US (United States) Code. Title 11. Chapter 1: General Provisions

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Bankruptcy

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11 USC CHAPTER 1 - GENERAL PROVISIONS 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

.

-HEAD-

CHAPTER 1 - GENERAL PROVISIONS

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Sec.

101. Definitions.

102. Rules of construction.

103. Applicability of chapters.

104. Adjustment of dollar amounts.

105. Power of court.

106. Waiver of sovereign immunity.

107. Public access to papers.

108. Extension of time.

109. Who may be a debtor.

110. Penalty for persons who negligently or fraudulently prepare

bankruptcy petitions.

AMENDMENTS

1994 - Pub. L. 103-394, title III, Sec. 308(b), Oct. 22, 1994,

108 Stat. 4137, added item 110.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 103 of this title; title

15 section 78fff.

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11 USC Sec. 101 01/06/03

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TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 101. Definitions

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In this title -

(1) ''accountant'' means accountant authorized under applicable

law to practice public accounting, and includes professional

accounting association, corporation, or partnership, if so

authorized;

(2) ''affiliate'' means -

(A) entity that directly or indirectly owns, controls, or

holds with power to vote, 20 percent or more of the outstanding

voting securities of the debtor, other than an entity that

holds such securities -

(i) in a fiduciary or agency capacity without sole

discretionary power to vote such securities; or

(ii) solely to secure a debt, if such entity has not in

fact exercised such power to vote;

(B) corporation 20 percent or more of whose outstanding

voting securities are directly or indirectly owned, controlled,

or held with power to vote, by the debtor, or by an entity that

directly or indirectly owns, controls, or holds with power to

vote, 20 percent or more of the outstanding voting securities

of the debtor, other than an entity that holds such securities

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(i) in a fiduciary or agency capacity without sole

discretionary power to vote such securities; or

(ii) solely to secure a debt, if such entity has not in

fact exercised such power to vote;

(C) person whose business is operated under a lease or

operating agreement by a debtor, or person substantially all of

whose property is operated under an operating agreement with

the debtor; or

(D) entity that operates the business or substantially all of

the property of the debtor under a lease or operating

agreement;

(4) (FOOTNOTE 1) ''attorney'' means attorney, professional law

association, corporation, or partnership, authorized under

applicable law to practice law;

(FOOTNOTE 1) So in original. There is no par. (3).

(5) ''claim'' means -

(A) right to payment, whether or not such right is reduced to

judgment, liquidated, unliquidated, fixed, contingent, matured,

unmatured, disputed, undisputed, legal, equitable, secured, or

unsecured; or

(B) right to an equitable remedy for breach of performance if

such breach gives rise to a right to payment, whether or not

such right to an equitable remedy is reduced to judgment,

fixed, contingent, matured, unmatured, disputed, undisputed,

secured, or unsecured;

(6) ''commodity broker'' means futures commission merchant,

foreign futures commission merchant, clearing organization,

leverage transaction merchant, or commodity options dealer, as

defined in section 761 of this title, with respect to which there

is a customer, as defined in section 761 of this title;

(7) ''community claim'' means claim that arose before the

commencement of the case concerning the debtor for which property

of the kind specified in section 541(a)(2) of this title is

liable, whether or not there is any such property at the time of

the commencement of the case;

(8) ''consumer debt'' means debt incurred by an individual

primarily for a personal, family, or household purpose;

(9) ''corporation'' -

(A) includes -

(i) association having a power or privilege that a private

corporation, but not an individual or a partnership,

possesses;

(ii) partnership association organized under a law that

makes only the capital subscribed responsible for the debts

of such association;

(iii) joint-stock company;

(iv) unincorporated company or association; or

(v) business trust; but

(B) does not include limited partnership;

(10) ''creditor'' means -

(A) entity that has a claim against the debtor that arose at

the time of or before the order for relief concerning the

debtor;

(B) entity that has a claim against the estate of a kind

specified in section 348(d), 502(f), 502(g), 502(h) or 502(i)

of this title; or

(C) entity that has a community claim;

(11) ''custodian'' means -

(A) receiver or trustee of any of the property of the debtor,

appointed in a case or proceeding not under this title;

(B) assignee under a general assignment for the benefit of

the debtor's creditors; or

(C) trustee, receiver, or agent under applicable law, or

under a contract, that is appointed or authorized to take

charge of property of the debtor for the purpose of enforcing a

lien against such property, or for the purpose of general

administration of such property for the benefit of the debtor's

creditors;

(12) ''debt'' means liability on a claim;

(12A) ''debt for child support'' means a debt of a kind

specified in section 523(a)(5) of this title for maintenance or

support of a child of the debtor;

(13) ''debtor'' means person or municipality concerning which a

case under this title has been commenced;

(14) ''disinterested person'' means person that -

(A) is not a creditor, an equity security holder, or an

insider;

(B) is not and was not an investment banker for any

outstanding security of the debtor;

(C) has not been, within three years before the date of the

filing of the petition, an investment banker for a security of

the debtor, or an attorney for such an investment banker in

connection with the offer, sale, or issuance of a security of

the debtor;

(D) is not and was not, within two years before the date of

the filing of the petition, a director, officer, or employee of

the debtor or of an investment banker specified in subparagraph

(B) or (C) of this paragraph; and

(E) does not have an interest materially adverse to the

interest of the estate or of any class of creditors or equity

security holders, by reason of any direct or indirect

relationship to, connection with, or interest in, the debtor or

an investment banker specified in subparagraph (B) or (C) of

this paragraph, or for any other reason;

(15) ''entity'' includes person, estate, trust, governmental

unit, and United States trustee;

(16) ''equity security'' means -

(A) share in a corporation, whether or not transferable or

denominated ''stock'', or similar security;

(B) interest of a limited partner in a limited partnership;

or

(C) warrant or right, other than a right to convert, to

purchase, sell, or subscribe to a share, security, or interest

of a kind specified in subparagraph (A) or (B) of this

paragraph;

(17) ''equity security holder'' means holder of an equity

security of the debtor;

(18) ''family farmer'' means -

(A) individual or individual and spouse engaged in a farming

operation whose aggregate debts do not exceed $1,500,000 and

not less than 80 percent of whose aggregate noncontingent,

liquidated debts (excluding a debt for the principal residence

of such individual or such individual and spouse unless such

debt arises out of a farming operation), on the date the case

is filed, arise out of a farming operation owned or operated by

such individual or such individual and spouse, and such

individual or such individual and spouse receive from such

farming operation more than 50 percent of such individual's or

such individual and spouse's gross income for the taxable year

preceding the taxable year in which the case concerning such

individual or such individual and spouse was filed; or

(B) corporation or partnership in which more than 50 percent

of the outstanding stock or equity is held by one family, or by

one family and the relatives of the members of such family, and

such family or such relatives conduct the farming operation,

and

(i) more than 80 percent of the value of its assets

consists of assets related to the farming operation;

(ii) its aggregate debts do not exceed $1,500,000 and not

less than 80 percent of its aggregate noncontingent,

liquidated debts (excluding a debt for one dwelling which is

owned by such corporation or partnership and which a

shareholder or partner maintains as a principal residence,

unless such debt arises out of a farming operation), on the

date the case is filed, arise out of the farming operation

owned or operated by such corporation or such partnership;

and

(iii) if such corporation issues stock, such stock is not

publicly traded;

(19) ''family farmer with regular annual income'' means family

farmer whose annual income is sufficiently stable and regular to

enable such family farmer to make payments under a plan under

chapter 12 of this title;

(20) ''farmer'' means (except when such term appears in the

term ''family farmer'') person that received more than 80 percent

of such person's gross income during the taxable year of such

person immediately preceding the taxable year of such person

during which the case under this title concerning such person was

commenced from a farming operation owned or operated by such

person;

(21) ''farming operation'' includes farming, tillage of the

soil, dairy farming, ranching, production or raising of crops,

poultry, or livestock, and production of poultry or livestock

products in an unmanufactured state;

(21A) ''farmout agreement'' means a written agreement in which

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(A) the owner of a right to drill, produce, or operate liquid

or gaseous hydrocarbons on property agrees or has agreed to

transfer or assign all or a part of such right to another

entity; and

(B) such other entity (either directly or through its agents

or its assigns), as consideration, agrees to perform drilling,

reworking, recompleting, testing, or similar or related

operations, to develop or produce liquid or gaseous

hydrocarbons on the property;

(21B) ''Federal depository institutions regulatory agency''

means -

(A) with respect to an insured depository institution (as

defined in section 3(c)(2) of the Federal Deposit Insurance

Act) for which no conservator or receiver has been appointed,

the appropriate Federal banking agency (as defined in section

3(q) of such Act);

(B) with respect to an insured credit union (including an

insured credit union for which the National Credit Union

Administration has been appointed conservator or liquidating

agent), the National Credit Union Administration;

(C) with respect to any insured depository institution for

which the Resolution Trust Corporation has been appointed

conservator or receiver, the Resolution Trust Corporation; and

(D) with respect to any insured depository institution for

which the Federal Deposit Insurance Corporation has been

appointed conservator or receiver, the Federal Deposit

Insurance Corporation;

(22) the term ''financial institution'' -

(A) means -

(i) a Federal reserve bank or an entity (domestic or

foreign) that is a commercial or savings bank, industrial

savings bank, savings and loan association, trust company, or

receiver or conservator for such entity and, when any such

Federal reserve bank, receiver, conservator, or entity is

acting as agent or custodian for a customer in connection

with a securities contract, as defined in section 741 of this

title, the customer; or

(ii) in connection with a securities contract, as defined

in section 741 of this title, an investment company

registered under the Investment Company Act of 1940; and

(B) includes any person described in subparagraph (A) which

operates, or operates as, a multilateral clearing organization

pursuant to section 409 of the Federal Deposit Insurance

Corporation Improvement Act of 1991;

(23) ''foreign proceeding'' means proceeding, whether judicial

or administrative and whether or not under bankruptcy law, in a

foreign country in which the debtor's domicile, residence,

principal place of business, or principal assets were located at

the commencement of such proceeding, for the purpose of

liquidating an estate, adjusting debts by composition, extension,

or discharge, or effecting a reorganization;

(24) ''foreign representative'' means duly selected trustee,

administrator, or other representative of an estate in a foreign

proceeding;

(25) ''forward contract'' means a contract (other than a

commodity contract) for the purchase, sale, or transfer of a

commodity, as defined in section 761(8) of this title, or any

similar good, article, service, right, or interest which is

presently or in the future becomes the subject of dealing in the

forward contract trade, or product or byproduct thereof, with a

maturity date more than two days after the date the contract is

entered into, including, but not limited to, a repurchase

transaction, reverse repurchase transaction, consignment, lease,

swap, hedge transaction, deposit, loan, option, allocated

transaction, unallocated transaction, or any combination thereof

or option thereon;

(26) ''forward contract merchant'' means a person whose

business consists in whole or in part of entering into forward

contracts as or with merchants in a commodity, as defined in

section 761(8) of this title, or any similar good, article,

service, right, or interest which is presently or in the future

becomes the subject of dealing in the forward contract trade;

(27) ''governmental unit'' means United States; State;

Commonwealth; District; Territory; municipality; foreign state;

department, agency, or instrumentality of the United States (but

not a United States trustee while serving as a trustee in a case

under this title), a State, a Commonwealth, a District, a

Territory, a municipality, or a foreign state; or other foreign

or domestic government;

(28) ''indenture'' means mortgage, deed of trust, or indenture,

under which there is outstanding a security, other than a

voting-trust certificate, constituting a claim against the

debtor, a claim secured by a lien on any of the debtor's

property, or an equity security of the debtor;

(29) ''indenture trustee'' means trustee under an indenture;

(30) ''individual with regular income'' means individual whose

income is sufficiently stable and regular to enable such

individual to make payments under a plan under chapter 13 of this

title, other than a stockbroker or a commodity broker;

(31) ''insider'' includes -

(A) if the debtor is an individual -

(i) relative of the debtor or of a general partner of the

debtor;

(ii) partnership in which the debtor is a general partner;

(iii) general partner of the debtor; or

(iv) corporation of which the debtor is a director,

officer, or person in control;

(B) if the debtor is a corporation -

(i) director of the debtor;

(ii) officer of the debtor;

(iii) person in control of the debtor;

(iv) partnership in which the debtor is a general partner;

(v) general partner of the debtor; or

(vi) relative of a general partner, director, officer, or

person in control of the debtor;

(C) if the debtor is a partnership -

(i) general partner in the debtor;

(ii) relative of a general partner in, general partner of,

or person in control of the debtor;

(iii) partnership in which the debtor is a general partner;

(iv) general partner of the debtor; or

(v) person in control of the debtor;

(D) if the debtor is a municipality, elected official of the

debtor or relative of an elected official of the debtor;

(E) affiliate, or insider of an affiliate as if such

affiliate were the debtor; and

(F) managing agent of the debtor;

(32) ''insolvent'' means -

(A) with reference to an entity other than a partnership and

a municipality, financial condition such that the sum of such

entity's debts is greater than all of such entity's property,

at a fair valuation, exclusive of -

(i) property transferred, concealed, or removed with intent

to hinder, delay, or defraud such entity's creditors; and

(ii) property that may be exempted from property of the

estate under section 522 of this title;

(B) with reference to a partnership, financial condition such

that the sum of such partnership's debts is greater than the

aggregate of, at a fair valuation -

(i) all of such partnership's property, exclusive of

property of the kind specified in subparagraph (A)(i) of this

paragraph; and

(ii) the sum of the excess of the value of each general

partner's nonpartnership property, exclusive of property of

the kind specified in subparagraph (A) of this paragraph,

over such partner's nonpartnership debts; and

(C) with reference to a municipality, financial condition

such that the municipality is -

(i) generally not paying its debts as they become due

unless such debts are the subject of a bona fide dispute; or

(ii) unable to pay its debts as they become due;

(33) ''institution-affiliated party'' -

(A) with respect to an insured depository institution (as

defined in section 3(c)(2) of the Federal Deposit Insurance

Act), has the meaning given it in section 3(u) of the Federal

Deposit Insurance Act; and

(B) with respect to an insured credit union, has the meaning

given it in section 206(r) of the Federal Credit Union Act;

(34) ''insured credit union'' has the meaning given it in

section 101(7) of the Federal Credit Union Act;

(35) ''insured depository institution'' -

(A) has the meaning given it in section 3(c)(2) of the

Federal Deposit Insurance Act; and

(B) includes an insured credit union (except in the case of

paragraphs (21B) and (33)(A) of this subsection);

(35A) ''intellectual property'' means -

(A) trade secret;

(B) invention, process, design, or plant protected under

title 35;

(C) patent application;

(D) plant variety;

(E) work of authorship protected under title 17; or

(F) mask work protected under chapter 9 of title 17;

to the extent protected by applicable nonbankruptcy law; and

(36) ''judicial lien'' means lien obtained by judgment, levy,

sequestration, or other legal or equitable process or proceeding;

(37) ''lien'' means charge against or interest in property to

secure payment of a debt or performance of an obligation;

(38) ''margin payment'' means, for purposes of the forward

contract provisions of this title, payment or deposit of cash, a

security or other property, that is commonly known in the forward

contract trade as original margin, initial margin, maintenance

margin, or variation margin, including mark-to-market payments,

or variation payments; and (FOOTNOTE 2)

(FOOTNOTE 2) So in original. The word ''and'' probably should

not appear.

(39) ''mask work'' has the meaning given it in section

901(a)(2) of title 17.

