming such entities to be customers. The principal application of this section will be in an involuntary case before the order for relief, because Sec. 701(b) requires prompt appointment of an interim trustee after the order for relief

Subsection (b) indicates that an entity who holds securities that are either part of the capital of the debtor or that are subordinated to the claims of any creditor of the debtor is not a customer with respect to those securities. This subsection will apply when the stockbroker has sold securities in itself to the customer or when the customer has otherwise placed such securities in an account with the stockbroker

AMENDMENTS

1982 — Pub. L. 97-222, Sec. 12(c), substituted "claims" for "claim" in section catchline.

Subsec. (a). Pub. L. 97-222, Sec. 12(a), substituted "enters into" for "effects, with respect to cash or a security,", struck out "with respect to such cash or security" wherever appearing, and substituted "the date of the filing of the petition" for "such date", and "entered into" for "effected". 

Subsec. (b). Pub. L. 97-222, Sec. 12(b), substituted "transferred to the debtor" for "has a claim for" in provisions preceding par. (1), and struck out "is" in par. (2). 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 747)


LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420.  

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 747 subordinates to other customer claims, all claims of a customer who is an insider, a five percent owner of the debtor, or otherwise in control of the debtor

AMENDMENTS

1982 — Pub. L. 97-222 substituted "the transaction giving rise to such claim occurred" for "such claim arose" in provisions preceding par. (1)


HISTORICAL AND REVISION NOTES (11 U.S.C. § 748)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 748 requires the trustee to liquidate all securities, except for customer name securities, of the estate in a manner consistent with good market practice. The trustee should refrain from flooding a thin market with a large percentage of shares in any one issue. If the trustee holds restricted securities or securities in which trading has been suspended, then the trustee must arrange to liquidate such securities in accordance with the securities laws. A private placement may be the only exemption available with the customer of the debtor the best prospect for such a placement. The subsection does not permit such a customer to bid in his net equity as part of the purchase price; a contrary result would permit a customer to receive a greater percentage on his net equity claim than other customers


HISTORICAL AND REVISION NOTES (11 U.S.C. § 749)


LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 749 indicates that if the trustee avoids a transfer, property recovered is customer property to any extent it would have been customer property but for the transfer. The section clarifies that a customer who receives a transfer of property of the debtor is a creditor and that property in a customer's account is property of a creditor for purposes of the avoiding powers. 

AMENDMENTS

1982 — Pub. L. 97-222 substituted "(a) Except as otherwise provided in this section, any" for "Any", and "but" for "except", inserted "such property", substituted "or 549" for "549, or 724(a)", and added subsec. (b)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 106 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 750)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 750 forbids the trustee from distributing a security other than a customer name security. The term "distribution" refers to a distribution to customers in satisfaction of net equity claims and is not intended to preclude the trustee from liquidating securities under proposed 11 U.S.C. 748


HISTORICAL AND REVISION NOTES (11 U.S.C. § 751)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 751 requires the trustee to deliver a customer name security to the customer entitled to such security unless the customer has a negative net equity. The customer's net equity will be negative when the amount owed by the customer to the stockbroker exceeds the liquidation value of the non-customer name securities in the customer's account. If the customer is a net debtor of the stockbroker, then the trustee may permit the customer to repay debts to the stockbroker so that the customer will no longer be in debt to the stockbroker. If the customer refuses to pay such amount, then the court may order the customer to endorse the security in order that the trustee may liquidate such property. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 741, 748, 750 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 752)


LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1982 Acts (Pub. L. 97-222). House Report No. 97-420.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 752(a) requires the trustee to distribute customer property to customers based on the amount of their net equity claims. Customer property is to be distributed in priority to all claims except expenses of administration entitled to priority under Sec. 507(1). It is anticipated that the court will apportion such administrative claims on an equitable basis between the general estate and the customer property of the debtor

Subsection (b)(1) indicates that in the event customer property exceeds customers net equity claims and administrative expenses, the excess pours over into the general estate. This event would occur if the value of securities increased dramatically after the order for relief but before liquidation by the trustee. Subsection (b)(2) indicates that the unpaid portion of a customer's net equity claim is entitled to share in the general estate as an unsecured claim unless subordinated by the court under proposed 11 U.S.C. 501. A net equity claim of a customer that is subordinated under section 747 is entitled to share in distribution under section 726(a)(2) unless subordinated under section 510 independently of the subordination under section 747

Subsection (c) provides for apportionment between customer property and the general estate of any equity of the debtor in property remaining after a secured creditor liquidates a security interest. This might occur if a stockbroker hypothecates securities of his own and of his customers if the value of the hypothecated securities exceeds the debt owed to the secured party. The apportionment is to be made according to the ratio of customer property and general property of the debtor that comprised the collateral. The subsection refers to cash and securities of customers to include any customer property unlawfully converted by the stockbroker in the course of such a transaction. The apportionment is made subject to section 741(4)(B) to insure that property in a customer's account that is owed to the stockbroker will not be considered customer property. This recognizes the right of the stockbroker to withdraw money that has been erroneously placed in a customer's account or that is otherwise owing to the stockbroker

AMENDMENTS

2005 — Will be supplemented. 

1984

Subsec. (a). Pub. L. 98-353, Sec. 484(a), substituted "customers' allowed" for "customers allowed", "except claims of the kind" for "except claims", and "such customer property" for "customer property". 