(40) ''municipality'' means political subdivision or public

agency or instrumentality of a State;

(41) ''person'' includes individual, partnership, and

corporation, but does not include governmental unit, except that

a governmental unit that -

(A) acquires an asset from a person -

(i) as a result of the operation of a loan guarantee

agreement; or

(ii) as receiver or liquidating agent of a person;

(B) is a guarantor of a pension benefit payable by or on

behalf of the debtor or an affiliate of the debtor; or

(C) is the legal or beneficial owner of an asset of -

(i) an employee pension benefit plan that is a governmental

plan, as defined in section 414(d) of the Internal Revenue

Code of 1986; or

(ii) an eligible deferred compensation plan, as defined in

section 457(b) of the Internal Revenue Code of 1986;

shall be considered, for purposes of section 1102 of this title,

to be a person with respect to such asset or such benefit;

(42) ''petition'' means petition filed under section 301, 302,

303, or 304 of this title, as the case may be, commencing a case

under this title;

(42A) ''production payment'' means a term overriding royalty

satisfiable in cash or in kind -

(A) contingent on the production of a liquid or gaseous

hydrocarbon from particular real property; and

(B) from a specified volume, or a specified value, from the

liquid or gaseous hydrocarbon produced from such property, and

determined without regard to production costs;

(43) ''purchaser'' means transferee of a voluntary transfer,

and includes immediate or mediate transferee of such a

transferee;

(44) ''railroad'' means common carrier by railroad engaged in

the transportation of individuals or property or owner of

trackage facilities leased by such a common carrier;

(45) ''relative'' means individual related by affinity or

consanguinity within the third degree as determined by the common

law, or individual in a step or adoptive relationship within such

third degree;

(46) ''repo participant'' means an entity that, on any day

during the period beginning 90 days before the date of the filing

of the petition, has an outstanding repurchase agreement with the

debtor;

(47) ''repurchase agreement'' (which definition also applies to

a reverse repurchase agreement) means an agreement, including

related terms, which provides for the transfer of certificates of

deposit, eligible bankers' acceptances, or securities that are

direct obligations of, or that are fully guaranteed as to

principal and interest by, the United States or any agency of the

United States against the transfer of funds by the transferee of

such certificates of deposit, eligible bankers' acceptances, or

securities with a simultaneous agreement by such transferee to

transfer to the transferor thereof certificates of deposit,

eligible bankers' acceptances, or securities as described above,

at a date certain not later than one year after such transfers or

on demand, against the transfer of funds;

(48) ''securities clearing agency'' means person that is

registered as a clearing agency under section 17A of the

Securities Exchange Act of 1934 or whose business is confined to

the performance of functions of a clearing agency with respect to

exempted securities, as defined in section 3(a)(12) of such Act

for the purposes of such section 17A;

(49) ''security'' -

(A) includes -

(i) note;

(ii) stock;

(iii) treasury stock;

(iv) bond;

(v) debenture;

(vi) collateral trust certificate;

(vii) pre-organization certificate or subscription;

(viii) transferable share;

(ix) voting-trust certificate;

(x) certificate of deposit;

(xi) certificate of deposit for security;

(xii) investment contract or certificate of interest or

participation in a profit-sharing agreement or in an oil,

gas, or mineral royalty or lease, if such contract or

interest is required to be the subject of a registration

statement filed with the Securities and Exchange Commission

under the provisions of the Securities Act of 1933, or is

exempt under section 3(b) of such Act from the requirement to

file such a statement;

(xiii) interest of a limited partner in a limited

partnership;

(xiv) other claim or interest commonly known as

''security''; and

(xv) certificate of interest or participation in, temporary

or interim certificate for, receipt for, or warrant or right

to subscribe to or purchase or sell, a security; but

(B) does not include -

(i) currency, check, draft, bill of exchange, or bank

letter of credit;

(ii) leverage transaction, as defined in section 761 of

this title;

(iii) commodity futures contract or forward contract;

(iv) option, warrant, or right to subscribe to or purchase

or sell a commodity futures contract;

(v) option to purchase or sell a commodity;

(vi) contract or certificate of a kind specified in

subparagraph (A)(xii) of this paragraph that is not required

to be the subject of a registration statement filed with the

Securities and Exchange Commission and is not exempt under

section 3(b) of the Securities Act of 1933 from the

requirement to file such a statement; or

(vii) debt or evidence of indebtedness for goods sold and

delivered or services rendered;

(50) ''security agreement'' means agreement that creates or

provides for a security interest;

(51) ''security interest'' means lien created by an agreement;

(51A) ''settlement payment'' means, for purposes of the forward

contract provisions of this title, a preliminary settlement

payment, a partial settlement payment, an interim settlement

payment, a settlement payment on account, a final settlement

payment, a net settlement payment, or any other similar payment

commonly used in the forward contract trade;

(51B) ''single asset real estate'' means real property

constituting a single property or project, other than residential

real property with fewer than 4 residential units, which

generates substantially all of the gross income of a debtor and

on which no substantial business is being conducted by a debtor

other than the business of operating the real property and

activities incidental thereto having aggregate noncontingent,

liquidated secured debts in an amount no more than $4,000,000;

(51C) ''small business'' means a person engaged in commercial

or business activities (but does not include a person whose

primary activity is the business of owning or operating real

property and activities incidental thereto) whose aggregate

noncontingent liquidated secured and unsecured debts as of the

date of the petition do not exceed $2,000,000;

(52) ''State'' includes the District of Columbia and Puerto

Rico, except for the purpose of defining who may be a debtor

under chapter 9 of this title;

(53) ''statutory lien'' means lien arising solely by force of a

statute on specified circumstances or conditions, or lien of

distress for rent, whether or not statutory, but does not include

security interest or judicial lien, whether or not such interest

or lien is provided by or is dependent on a statute and whether

or not such interest or lien is made fully effective by statute;

(53A) ''stockbroker'' means person -

(A) with respect to which there is a customer, as defined in

section 741 of this title; and

(B) that is engaged in the business of effecting transactions

in securities -

(i) for the account of others; or

(ii) with members of the general public, from or for such

person's own account;

(53B) ''swap agreement'' means -

(A) an agreement (including terms and conditions incorporated

by reference therein) which is a rate swap agreement, basis

swap, forward rate agreement, commodity swap, interest rate

option, forward foreign exchange agreement, spot foreign

exchange agreement, rate cap agreement, rate floor agreement,

rate collar agreement, currency swap agreement, cross-currency

rate swap agreement, currency option, any other similar

agreement (including any option to enter into any of the

foregoing);

(B) any combination of the foregoing; or

(C) a master agreement for any of the foregoing together with

all supplements;

(53C) ''swap participant'' means an entity that, at any time

before the filing of the petition, has an outstanding swap

agreement with the debtor;

(56A) (FOOTNOTE 3) ''term overriding royalty'' means an

interest in liquid or gaseous hydrocarbons in place or to be

produced from particular real property that entitles the owner

thereof to a share of production, or the value thereof, for a

term limited by time, quantity, or value realized;

(FOOTNOTE 3) So in original.

(53D) ''timeshare plan'' means and shall include that interest

purchased in any arrangement, plan, scheme, or similar device,

but not including exchange programs, whether by membership,

agreement, tenancy in common, sale, lease, deed, rental

agreement, license, right to use agreement, or by any other

means, whereby a purchaser, in exchange for consideration,

receives a right to use accommodations, facilities, or

recreational sites, whether improved or unimproved, for a

specific period of time less than a full year during any given

year, but not necessarily for consecutive years, and which

extends for a period of more than three years. A ''timeshare

interest'' is that interest purchased in a timeshare plan which

grants the purchaser the right to use and occupy accommodations,

facilities, or recreational sites, whether improved or

unimproved, pursuant to a timeshare plan;

(54) ''transfer'' means every mode, direct or indirect,

absolute or conditional, voluntary or involuntary, of disposing

of or parting with property or with an interest in property,

including retention of title as a security interest and

foreclosure of the debtor's equity of redemption;

(54A) the term ''uninsured State member bank'' means a State

member bank (as defined in section 3 of the Federal Deposit

Insurance Act) the deposits of which are not insured by the

Federal Deposit Insurance Corporation; and

(55) ''United States'', when used in a geographical sense,

includes all locations where the judicial jurisdiction of the

United States extends, including territories and possessions of

the United States;

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2549; Pub. L. 97-222, Sec.

1, July 27, 1982, 96 Stat. 235; Pub. L. 98-353, title III, Sec.

391, 401, 421, July 10, 1984, 98 Stat. 364, 366, 367; Pub. L.

99-554, title II, Sec. 201, 251, 283(a), Oct. 27, 1986, 100 Stat.

3097, 3104, 3116; Pub. L. 100-506, Sec. 1(a), Oct. 18, 1988, 102

Stat. 2538; Pub. L. 100-597, Sec. 1, Nov. 3, 1988, 102 Stat. 3028;

Pub. L. 101-311, title I, Sec. 101, title II, Sec. 201, June 25,

1990, 104 Stat. 267, 268; Pub. L. 101-647, title XXV, Sec. 2522(e),

Nov. 29, 1990, 104 Stat. 4867; Pub. L. 102-486, title XXX, Sec.

3017(a), Oct. 24, 1992, 106 Stat. 3130; Pub. L. 103-394, title I,

Sec. 106, title II, Sec. 208(a), 215, 217(a), 218(a), title III,

Sec. 304(a), title V, Sec. 501(a), (b)(1), (d)(1), Oct. 22, 1994,

108 Stat. 4111, 4124, 4126-4128, 4132, 4141-4143; Pub. L. 106-554,

Sec. 1(a)(5) (title I, Sec. 112(c)(3), (4)), Dec. 21, 2000, 114

Stat. 2763, 2763A-393, 2763A-394.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 101(2) defines ''affiliate.'' The House amendment

contains a provision that is a compromise between the definition in

the House-passed version of H.R. 8200 and the Senate amendment in

the nature of a substitute to H.R. 8200. Subparagraphs (A) and (B)

are derived from the Senate amendment and subparagraph (D) is taken

from the House bill, while subparagraph (C) represents a

compromise, taking the House position with respect to a person

whose business is operated under a lease or an operating agreement

by the debtor and with respect to a person substantially all of

whose property is operated under an operating agreement by the

debtor and with respect to a person substantially all of whose

property is operated under an operating agreement by the debtor and

the Senate position on leased property. Thus, the definition of

''affiliate'' excludes persons substantially all of whose property

is operated under a lease agreement by a debtor, such as a small

company which owns equipment all of which is leased to a larger

nonrelated company.

Section 101(4)(B) represents a modification of the House-passed

bill to include the definition of ''claim'' a right to an equitable

remedy for breach of performance if such breach gives rise to a

right to payment. This is intended to cause the liquidation or

estimation of contingent rights of payment for which there may be

an alternative equitable remedy with the result that the equitable

remedy will be susceptible to being discharged in bankruptcy. For

example, in some States, a judgment for specific performance may be

satisfied by an alternative right to payment, in the event

performance is refused; in that event, the creditor entitled to

specific performance would have a ''claim'' for purposes of a

proceeding under title 11.

On the other hand, rights to an equitable remedy for a breach of

performance with respect to which such breach does not give rise to

a right to payment are not ''claims'' and would therefore not be

susceptible to discharge in bankruptcy.

In a case under chapter 9 to title 11, ''claim'' does not include

a right to payment under an industrial development bond issued by a

municipality as a matter of convenience for a third party.

Municipalities are authorized, under section 103(c) of the

Internal Revenue Code of 1954, as amended (title 26), to issue

tax-exempt industrial development revenue bonds to provide for the

financing of certain projects for privately owned companies. The

bonds are sold on the basis of the credit of the company on whose

behalf they are issued, and the principal, interest, and premium,

if any, are payable solely from payments made by the company to the

trustee under the bond indenture and do not constitute claims on

the tax revenues or other funds of the issuing municipalities. The

municipality merely acts as the vehicle to enable the bonds to be

issued on a tax-exempt basis. Claims that arise by virtue of these

bonds are not among the claims defined by this paragraph and

amounts owed by private companies to the holders of industrial

development revenue bonds are not to be included among the assets

of the municipality that would be affected by the plan.

Section 101(6) defines ''community claim'' as provided by the

Senate amendment in order to indicate that a community claim exists

whether or not there is community property in the estate as of the

commencement of the case.

Section 101(7) of the House amendment contains a definition of

consumer debt identical to the definition in the House bill and

Senate amendment. A consumer debt does not include a debt to any

extent the debt is secured by real property.

Section 101(9) of the Senate amendment contained a definition of

''court.'' The House amendment deletes the provision as unnecessary

in light of the pervasive jurisdiction of a bankruptcy court under

all chapters of title 11 as indicated in title II of the House

amendment to H.R. 8200.

Section 101(11) defines ''debt'' to mean liability on a claim, as

was contained in the House-passed version of H.R. 8200. The Senate

amendment contained language indicating that ''debt'' does not

include a policy loan made by a life insurance company to the

debtor. That language is deleted in the House amendment as

unnecessary since a life insurance company clearly has no right to

have a policy loan repaid by the debtor, although such company does

have a right of offset with respect to such policy loan. Clearly,

then, a ''debt'' does not include a policy loan made by a life

insurance company. Inclusion of the language contained in the

Senate amendment would have required elaboration of other legal

relationships not arising by a liability on a claim. Further the

language would have required clarification that interest on a

policy loan made by a life insurance company is a debt, and that

the insurance company does have right to payment to that interest.

Section 101(14) adopts the definition of ''entity'' contained in

the Senate-passed version of H.R. 8200. Since the Senate amendment

to H.R. 8200 deleted the U.S. trustee, a corresponding definitional

change is made in chapter 15 of the House amendment for U.S.

trustees under the pilot program. Adoption by the House amendment

of a pilot program for U.S. trustees under chapter 15 requires

insertion of ''United States trustee'' in many sections. Several

provisions in chapter 15 of the House amendment that relate to the

U.S. trustee were not contained in the Senate amendment in the

nature of a substitute.

Section 101(17) defines ''farmer,'' as in the Senate amendment

with an income limitation percentage of 80 percent instead of 75

percent.

Section 101(18) contains a new definition of ''farming

operation'' derived from present law and the definition of

''farmer'' in the Senate amendment. This definition gives a broad

construction to the term ''farming operation''.

Section 101(20) contains a definition of ''foreign

representative''. It clarifies the House bill and Senate amendment

by indicating that a foreign representative must be duly selected

in a foreign proceeding.

Section 101(35) defines ''security'' as contained in the Senate

amendment. H.R. 8200 as adopted by the House excluded certain

commercial notes from the definition of ''security'', and that

exclusion is deleted.

Section 101(40) defines ''transfer'' as in the Senate amendment.

The definition contained in H.R. 8200 as passed by the House

included ''setoff'' in the definition of ''transfer''. Inclusion of

''setoff'' is deleted. The effect is that a ''setoff'' is not

subject to being set aside as a preferential ''transfer'' but will

be subject to special rules.

SENATE REPORT NO. 95-989

Section 101 of title 11 contains 40 definitions:

Paragraph (1) defines ''accountant'' as an accountant authorized

under applicable law to practice accounting. The term includes a

professional accounting association, corporation, or partnership if

applicable law authorizes such a unit to practice accounting.

Paragraph (2) defines ''affiliate.'' An affiliate is an entity

with a close relationship to the debtor. It includes a 20 percent

parent or subsidiary of the debtor, whether a corporate,

partnership, individual, or estate parent.

The use of ''directly or indirectly'' in subparagraphs (A) and

(B) is intended to cover situations in which there is an

opportunity to control, and where the existence of that opportunity

operates as indirect control.

''Affiliate'' is defined primarily for use in the definition of

insider, infra, and for use in the chapter 11 reorganization

cases. The definition of ''affiliate'' does not include an entity

acting in a fiduciary or agency capacity if the entity does not

have the sole discretionary power to vote 20 percent of the voting

securities but hold them solely as security and have not exercised

the power to vote. This restriction applies to a corporate

affiliate under subparagraph (B) of paragraph (2).

Subsections (C) and (D) of paragraph (2) define affiliate also as

those persons and entities whose business or substantially all of

whose property is operated under a lease or operating agreement by

a debtor and whose business or property is more than 50 percent

under the control of the debtor.

The definition of ''attorney'' in paragraph (3) is similar to the

definition of accountant.

Paragraph (4) defines ''claim.'' The effect of the definition is

a significant departure from present law. Under present law,

''claim'' is not defined in straight bankruptcy. Instead it is

simply used, along with the concept of provability in section 63 of

the Bankruptcy Act (section 103 of former title 11), to limit the

kinds of obligations that are payable in a bankruptcy case. The

term is defined in the debtor rehabilitation chapters of present

law far more broadly. The definition in paragraph (4) adopts an

even broader definition of claim than is found in the present

debtor rehabilitation chapters. The definition is any right to

payment, whether or not reduced to judgment, liquidated,

unliquidated, fixed, contingent, matured, unmatured, disputed,

undisputed, legal, equitable, secured, or unsecured. The

definition also includes as a claim an equitable right to

performance that does not give rise to a right to payment. By this

broadest possible definition and by the use of the term throughout

the title 11, especially in subchapter I of chapter 5, the bill

contemplates that all legal obligations of the debtor, no matter

how remote or contingent, will be able to be dealt with in the

bankruptcy case. It permits the broadest possible relief in the

bankruptcy court.

Paragraph (5) defines ''commodity broker'' by reference to

various terms used and defined in subchapter IV of chapter 7,

Commodity Broker Liquidation. The terms are described in connection

with section 761, infra.

Paragraph (6) defines ''community claim'' for those eight States

that have community property laws. The definition is keyed to the

liability of the debtor's property for a claim against either the

debtor or the debtor's spouse. If the debtor's property is liable

for a claim against either, that claim is a community claim.

Paragraph (7) defines ''consumer debt''. The definition is

adapted from the definition used in various consumer protection

laws. It encompasses only a debt incurred by an individual

primarily for a personal, family, or household purpose.

The definition of ''corporation'' in paragraph (8) is similar to

the definition in current law, section 1(8) (section 1(8) of former

title 11). The term encompasses any association having the power or

privilege that a private corporation, but not an individual or

partnership, has; partnership associations organized under a law

that makes only the capital subscribed responsible for the debts of

the partnership; joint-stock company; unincorporated company or

association; and business trust. ''Unincorporated association'' is

intended specifically to include a labor union, as well as other

bodies that come under that phrase as used under current law. The

exclusion of limited partnerships is explicit, and not left to the

case law.

Paragraph (9) defines ''court'' as the bankruptcy judge in the

district in which the case is pending except in municipal

adjustment and railroad reorganization cases, where ''court'' means

the Federal district judge.

Paragraph (10) (enacted as (9)) defines ''creditor'' to include

holders of prepetition claims against the debtor. However, it also

encompasses certain holders of claims that are deemed to arise

before the date of the filing of the petition, such as those

injured by the rejection of an executory contract or unexpired

lease, certain investment tax credit recapture claim holders,

''involuntary gap'' creditors, and certain holders of the right of

setoff. The term also includes the holder of a prepetition

community claim. A guarantor of or surety for a claim against the

debtor is also a creditor, because he holds a contingent claim

against the debtor that becomes fixed when he pays the creditor

whose claim he has guaranteed or insured.

Paragraph (11) (enacted as (10)) defines ''custodian.'' There is

no similar definition in current law. It is defined to facilitate

drafting, and means a prepetition liquidator of the debtor's

property, such as an assignee for the benefit of creditors, a

receiver of the debtor's property, or administrator of the debtor's

property. The definition of custodian to include a receiver or

trustee is descriptive, and not meant to be limited to court

officers with those titles. The definition is intended to include

other officers of the court if their functions are substantially

similar to those of a receiver or trustee.

''Debt'' is defined in paragraph (12) (enacted as (11)) as a

liability on a claim. The terms ''debt'' and ''claim'' are

coextensive: a creditor has a ''claim'' against the debtor; the

debtor owes a ''debt'' to the creditor. This definition of

''debt'' and the definition of ''claim'' on which it is based,

proposed 11 U.S.C. 101(4), does not include a transaction such as a

policy loan on an insurance policy. Under that kind of

transaction, the debtor is not liable to the insurance company for

repayment; the amount owed is merely available to the company for

setoff against any benefits that become payable under the policy.

As such, the loan is not a claim (it is not a right to payment)

that the company can assert against the estate; nor is the debtor's

obligation a debt (a liability on a claim) that will be discharged

under proposed 11 U.S.C. 523 or 524.

Paragraph (13) (enacted as (12)) defines ''debtor.'' Debtor means

person or municipality concerning which a case under title II has

been commenced. This is a change in terminology from present law,

which identifies the person by or against whom a petition is filed

in a straight bankruptcy liquidation case as the ''bankrupt'', and

a person or municipality that is proceeding under a debtor

rehabilitation chapter (chapters VIII through XIII of the

Bankruptcy Act) (chapters 8 through 13 of former title 11) as a

''debtor.'' The term ''debtor'' is used for both kinds of cases in

this bill, for ease of reference in chapters 1, 3, and 5 (which

apply to straight bankruptcy and reorganization cases).

Paragraph (14) (enacted as (13)) defines ''disinterested

person.'' The definition is adapted from section 158 of chapter X

of current law (section 558 of former title 11), though it is

expanded and modified in some respects. A person is a

disinterested person if the person is not a creditor, equity

security holder, or insider; is not and was not an investment

banker of the debtor for any outstanding security of the debtor

(the change from underwriter in current law to investment banker is

to make the term more descriptive and to avoid conflict with the

definition of underwriter in section 2(11) of the Securities Act of

1933 (15 U.S.C. 77b(11)); has not been an investment banker for a

security of the debtor within 3 years before the date of the filing

of the petition (the change from five years to three years here

conforms the definition with the statute of limitations in the

Securities Act of 1933) (15 U.S.C. 77m), or an attorney for such an

investment banker; is not an insider of the debtor or of such an

investment banker; and does not have an interest materially adverse

to the estate.

''Entity'' is defined, for convenience, in paragraph (15)

(enacted as (14)), to include person, estate, trust, and

governmental unit. It is the most inclusive of the various defined

terms relating to bodies or units.

Paragraph (16) defines ''equity security.'' The term includes a

share or stock in a corporation, a limited partner's interest in a

limited partnership, and a warrant or right to subscribe to an

equity security. The term does not include a security, such as a

convertible debenture, that is convertible into equity security,

but has not been converted.

Paragraph (17) (enacted as (15)) defines ''equity security

holder'' for convenience as the holder of an equity securing of the

debtor.

Paragraph (18) (enacted as (17)) defines ''farmer''. It

encompasses only those persons for whom farming operations

contribute 75 percent or more of their total income.

Paragraphs (19) and (20) define ''foreign proceeding'' and

''foreign representative''. A foreign proceeding is a proceeding

in another country in which the debtor has some substantial

connection for the purpose of liquidating the estate of the debtor

or the purpose of financial rehabilitation of the debtor. A

foreign representative is the representative of the estate in a

foreign proceeding, such as a trustee or administrator.

Paragraph (21) defines ''governmental unit'' in the broadest

sense. The definition encompasses the United States, a State,

Commonwealth, District, Territory, municipality, or foreign state,

and a department, agency, or instrumentality of any of those

entities. ''Department, agency, or instrumentality'' does not

include an entity that owes its existence to State action, such as

the granting of a charter or a license but that has no other

connection with a State or local government or the Federal

Government. The relationship must be an active one in which the

department, agency, or instrumentality is actually carrying out

some governmental function.

Paragraph (22) defines ''indenture.'' It is similar to the

definition of indenture in the Trust Indenture Act of 1939 (15

U.S.C. 77ccc(7)). An indenture is the instrument under which

securities, either debt or equity, of the debtor are outstanding.

Paragraph (23) defines ''indenture trustee'' as the trustee under

an indenture.

Paragraph (24) defines ''individual with regular income.'' The

effect of this definition, and of its use in section 109(e), is to

expand substantially the kinds of individuals that are eligible for

relief under chapter 13, Adjustment of Debts of an Individual with

Regular Income. Chapter XIII (chapter 13 of former title 11) is now

available only for wage earners. The definition encompasses all

individuals with incomes that are sufficiently stable and regular

to enable them to make payments under a chapter 13 plan. Thus,

individuals on welfare, social security, fixed pension incomes, or

who live on investment incomes, will be able to work out repayment

plans with their creditors rather than being forced into straight

bankruptcy. Also, self-employed individuals will be eligible to

use chapter 13 if they have regular incomes.

However, the definition excludes certain stockbrokers and

commodity brokers, in order to prohibit them from proceeding under

chapter 13 and avoiding the customer protection provisions of

chapter 7.

''Insider'', defined in paragraph (25), is a new term. An

insider is one who has a sufficiently close relationship with the

debtor that his conduct is made subject to closer scrutiny than

those dealing at arms length with the debtor. If the debtor is an

individual, then a relative of the debtor, a partnership in which

the debtor is a general partner, a general partner of the debtor,

and a corporation controlled by the debtor are all insiders. If

the debtor is a corporation, then a controlling person, a relative

of a controlling person, a partnership in which the debtor is a

general partner, and a general partner of the debtor are all

insiders. If the debtor is a partnership, then a general partner

of or in the debtor, a relative of a general partner in the debtor,

and a person in control are all insiders. If the debtor is a

municipality, then an elected official of the debtor is an

insider. In addition, affiliates of the debtor and managing agents

are insiders.

The definition of ''insolvent'' in paragraph (26) is adopted from

section 1(19) of current law (section 1(19) of former title 11). An

entity is insolvent if its debts are greater than its assets, at a

fair valuation, exclusive of property exempted or fraudulently

transferred. It is the traditional bankruptcy balance sheet test

of insolvency. For a partnership, the definition is modified to

account for the liability of a general partner for the

partnership's debts. The difference in this definition from that

in current law is in the exclusion of exempt property for all

purposes in the definition of insolvent.

Paragraph (27) defines ''judicial lien.'' It is one of three

kinds of liens defined in this section. A judicial lien is a lien

obtained by judgment, levy, sequestration, or other legal or

equitable process or proceeding.

Paragraph (28) defines ''lien.'' The definition is new and is

very broad. A lien is defined as a charge against or interest in

property to secure payment of a debt or performance of an

obligation. It includes inchoate liens. In general, the concept

of lien is divided into three kinds of liens: judicial liens,

security interests, and statutory liens. Those three categories

are mutually exclusive and are exhaustive except for certain common

law liens.

Paragraph (29) defines ''municipality.'' The definition is

adapted from the terms used in the chapter IX (municipal

bankruptcy) (chapter 9 of former title 11) amendment to the

Bankruptcy Act enacted in 1976 (Pub. L. 94-260). That amendment

spoke in terms of ''political subdivision or public agency or

instrumentality of a State''. Bankruptcy Act Sec. 84 (section 404

of former title 11). The term municipality is defined by those

three terms for convenience. It does not include the District of

Columbia or any territories of the United States.

''Person'' is defined in paragraph (30). The definition is a

change in wording, but not in substance, from the definition in

section 1(23) of the Bankruptcy Act (section 1(23) of former title

11). The definition is also similar to the one contained in 1

U.S.C. sec. 1, but is repeated here for convenience and ease of

reference. Person includes individual partnership, and

corporation. The exclusion of governmental units is made explicit

in order to avoid any confusion that may arise if, for example, a

municipality is incorporated and thus is legally a corporation as

well as governmental unit. The definition does not include an

estate or a trust, which are included only in the definition of

''entity'' in proposed 11 U.S.C. 101(14).

''Petition'' is defined for convenience in paragraph (31).

Petition is a petition under section 301, 302, 303, or 304 of the

bankruptcy code - that is, a petition that commences a case under

title 11.

Paragraph (32) defines purchaser as a transferee of a voluntary

transfer, such as a sale or gift, and includes an immediate or

mediate transferee of a purchaser.

The definition of ''railroad'' in paragraph (33) is derived from

section 77 of the Bankruptcy Act (section 205 of former title 11).

A railroad is a common carrier by railroad engaged in the

transportation of individuals or property, or an owner of trackage

facilities leased by such a common carrier. The effect of the

definition and the use of the term in section 109(d) is to

eliminate the limitation now found in section 77 of the Bankruptcy

Act that only railroads engaged in interstate commerce may proceed

under the railroad reorganization provisions. The limitation may

have been inserted because of a doubt that the commerce power could

not reach intrastate railroads. Be that as it may, this bill is

enacted under the bankruptcy power.

Paragraph (34) defines ''relative'' as an individual related by

affinity or consanguinity within the third degree as determined by

the common law, and includes individuals in a step or adoptive

relationship. The definition is similar to current law, but adds

the latter phrase. This definition should be applied as of the

time when the transaction that it concerns took place. Thus, a

former spouse is not a relative, but if, for example, for purposes

of the preference section, proposed 11 U.S.C. 547(b)(4)(B), the

transferee was a spouse of the debtor at the time of the transfer

sought to be avoided, then the transferee would be relative and

subject to the insider rules, even if the transferee was no longer

married to the debtor at the time of the commencement of the case

or at the time of the commencement of the preference recovery

proceeding.

Paragraph (35) defines ''security.'' The definition is new and is

modeled on the most recent draft of the American Law Institute's

proposed securities code, with some exceptions. The interest of a

limited partner in a limited partnership is included in order to

make sure that everything that is defined as an equity security is

also a ''security.'' The definition, as with the definition of

''entity'', ''insider'', and ''person'', is open-ended because the

term is not susceptible of precise specification. Thus the courts

will be able to use the characterization provided in this

definition to treat with new kinds of documents on a flexible

basis.

Paragraphs (36) and (37) defined ''security agreement'' and

''security interest.'' A security interest is one of the kinds of

liens. It is a lien created by an agreement. Security agreement

is defined as the agreement creating the security interest. Though

these terms are similar to the same terms in the Uniform Commercial

Code, article IX, they are broader. For example, the U.C.C. does

not cover real property mortgages. Under this definition, such a

mortgage is included, as are all other liens created by agreement,

even though not covered by the U.C.C. All U.C.C. security interests

and security agreements are, however, security interests and

security agreements under this definition. Whether a consignment

or a lease constitutes a security interest under the bankruptcy

code will depend on whether it constitutes a security interest

under applicable State or local law.

Paragraph (38) defines another kind of lien, ''statutory lien.''

The definition, derived from current law, states that a statutory

lien is a lien arising solely by force of statute on specified

circumstances or conditions and includes a lien of distress for

rent (whether statutory, common law, or otherwise). The definition

excludes judicial liens and security interests, whether or not they

are provided for or are dependent on a statute, and whether or not

they are made fully effective by statute. A statutory lien is only

one that arises automatically, and is not based on an agreement to

give a lien or on judicial action. Mechanics', materialmen's, and

warehousemen's liens are examples. Tax liens are also included in

the definition of statutory lien.

''Stockbroker'' is defined in paragraph (39) as a person engaged

in the business of effecting transactions in securities for the

account of others or with members of the general public from or for

such person's own account, if the person has a customer, as

defined. Thus, the definition, derived from a combination of the

definitions of ''broker'' and ''dealer'' in the Securities Exchange

Act of 1934 (15 U.S.C. 78c), encompasses both brokers and dealers.

The definition is used in section 109 and in subchapter III of

chapter 7, Stockholder Liquidation. The term does not encompass an

employee who acts for a principal that ''effects'' transaction or

deals with the public, because such an employee will not have a

''customer''.

Paragraph (40) defines ''transfer.'' It is derived and adapted,

with stylistic changes, from section 1(30) of the Bankruptcy Act

(section 1(30) of former title 11). A transfer is a disposition of

an interest in property. The definition of transfer is as broad as

possible. Many of the potentially limiting words in current law

are deleted, and the language is simplified. Under this

definition, any transfer of an interest in property is a transfer,

including a transfer of possession, custody, or control even if

there is no transfer of title, because possession, custody, and

control are interests in property. A deposit in a bank account or

similar account is a transfer.

-REFTEXT-

REFERENCES IN TEXT

Section 3 of the Federal Deposit Insurance Act, referred to in

pars. (21B)(A), (33)(A), (35)(A), and (54A), is classified to

section 1813 of Title 12, Banks and Banking.

The Investment Company Act of 1940, referred to in par.

(22)(A)(ii), is title I of act Aug. 22, 1940, ch. 686, 54 Stat.

789, as amended, which is classified generally to subchapter I

(Sec. 80a-1 et seq.) of chapter 2D of Title 15, Commerce and Trade.

For complete classification of this Act to the Code, see section

80a-51 of Title 15 and Tables.

Section 409 of the Federal Deposit Insurance Corporation

Improvement Act of 1991, referred to in par. (22)(B), is classified

to section 4422 of Title 12, Banks and Banking.

Sections 101(7) and 206(r) of the Federal Credit Union Act,

referred to in pars. (33)(B) and (34), are classified to sections

1752(7) and 1786(r), respectively, of Title 12.

Sections 414(d) and 457(b) of the Internal Revenue Code of 1986,

referred to in par. (41)(C), are classified to sections 414(d) and

457(b), respectively, of Title 26, Internal Revenue Code.

Sections 3(a)(12) and 17A of the Securities Exchange Act of 1934,

referred to in par. (48), are classified to sections 78c(a)(12) and

78q-1, respectively, of Title 15, Commerce and Trade.

The Securities Act of 1933, referred to in par. (49)(A)(xii), is

act May 27, 1933, ch. 38, title I, 48 Stat. 74, as amended, which

is classified generally to subchapter I (Sec. 77a et seq.) of

chapter 2A of Title 15. Section 3(b) of the Act is classified to

section 77c(b) of Title 15. For complete classification of this Act

to the Code, see section 77a of Title 15 and Tables.

-MISC2-

AMENDMENTS

2000 - Par. (22). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec.

112(c)(3)), amended par. (22) generally. Prior to amendment par.