Subsec. (b)(2). Pub. L. 98-353, Sec. 484(b), substituted "section 726" for "section 726(a)". 

1982 — Subsec. (c). Pub. L. 97-222 substituted "Any cash or security remaining after the liquidation of a security interest created under a securities clearing agency made by the debtor, excluding property excluded under section 741(4)(B) of this title, shall be apportioned between the general estate and customer property in the same proportion as the general estate of the debtor and customer property were subject to such security interest" for "Subject to section 741(4)(B) of this title, any cash or security remaining after the liquidation of a security interest created under a securities clearing agency made by the debtor shall be apportioned between the general estate and customer property in the proportion that the general property of the debtor and the cash or securities of customers were subject to such security interest". 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 702 of this title. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 752)

BAPCPA § 1502(a)(3)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 753)


LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330, are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 753)

BAPCPA § 907(m)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 761)


LEGISLATIVE STATEMENTS

Subchapter IV of chapter 7 represents a compromise between similar chapters in the House bill and Senate amendment. Section 761(2) of the House amendment defines "clearing organization" to cover an organization that clears commodity contracts on a contract market or a board of trade; the expansion of the definition is intended to include clearing organizations that clear commodity options. Section 761(4) of the House amendment adopts the term "commodity contract" as used in section 761(5) of the Senate amendment but with the more precise substantive definitions contained in section 761(8) of the House bill. The definition is modified to insert "board of trade" to cover commodity options

Section 761(5) of the House amendment adopts the definition contained in section 761(6) of the Senate amendment in preference to the definition contained in section 761(4) of the House bill which erroneously included onions. Section 761(9) of the House amendment represents a compromise between similar provisions contained in section 761(10) of the Senate amendment and section 761(9) of the House bill. The compromise adopts the substance contained in the House bill and adopts the terminology of "commodity contract" in lieu of "contractual commitment" as suggested in the Senate amendment. Section 761(10) of the House amendment represents a compromise between similar sections in the House bill and Senate amendment regarding the definition of "customer property." The definition of "distribution share" contained in section 761(12) of the Senate amendment is deleted as unnecessary. Section 761(12) of the House amendment adopts a definition of "foreign futures commission merchant" similar to the definition contained in section 761(14) of the Senate amendment. The definition is modified to cover either an entity engaged in soliciting orders or the purchase or sale of a foreign future, or an entity that accepts cash, a security, or other property for credit in connection with such a solicitation or acceptance. Section 761(13) of the House amendment adopts a definition of "leverage transaction" identical to the definition contained in section 761(15) of the Senate amendment. Section 761(15) of the House amendment adopts the definition of "margin payment" contained in section 761(17) of the Senate amendment. 

Section 761(17) of the House amendment adopts a definition of "net equity" derived from section 761(15) of the House bill. 

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

2000 Acts (Pub. L. 106-554). House Report No. 106-645.

1994 Acts (Pub. L. 103-394). House Report No. 103-835. 

1982 Acts (Pub. L. 97-222). House Report No. 97-420.

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Paragraph (1) defines "Act" to mean the Commodity Exchange Act (7 U.S.C. 1 et seq.).

Paragraph (2) defines "clearing organization" to mean an organization that clears (i.e., matches purchases and sales) commodity futures contracts made on or subject to the rules of a contract market or commodity options transactions made on or subject to the rules of a commodity option exchange. Although commodity option trading on exchanges is currently prohibited, it is anticipated that CFTC may permit such trading in the future. 

Paragraphs (3) and (4) define terms "Commission" and "commodity futures contract". 

Paragraph (5) (enacted as (4)) defines "commodity contract" to mean a commodity futures contract (Sec. 761(4)), a commodity option (Sec. 761(6)), or a leverage contract (Sec. 761(15)). 

Paragraph (b) (probably should be "(6)" which was enacted as (5)) defines "commodity option" by reference to section 4c(b) of the Commodity Exchange Act (7 U.S.C. 6c(b)). 

Paragraphs (7), (8), and (9) (enacted as (6), (7), and (8)) define "commodity options dealer," "contract market," "contract of sale," "commodity," "future delivery," "board of trade," and "futures commission merchant." Paragraph (10) (enacted as (9)) defines the term "customer" to mean with respect to a futures commission merchant or a foreign futures commission merchant, the entity for whom the debtor carries a commodity futures contract or foreign future, or with whom such a contract is carried (such as another commodity broker), or from whom the debtor has received, acquired, or holds cash, securities, or other property arising out of or connected with specified transactions involving commodity futures contracts or foreign futures. This section also defines "customer" in the context of leverage transaction merchants, clearing organizations, and commodity options dealers. Persons associated with a commodity broker, such as its employees, officers, or partners, may be customers under this definition. 

The definition of "customer" serves to isolate that class of persons entitled to the protection subchapter IV provides to customers. In addition, section 101(5) defines "commodity broker" to mean a futures commission merchant, foreign futures commission merchant, clearing organization, leverage transaction merchant, or commodity options dealer, with respect to which there is a customer. Accordingly, the definition of customer also serves to designate those entities which must utilize chapter 7 and are precluded from reorganizing under chapter 11

Paragraph (11) (enacted as (10)) defines "customer property" to mean virtually all property or proceeds thereof, received, acquired, or held by or for the account of the debtor for a customer arising out of or in connection with a transaction involving a commodity contract

Paragraph (12) defines "distribution share" to mean the amount to which a customer is entitled under section 765(a)

Paragraphs (13), (14), (15), and (16) (enacted as (11), (12), (13), and (14)) define "foreign future," "foreign futures commission merchant," "leverage transaction," and "leverage transaction merchant." Paragraph (17) (enacted as (15)) defines "margin payment" to mean a payment or deposit commonly known to the commodities trade as original margin, initial margin, or variation margin. 