(22) read as follows: '' 'financial institution' means a person

that is a commercial or savings bank, industrial savings bank,

savings and loan association, or trust company and, when any such

person is acting as agent or custodian for a customer in connection

with a securities contract, as defined in section 741 of this

title, such customer;''.

Par. (54A). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec.

112(c)(4)), added par. (54A).

1994 - Par. (3). Pub. L. 103-394, Sec. 501(a)(1), redesignated

par. (3) as (21B) and inserted it after par. (21A).

Par. (6). Pub. L. 103-394, Sec. 501(b)(1)(A), substituted

''section 761'' for ''section 761(9)'' after ''customer, as defined

in''.

Par. (12A). Pub. L. 103-394, Sec. 304(a), added par. (12A).

Par. (21B). Pub. L. 103-394, Sec. 501(a)(1), redesignated par.

(3) as (21B).

Par. (22). Pub. L. 103-394, Sec. 501(b)(1)(B), substituted

''section 741'' for ''section 741(7)''.

Par. (33)(A). Pub. L. 103-394, Sec. 501(d)(1)(A)(i), struck out

''(12 U.S.C. 1813(u))'' after ''section 3(u) of the Federal Deposit

Insurance Act''.

Par. (33)(B). Pub. L. 103-394, Sec. 501(d)(1)(A)(ii), struck out

''(12 U.S.C. 1786(r))'' after ''Act''.

Par. (34). Pub. L. 103-394, Sec. 501(d)(1)(B), struck out ''(12

U.S.C. 1752(7))'' after ''Act''.

Par. (35). Pub. L. 103-394, Sec. 501(b)(1)(C), (d)(1)(C), struck

out ''(12 U.S.C. 1813(c)(2))'' after ''Act'' in subpar. (A) and

substituted ''paragraphs (21B)'' for ''paragraphs (3)'' in subpar.

(B).

Par. (35A). Pub. L. 103-394, Sec. 501(a)(4), redesignated par.

(56) defining ''intellectual property'' as (35A) and inserted it

after par. (35).

Par. (39). Pub. L. 103-394, Sec. 501(a)(5), redesignated par.

(57) defining ''mask work'' as (39) and inserted it after par.

(38). Former par. (39) redesignated (51A).

Par. (41). Pub. L. 103-394, Sec. 106, amended par. (41)

generally. Prior to amendment, par. (41) read as follows: ''

'person' includes individual, partnership, and corporation, but

does not include governmental unit, Provided, however, That any

governmental unit that acquires an asset from a person as a result

of operation of a loan guarantee agreement, or as receiver or

liquidating agent of a person, will be considered a person for

purposes of section 1102 of this title.''

Par. (42A). Pub. L. 103-394, Sec. 208(a)(1), added par. (42A).

Par. (48). Pub. L. 103-394, Sec. 501(d)(1)(D), struck out ''(15

U.S.C. 78q-1)'' after ''Act of 1934'' and ''(15 U.S.C. 78c(12))''

after ''such Act''.

Par. (49)(A)(xii). Pub. L. 103-394, Sec. 501(d)(1)(E)(i), struck

out ''(15 U.S.C. 77a et seq.)'' after ''Act of 1933'' and ''(15

U.S.C. 77c(b))'' after ''such Act''.

Par. (49)(B). Pub. L. 103-394, Sec. 501(b)(1)(D), (d)(1)(E)(ii),

substituted ''section 761'' for ''section 761(13)'' in cl. (ii) and

struck out ''(15 U.S.C. 77c(b))'' after ''Act of 1933'' in cl.

(vi).

Par. (51A). Pub. L. 103-394, Sec. 501(a)(2), redesignated par.

(39) as (51A) and inserted it after par. (51).

Par. (51B). Pub. L. 103-394, Sec. 218(a), added par. (51B).

Par. (51C). Pub. L. 103-394, Sec. 217(a), added par. (51C).

Par. (53A). Pub. L. 103-394, Sec. 501(a)(3), (b)(1)(E),

redesignated par. (54) defining ''stockbroker'' as (53A) and

substituted ''section 741'' for ''section 741(2)'' in subpar. (A).

Par. (53B). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(55) defining ''swap agreement'' as (53B).

Par. (53C). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(56) defining ''swap participant'' as (53C).

Par. (53D). Pub. L. 103-394, Sec. 501(a)(3), (d)(1)(F),

redesignated par. (57) defining ''timeshare plan'' as (53D) and

substituted semicolon for period at end.

Par. (54). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(54) defining ''stockbroker'' as (53A).

Par. (55). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(55) defining ''swap agreement'' as (53B).

Pub. L. 103-394, Sec. 215, inserted ''spot foreign exchange

agreement,'' after ''forward foreign exchange agreement,''.

Par. (56). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(56) defining ''swap participant'' as (53C).

Pub. L. 103-394, Sec. 501(a)(4), redesignated par. (56) defining

''intellectual property'' as (35A) and inserted it after par. (35).

Par. (56A). Pub. L. 103-394, Sec. 208(a)(2), added par. (56A) and

inserted it after par. defining ''swap participant''.

Par. (57). Pub. L. 103-394, Sec. 501(a)(3), redesignated par.

(57) defining ''timeshare plan'' as (53D).

Pub. L. 103-394, Sec. 501(a)(5), redesignated par. (57) defining

''mask work'' as (39) and inserted it after par. (38).

1992 - Par. (21A). Pub. L. 102-486 added par. (21A).

1990 - Par. (3). Pub. L. 101-647, Sec. 2522(e)(4), added par.

(3). Former par. (3) redesignated (4).

Pars. (4) to (23). Pub. L. 101-647, Sec. 2522(e)(3), redesignated

pars. (3) to (22) as (4) to (23), respectively. Former par. (23)

redesignated (24).

Par. (24). Pub. L. 101-647, Sec. 2522(e)(3), redesignated par.

(23) as (24). Former par. (24) redesignated (25).

Pub. L. 101-311, Sec. 201(1), inserted ''as defined in section

761(8) of this title, or any similar good, article, service, right,

or interest which is presently or in the future becomes the subject

of dealing in the forward contract trade,'' after ''transfer of

commodity,'' and '', including, but not limited to, a repurchase

transaction, reverse repurchase transaction, consignment, lease,

swap, hedge transaction, deposit, loan, option, allocated

transaction, unallocated transaction, or any combination thereof or

option thereon'' after ''entered into''.

Par. (25). Pub. L. 101-647, Sec. 2522(e)(3), redesignated par.

(24) as (25). Former par. (25) redesignated (26).

Pub. L. 101-311, Sec. 201(2), substituted ''a commodity, as

defined in section 761(8) of this title, or any similar good,

article, service, right, or interest which is presently or in the

future becomes the subject of dealing in the forward contract

trade'' for ''commodities''.

Pars. (26) to (32). Pub. L. 101-647, Sec. 2522(e)(3),

redesignated pars. (25) to (31) as (26) to (32), respectively.

Former par. (32) redesignated (36).

Par. (33). Pub. L. 101-647, Sec. 2522(e)(2), added par. (33).

Former par. (33) redesignated (37).

Par. (34). Pub. L. 101-647, Sec. 2522(e)(2), added par. (34).

Former par. (34) redesignated (38).

Pub. L. 101-311, Sec. 201(4), added par. (34). Former par. (34)

redesignated (36).

Par. (35). Pub. L. 101-647, Sec. 2522(e)(2), added par. (35).

Former par. (35) redesignated (39).

Pub. L. 101-311, Sec. 201(4), added par. (35). Former par. (35)

redesignated (37).

Par. (36). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(32) as (36). Former par. (36) redesignated (40).

Pub. L. 101-311, Sec. 201(3), redesignated par. (34) as (36).

Former par. (36) redesignated (38).

Pars. (37) to (48). Pub. L. 101-647, Sec. 2522(e)(1),

redesignated pars. (33) to (44) as (37) to (48), respectively.

Former pars. (45) to (48) redesignated (49) to (52), respectively.

Pub. L. 101-311, Sec. 201(3), redesignated pars. (35) to (46) as

(37) to (48), respectively. Former pars. (47) and (48)

redesignated (49) and (50), respectively.

Pars. (49), (50). Pub. L. 101-647, Sec. 2522(e)(1), redesignated

pars. (45) and (46) as (49) and (50), respectively. Former pars.

(49) and (50) redesignated (53) and (54) defining ''stockbroker'',

respectively.

Pub. L. 101-311, Sec. 201(3), redesignated pars. (47) and (48) as

(49) and (50), respectively. Former pars. (49) and (50)

redesignated (51) and (52), respectively.

Pub. L. 101-311, Sec. 101(2), added pars. (49) and (50). Former

pars. (49) and (50) redesignated (51) and (52), respectively.

Par. (51). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(47) as (51). Former par. (51) redesignated (55) defining ''swap

agreement''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (49) as (51).

Former par. (51) redesignated (53).

Pub. L. 101-311, Sec. 101(1), redesignated par. (49) as (51).

Former par. (51) redesignated (53).

Par. (52). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(48) as (52). Former par. (52) redesignated (56) defining ''swap

participant''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (50) as (52).

Former par. (52) redesignated (54) defining ''transfer''.

Pub. L. 101-311, Sec. 101(1), redesignated par. (50) as (52).

Former par. (52) redesignated (54).

Par. (53). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(49) as (53). Former par. (53) redesignated (57) defining

''timeshare plan''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (51) as (53).

Former par. (53) redesignated (55) defining ''United States''.

Pub. L. 101-311, Sec. 101(1), redesignated par. (51) as (53).

Former par. (53) redesignated (55).

Par. (54). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(50) as (54) defining ''stockbroker''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (52) as (54)

defining ''transfer''. Former par. (54) redesignated (56) defining

''intellectual property''.

Pub. L. 101-311, Sec. 101(1), redesignated par. (52) as (54).

Par. (55). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(51) as (55) defining ''swap agreement''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (53) as (55)

defining ''United States''. Former par. (55) redesignated (57)

defining ''mask work''.

Pub. L. 101-311, Sec. 101(1), redesignated par. (53) as (55).

Par. (56). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(52) as (56) defining ''swap participant''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (54) as (56)

defining ''intellectual property''.

Par. (57). Pub. L. 101-647, Sec. 2522(e)(1), redesignated par.

(53) as (57) defining ''timeshare plan''.

Pub. L. 101-311, Sec. 201(3), redesignated par. (55) as (57)

defining ''mask work''.

1988 - Par. (31). Pub. L. 100-597 inserted ''and a municipality''

after ''partnership'' in subpar. (A) and added subpar. (C).

Pars. (52), (53). Pub. L. 100-506 added pars. (52) and (53).

1986 - Par. (14). Pub. L. 99-554, Sec. 201(1), substituted

''governmental unit, and United States trustee'' for ''and

governmental unit''.

Pars. (17), (18). Pub. L. 99-554, Sec. 251(2), (3), added pars.

(17) and (18) and redesignated former pars. (17) and (18) as (19)

and (20), respectively.

Par. (19). Pub. L. 99-554, Sec. 251(1), (2), redesignated former

par. (17) as (19) and inserted ''(except when such term appears in

the term 'family farmer')''. Former par. (19) redesignated (21).

Pars. (20) to (25). Pub. L. 99-554, Sec. 251(2), redesignated

former pars. (18) to (23) as (20) to (25), respectively. Former

pars. (24) and (25) redesignated (26) and (27), respectively.

Par. (26). Pub. L. 99-554, Sec. 201(2), inserted ''(but not a

United States trustee while serving as a trustee in a case under

this title)''.

Pub. L. 99-554, Sec. 251(2), redesignated former par. (24) as

(26). Former par. (26) redesignated (28).

Pars. (27) to (42). Pub. L. 99-554, Sec. 251(2), redesignated

former pars. (25) to (40) as (27) to (42), respectively. Former

pars. (41) and (42) redesignated (43) and (44), respectively.

Par. (43). Pub. L. 99-554, Sec. 251(2), redesignated former par.

(41) as (43). Former par. (43) redesignated (45).

Par. (43)(A)(xv). Pub. L. 99-554, Sec. 283(a)(1), substituted

''security'' for ''secuity''.

Pars. (44) to (50). Pub. L. 99-554, Sec. 251(2), redesignated

former pars. (42) to (48) as (44) to (50), respectively. Former

par. (49) redesignated (51).

Par. (51). Pub. L. 99-554, Sec. 283(a)(2), substituted a period

for the semicolon at the end thereof.

Pub. L. 99-554, Sec. 251(2), redesignated former par. (49) as

(51).

1984 - Par. (2)(D). Pub. L. 98-353, Sec. 421(a), struck out ''or

all'' after ''business''.

Par. (8)(B). Pub. L. 98-353, Sec. 421(b), substituted a semicolon

for the colon at end of subpar. (B).

Par. (9)(B). Pub. L. 98-353, Sec. 421(c), inserted reference to

section 348(d).

Par. (14). Pub. L. 98-353, Sec. 421(d), inserted ''and'' after

''trust,''.

Pars. (19) to (21). Pub. L. 98-353, Sec. 421(j)(3), (4), added

par. (19) and redesignated former pars. (19), (20), and (21) as

(20), (21), and (24), respectively.

Pars. (22), (23). Pub. L. 98-353, Sec. 421(j)(2), (5), added

pars. (22) and (23) and redesignated former pars. (22) and (23) as

(25) and (26), respectively.

Pars. (24) to (26). Pub. L. 98-353, Sec. 421(j)(2), redesignated

former pars. (21) to (23) as (24) to (26), respectively. Former

pars. (24) to (26) redesignated (27) to (29), respectively.

Par. (27). Pub. L. 98-353, Sec. 421(e), (j)(2), redesignated

former par. (24) as (27) and substituted ''stockbroker'' for

''stock broker''. Former par. (27) redesignated (30).

Par. (28). Pub. L. 98-353, Sec. 421(j)(2), redesignated former

par. (25) as (28). Former par. (28) redesignated (31).

Par. (29). Pub. L. 98-353, Sec. 421(f), (j)(2), redesignated

former par. (26) as (29) and, in subpar. (B)(ii), substituted

''nonpartnership'' and ''(A)'' for ''separate'' and ''(A)(ii)'',

respectively, wherever appearing. Former par. (29) redesignated

(32).

Pars. (30) to (32). Pub. L. 98-353, Sec. 421(j)(2), redesignated

former pars. (27) to (29) as (30) to (32), respectively. Former

pars. (30) to (32) redesignated (33) to (35), respectively.

Par. (33). Pub. L. 98-353, Sec. 421(g), (j)(2), redesignated

former par. (30) as (33) and amended definition of ''person''

generally, thereby inserting proviso relating to consideration of

certain governmental units as persons for purposes of section 1102

of this title. Former par. (33) redesignated (36).

Par. (34). Pub. L. 98-353, Sec. 421(j)(2), redesignated former

par. (31) as (34). Former par. (34) redesignated (37).

Pars. (35), (36). Pub. L. 98-353, Sec. 421(j)(2), redesignated

former pars. (32) and (33) as (35) and (36), respectively. Former

pars. (35) and (36), as added by Pub. L. 98-353, Sec. 391(2),

redesignated (38) and (39), respectively.

Pub. L. 98-353, Sec. 391, added pars. (35) and (36), and

redesignated former pars. (35) and (36) as (37) and (38) which were

again redesignated as (40) and (41), respectively.

Par. (37). Pub. L. 98-353, Sec. 421(j)(2), redesignated former

par. (34) as (37). Former par. (37) redesignated successively as

(39) and again as (42).

Par. (38). Pub. L. 98-353, Sec. 391(2), 421(j)(2), added par.

(35) and redesignated such par. (35) as (38). Former par. (38)

redesignated successively as (40) and again as (43).

Par. (39). Pub. L. 98-353, Sec. 391(2), 421(j)(2), added par.

(36) and redesignated such par. (36) as (39). Former par. (39)

redesignated successively as (41) and again as (45).

Par. (40). Pub. L. 98-353, Sec. 391(1), 421(j)(2), redesignated

successively former par. (35) as (37) and again as (40). Former

par. (40) redesignated successively as (42) and again as (46).

Par. (41). Pub. L. 98-353, Sec. 391(1), 401(1), 421(h), (j)(2),

redesignated successively former par. (36) as (38) and again as

(41), and, in subpar. (B)(vi), substituted ''certificate of a kind

specified in subparagraph (A)(xii)'' for ''certificate specified in

clause (xii) of subparagraph (A)'' and substituted ''required to be

the subject of a registration statement'' for ''the subject of such

registration statement''. Former par. (41) redesignated

successively as (43), again as (44), and again as (48).