Paragraph (18) (enacted as (16)) defines "member property." Paragraph (19) (enacted as (17)) defines "net equity" to be the sum of (A) the value of all customer property remaining in a customer's account immediately after all commodity contracts of such customer have been transferred, liquidated, or become identified for delivery and all obligations of such customer to the debtor have been offset (such as margin payments, whether or not called, and brokerage commissions) plus (B) the value of specifically identifiable customer property previously returned to the customer by the trustee, plus (C) if the trustee has transferred any commodity contract to which the customer is entitled or any margin or security for such contract, the value of such contract and margin or security. Net equity, therefore, will be the total amount of customer property to which a customer is entitled as of the date of the filing of the bankruptcy petition, although valued at subsequent dates. The Commission is given authority to promulgate rules and regulations to further refine this definition. 

House Report No. 95-595. Paragraph (8) (enacted as (4)) is a dynamic definition of "contractual commitment". The definition will vary depending on the character of the debtor in each case. If the debtor is a futures commission merchant or a clearing organization, then subparagraphs (A) and (D) indicate that the definition means a contract of sale of a commodity for future delivery on a contract market. If the debtor is a foreign futures commission merchant, a leverage transaction merchant, or a commodity options dealer, then subparagraphs (B), (C), and (E) indicate that the definition means foreign future, leverage transaction, or commodity option, respectively. 

Paragraph (9) defines "customer" in a similar style. It is anticipated that a debtor with multifaceted characteristics will have separate estates for each different kind of customer. Thus, a debtor that is a leverage transaction merchant and a commodity options dealer would have separate estates for the leverage transaction customers and for the options customers, and a general estate for other creditors. Customers for each kind of commodity broker, except the clearing organization, arise from either of two relationships. In subparagraphs (A), (B), (C), and (E), clause (i) treats with customers to the extent of contractual commitments with the debtor in either a broker or a dealer relationship. Clause (ii) treats with customers to the extent of proceeds from contractual commitments or deposits for the purpose of making contractual commitments. The customer of the clearing organization is a member with a proprietary or customers' account. 

Paragraph (10) defines "customer property" to include all property in customer accounts and property that should have been in those accounts but was diverted through conversion or mistake. 

Clause (i) refers to customer property not properly segregated by the debtor or customer property converted and then recovered so as to become property of the estate. Clause (vii) is intended to exclude property that would cost more to recover from a third party than the value of the property itself. Subparagraph (B) excludes property in a customer's account that belongs to the commodity broker, such as a contract placed in the account by error, or cash due the broker for a margin payment that the broker has made. 

Paragraph (15) (enacted as (17)) defines "net equity" to include the value of all contractual commitments at the time of liquidation or transfer less any obligations owed by the customer to the debtor, such as brokerage fees. In addition, the term includes the value of any specifically identifiable property as of the date of return to the customer and the value of any customer property transferred to another commodity broker as of the date of transfer. This definition places the risk of market fluctuations on the customer until commitments leave the estate. 

AMENDMENTS

2005 — Will be supplemented. 

2000

Par. (2). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec. 112(c)(6)(A)), amended par. (2) generally. Prior to amendment, par. (2) read as follows: " 'clearing organization' means organization that clears commodity contracts made on, or subject to the rules of, a contract market or board of trade;". 

Par. (7). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec. 112(c)(6)(B)), amended par. (7) generally. Prior to amendment, par. (7) read as follows: " 'contract market' means board of trade designated as a contract market by the Commission under the Act;". 

Par. (8). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec. 112(c)(6)(C)), amended par. (8) generally. Prior to amendment, par. (8) read as follows: " 'contract of sale', 'commodity', 'future delivery', 'board of trade', and 'futures commission merchant' have the meanings assigned to those terms in the Act;". 

1994

Par. (1). Pub. L. 103-394, Sec. 501(d)(29)(A), struck out "(7 U.S.C. 1 et seq.)" after "Act". 

Par. (5). Pub. L. 103-394, Sec. 501(d)(29)(B), struck out "(7 U.S.C. 6c(b))" after "Act". 

Par. (13). Pub. L. 103-394, Sec. 501(d)(29)(C), struck out "(7 U.S.C. 23)" after "Act". 

1984 — Par. (10)(A)(viii). Pub. L. 98-353 substituted "from and that is the lawful property" for "and that is property". 

1982

Par. (2). Pub. L. 97-222, Sec. 16(1), inserted "made" after "commodity contracts". 

Par. (4). Pub. L. 97-222, Sec. 16(2), substituted "with respect to" for "if the debtor is" wherever appearing, and substituted "cleared by such clearing organization, or commodity option traded on, or subject to the rules of, a contract market or board of trade that is cleared by such clearing organization" for "cleared by the debtor" in subpar. (D). 

Par. (9). Pub. L. 97-222, Sec. 16(3), substituted "with respect to" for "if the debtor is" wherever appearing, in subpar. (A) substituted "such futures commission merchant" for "the debtor" wherever appearing and "such futures commission merchant's" for "the debtor's", in subpar. (B) substituted "such foreign futures commission merchant" for "the debtor" wherever appearing and "such foreign futures commission merchant's" for "the debtor's", in subpar. (C) substituted "such leverage transaction merchant" for "the debtor" wherever appearing and "such leverage transaction merchant's" for "the debtor's", inserted "or" after the semicolon in cl. (i), and substituted "holds" for "hold" in cl. (ii), in subpar. (D) substituted "such clearing organization" for "the debtor" wherever appearing, and in subpar. (E) substituted "such commodity options dealer" for "the debtor" wherever appearing and "such commodity options dealer's" for "the debtor's". 

Par. (10). Pub. L. 97-222, Sec. 16(4), struck out "at any time" after "security, or property," in provisions preceding subpar. (A). 

Par. (12). Pub. L. 97-222, Sec. 16(5), inserted a comma after "property" and struck out the comma after "credit". 

Par. (13). Pub. L. 97-222, Sec. 16(6), substituted "section 19 of the Commodity Exchange Act (7 U.S.C. 23)" for "section 217 of the Commodity Futures Trading Commission Act of 1974 (7 U.S.C. 15a)". 

Par. (14). Pub. L. 97-222, Sec. 16(7), struck out "that is engaged" after "means person". 

Par. (15). Pub. L. 97-222, Sec. 16(8), substituted "mark-to-market payments, settlement payments, variation payments, daily settlement payments, and final settlement payments made as adjustments to settlement prices" for "a daily variation settlement payment". 

Par. (16). Pub. L. 97-222, Sec. 16(9), struck out "at any time" after "customer property". 

Par. (17). Pub. L. 97-222, Sec. 16(10), in provisions preceding subpar. (A) substituted "has" for "holds", in subpar. (A) inserted "the" after "(A)" in provisions preceding cl. (i), and "in such capacity" after "customer" in cl. (ii). 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1994 Acts. 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. 

1984 Acts. 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. 

REFERENCES IN TEXT

The Commodity Exchange Act, referred to in pars. (1), (2), (8), and (17), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, as amended, which is classified generally to chapter 1 (Sec. 1 et seq.) of Title 7, Agriculture. Sections 4c(b) and 19 of the Act are classified to sections 6c(b) and 23, respectively, of Title 7. For complete classification of this Act to the Code, see section 1 of Title 7 and Tables. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101 , 362, 546, 548, 556 of this title; title 12 section 1821. 


FOOTNOTES (11 U.S.C. § 761)

7 U.S.C. § 1, et seq.    •   

7 U.S.C. § 23    •   


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 761)

BAPCPA § 907(a)(3)(A)    •    House Report 109-31    •   

BAPCPA § 907(a)(3)(B)    •    House Report 109-31    •      -  761(4)(F)  -  761(4)(G)  -  761(4)(H) - 761(4)(I)  -  761(4)(J)


HISTORICAL AND REVISION NOTES (11 U.S.C. § 762)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 762 provides that the Commission shall be given such notice as is appropriate of an order for relief in a bankruptcy case and that the Commission may raise and may appear and may be heard on any issue in case involving a commodity broker liquidation. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 763)


LEGISLATIVE REPORTS

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 763 provides for separate treatment of accounts held in separate capacities. A deficit in one account held for a customer may not be offset against the net equity in another account held by the same customer in a separate capacity or held by another customer

AMENDMENTS

1984 — Subsec. (a). Pub. L. 98-353 substituted "by the debtor for" for "by" and "treated as" for "deemed to be". 

EFFECTIVE DATES

1984 Acts. 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. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 764)


LEGISLATIVE STATEMENTS

Section 764 of the House amendment is derived from the House bill. 

LEGISLATIVE REPORTS

1982 Acts (Pub. L. 97-222). House Report No. 97-420. 

1978 Acts (Pub. L. 95-598).

Senate Report No. 95-989. Section 764 permits the trustee to void any transfer of property that, except for such transfer, would have been customer property, to the extent permitted under section 544, 545, 547, 548, 549, or 724(a)

House Report No. 95-595. Section 764 indicates the extent to which the avoiding powers may be used by the trustee under subchapter IV of chapter 7. If property recovered would have been customer property if never transferred, then subsection (a) indicates that it will be so treated when recovered. 

Subsection (b) prohibits avoiding any transaction that occurs before or within five days after the petition if the transaction is approved by the Commission and concerns an open contractual commitment. This enables the Commission to exercise its discretion to protect the integrity of the market by insuring that transactions cleared with other brokers will not be undone on a preference or a fraudulent transfer theory. 

Subsection (c) insulates variation margin payments and other deposits from the avoiding powers except to the extent of actual fraud under section 548(a)(1). This facilitates prepetition transfers and protects the ordinary course of business in the market. 

AMENDMENTS

1984 — Subsec. (a). Pub. L. 98-353 substituted "any transfer by the debtor" for "any transfer". 

1982

Subsec. (a). Pub. L. 97-222, Sec. 17(a), substituted "but" for "except", inserted "such property" after "trustee, and", and substituted "shall be" for "is" wherever appearing. 

Subsec. (b). Pub. L. 97-222, Sec. 17(b), substituted "order for relief" for "date of the filing of the petition". 

Subsec. (c). Pub. L. 97-222, Sec. 17(c), struck out subsec. (c) which provided that the trustee could not avoid a transfer that was a margin payment to or deposit with a commodity broker or forward contract merchant or was a settlement payment made by a clearing organization and that occurred before the commencement of the case. 