Par. (42). Pub. L. 98-353, Sec. 391(1), 421(j)(2), redesignated

successively former par. (37) as (39) and again as (42).

Par. (43). Pub. L. 98-353, Sec. 391(1), 421(j)(2), redesignated

successively former par. (38) as (40) and again as (43).

Pub. L. 98-353, Sec. 401, redesignated former par. (43),

originally par. (41), as (44), and added another par. (43) which

was redesignated (47).

Par. (44). Pub. L. 98-353, Sec. 421(j)(6), added par. (44).

Former par. (44) originally was par. (41) and was redesignated

successively as (43), again as (44), and again as (48).

Pars. (45), (46). Pub. L. 98-353, Sec. 391(1), 421(j)(1),

redesignated successively former pars. (39) and (40) as (41) and

(42), and again as (45) and (46), respectively.

Par. (47). Pub. L. 98-353, Sec. 401(2), 421(j)(1), added par.

(43) and redesignated such par. (43) as (47).

Par. (48). Pub. L. 98-353, Sec. 391(1), 401(1), 421(i), (j)(1),

redesignated successively former par. (41) as (43), again as (44),

and again as (48), and substituted ''and foreclosure of the

debtor's equity of redemption; and'' for the period at the end.

Par. (49). Pub. L. 98-353, Sec. 421(j)(7), added par. (49).

1982 - Par. (35). Pub. L. 97-222, Sec. 1(a)(2), added par. (35).

Former par. (35) redesignated (36).

Par. (36). Pub. L. 97-222, Sec. 1(a)(1), (b), (c), redesignated

par. (35) as (36) and substituted ''is required to be the subject

of a registration statement'' for ''is the subject of a

registration statement'' in subpar. (A)(xii) and substituted

''forward contract'' for ''forward commodity contract'' in subpar.

(B)(iii). Former par. (36) redesignated (37).

Pars. (37) to (39). Pub. L. 97-222, Sec. 1(a)(1), redesignated

pars. (36) to (38) as (37) to (39), respectively. Former par. (39)

redesignated (40).

Pars. (40), (41). Pub. L. 97-222, Sec. 1(a)(1), (d), redesignated

former par. (39) as (40) and restructured its provisions by

dividing the former introductory provisions into subpars. (A) and

(B) and by redesignating former subpars. (A) and (B) as cls. (i)

and (ii), respectively, of subpar. (B). Former par. (40)

redesignated (41).

EFFECTIVE DATE OF 1994 AMENDMENT

Section 702 of Pub. L. 103-394 provided that:

''(a) Effective Date. - Except as provided in subsection (b),

this Act (see Tables for classification) shall take effect on the

date of the enactment of this Act (Oct. 22, 1994).

''(b) Application of Amendments. - (1) Except as provided in

paragraph (2), the amendments made by this Act shall not apply with

respect to cases commenced under title 11 of the United States Code

before the date of the enactment of this Act.

''(2)(A) Paragraph (1) shall not apply with respect to the

amendment made by section 111 (amending section 524 of this title).

''(B) The amendments made by sections 113 and 117 (amending

sections 106 and 330 of this title) shall apply with respect to

cases commenced under title 11 of the United States Code before,

on, and after the date of the enactment of this Act.

''(C) Section 1110 of title 11, United States Code, as amended by

section 201 of this Act, shall apply with respect to any lease, as

defined in such section 1110(c) as so amended, entered into in

connection with a settlement of any proceeding in any case pending

under title 11 of the United States Code on the date of the

enactment of this Act.

''(D) The amendments made by section 305 (amending sections 1123,

1222, and 1322 of this title) shall apply only to agreements

entered into after the date of enactment of this Act.''

EFFECTIVE DATE OF 1992 AMENDMENT

Section 3017(c) of Pub. L. 102-486 provided that:

''(1) Except as provided in paragraph (2), the amendments made by

this section (amending this section and section 541 of this title)

shall take effect on the date of the enactment of this Act (Oct.

24, 1992).

''(2) The amendments made by this section shall not apply with

respect to cases commenced under title 11 of the United States Code

before the date of the enactment of this Act.''

EFFECTIVE DATE OF 1988 AMENDMENTS

Section 12 of Pub. L. 100-597 provided that:

''(a) Effective Date. - Except as provided in subsection (b),

this Act and the amendments made by this Act (enacting sections 927

to 929 of this title, amending this section and sections 109, 901,

902, 922, 926, and 943 of this title, and renumbering section 927

of this title as 930) shall take effect on the date of the

enactment of this Act (Nov. 3, 1988).

''(b) Application of Amendments. - The amendments made by this

Act shall not apply with respect to cases commenced under title 11

of the United States Code before the date of the enactment of this

Act (Nov. 3, 1988).''

Section 2 of Pub. L. 100-506 provided that:

''(a) Effective Date. - Except as provided in subsection (b),

this Act and the amendments made by this Act (amending this section

and section 365 of this title) shall take effect on the date of the

enactment of this Act (Oct. 18, 1988).

''(b) Application of Amendments. - The amendments made by this

Act shall not apply with respect to any case commenced under title

11 of the United States Code before the date of the enactment of

this Act (Oct. 18, 1988).''

EFFECTIVE DATE OF 1986 AMENDMENT

Effective date and applicability of amendment by section 201 of

Pub. L. 99-554 dependent upon the judicial district involved, see

section 302(d), (e) of Pub. L. 99-554, set out as a note under

section 581 of Title 28, Judiciary and Judicial Procedure.

Amendment by section 251 of Pub. L. 99-554 effective 30 days

after Oct. 27, 1986, but not applicable to cases commenced under

this title before that date, see section 302(a), (c)(1) of Pub. L.

99-554.

Amendment by section 283 of Pub. L. 99-554 effective 30 days

after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554.

EFFECTIVE DATE OF 1984 AMENDMENT

Section 552, formerly Sec. 553, of title III (Sec. 301-553) of

Pub. L. 98-353, as renumbered by Pub. L. 98-531, Sec. 1(2), Oct.

19, 1984, 98 Stat. 2704, provided that:

''(a) Except as otherwise provided in this section the amendments

made by this title (see Tables for classification) shall become

effective to cases filed 90 days after the date of enactment of

this Act (July 10, 1984).

''(b) The amendments made by section 426(b) (amending section 303

of this title) shall become effective upon the date of enactment of

this Act.

''(c) The amendments made by subtitle J (enacting section 1113 of

this title), shall become effective as provided in section 541(c)

(set out as an Effective Date note under section 1113 of this

title).''

SHORT TITLE OF 2002 AMENDMENT

Pub. L. 107-377, Sec. 1, Dec. 19, 2002, 116 Stat. 3115, provided

that: ''This Act (amending sections 1201 to 1208 and 1221 to 1231

of this title, and enacting and amending provisions set out as

notes under section 1201 of this title) may be cited as the

'Protection of Family Farmers Act of 2002'.''

SHORT TITLE OF 1998 AMENDMENT

Pub. L. 105-183, Sec. 1, June 19, 1998, 112 Stat. 517, provided

that: ''This Act (amending sections 544, 546, 548, 707, and 1325 of

this title and enacting provisions set out as notes under section

544 of this title) may be cited as the 'Religious Liberty and

Charitable Donation Protection Act of 1998'.''

SHORT TITLE OF 1994 AMENDMENT

Section 1(a) of Pub. L. 103-394 provided that: ''This Act (see

Tables for classification) may be cited as the 'Bankruptcy Reform

Act of 1994'.''

SHORT TITLE OF 1990 AMENDMENTS

Pub. L. 101-581, Sec. 1, Nov. 15, 1990, 104 Stat. 2865, and

section 3101 of title XXXI of Pub. L. 101-647, provided

respectively that such Act and such title (amending sections 523

and 1328 of this title and enacting provisions set out as a note

under section 523 of this title) may be cited as the ''Criminal

Victims Protection Act of 1990''.

SHORT TITLE OF 1988 AMENDMENT

Pub. L. 100-334, Sec. 1, June 16, 1988, 102 Stat. 610, provided

that: ''This Act (enacting section 1114 of this title, amending

section 1129 of this title, enacting provisions set out as a note

under section 1114 of this title, and amending and repealing

provisions set out as notes under section 1106 of this title) may

be cited as the 'Retiree Benefits Bankruptcy Protection Act of

1988'.''

SHORT TITLE OF 1984 AMENDMENT

Section 361 of subtitle C (Sec. 361-363) of title III of Pub. L.

98-353 provided that: ''This subtitle (amending sections 362, 365,

and 541 of this title) may be cited as the 'Leasehold Management

Bankruptcy Amendments Act of 1983'.''

SEPARABILITY

Section 701 of Pub. L. 103-394 provided that: ''If any provision

of this Act (see Tables for classification) or amendment made by

this Act or the application of such provision or amendment to any

person or circumstance is held to be unconstitutional, the

remaining provisions of and amendments made by this Act and the

application of such other provisions and amendments to any person

or circumstance shall not be affected thereby.''

Section 551 of title III (Sec. 301-553) of Pub. L. 98-353

provided that: ''If any provision of this title or any amendment

made by this title (see Tables for classification), or the

application thereof to any person or circumstance is held invalid,

the provisions of every other part, and their application shall not

be affected thereby.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 362, 546 of this title;

title 7 section 6; title 12 sections 1787, 1821; title 15 sections

78eee, 78fff-1; title 28 section 1930; title 33 section 2716; title

42 section 656.

-CITE-

11 USC Sec. 102 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 102. Rules of construction

-STATUTE-

In this title -

(1) ''after notice and a hearing'', or a similar phrase -

(A) means after such notice as is appropriate in the

particular circumstances, and such opportunity for a hearing as

is appropriate in the particular circumstances; but

(B) authorizes an act without an actual hearing if such

notice is given properly and if -

(i) such a hearing is not requested timely by a party in

interest; or

(ii) there is insufficient time for a hearing to be

commenced before such act must be done, and the court

authorizes such act;

(2) ''claim against the debtor'' includes claim against

property of the debtor;

(3) ''includes'' and ''including'' are not limiting;

(4) ''may not'' is prohibitive, and not permissive;

(5) ''or'' is not exclusive;

(6) ''order for relief'' means entry of an order for relief;

(7) the singular includes the plural;

(8) a definition, contained in a section of this title that

refers to another section of this title, does not, for the

purpose of such reference, affect the meaning of a term used in

such other section; and

(9) ''United States trustee'' includes a designee of the United

States trustee.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2554; Pub. L. 98-353, title

III, Sec. 422, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title

II, Sec. 202, Oct. 27, 1986, 100 Stat. 3097.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 102 specifies various rules of construction but is not

exclusive. Other rules of construction that are not set out in

title 11 are nevertheless intended to be followed in construing the

bankruptcy code. For example, the phrase ''on request of a party

in interest'' or a similar phrase, is used in connection with an

action that the court may take in various sections of the Code. The

phrase is intended to restrict the court from acting sua sponte.

Rules of bankruptcy procedure or court decisions will determine who

is a party in interest for the particular purposes of the provision

in question, but the court will not be permitted to act on its own.

Although ''property'' is not construed in this section, it is

used consistently throughout the code in its broadest sense,

including cash, all interests in property, such as liens, and every

kind of consideration including promises to act or forbear to act

as in section 548(d).

Section 102(1) expands on a rule of construction contained in

H.R. 8200 as passed by the House and in the Senate amendment. The

phrase ''after notice and a hearing'', or a similar phrase, is

intended to be construed according to the particular proceeding to

mean after such notice as is appropriate in the particular

circumstances, and such opportunity, if any, for a hearing as is

appropriate in the particular circumstances. If a provision of

title 11 authorizes an act to be taken ''after notice and a

hearing'' this means that if appropriate notice is given and no

party to whom such notice is sent timely requests a hearing, then

the act sought to be taken may be taken without an actual hearing.

In very limited emergency circumstances, there will be

insufficient time for a hearing to be commenced before an action

must be taken. The action sought to be taken may be taken if

authorized by the court at an ex parte hearing of which a record is

made in open court. A full hearing after the fact will be

available in such an instance.

In some circumstances, such as under section 1128, the bill

requires a hearing and the court may act only after a hearing is

held. In those circumstances the judge will receive evidence

before ruling. In other circumstances, the court may take action

''after notice and a hearing,'' if no party in interest requests a

hearing. In that event a court order authorizing the action to be

taken is not necessary as the ultimate action taken by the court

implies such an authorization.

Section 102(8) is new. It contains a rule of construction

indicating that a definition contained in a section in title 11

that refers to another section of title 11 does not, for the

purposes of such reference, take the meaning of a term used in the

other section. For example, section 522(a)(2) defines ''value''

for the purposes of section 522. Section 548(d)(2) defines

''value'' for purposes of section 548. When section 548 is

incorporated by reference in section 522, this rule of construction

makes clear that the definition of ''value'' in section 548 governs

its meaning in section 522 notwithstanding a different definition

of ''value'' in section 522(a)(2).

SENATE REPORT NO. 95-989

Section 102 provides seven rules of construction. Some are

derived from current law; others are derived from 1 U.S.C. 1; a few

are new. They apply generally throughout proposed title 11. These

are terms that are not appropriate for definition, but that require

an explanation.

Paragraph (1) defines the concept of ''after notice and a

hearing.'' The concept is central to the bill and to the separation

of the administrative and judicial functions of bankruptcy judges.

The phrase means after such notice as is appropriate in the

particular circumstances (to be prescribed by either the Rules of

Bankruptcy Procedure or by the court in individual circumstances

that the Rules do not cover. In many cases, the Rules will provide

for combined notice of several proceedings), and such opportunity

for a hearing as is appropriate in the particular circumstances.

Thus, a hearing will not be necessary in every instance. If there

is no objection to the proposed action, the action may go ahead

without court action. This is a significant change from present

law, which requires the affirmative approval of the bankruptcy

judge for almost every action. The change will permit the

bankruptcy judge to stay removed from the administration of the

bankruptcy or reorganization case, and to become involved only when

there is a dispute about a proposed action, that is, only when

there is an objection. The phrase ''such opportunity for a hearing

as is appropriate in the particular circumstances'' is designed to

permit the Rules and the courts to expedite or dispense with

hearings when speed is essential. The language ''or similar

phrase'' is intended to cover the few instances in the bill where

''after notice and a hearing'' is interrupted by another phrase,

such as ''after notice to the debtor and a hearing.''

Paragraph (2) specifies that ''claim against the debtor''

includes claim against property of the debtor. This paragraph is

intended to cover nonrecourse loan agreements where the creditor's

only rights are against property of the debtor, and not against the

debtor personally. Thus, such an agreement would give rise to a

claim that would be treated as a claim against the debtor

personally, for the purposes of the bankruptcy code.

Paragraph (3) is a codification of American Surety Co. v.

Marotta, 287 U.S. 513 (1933). It specifies that ''includes'' and

''including'' are not limiting.

Paragraph (4) specifies that ''may not'' is prohibitive and not

permissive (such as in ''might not'').

Paragraph (5) specifies that ''or'' is not exclusive. Thus, if a

party ''may do (a) or (b)'', then the party may do either or both.

The party is not limited to a mutually exclusive choice between the

two alternatives.

Paragraph (6) makes clear that ''order for relief'' means entry

of an order for relief. If the court orally orders relief, but the

order is not entered until a later time, then any time measurements

in the bill are from entry, not from the oral order. In a

voluntary case, the entry of the order for relief is the filing of

the petition commencing the voluntary case.

Paragraph (7) specifies that the singular includes the plural.

The plural, however, generally does not include the singular. The

bill uses only the singular, even when the item in question most

often is found in plural quantities, in order to avoid the

confusion possible if both rules of construction applied. When an

item is specified in the plural, the plural is intended.

AMENDMENTS

1986 - Par. (9). Pub. L. 99-554 added par. (9).

1984 - Par. (8). Pub. L. 98-353 substituted ''contained'' for

''continued''.

EFFECTIVE DATE OF 1986 AMENDMENT

Effective date and applicability of amendment by Pub. L. 99-554

dependent upon the judicial district involved, see section 302(d),

(e) of Pub. L. 99-554, set out as a note under section 581 of Title

28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

-CITE-

11 USC Sec. 103 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 103. Applicability of chapters

-STATUTE-

(a) Except as provided in section 1161 of this title, chapters 1,

3, and 5 of this title apply in a case under chapter 7, 11, 12, or

13 of this title.

(b) Subchapters I and II of chapter 7 of this title apply only in

a case under such chapter.

(c) Subchapter III of chapter 7 of this title applies only in a

case under such chapter concerning a stockbroker.

(d) Subchapter IV of chapter 7 of this title applies only in a

case under such chapter concerning a commodity broker.

(e) Scope of Application. - Subchapter V of chapter 7 of this

title shall apply only in a case under such chapter concerning the

liquidation of an uninsured State member bank, or a corporation

organized under section 25A of the Federal Reserve Act, which

operates, or operates as, a multilateral clearing organization

pursuant to section 409 of the Federal Deposit Insurance

Corporation Improvement Act of 1991.

(f) Except as provided in section 901 of this title, only

chapters 1 and 9 of this title apply in a case under such chapter

9.

(g) Except as provided in section 901 of this title, subchapters

I, II, and III of chapter 11 of this title apply only in a case

under such chapter.

(h) Subchapter IV of chapter 11 of this title applies only in a

case under such chapter concerning a railroad.

(i) Chapter 13 of this title applies only in a case under such

chapter.

(j) Chapter 12 of this title applies only in a case under such

chapter.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 97-222, Sec.

2, July 27, 1982, 96 Stat. 235; Pub. L. 98-353, title III, Sec.

423, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title II, Sec.

252, Oct. 27, 1986, 100 Stat. 3104; Pub. L. 106-554, Sec. 1(a)(5)

(title I, Sec. 112(c)(5)(A)), Dec. 21, 2000, 114 Stat. 2763,

2763A-394.)

-MISC1-

HISTORICAL AND REVISION NOTES

SENATE REPORT NO. 95-989

Section 103 prescribes which chapters of the proposed bankruptcy

code apply in various cases. All cases, other than cases ancillary

to foreign proceedings, are filed under chapter 7, 9, 11, or 13,

the operative chapters of the proposed bankruptcy code. The

general provisions that apply no matter which chapter a case is

filed under are found in chapters 1, 3, and 5. Subsection (a) makes

this explicit, with an exception for chapter 9. The other

provisions, which are self-explanatory, provide the special rules

for Stockbroker Liquidations, Commodity Broker Liquidations,

Municipal Debt Adjustments, and Railroad Reorganizations.

-REFTEXT-

REFERENCES IN TEXT

Section 25A of the Federal Reserve Act, referred to in subsec.

(e), popularly known as the Edge Act, is classified to subchapter

II (Sec. 611 et seq.) of chapter 6 of Title 12, Banks and Banking.

For complete classification of this Act to the Code, see Short

Title note set out under section 611 of Title 12 and Tables.

Section 409 of the Federal Deposit Insurance Corporation

Improvement Act of 1991, referred to in subsec. (e), is classified

to section 4422 of Title 12, Banks and Banking.

-MISC2-

AMENDMENTS

2000 - Subsecs. (e) to (j). Pub. L. 106-554 added subsec. (e) and

redesignated former subsecs. (e) to (i) as (f) to (j),

respectively.

1986 - Subsec. (a). Pub. L. 99-554, Sec. 252(1), inserted

reference to chapter 12.

Subsec. (i). Pub. L. 99-554, Sec. 252(2), added subsec. (i).

1984 - Subsec. (c). Pub. L. 98-353 substituted ''stockbroker''

for ''stockholder''.

1982 - Subsec. (d). Pub. L. 97-222 struck out ''except with

respect to section 746(c) which applies to margin payments made by

any debtor to a commodity broker or forward contract merchant''

after ''concerning a commodity broker''.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,

1986, but not applicable to cases commenced under this title before

that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as

a note under section 581 of Title 28, Judiciary and Judicial

Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 901, 902, 943 of this

title.

-CITE-

11 USC Sec. 104 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 104. Adjustment of dollar amounts

-STATUTE-

(a) The Judicial Conference of the United States shall transmit

to the Congress and to the President before May 1, 1985, and before

May 1 of every sixth year after May 1, 1985, a recommendation for

the uniform percentage adjustment of each dollar amount in this

title and in section 1930 of title 28.

(b)(1) On April 1, 1998, and at each 3-year interval ending on

April 1 thereafter, each dollar amount in effect under sections

109(e), 303(b), 507(a), 522(d), and 523(a)(2)(C) immediately before

such April 1 shall be adjusted -

(A) to reflect the change in the Consumer Price Index for All

Urban Consumers, published by the Department of Labor, for the

most recent 3-year period ending immediately before January 1

preceding such April 1, and

(B) to round to the nearest $25 the dollar amount that

represents such change.

(2) Not later than March 1, 1998, and at each 3-year interval

ending on March 1 thereafter, the Judicial Conference of the United

States shall publish in the Federal Register the dollar amounts

that will become effective on such April 1 under sections 109(e),

303(b), 507(a), 522(d), and 523(a)(2)(C) of this title.

(3) Adjustments made in accordance with paragraph (1) shall not

apply with respect to cases commenced before the date of such

adjustments.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 103-394,

title I, Sec. 108(e), Oct. 22, 1994, 108 Stat. 4112.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 104 represents a compromise between the House bill and

the Senate amendment with respect to the adjustment of dollar

amounts in title 11. The House amendment authorizes the Judicial

Conference of the United States to transmit a recommendation for

the uniform percentage of adjustment for each dollar amount in

title 11 and in 28 U.S.C. 1930 to the Congress and to the President

before May 1, 1985, and before May 1 of every sixth year

thereafter. The requirement in the House bill that each such

recommendation be based only on any change in the cost-of-living

increase during the period immediately preceding the recommendation

is deleted.

SENATE REPORT NO. 95-989

This section requires that the Director of the Administrative

Office of the U. S. Courts report to Congress and the President

before Oct. 1, 1985, and before May 1 every 6 years thereafter a

recommendation for adjustment in dollar amounts found in this

title. The Committee feels that regular adjustment of the dollar

amounts by the Director will conserve congressional time and yet

assure that the relative dollar amounts used in the bill are

maintained. Changes in the cost of living should be a significant,

but not necessarily the only, factor considered by the Director.

The fact that there has been an increase in the cost of living does

not necessarily mean that an adjustment of dollar amounts would be

needed or warranted.

HOUSE REPORT NO. 95-595

This section requires the Judicial Conference to report to the

Congress every four years after the effective date of the

bankruptcy code any changes that have occurred in the cost of

living during the preceding four years, and the appropriate

adjustments to the dollar amounts in the bill. The dollar amounts

are found primarily in the exemption section (11 U.S.C. 522), the

wage priority (11 U.S.C. 507), and the eligibility for chapter 13

(11 U.S.C. 109). This section requires that the Conference

recommend uniform percentage changes in these amounts based solely

on cost of living changes. The dollar amounts in the bill would

not change on that recommendation, absent Congressional veto.

Instead, Congress is required to take affirmative action, by

passing a law amending the appropriate section, if it wishes to

accomplish the change.

If the Judicial Conference has policy recommendations concerning

the appropriate dollar amounts in the bankruptcy code based other

than on cost of living considerations there are adequate channels

through which it may communicate its views. This section is solely

for the housekeeping function of maintaining the dollar amounts in

the code at fairly constant real dollar levels.

AMENDMENTS

1994 - Pub. L. 103-394 designated existing provisions as subsec.

(a) and added subsec. (b).

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not

applicable with respect to cases commenced under this title before

Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a

note under section 101 of this title.

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions of law

requiring submittal to Congress of any annual, semiannual, or other

regular periodic report listed in House Document No. 103-7 (in

which a report required under subsection (a) of this section is

listed on page 12), see section 3003 of Pub. L. 104-66, as amended,

set out as a note under section 1113 of Title 31, Money and

Finance.

ADJUSTMENT OF DOLLAR AMOUNTS

By notice dated Feb. 13, 2001, 66 F.R. 10910, the Judicial

Conference of the United States adjusted the dollar amounts in

provisions specified in subsec. (b) of this section, effective Apr.

1, 2001, as follows:

---------------------------------------------------------------------

11 U.S.C. Dollar amount to be New (adjusted) dollar

adjusted amount

---------------------------------------------------------------------

Section 109(e) - $269,250 (each time $290,525 (each time

allowable debt it appears) 807,750 it appears).

limits for filing (each time it 871,550 (each time

bankruptcy under appears) it appears).

Chapter 13

Section 303(b) -

minimum aggregate

claims needed for

the commencement of

an involuntary

bankruptcy:

(1) - in paragraph 10,775 11,625.

(1)

(2) - in paragraph 10,775 11,625.

(2)

Section 507(a) -

priority claims:

(1) - in paragraph 4,300 4,650.

(3)

(2) - in paragraph 4,300 4,650.

(4)(B)(i)

(3) - in paragraph 4,300 4,650.

(5)

(4) - in paragraph 1,950 2,100.

(6)

Section 522(d) -

value of property

exemptions allowed

to the debtor:

(1) - in paragraph 16,150 17,425.

(1)

(2) - in paragraph 2,575 2,775.

(2)

(3) - in paragraph 425 8,625 450 9,300.

(3)

(4) - in paragraph 1,075 1,150.

(4)

(5) - in paragraph 850 8,075 925 8,725.

(5)

(6) - in paragraph 1,625 1,750.

(6)

(7) - in paragraph 8,625 9,300.

(8)

(8) - in paragraph 16,150 17,425.

(11)(D)

Section 523(a)(2)(C) 1,075 (each time it 1,150 (each time it

- ''luxury goods appears) appears).

and services'' or

cash advances

obtained by the

consumer debtor

within 60 days

before the filing

of a bankruptcy

petition, which are

considered

nondischargeable.

-------------------------------

-CITE-

11 USC Sec. 105 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 105. Power of court

-STATUTE-

(a) The court may issue any order, process, or judgment that is

necessary or appropriate to carry out the provisions of this

title. No provision of this title providing for the raising of an

issue by a party in interest shall be construed to preclude the

court from, sua sponte, taking any action or making any

determination necessary or appropriate to enforce or implement

court orders or rules, or to prevent an abuse of process.

(b) Notwithstanding subsection (a) of this section, a court may

not appoint a receiver in a case under this title.

(c) The ability of any district judge or other officer or

employee of a district court to exercise any of the authority or

responsibilities conferred upon the court under this title shall be

determined by reference to the provisions relating to such judge,

officer, or employee set forth in title 28. This subsection shall

not be interpreted to exclude bankruptcy judges and other officers

or employees appointed pursuant to chapter 6 of title 28 from its

operation.

(d) The court, on its own motion or on the request of a party in

interest, may -

(1) hold a status conference regarding any case or proceeding

under this title after notice to the parties in interest; and

(2) unless inconsistent with another provision of this title or

with applicable Federal Rules of Bankruptcy Procedure, issue an

order at any such conference prescribing such limitations and

conditions as the court deems appropriate to ensure that the case

is handled expeditiously and economically, including an order

that -

(A) sets the date by which the trustee must assume or reject

an executory contract or unexpired lease; or

(B) in a case under chapter 11 of this title -

(i) sets a date by which the debtor, or trustee if one has

been appointed, shall file a disclosure statement and plan;

(ii) sets a date by which the debtor, or trustee if one has

been appointed, shall solicit acceptances of a plan;

(iii) sets the date by which a party in interest other than

a debtor may file a plan;

(iv) sets a date by which a proponent of a plan, other than

the debtor, shall solicit acceptances of such plan;

(v) fixes the scope and format of the notice to be provided

regarding the hearing on approval of the disclosure

statement; or

(vi) provides that the hearing on approval of the

disclosure statement may be combined with the hearing on

confirmation of the plan.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 98-353, title

I, Sec. 118, July 10, 1984, 98 Stat. 344; Pub. L. 99-554, title II,

Sec. 203, Oct. 27, 1986, 100 Stat. 3097; Pub. L. 103-394, title I,

Sec. 104(a), Oct. 22, 1994, 108 Stat. 4108.)

-MISC1-

HISTORICAL AND REVISION NOTES

SENATE REPORT NO. 95-989

Section 105 is derived from section 2a (15) of present law

(section 11(a)(15) of former title 11), with two changes. First,

the limitation on the power of a bankruptcy judge (the power to

enjoin a court being reserved to the district judge) is removed as

inconsistent with the increased powers and jurisdiction of the new

bankruptcy court. Second, the bankruptcy judge is prohibited from

appointing a receiver in a case under title 11 under any

circumstances. The bankruptcy code has ample provision for the

appointment of a trustee when needed. Appointment of a receiver

would simply circumvent the established procedures.

This section is also an authorization, as required under 28

U.S.C. 2283, for a court of the United States to stay the action of

a State court. As such, Toucey v. New York Life Insurance

Company, 314 U.S. 118 (1941), is overruled.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Bankruptcy Procedure, referred to in subsec.

(d)(2), are set out in the Appendix to this title.

-MISC2-

AMENDMENTS

1994 - Subsec. (d). Pub. L. 103-394 added subsec. (d).

1986 - Subsec. (a). Pub. L. 99-554 inserted at end ''No provision

of this title providing for the raising of an issue by a party in

interest shall be construed to preclude the court from, sua sponte,

taking any action or making any determination necessary or

appropriate to enforce or implement court orders or rules, or to

prevent an abuse of process.''

1984 - Subsecs. (a), (b). Pub. L. 98-353, Sec. 118(1), struck out

''bankruptcy'' before ''court''.

Subsec. (c). Pub. L. 98-353, Sec. 118(2), added subsec. (c).

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not

applicable with respect to cases commenced under this title before

Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a

note under section 101 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Effective date and applicability of amendment by Pub. L. 99-554

dependent upon the judicial district involved, see section 302(d),

(e) of Pub. L. 99-554, set out as a note under section 581 of Title

28, Judiciary and Judicial Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective July 10, 1984, see section

122(a) of Pub. L. 98-353, set out as an Effective Date note under

section 151 of Title 28, Judiciary and Judicial Procedure.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

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

26 section 7433.

-CITE-

11 USC Sec. 106 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 106. Waiver of sovereign immunity

-STATUTE-

(a) Notwithstanding an assertion of sovereign immunity, sovereign

immunity is abrogated as to a governmental unit to the extent set

forth in this section with respect to the following:

(1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365,

366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542, 543, 544,

545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726, 728,

744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142,

1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303, 1305,

and 1327 of this title.

(2) The court may hear and determine any issue arising with

respect to the application of such sections to governmental

units.

(3) The court may issue against a governmental unit an order,

process, or judgment under such sections or the Federal Rules of

Bankruptcy Procedure, including an order or judgment awarding a

money recovery, but not including an award of punitive damages.

Such order or judgment for costs or fees under this title or the

Federal Rules of Bankruptcy Procedure against any governmental

unit shall be consistent with the provisions and limitations of

section 2412(d)(2)(A) of title 28.

(4) The enforcement of any such order, process, or judgment

against any governmental unit shall be consistent with

appropriate nonbankruptcy law applicable to such governmental

unit and, in the case of a money judgment against the United

States, shall be paid as if it is a judgment rendered by a

district court of the United States.

(5) Nothing in this section shall create any substantive claim

for relief or cause of action not otherwise existing under this

title, the Federal Rules of Bankruptcy Procedure, or

nonbankruptcy law.

(b) A governmental unit that has filed a proof of claim in the

case is deemed to have waived sovereign immunity with respect to a

claim against such governmental unit that is property of the estate

and that arose out of the same transaction or occurrence out of

which the claim of such governmental unit arose.

(c) Notwithstanding any assertion of sovereign immunity by a

governmental unit, there shall be offset against a claim or

interest of a governmental unit any claim against such governmental

unit that is property of the estate.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2555; Pub. L. 103-394,

title I, Sec. 113, Oct. 22, 1994, 108 Stat. 4117.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 106(c) relating to sovereign immunity is new. The

provision indicates that the use of the term ''creditor,''

''entity,'' or ''governmental unit'' in title 11 applies to

governmental units notwithstanding any assertion of sovereign

immunity and that an order of the court binds governmental units.

The provision is included to comply with the requirement in case

law that an express waiver of sovereign immunity is required in

order to be effective. Section 106(c) codifies In re Gwilliam, 519

F.2d 407 (9th Cir., 1975), and In re Dolard, 519 F.2d 282 (9th

Cir., 1975), permitting the bankruptcy court to determine the

amount and dischargeability of tax liabilities owing by the debtor

or the estate prior to or during a bankruptcy case whether or not

the governmental unit to which such taxes are owed files a proof of

claim. Except as provided in sections 106(a) and (b), subsection

(c) is not limited to those issues, but permits the bankruptcy

court to bind governmental units on other matters as well. For

example, section 106(c) permits a trustee or debtor in possession

to assert avoiding powers under title 11 against a governmental

unit; contrary language in the House report to H.R. 8200 is thereby

overruled.