EFFECTIVE DATES

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 106 of this title. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 765)

For HISTORICAL AND REVISION NOTES for this section, see HISTORICAL AND REVISION NOTES set out under section 766 of this title. 

AMENDMENTS

1984 — Subsec. (a). Pub. L. 98-353 substituted "notice required by" for "notice under". 

1982 — Subsec. (b). Pub. L. 97-222 substituted "commodity contract" for "commitment". 

EFFECTIVE DATES

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 365 of this title. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 766)

BAPCPA § 1502(a)(4)(A)    •    House Report 109-31    •   

BAPCPA § 1502(a)(4)(B)    •    House Report 109-31    •      -  766(i)(1)  -   766(i)(2)


HISTORICAL AND REVISION NOTES (11 U.S.C. § 766)


LEGISLATIVE STATEMENTS

Sections 765 and 766 of the House amendment represent a consolidation and redraft of sections 765, 766, 767, and 768 of the House bill and sections 765, 766, 767, and 768 of the Senate amendment. In particular, section 765(a) of the House amendment is derived from section 765(a) of the House bill and section 767(a) of the Senate amendment. Under section 765(a) of the House amendment customers are notified of the opportunity to immediately file proofs of claim and to identify specifically identifiable securities, property, or commodity contracts. The customer is also afforded an opportunity to instruct the trustee regarding the customer's desires concerning disposition of the customer's commodity contracts. Section 767(b) (probably should be 765(b)) makes clear that the trustee must comply with instructions received to the extent practicable, but in the event the trustee has transferred commodity contracts to a commodity broker, such instructions shall be forwarded to the broker. 

Section 766(a) of the House amendment is derived from section 768(c) of the House bill and section 767(f) of the Senate amendment. Section 766(b) of the House amendment is derived from section 765(d) of the House bill, and section 767(g) of the Senate amendment. Section 766(c) of the House amendment is derived from section 768(a) of the House bill and section 767(e) of the Senate amendment. Section 766(d) of the House amendment is derived from section 768(b) of the House bill and the second sentence of section 767(e) of the Senate amendment. 

Section 766(e) of the House amendment is derived from section 765(c) of the House bill and sections 767(c) and (d) of the Senate amendment. The provision clarifies that the trustee may liquidate a commodity contract only if the commodity contract cannot be transferred to a commodity broker under section 766(c), cannot be identified to a particular customer, or has been identified with respect to a particular customer, but with respect to which the customer's instructions have not been received. 

Section 766(f) of the House amendment is derived from section 766(b) of the House bill and section 767(h) of the Senate amendment. The term "all securities and other property" is not intended to include a commodity contract. Section 766(g) of the House amendment is derived from section 766(a) of the House bill. 

Section 766(h) of the House amendment is derived from section 767(a) of the House bill and section 765(a) of the Senate amendment. In order to induce private trustees to undertake the difficult and risky job of liquidating a commodity broker, the House amendment contains a provision insuring that a pro rata share of administrative claims will be paid. The provision represents a compromise between the position taken in the House bill, subordinating customer property to all expenses of administration, and the position taken in the Senate amendment requiring the distribution of customer property in advance of any expenses of administration. The position in the Senate amendment is rejected since customers, in any event, would have to pay a brokerage commission or fee in the ordinary course of business. The compromise provision requires customers to pay only those administrative expenses that are attributable to the administration of customer property

Section 766(i) of the House amendment is derived from section 767(b) of the House bill and contains a similar compromise with respect to expenses of administration as the compromise detailed in connection with section 766(h) of the House amendment. Section 766(j) of the House amendment is derived from section 767(c) of the House bill. No counterpart is contained in the Senate amendment. 

The provision takes account of the rare case where the estate has customer property in excess of customer claims and administrative expenses attributable to those claims. The section also specifies that to the extent a customer is not paid in full out of customer property, that the unpaid claim will be treated the same as any other general unsecured creditor

Section 768 of the Senate amendment was deleted from the House amendment as unwise. The provision in the Senate amendment would have permitted the trustee to distribute customer property based upon an estimate of value of the customer's account, with no provision for recapture of excessive disbursements. Moreover, the section would have exonerated the trustee from any liability for such an excessive disbursement. Furthermore, the section is unclear with respect to the customer's rights in the event the trustee makes a distribution less than the share to which the customer is entitled. The provision is deleted in the House amendment so that this difficult problem may be handled on a case-by-case basis by the courts as the facts and circumstances of each case require. 

Section 769 of the Senate amendment is deleted in the House amendment as unnecessary. The provision was intended to codify Board of Trade v. Johnson, 264 U.S. 1 (1924) (Ill.1924, 44 S.Ct. 232). Board of Trade against Johnson is codified in section 363(f) of the House amendment which indicates the only five circumstances in which property may be sold free and clear of an interest in such property of an entity other than the estate. 

Section 770 of the Senate amendment is deleted in the House amendment as unnecessary. That section would have permitted commodity brokers to liquidate commodity contracts, notwithstanding any contrary order of the court. It would require an extraordinary circumstance, such as a threat to the national security, to enjoin a commodity broker from liquidating a commodity contract. However, in those circumstances, an injunction must prevail. Failure of the House amendment to incorporate section 770 of the Senate amendment does not imply that the automatic stay prevents liquidation of commodity contracts by commodity brokers. To the contrary, whenever by contract, or otherwise, a commodity broker is entitled to liquidate a position as a result of a condition specified in a contract, other than a condition or default of the kind specified in section 365(b)(2) of title 11, the commodity broker may engage in such liquidation. To this extent, the commodity broker's contract with his customer is treated no differently than any other contract under section 365 of title 11

LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

1982 Acts (Pub. L. 97-222). House Report No. 97-420.

1978 Acts (Pub. L. 95-598). 

Senate Report No. 95-989.

(Section 765) Subsection (a) of this section (enacted as section 766(h)) provides that with respect to liquidation of commodity brokers which are not clearing organizations, the trustee shall distribute customer property to customers on the basis and to the extent of such customers' allowed net equity claims, and in priority to all other claims. This section grants customers' claims first priority in the distribution of the estate. Subsection (b) (enacted as section 766(i)) grants the same priority to member property and other customer property in the liquidation of a clearing organization. A fundamental purpose of these provisions is to ensure that the property entrusted by customers to their brokers will not be subject to the risks of the broker's business and will be available for disbursement to customers if the broker becomes bankrupt. As a result of section 765, a customer need not trace any funds in order to avoid treatment as a general creditor as was required by the Seventh Circuit in In re Rosenbaum Grain Corporation. 

Section 766 lists certain transfers which are not voidable by the trustee of a commodity broker. Subsection (a) exempts transfers approved by the Commission by rule or order, either before or after the transfer. It is expected that the Commission will use this power sparingly and only when necessary to effectuate the remedial purposes of this legislation, bearing in mind that the immediate transfer of customer accounts from bankrupt commodity brokers to solvent commodity brokers is one of the primary goals of this subchapter. The committee considered and rejected a provision in Subsection (b) that would have exempted payments made to a commodity broker. The Commission may not by rule exempt such transfers. The Commission's prompt attention to the promulgation of such rules and regulations is expected. 

Subsection (b) (enacted as section 764(c)) provides for the nonavoidability of margin payments made by a commodity broker, other than a clearing organization. If such payments are made by or to a clearing organization, they are nonavoidable pursuant to subsection (c). All other margin payments made by a commodity broker, other than a clearing organization, are nonavoidable if they meet the conditions set forth in Subsection (b). Subsections (b)(1) and (b)(2) parallel the requirements for avoidance of fraudulent transfers and obligations under section 548. Subsection (b)(3) adds a requirement that there be collusion between the transferee and transferor in order for such payments to be voidable. It would be unfair to permit recovery from an innocent commodity broker since such brokers are, for the most part, simply conduits for margin payments and do not retain margin for use in their operations. Subsection (b)(4) would permit recovery of a subsequent transferee only if it had actual knowledge at the time of that subsequent transfer of the scheme to defraud. Again it should be noted that if the transfer is a margin payment and the subsequent transferee is a clearing organization, the transfer is nonavoidable under section 766(c)

Subsection (c) (enacted as section 548(d)(2)) overrules Seligson v. New York Produce Exchange, and provides as a matter of law that margin payments made by or to a clearing organization are not voidable. 

Section 767 sets forth the procedures to be followed by the trustee. It should be emphasized that many of the duties imposed on the trustee are required to be discharged by the trustee immediately upon his appointment. The earlier these duties are discharged the less potential market disruption can result. 

The initial duty of the trustee is to endeavor to transfer to another commodity broker or brokers all identified customer accounts together with the customer property margining such accounts, to the extent the trustee deems appropriate. Although it is preferable for all such accounts to be transferred, exigencies may dictate a partial transfer. The requirement that the value of the accounts and property transferred not exceed the customer's distribution share may necessitate a slight delay until the trustee can submit to the court, for its disapproval, an estimate of each customer's distribution share pursuant to section 768. 

Subsection (c) (enacted as section 766(e)) provides that contemporaneously with the estimate of the distribution share and the transfer of identified customer accounts and property, subsection (c) provides that the trustee should make arrangements for the liquidation of all commodity contracts maintained by the debtor that are not identifiable to specific customers. These contracts would, of course, include all such contracts held in the debtor's proprietory account. 

At approximately the same time, the trustee should notify each customer of the debtor's bankruptcy and instruct each customer immediately to submit a claim including any claim to a specifically identifiable security or other property, and advise the trustee as to the desired disposition of commodity contracts carried by the debtor for the customer

This requirement is placed upon the trustee to insure that producers who have hedged their production in the commodities market are allowed the opportunity to preserve their positions. The theory of the commodity market is that it exists for producers and buyers of commodities and not for the benefit of the speculators whose transactions now comprise the overwhelming majority of trades. Maintenance of positions by hedges may require them to put up additional margin payments in the hours and days following the commodity broker bankruptcy, which they may be unable or unwilling to do. In such cases, their positions will be quickly liquidated by the trustee, but they must have the opportunity to make those margin payments before they are summarily liquidated out of the market to the detriment of their growing crop. The failure of the customer to advise the trustee as to disposition of the customer's commodity contract will not delay a transfer of a contract pursuant to subsection (b) so long as the contract can otherwise be identified to the customer. Nor will the failure of the customer to submit a claim prevent the customer from recovering the net equity in that customer's account, absent a claim the customer cannot participate in the determination of the net equity in the account. 