SENATE REPORT NO. 95-989

Section 106 provides for a limited waiver of sovereign immunity

in bankruptcy cases. Though Congress has the power to waive

sovereign immunity for the Federal government completely in

bankruptcy cases, the policy followed here is designed to achieve

approximately the same result that would prevail outside of

bankruptcy. Congress does not, however, have the power to waive

sovereign immunity completely with respect to claims of a bankrupt

estate against a State, though it may exercise its bankruptcy power

through the supremacy clause to prevent or prohibit State action

that is contrary to bankruptcy policy.

There is, however, a limited change from the result that would

prevail in the absence of bankruptcy; the change is two-fold and is

within Congress' power vis-a-vis both the Federal Government and

the States. First, the filing of a proof of claim against the

estate by a governmental unit is a waiver by that governmental unit

of sovereign immunity with respect to compulsory counterclaims, as

defined in the Federal Rules of Civil Procedure (title 28,

appendix), that is, counterclaims arising out of the same

transaction or occurrence. The governmental unit cannot receive a

distribution from the estate without subjecting itself to any

liability it has to the estate within the confines of a compulsory

counterclaim rule. Any other result would be one-sided. The

counterclaim by the estate against the governmental unit is without

limit.

Second, the estate may offset against the allowed claim of a

governmental unit, up to the amount of the governmental unit's

claim, any claim that the debtor, and thus the estate, has against

the governmental unit, without regard to whether the estate's claim

arose out of the same transaction or occurrence as the government's

claim. Under this provision, the setoff permitted is only to the

extent of the governmental unit's claim. No affirmative recovery

is permitted. Subsection (a) governs affirmative recovery.

Though this subsection creates a partial waiver of immunity when

the governmental unit files a proof of claim, it does not waive

immunity if the debtor or trustee, and not the governmental unit,

files proof of a governmental unit's claim under proposed 11 U.S.C.

501(c).

This section does not confer sovereign immunity on any

governmental unit that does not already have immunity. It simply

recognizes any immunity that exists and prescribes the proper

treatment of claims by and against that sovereign.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Bankruptcy Procedure, referred to in subsec.

(a)(3), (5), are set out in the Appendix to this title.

-MISC2-

AMENDMENTS

1994 - Pub. L. 103-394 amended section generally. Prior to

amendment, section read as follows:

''(a) A governmental unit is deemed to have waived sovereign

immunity with respect to any claim against such governmental unit

that is property of the estate and that arose out of the same

transaction or occurrence out of which such governmental unit's

claim arose.

''(b) There shall be offset against an allowed claim or interest

of a governmental unit any claim against such governmental unit

that is property of the estate.

''(c) Except as provided in subsections (a) and (b) of this

section and notwithstanding any assertion of sovereign immunity -

''(1) a provision of this title that contains 'creditor',

'entity', or 'governmental unit' applies to governmental units;

and

''(2) a determination by the court of an issue arising under

such a provision binds governmental units.''

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and

applicable with respect to cases commenced under this title before,

on, and after Oct. 22, 1994, see section 702(a), (b)(2)(B) of Pub.

L. 103-394, set out as a note under section 101 of this title.

-CITE-

11 USC Sec. 107 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 107. Public access to papers

-STATUTE-

(a) Except as provided in subsection (b) of this section, a paper

filed in a case under this title and the dockets of a bankruptcy

court are public records and open to examination by an entity at

reasonable times without charge.

(b) On request of a party in interest, the bankruptcy court

shall, and on the bankruptcy court's own motion, the bankruptcy

court may -

(1) protect an entity with respect to a trade secret or

confidential research, development, or commercial information; or

(2) protect a person with respect to scandalous or defamatory

matter contained in a paper filed in a case under this title.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2556.)

-MISC1-

HISTORICAL AND REVISION NOTES

SENATE REPORT NO. 95-989

Subsection (a) of this section makes all papers filed in a

bankruptcy case and the dockets of the bankruptcy court public and

open to examination at reasonable times without charge. ''Docket''

includes the claims docket, the proceedings docket, and all papers

filed in a case.

Subsection (b) permits the court, on its own motion, and requires

the court, on the request of a party in interest, to protect trade

secrets, confidential research, development, or commercial

information, and to protect persons against scandalous or

defamatory matter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

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

-CITE-

11 USC Sec. 108 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 108. Extension of time

-STATUTE-

(a) If applicable nonbankruptcy law, an order entered in a

nonbankruptcy proceeding, or an agreement fixes a period within

which the debtor may commence an action, and such period has not

expired before the date of the filing of the petition, the trustee

may commence such action only before the later of -

(1) the end of such period, including any suspension of such

period occurring on or after the commencement of the case; or

(2) two years after the order for relief.

(b) Except as provided in subsection (a) of this section, if

applicable nonbankruptcy law, an order entered in a nonbankruptcy

proceeding, or an agreement fixes a period within which the debtor

or an individual protected under section 1201 or 1301 of this title

may file any pleading, demand, notice, or proof of claim or loss,

cure a default, or perform any other similar act, and such period

has not expired before the date of the filing of the petition, the

trustee may only file, cure, or perform, as the case may be, before

the later of -

(1) the end of such period, including any suspension of such

period occurring on or after the commencement of the case; or

(2) 60 days after the order for relief.

(c) Except as provided in section 524 of this title, if

applicable nonbankruptcy law, an order entered in a nonbankruptcy

proceeding, or an agreement fixes a period for commencing or

continuing a civil action in a court other than a bankruptcy court

on a claim against the debtor, or against an individual with

respect to which such individual is protected under section 1201 or

1301 of this title, and such period has not expired before the date

of the filing of the petition, then such period does not expire

until the later of -

(1) the end of such period, including any suspension of such

period occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of

the stay under section 362, 922, 1201, or 1301 of this title, as

the case may be, with respect to such claim.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 98-353, title

III, Sec. 424, July 10, 1984, 98 Stat. 369; Pub. L. 99-554, title

II, Sec. 257(b), Oct. 27, 1986, 100 Stat. 3114.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Extension of time: The House amendment adopts section 108(c)(1)

of the Senate amendment which expressly includes any special

suspensions of statutes of limitation periods on collection outside

bankruptcy when assets are under the authority of a court. For

example, section 6503(b) of the Internal Revenue Code (title 26)

suspends collection of tax liabilities while the debtor's assets

are in the control or custody of a court, and for 6 months

thereafter. By adopting the language of the Senate amendment, the

House amendment insures not only that the period for collection of

the taxes outside bankruptcy will not expire during the title 11

proceedings, but also that such period will not expire until at

least 6 months thereafter, which is the minimum suspension period

provided by the Internal Revenue Code (title 26).

SENATE REPORT NO. 95-989

Subsections (a) and (b), derived from Bankruptcy Act section 11

(section 29 of former title 11), permit the trustee, when he steps

into the shoes of the debtor, an extension of time for filing an

action or doing some other act that is required to preserve the

debtor's rights. Subsection (a) extends any statute of limitation

for commencing or continuing an action by the debtor for two years

after the date of the order for relief, unless it would expire

later. Subsection (b) gives the trustee 60 days to take other

actions not covered under subsection (a), such as filing a

pleading, demand, notice, or proof of claim or loss (such as an

insurance claim), unless the period for doing the relevant act

expires later than 60 days after the date of the order for relief.

Subsection (c) extends the statute of limitations for creditors.

Thus, if a creditor is stayed from commencing or continuing an

action against the debtor because of the bankruptcy case, then the

creditor is permitted an additional 30 days after notice of the

event by which the stay is terminated, whether that event be relief

from the automatic stay under proposed 11 U.S.C. 362 or 1301, the

closing of the bankruptcy case (which terminates the stay), or the

exception from discharge of the debts on which the creditor claims.

In the case of Federal tax liabilities, the Internal Revenue Code

(title 26) suspends the statute of limitations on a tax liability

of a taxpayer from running while his assets are in the control or

custody of a court and for 6 months thereafter (sec. 6503(b) of the

Code (title 26)). The amendment applies this rule in a title 11

proceeding. Accordingly, the statute of limitations on collection

of a nondischargeable Federal tax liability of a debtor will resume

running after 6 months following the end of the period during which

the debtor's assets are in the control or custody of the bankruptcy

court. This rule will provide the Internal Revenue Service

adequate time to collect nondischargeable taxes following the end

of the title 11 proceedings.

AMENDMENTS

1986 - Subsec. (b). Pub. L. 99-554, Sec. 257(b)(1), inserted

reference to section 1201 of this title.

Subsec. (c). Pub. L. 99-554, Sec. 257(b)(2)(A), inserted

reference to section 1201 of this title in provisions preceding

par. (1).

Subsec. (c)(2). Pub. L. 99-554, Sec. 257(b)(2)(B), which directed

the amendment of subsec. (c) by inserting ''1201,'' after ''722,''

was executed to par. (2) by inserting ''1201,'' after ''922,'' as

the probable intent of Congress.

1984 - Subsec. (a). Pub. L. 98-353, Sec. 424(b), inserted

''nonbankruptcy'' after ''applicable'' and ''entered in a'' in

provisions preceding par. (1).

Subsec. (a)(1). Pub. L. 98-353, Sec. 424(a), substituted ''or''

for ''and'' after the semicolon.

Subsec. (b). Pub. L. 98-353, Sec. 424(b), inserted

''nonbankruptcy'' after ''applicable'' and ''entered in a'' in

provisions preceding par. (1).

Subsec. (b)(1). Pub. L. 98-353, Sec. 424(a), substituted ''or''

for ''and'' after the semicolon.

Subsec. (c). Pub. L. 98-353, Sec. 424(b), inserted

''nonbankruptcy'' after ''applicable'' and ''entered in a'' in

provisions preceding par. (1).

Subsec. (c)(1). Pub. L. 98-353, Sec. 424(a), substituted ''or''

for ''and'' after the semicolon.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,

1986, but not applicable to cases commenced under this title before

that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as

a note under section 581 of Title 28, Judiciary and Judicial

Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

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

-CITE-

11 USC Sec. 109 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 109. Who may be a debtor

-STATUTE-

(a) Notwithstanding any other provision of this section, only a

person that resides or has a domicile, a place of business, or

property in the United States, or a municipality, may be a debtor

under this title.

(b) A person may be a debtor under chapter 7 of this title only

if such person is not -

(1) a railroad;

(2) a domestic insurance company, bank, savings bank,

cooperative bank, savings and loan association, building and loan

association, homestead association, a New Markets Venture Capital

company as defined in section 351 of the Small Business

Investment Act of 1958, a small business investment company

licensed by the Small Business Administration under subsection

(c) or (d) (FOOTNOTE 1) of section 301 of the Small Business

Investment Act of 1958, credit union, or industrial bank or

similar institution which is an insured bank as defined in

section 3(h) of the Federal Deposit Insurance Act, except that an

uninsured State member bank, or a corporation organized under

section 25A of the Federal Reserve Act, which operates, or

operates as, a multilateral clearing organization pursuant to

section 409 of the Federal Deposit Insurance Corporation

Improvement Act of 1991 may be a debtor if a petition is filed at

the direction of the Board of Governors of the Federal Reserve

System; or

(FOOTNOTE 1) See References in Text note below.

(3) a foreign insurance company, bank, savings bank,

cooperative bank, savings and loan association, building and loan

association, homestead association, or credit union, engaged in

such business in the United States.

(c) An entity may be a debtor under chapter 9 of this title if

and only if such entity -

(1) is a municipality;

(2) is specifically authorized, in its capacity as a

municipality or by name, to be a debtor under such chapter by

State law, or by a governmental officer or organization empowered

by State law to authorize such entity to be a debtor under such

chapter;

(3) is insolvent;

(4) desires to effect a plan to adjust such debts; and

(5)(A) has obtained the agreement of creditors holding at least

a majority in amount of the claims of each class that such entity

intends to impair under a plan in a case under such chapter;

(B) has negotiated in good faith with creditors and has failed

to obtain the agreement of creditors holding at least a majority

in amount of the claims of each class that such entity intends to

impair under a plan in a case under such chapter;

(C) is unable to negotiate with creditors because such

negotiation is impracticable; or

(D) reasonably believes that a creditor may attempt to obtain a

transfer that is avoidable under section 547 of this title.

(d) Only a railroad, a person that may be a debtor under chapter

7 of this title (except a stockbroker or a commodity broker), and

an uninsured State member bank, or a corporation organized under

section 25A of the Federal Reserve Act, which operates, or operates

as, a multilateral clearing organization pursuant to section 409 of

the Federal Deposit Insurance Corporation Improvement Act of 1991

may be a debtor under chapter 11 of this title.

(e) Only an individual with regular income that owes, on the date

of the filing of the petition, noncontingent, liquidated, unsecured

debts of less than $250,000 and noncontingent, liquidated, secured

debts of less than $750,000, or an individual with regular income

and such individual's spouse, except a stockbroker or a commodity

broker, that owe, on the date of the filing of the petition,

noncontingent, liquidated, unsecured debts that aggregate less than

$250,000 and noncontingent, liquidated, secured debts of less than

$750,000 may be a debtor under chapter 13 of this title.

(f) Only a family farmer with regular annual income may be a

debtor under chapter 12 of this title.

(g) Notwithstanding any other provision of this section, no

individual or family farmer may be a debtor under this title who

has been a debtor in a case pending under this title at any time in

the preceding 180 days if -

(1) the case was dismissed by the court for willful failure of

the debtor to abide by orders of the court, or to appear before

the court in proper prosecution of the case; or

(2) the debtor requested and obtained the voluntary dismissal

of the case following the filing of a request for relief from the

automatic stay provided by section 362 of this title.

-SOURCE-

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2557; Pub. L. 97-320, title

VII, Sec. 703(d), Oct. 15, 1982, 96 Stat. 1539; Pub. L. 98-353,

title III, Sec. 301, 425, July 10, 1984, 98 Stat. 352, 369; Pub. L.

99-554, title II, Sec. 253, Oct. 27, 1986, 100 Stat. 3105; Pub. L.

100-597, Sec. 2, Nov. 3, 1988, 102 Stat. 3028; Pub. L. 103-394,

title I, Sec. 108(a), title II, Sec. 220, title IV, Sec. 402, title

V, Sec. 501(d)(2), Oct. 22, 1994, 108 Stat. 4111, 4129, 4141, 4143;

Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec. 112(c)(1), (2)), Sec.

1(a)(8) (Sec. 1(e)), Dec. 21, 2000, 114 Stat. 2763, 2763A-393,

2763A-665.)

-MISC1-

HISTORICAL AND REVISION NOTES

LEGISLATIVE STATEMENTS

Section 109(b) of the House amendment adopts a provision

contained in H.R. 8200 as passed by the House. Railroad

liquidations will occur under chapter 11, not chapter 7.

Section 109(c) contains a provision which tracks the Senate

amendment as to when a municipality may be a debtor under chapter

11 of title 11. As under the Bankruptcy Act (former title 11),

State law authorization and prepetition negotiation efforts are

required.

Section 109(e) represents a compromise between H.R. 8200 as

passed by the House and the Senate amendment relating to the dollar

amounts restricting eligibility to be a debtor under chapter 13 of

title 11. The House amendment adheres to the limit of $100,000

placed on unsecured debts in H.R. 8200 as passed by the House. It

adopts a midpoint of $350,000 as a limit on secured claims, a

compromise between the level of $500,000 in H.R. 8200 as passed by

the House and $200,000 as contained in the Senate amendment.

SENATE REPORT NO. 95-989

This section specifies eligibility to be a debtor under the

bankruptcy laws. The first criterion, found in the current

Bankruptcy Act section 2a(1) (section 11(a)(1) of former title 11)

requires that the debtor reside or have a domicile, a place of

business, or property in the United States.

Subsection (b) defines eligibility for liquidation under chapter

7. All persons are eligible except insurance companies, and certain

banking institutions. These exclusions are contained in current

law. However, the banking institution exception is expanded in

light of changes in various banking laws since the current law was

last amended on this point. A change is also made to clarify that

the bankruptcy laws cover foreign banks and insurance companies not

engaged in the banking or insurance business in the United States

but having assets in the United States. Banking institutions and

insurance companies engaged in business in this country are

excluded from liquidation under the bankruptcy laws because they

are bodies for which alternate provision is made for their

liquidation under various State or Federal regulatory laws.

Conversely, when a foreign bank or insurance company is not engaged

in the banking or insurance business in the United States, then

those regulatory laws do not apply, and the bankruptcy laws are the

only ones available for administration of any assets found in

United States.

The first clause of subsection (b) provides that a railroad is

not a debtor except where the requirements of section 1174 are met.