If the customer submits instructions pursuant to subsection (a) after the customer's commodity contracts are transferred to another commodity broker, the trustee must transmit the instruction to the transferee. If the customer's commodity contracts are not transferred before the customer's instructions are received, the trustee must attempt to comply with the instruction, subject to the provisions of section 767(d). 

Under Subsection (d) (enacted as section 766(e)), the trustee has discretion to liquidate any commodity contract carried by the debtor at any time. This discretion must be exercised with restraint in such cases, consistent with the purposes of this subchapter and good business practices. The committee intends that hedged accounts will be given special consideration before liquidation as discussed in connection with subsection (c). 

Subsection (e) (enacted as section 766(c)) instructs the trustee as to the disposition of any security or other property, not disposed of pursuant to subsection (b) or (d), that is specifically identifiable to a customer and to which the customer is entitled. Such security or other property must be returned to the customer or promptly transferred to another commodity broker for the benefit of the customer. If the value of the security or other property retained or transferred, together with any other distribution made by the trustee to or on behalf of the customer, exceeds the customer's distribution share the customer must deposit cash with the trustee equal to that difference before the return or transfer of the security or other property. 

Subsection (f) (enacted as section 766(a)) requires the trustee to answer margin calls on specifically identifiable customer commodity contracts, but only to the extent that the margin payment, together with any other distribution made by the trustee to or on behalf of the customer, does not exceed the customer's distribution share. 

Subsection (g) (enacted as section 766(b)) requires the trustee to liquidate all commodity futures contracts prior to the close of trading in that contract, or the first day on which notice of intent to deliver on that contract may be tendered, whichever occurs first. If the customer desires that the contract be kept open for delivery, the contract should be transferred to another commodity broker pursuant to subsection (b). 

If for some reason the trustee is unable to transfer a contract on which delivery must be made or accepted and is unable to close out such contract, the trustee is authorized to operate the business of the debtor for the purpose of accepting or making tender of notice of intent to deliver the physical commodity underlying the contract, facilitating delivery of the physical commodity or disposing of the physical commodity in the event of a default. Any property received, not previously held, by the trustee in connection with its operation of the business of the debtor for these purposes, is not by the terms of this subchapter specifically included in the definition of customer property

Finally, subsection (h) (enacted as section 766(f)) requires the trustee to liquidate the debtor's estate as soon as practicable and consistent with good market practice, except for specifically identifiable securities or other property distributable under subsection (e). 

Section 768 is an integral part of the commodity broker liquidation procedures outlined in section 767. Prompt action by the trustee to transfer or liquidate customer commodity contracts is necessary to protect customers, the debtor's estate, and the marketplace generally. However, transfers of customer accounts and property valued in excess of the customer's distribution share are prohibited. Since a determination of the customer's distribution share requires a determination of the customer's net equity and the total dollar value of customer property held by or for the account of the debtor, it is possible that the customer's distribution share will not be determined, and thus the customer's contracts and property will not be transferred, on a timely basis. To avoid this problem, and to expedite transfers of customer property, section 768 permits the trustee to make distributions to customers in accordance with a preliminary estimate of the debtor's customer property and each customer's distribution share. 

It is acknowledged that the necessity for prompt action may not allow the trustee to assemble all relevant facts before such an estimate is made. However, the trustee is expected to develop as accurate an estimate as possible based on the available facts. 

Further, in order to permit expeditious action, section 768 does not require that notice be given to customers or other creditors before the court approves or disapproves the estimate. Nor does section 768 require that customer claims be received pursuant to section 767(a) before the trustee may act upon and in accordance with the estimate. If the estimate is inaccurate, the trustee is absolved of liability for a distribution which exceeds the customer's actual distribution share so long as the distribution did not exceed the customer's estimated distribution share. However, a trustee may have a claim back against a customer who received more than its actual distribution share. 

House Report No. 95-595.

Section 765(a) indicates that a customer must file a proof of claim, including any claim to specifically identifiable property, within such time as the court fixes. 

Subsection (c) (of section 765 (enacted as section 766(e))) sets forth the general rule requiring the trustee to liquidate contractual commitments that are either not specifically identifiable or with respect to which a customer has not instructed the trustee during the time fixed by the court. 

Subsection (d) (enacted as section 766(b)) indicates an exception to the time limits in the rule by requiring the trustee to liquidate any open contractual commitment before the last day of trading or the first day during which delivery may be demanded, whichever first occurs, if transfer cannot be effectuated. 

Section 766(a) (enacted as section 766(g)) indicates that the trustee may distribute securities or other property only under section 768. This does not preclude a distribution of cash under section 767(a) or distribution of any excess customer property under section 767(c) to the general estate. 

Subsection (b) (enacted as section 766(f)) indicates that the trustee shall liquidate all securities and other property that is not specifically identifiable property as soon as practicable after the commencement of the case and in accordance with good market practice. If securities are restricted or trading has been suspended, the trustee will have to make an exempt sale or file a registration statement. In the event of a private placement, a customer is not entitled to "bid in" his net equity claim. To do so would enable him to receive a greater percentage recovery than other customers

Section 767(a) (enacted as section 766(h)) provides for the trustee to distribute customer property pro rata according to customers' net equity claims. The court will determine an equitable portion of customer property to pay administrative expenses. Paragraphs (2) and (3) indicate that the return of specifically identifiable property constitutes a distribution of net equity

Subsection (b) (enacted as section 766(i)) indicates that if the debtor is a clearing organization, customer property is to be segregated into customers' accounts and proprietary accounts and distributed accordingly without offset. This protects a member's customers from having their claims offset against the member's proprietary account. Subsection (c)(1) (enacted as section 766(j)(1)) indicates that any excess customer property will pour over into the general estate. This unlikely event would occur only if customers fail to file proofs of claim. Subsection (c)(2) (enacted as section 766(j)(2)) indicates that to the extent customers are not paid in full, they are entitled to share in the general estate as unsecured creditors, unless subordinated by the court under proposed 11 U.S.C. 510. Section 768(a) (enacted as section 766(c)) requires the trustee to return specifically identifiable property to the extent that such distribution will not exceed a customer's net equity claim

Thus, if the customer owes money to a commodity broker, this will be offset under section 761(15)(A)(ii). If the value of the specifically identifiable property exceeds the net equity claim, then the customer may deposit cash with the trustee to make up the difference after which the trustee may return or transfer the customer's property. 

Subsection (c) (enacted as section 766(a)) permits the trustee to answer all margin calls, to the extent of the customer's net equity claim, with respect to any specifically identifiable open contractual commitment. It should be noted that any payment under subsections (a) or (c) will be considered a reduction of the net equity claim under section 767(a). Thus the customer's net equity claim is a dynamic amount that varies with distributions of specifically identifiable property or margin payments on such property. This approach differs from the priority given to specifically identifiable property under subchapter III of chapter 7 by limiting the priority effect to a right to receive specific property as part of, rather than in addition to, a ratable share of customer property. This policy is designed to protect the small customer who is unlikely to have property in specifically identifiable form as compared with the professional trader. The CFTC is authorized to make rules defining specifically identifiable property under section 302 of the bill, in title III. 

AMENDMENTS

2005 — Will be supplemented. 

1984 — Subsec. (j)(2). Pub. L. 98-353 substituted "section 726" for "section 726(a)". 

1982

Subsec. (a). Pub. L. 97-222, Sec. 19(a), inserted "to such customer" after "distribution". 

Subsec. (b). Pub. L. 97-222, Sec. 19(b), struck out "that is being actively traded as of the date of the filing of the petition" after "any open commodity contract" and inserted "the" after "rules of". 

Subsec. (d). Pub. L. 97-222, Sec. 19(c), substituted "the amount to which the customer of the debtor is entitled under subsection (h) or (i) of this section, then such" for "such amount, then the" and "the trustee then shall" for "the trustee shall". 

Subsec. (h). Pub. L. 97-222, Sec. 19(d), inserted provision that notwithstanding any other provision of this subsection, a customer net equity claim based on a proprietary account, as defined by Commission rule, regulation, or order, may not be paid either in whole or in part, directly or indirectly, out of customer property unless all other customer net equity claims have been paid in full. 

EFFECTIVE DATES

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330 are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 

1984 Acts. 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. 

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 365, 702, 761, 765 of this title; title 7 section 24. 

REFERENCES IN TEXT

Section 3 of the Federal Deposit Insurance Act, referred to in par. (2), is classified to section 1813 of Title 12, Banks and Banking. 

Section 25A of the Federal Reserve Act, referred to in par. (3), 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 par. (3), is classified to section 4422 of Title 12, Banks and Banking. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 767)


LEGISLATIVE REPORTS

2005 Acts (Pub. L. 109-8). House Report No. 109-31

Effective DateS

2005 Acts. Pub. L. 109-8, Title XV, § 1501, Apr. 20, 2005, provided that, except as otherwise specifically provided, all amendments, except for amendments provided in Pub. L. 109-8, Title III, §§ 308, 322, and 330, are effective 180 days after enactment of the Act on April 20, 2005 (which occurs on October 17, 2005), and are inapplicable with respect to cases commenced under Title 11 before the effective date. 


BAPCPA & LEGISLATIVE REPORT LINKS (11 U.S.C. § 767)

BAPCPA § 907(l)    •    House Report 109-31    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 781)


LEGISLATIVE REPORTS

2000 Acts (Pub. L. 106-554). House Report No. 106-645. 

REFERENCES IN TEXT

Section 3 of the Federal Deposit Insurance Act, referred to in  par. (2), is classified to section 1813 of Title 12, Banks and  Banking. 

Section 25A of the Federal Reserve Act, referred to in par. (3),  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 par. (3), is classified to section 4422 of Title 12, Banks and Banking. 


FOOTNOTES (11 U.S.C. § 781)

12 U.S.C. § 1813(3)    •   

12 U.S.C. § 4421(1)    •   


HISTORICAL AND REVISION NOTES (11 U.S.C. § 782)


LEGISLATIVE REPORTS

2000 Acts (Pub. L. 106-554). House Report No. 106-645. 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 783)


LEGISLATIVE REPORTS

2000 Acts (Pub. L. 106-554). House Report No. 106-645. 

REFERENCES IN TEXT

Section 11 of the Federal Deposit Insurance Act, referred to in subsec. (b)(3), (5), is classified to section 1821 of Title 12, Banks and Banking. 


FOOTNOTES (11 U.S.C. § 783)

12 U.S.C. § 1821(e) 

12 U.S.C. § 1821(n) 


HISTORICAL AND REVISION NOTES (11 U.S.C. § 784)


LEGISLATIVE REPORTS

2000 Acts (Pub. L. 106-554). House Report No. 106-645. 


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Page Last Updated:  October 19, 2005