Subsection (c) (enacted as (d)) provides that only a person who

may be a debtor under chapter 7 and a railroad may also be a debtor

under chapter 11, but a stockbroker or commodity broker is eligible

for relief only under chapter 7. Subsection (d) (enacted as (e))

establishes dollar limitations on the amount of indebtedness that

an individual with regular income can incur and yet file under

chapter 13.

HOUSE REPORT NO. 95-595

Subsection (c) defines eligibility for chapter 9. Only a

municipality that is unable to pay its debts as they mature, and

that is not prohibited by State law from proceeding under chapter

9, is permitted to be a chapter 9 debtor. The subsection is

derived from Bankruptcy Act Sec. 84 (section 404 of former title

11), with two changes. First, section 84 requires that the

municipality be ''generally authorized to file a petition under

this chapter by the legislature, or by a governmental officer or

organization empowered by State law to authorize the filing of a

petition.'' The ''generally authorized'' language is unclear, and

has generated a problem for a Colorado Metropolitan District that

attempted to use chapter IX (chapter 9 of former title 11) in 1976.

The ''not prohibited'' language provides flexibility for both the

States and the municipalities involved, while protecting State

sovereignty as required by Ashton v. Cameron County Water District

No. 1, 298 U.S. 513 (1936) (56 S.Ct. 892, 80 L.Ed. 1309, 31

Am.Bankr.Rep.N.S. 96, rehearing denied 57 S.Ct. 5, 299 U.S. 619, 81

L.Ed. 457) and Bekins v. United States, 304 U.S. 27 (1938) (58

S.Ct. 811, 82 L.Ed. 1137, 36 Am.Bankr.Rep.N.S. 187, rehearing

denied 58 S.Ct. 1043, 1044, 304 U.S. 589, 82 L.Ed. 1549).

The second change deletes the four prerequisites to filing found

in section 84 (section 404 of former title 11). The prerequisites

require the municipality to have worked out a plan in advance, to

have attempted to work out a plan without success, to fear that a

creditor will attempt to obtain a preference, or to allege that

prior negotiation is impracticable. The loopholes in those

prerequisites are larger than the requirement itself. It was a

compromise from pre-1976 chapter IX (chapter 9 of former title 11)

under which a municipality could file only if it had worked out an

adjustment plan in advance. In the meantime, chapter IX protection

was unavailable. There was some controversy at the time of the

enactment of current chapter IX concerning deletion of the

pre-negotiation requirement. It was argued that deletion would

lead to a rash of municipal bankruptcies. The prerequisites now

contained in section 84 were inserted to assuage that fear. They

are largely cosmetic and precatory, however, and do not offer any

significant deterrent to use of chapter IX. Instead, other factors,

such as a general reluctance on the part of any debtor, especially

a municipality, to use the bankruptcy laws, operates as a much more

effective deterrent against capricious use.

Subsection (d) permits a person that may proceed under chapter 7

to be a debtor under chapter 11, Reorganization, with two

exceptions. Railroads, which are excluded from chapter 7, are

permitted to proceed under chapter 11. Stockbrokers and commodity

brokers, which are permitted to be debtors under chapter 7, are

excluded from chapter 11. The special rules for treatment of

customer accounts that are the essence of stockbroker and commodity

broker liquidations are available only in chapter 7. Customers

would be unprotected under chapter 11. The special protective rules

are unavailable in chapter 11 because their complexity would make

reorganization very difficult at best, and unintelligible at

worst. The variety of options available in reorganization cases

make it extremely difficult to reorganize and continue to provide

the special customer protection necessary in these cases.

Subsection (e) specifies eligibility for chapter 13, Adjustment

of Debts of an Individual with Regular Income. An individual with

regular income, or an individual with regular income and the

individual's spouse, may proceed under chapter 13. As noted in

connection with the definition of the term ''individual with

regular income'', this represents a significant departure from

current law. The change might have been too great, however,

without some limitation. Thus, the debtor (or the debtor and

spouse) must have unsecured debts that aggregate less than

$100,000, and secured debts that aggregate less than $500,000.

These figures will permit the small sole proprietor, for whom a

chapter 11 reorganization is too cumbersome a procedure, to proceed

under chapter 13. It does not create a presumption that any sole

proprietor within that range is better off in chapter 13 than

chapter 11. The conversion rules found in section 1307 will govern

the appropriateness of the two chapters for any particular

individual. The figures merely set maximum limits.

Whether a small business operated by a husband and wife, the

so-called ''mom and pop grocery store,'' will be a partnership and

thus excluded from chapter 13, or a business owned by an

individual, will have to be determined on the facts of each case.

Even if partnership papers have not been filed, for example, the

issue will be whether the assets of the grocery store are for the

benefit of all creditors of the debtor or only for business

creditors, and whether such assets may be the subject of a chapter

13 proceeding. The intent of the section is to follow current law

that a partnership by estoppel may be adjudicated in bankruptcy and

therefore would not prevent a chapter 13 debtor from subjecting

assets in such a partnership to the reach of all creditors in a

chapter 13 case. However, if the partnership is found to be a

partnership by agreement, even informal agreement, than a separate

entity exists and the assets of that entity would be exempt from a

case under chapter 13.

-REFTEXT-

REFERENCES IN TEXT

Section 351 of the Small Business Investment Act of 1958,

referred to in subsec. (b)(2), is classified to section 689 of

Title 15, Commerce and Trade.

Section 301 of the Small Business Investment Act of 1958,

referred to in subsec. (b)(2), is classified to section 681 of

Title 15, Commerce and Trade. Subsec. (d) of section 301 was

repealed by Pub. L. 104-208, div. D, title II, Sec. 208(b)(3)(A),

Sept. 30, 1996, 110 Stat. 3009-742.

Section 3(h) of the Federal Deposit Insurance Act, referred to in

subsec. (b)(2), is classified to section 1813(h) of Title 12, Banks

and Banking.

Section 25A of the Federal Reserve Act, referred to in subsecs.

(b)(2) and (d), popularly known as the Edge Act, is classified to

subchapter II (Sec. 611 et seq.) of chapter 6 of Title 12, Banks

and Banking. For complete classification of this Act to the Code,

see Short Title note set out under section 611 of Title 12 and

Tables.

Section 409 of the Federal Deposit Insurance Corporation

Improvement Act of 1991, referred to in subsecs. (b)(2) and (d), is

classified to section 4422 of Title 12, Banks and Banking.

-MISC2-

AMENDMENTS

2000 - Subsec. (b)(2). Pub. L. 106-554, Sec. 1(a)(8) (Sec. 1(e)),

inserted ''a New Markets Venture Capital company as defined in

section 351 of the Small Business Investment Act of 1958,'' after

''homestead association,''.

Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec. 112(c)(1)),

substituted '', except that an uninsured State member bank, or a

corporation organized under section 25A of the Federal Reserve Act,

which operates, or operates as, a multilateral clearing

organization pursuant to section 409 of the Federal Deposit

Insurance Corporation Improvement Act of 1991 may be a debtor if a

petition is filed at the direction of the Board of Governors of the

Federal Reserve System; or'' for ''; or''.

Subsec. (d). Pub. L. 106-554, Sec. 1(a)(5) (title I, Sec.

112(c)(2)), amended subsec. (d) generally. Prior to amendment,

subsec. (d) read as follows: ''Only a person that may be a debtor

under chapter 7 of this title, except a stockbroker or a commodity

broker, and a railroad may be a debtor under chapter 11 of this

title.''

1994 - Subsec. (b)(2). Pub. L. 103-394, Sec. 220, 501(d)(2),

inserted ''a small business investment company licensed by the

Small Business Administration under subsection (c) or (d) of

section 301 of the Small Business Investment Act of 1958,'' after

''homestead association,'' and struck out ''(12 U.S.C. 1813(h))''

after ''Insurance Act''.

Subsec. (c)(2). Pub. L. 103-394, Sec. 402, substituted

''specifically authorized, in its capacity as a municipality or by

name,'' for ''generally authorized''.

Subsec. (e). Pub. L. 103-394, Sec. 108(a), substituted

''$250,000'' and ''$750,000'' for ''$100,000'' and ''$350,000'',

respectively, in two places.

1988 - Subsec. (c)(3). Pub. L. 100-597 struck out ''or unable to

meet such entity's debts as such debts mature'' after

''insolvent''.

1986 - Subsec. (f). Pub. L. 99-554, Sec. 253(1)(B), (2), added

subsec. (f) and redesignated former subsec. (f) as (g).

Subsec. (g). Pub. L. 99-554, Sec. 253(1), redesignated former

subsec. (f) as (g) and inserted reference to family farmer.

1984 - Subsec. (a). Pub. L. 98-353, Sec. 425(a), struck out ''in

the United States,'' after ''only a person that resides''.

Subsec. (c)(5)(D). Pub. L. 98-353, Sec. 425(b), substituted

''transfer that is avoidable under section 547 of this title'' for

''preference''.

Subsec. (d). Pub. L. 98-353, Sec. 425(c), substituted

''stockbroker'' for ''stockholder''.

Subsec. (f). Pub. L. 98-353, Sec. 301, added subsec. (f).

1982 - Subsec. (b)(2). Pub. L. 97-320 inserted reference to

industrial banks or similar institutions which are insured banks as

defined in section 3(h) of the Federal Deposit Insurance Act (12

U.S.C. 1813(h)).

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not

applicable with respect to cases commenced under this title before

Oct. 22, 1994, see section 702 of Pub. L. 103-394, set out as a

note under section 101 of this title.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-597 effective Nov. 3, 1988, but not

applicable to any case commenced under this title before that date,

see section 12 of Pub. L. 100-597, set out as a note under section

101 of this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by Pub. L. 99-554 effective 30 days after Oct. 27,

1986, but not applicable to cases commenced under this title before

that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out as

a note under section 581 of Title 28, Judiciary and Judicial

Procedure.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective with respect to cases filed

90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353,

set out as a note under section 101 of this title.

ADJUSTMENT OF DOLLAR AMOUNTS

For adjustment of dollar amounts specified in subsec. (e) of this

section by the Judicial Conference of the United States, effective

Apr. 1, 2001, see note set out under section 104 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 104, 349, 921 of this

title.

-CITE-

11 USC Sec. 110 01/06/03

-EXPCITE-

TITLE 11 - BANKRUPTCY

CHAPTER 1 - GENERAL PROVISIONS

-HEAD-

Sec. 110. Penalty for persons who negligently or fraudulently

prepare bankruptcy petitions

-STATUTE-

(a) In this section -

(1) ''bankruptcy petition preparer'' means a person, other than

an attorney or an employee of an attorney, who prepares for

compensation a document for filing; and

(2) ''document for filing'' means a petition or any other

document prepared for filing by a debtor in a United States

bankruptcy court or a United States district court in connection

with a case under this title.

(b)(1) A bankruptcy petition preparer who prepares a document for

filing shall sign the document and print on the document the

preparer's name and address.

(2) A bankruptcy petition preparer who fails to comply with

paragraph (1) may be fined not more than $500 for each such failure

unless the failure is due to reasonable cause.

(c)(1) A bankruptcy petition preparer who prepares a document for

filing shall place on the document, after the preparer's signature,

an identifying number that identifies individuals who prepared the

document.

(2) For purposes of this section, the identifying number of a

bankruptcy petition preparer shall be the Social Security account

number of each individual who prepared the document or assisted in

its preparation.

(3) A bankruptcy petition preparer who fails to comply with

paragraph (1) may be fined not more than $500 for each such failure

unless the failure is due to reasonable cause.

(d)(1) A bankruptcy petition preparer shall, not later than the

time at which a document for filing is presented for the debtor's

signature, furnish to the debtor a copy of the document.

(2) A bankruptcy petition preparer who fails to comply with

paragraph (1) may be fined not more than $500 for each such failure

unless the failure is due to reasonable cause.

(e)(1) A bankruptcy petition preparer shall not execute any

document on behalf of a debtor.

(2) A bankruptcy petition preparer may be fined not more than

$500 for each document executed in violation of paragraph (1).

(f)(1) A bankruptcy petition preparer shall not use the word

''legal'' or any similar term in any advertisements, or advertise

under any category that includes the word ''legal'' or any similar

term.

(2) A bankruptcy petition preparer shall be fined not more than

$500 for each violation of paragraph (1).

(g)(1) A bankruptcy petition preparer shall not collect or

receive any payment from the debtor or on behalf of the debtor for

the court fees in connection with filing the petition.

(2) A bankruptcy petition preparer shall be fined not more than

$500 for each violation of paragraph (1).

(h)(1) Within 10 days after the date of the filing of a petition,

a bankruptcy petition preparer shall file a declaration under

penalty of perjury disclosing any fee received from or on behalf of

the debtor within 12 months immediately prior to the filing of the

case, and any unpaid fee charged to the debtor.

(2) The court shall disallow and order the immediate turnover to

the bankruptcy trustee of any fee referred to in paragraph (1)

found to be in excess of the value of services rendered for the

documents prepared. An individual debtor may exempt any funds so

recovered under section 522(b).

(3) The debtor, the trustee, a creditor, or the United States

trustee may file a motion for an order under paragraph (2).

(4) A bankruptcy petition preparer shall be fined not more than

$500 for each failure to comply with a court order to turn over

funds within 30 days of service of such order.

(i)(1) If a bankruptcy case or related proceeding is dismissed

because of the failure to file bankruptcy papers, including papers

specified in section 521(1) of this title, the negligence or

intentional disregard of this title or the Federal Rules of

Bankruptcy Procedure by a bankruptcy petition preparer, or if a

bankruptcy petition preparer violates this section or commits any

fraudulent, unfair, or deceptive act, the bankruptcy court shall

certify that fact to the district court, and the district court, on

motion of the debtor, the trustee, or a creditor and after a

hearing, shall order the bankruptcy petition preparer to pay to the

debtor -

(A) the debtor's actual damages;

(B) the greater of -

(i) $2,000; or

(ii) twice the amount paid by the debtor to the bankruptcy

petition preparer for the preparer's services; and

(C) reasonable attorneys' fees and costs in moving for damages

under this subsection.

(2) If the trustee or creditor moves for damages on behalf of the

debtor under this subsection, the bankruptcy petition preparer

shall be ordered to pay the movant the additional amount of $1,000

plus reasonable attorneys' fees and costs incurred.

(j)(1) A debtor for whom a bankruptcy petition preparer has

prepared a document for filing, the trustee, a creditor, or the

United States trustee in the district in which the bankruptcy

petition preparer resides, has conducted business, or the United

States trustee in any other district in which the debtor resides

may bring a civil action to enjoin a bankruptcy petition preparer

from engaging in any conduct in violation of this section or from

further acting as a bankruptcy petition preparer.

(2)(A) In an action under paragraph (1), if the court finds that

-

(i) a bankruptcy petition preparer has -

(I) engaged in conduct in violation of this section or of any

provision of this title a violation of which subjects a person

to criminal penalty;

(II) misrepresented the preparer's experience or education as

a bankruptcy petition preparer; or

(III) engaged in any other fraudulent, unfair, or deceptive

conduct; and

(ii) injunctive relief is appropriate to prevent the recurrence

of such conduct,

the court may enjoin the bankruptcy petition preparer from engaging

in such conduct.

(B) If the court finds that a bankruptcy petition preparer has

continually engaged in conduct described in subclause (I), (II), or

(III) of clause (i) and that an injunction prohibiting such conduct

would not be sufficient to prevent such person's interference with

the proper administration of this title, or has not paid a penalty

imposed under this section, the court may enjoin the person from

acting as a bankruptcy petition preparer.

(3) The court shall award to a debtor, trustee, or creditor that

brings a successful action under this subsection reasonable

attorney's (FOOTNOTE 1) fees and costs of the action, to be paid by

the bankruptcy petition preparer.

(FOOTNOTE 1) So in original. Probably should be ''attorneys'

''.

(k) Nothing in this section shall be construed to permit

activities that are otherwise prohibited by law, including rules

and laws that prohibit the unauthorized practice of law.

-SOURCE-

(Added Pub. L. 103-394, title III, Sec. 308(a), Oct. 22, 1994, 108

Stat. 4135.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Bankruptcy Procedure, referred to in subsec.

(i)(1), are set out in the Appendix to this title.

-MISC2-

EFFECTIVE DATE

Section effective Oct. 22, 1994, and not applicable with respect

to cases commenced under this title before Oct. 22, 1994, see

section 702 of Pub. L. 103-394, set out as an Effective Date of

1994 Amendment note under section 101 of this title.

-CITE-