(a) In this section, "cash collateral" means
cash, negotiable instruments, documents of title, securities, deposit
accounts, or other cash equivalents whenever acquired in which the estate and
an entity other than the estate have an interest and includes the proceeds,
products, offspring, rents, or profits of property and the fees, charges,
accounts or other payments for the use or occupancy of rooms and other public
facilities in hotels, motels, or other lodging properties subject to a
security interest as provided in section
552(b) of this title, whether existing before or after the commencement of
a case under this title.
(b)
(1) The trustee, after notice and a hearing, may use, sell, or lease,
other than in the ordinary course of business, property of the estate.,
except that if the debtor in connection with offering a product or a service
discloses to an individual a policy prohibiting the transfer of personally
identifiable information about individuals to persons that are not
affiliated with the debtor and if such policy is in effect on the date of
the commencement of the case, then the trustee may not sell or lease
personally identifiable information to any person unless--
(A) such sale or such lease is consistent with such
policy; or
(B) after appointment of a consumer privacy ombudsman
in accordance with section
332, and after notice and a hearing, the court approves such sale or
such lease--
(i) giving due consideration to the facts,
circumstances, and conditions of such sale or such lease; and
(ii) finding that no showing was made that such sale
or such lease would violate applicable nonbankruptcy law.
(2) If notification is required under subsection (a) of section 7A of the
Clayton Act in the case of a transaction under this subsection, then--
(A) notwithstanding subsection (a) of such section, the notification
required by such subsection to be given by the debtor shall be given by
the trustee; and
(B) notwithstanding subsection (b) of such section, the required
waiting period shall end on the 15th day after the date of the receipt, by
the Federal Trade Commission and the Assistant Attorney General in charge
of the Antitrust Division of the Department of Justice, of the
notification required under such subsection (a), unless such waiting
period is extended--
(i) pursuant to subsection (e)(2) of such section, in the same manner
as such subsection (e)(2) applies to a cash tender offer;
(ii) pursuant to subsection (g)(2) of such section; or
(iii) by the court after notice and a hearing.
(c)
(1) If the business of the debtor is authorized to be operated under section
721, 1108,
1203,
1204,
or 1304
of this title and unless the court orders otherwise, the trustee may enter
into transactions, including the sale or lease of property of the estate, in
the ordinary course of business, without notice or a hearing, and may use
property of the estate in the ordinary course of business without notice or
a hearing.
(2) The trustee may not use, sell, or lease cash collateral under
paragraph (1) of this subsection unless--
(A) each entity that has an interest in such cash collateral consents;
or
(B) the court, after notice and a hearing, authorizes such use, sale,
or lease in accordance with the provisions of this section.
(3) Any hearing under paragraph (2)(B) of this subsection may be a
preliminary hearing or may be consolidated with a hearing under subsection
(e) of this section, but shall be scheduled in accordance with the needs
of the debtor. If the hearing under paragraph (2)(B) of this subsection is a
preliminary hearing, the court may authorize such use, sale, or lease only
if there is a reasonable likelihood that the trustee will prevail at the
final hearing under subsection
(e) of this section. The court shall act promptly on any request for
authorization under paragraph (2)(B) of this subsection.
(4) Except as provided in paragraph (2) of this subsection, the trustee
shall segregate and account for any cash collateral in the trustee’s
possession, custody, or control.
(d) The trustee may use, sell, or lease property under
subsection
(b) or (c)
of this section only--
(1) in accordance with applicable nonbankruptcy law that
governs the transfer of property by a corporation or trust that is not a
moneyed, business, or commercial corporation or trust; and
(2) to the extent not inconsistent with any relief
granted under subsection
(c), (d),
(e),
or (f)
of section
362.
(e) Notwithstanding any other provision of this
section, at any time, on request of an entity that has an interest in property
used, sold, or leased, or proposed to be used, sold, or leased, by the
trustee, the court, with or without a hearing, shall prohibit or condition
such use, sale, or lease as is necessary to provide adequate protection of
such interest. This subsection also applies to property that is subject to any
unexpired lease of personal property (to the exclusion of such property being
subject to an order to grant relief from the stay under section
362).
(f) The trustee may sell property under subsection
(b) or (c)
of this section free and clear of any interest in such property of an entity
other than the estate, only if--
(1) applicable nonbankruptcy law permits sale of such property free and
clear of such interest;
(2) such entity consents;
(3) such interest is a lien and the price at which such property is to be
sold is greater than the aggregate value of all liens on such property;
(4) such interest is in bona fide dispute; or
(5) such entity could be compelled, in a legal or equitable proceeding,
to accept a money satisfaction of such interest.
(g) Notwithstanding subsection
(f) of this section, the trustee may sell property under subsection
(b) or (c)
of this section free and clear of any vested or contingent right in the nature
of dower or curtesy.
(h) Notwithstanding subsection
(f) of this section, the trustee may sell both the estate’s interest,
under subsection
(b) or (c)
of this section, and the interest of any co-owner in property in which the
debtor had, at the time of the commencement of the case, an undivided interest
as a tenant in common, joint tenant, or tenant by the entirety, only if--
(1) partition in kind of such property among the estate and such
co-owners is impracticable;
(2) sale of the estate’s undivided interest in such property would
realize significantly less for the estate than sale of such property free of
the interests of such co-owners;
(3) the benefit to the estate of a sale of such property free of the
interests of co-owners outweighs the detriment, if any, to such co-owners;
and
(4) such property is not used in the production, transmission, or
distribution, for sale, of electric energy or of natural or synthetic gas
for heat, light, or power.
(i) Before the consummation of a sale of property to
which subsection (g) or (h) of this section applies, or of property of the
estate that was community property of the debtor and the debtor’s spouse
immediately before the commencement of the case, the debtor’s spouse, or a
co-owner of such property, as the case may be, may purchase such property at
the price at which such sale is to be consummated.
(j) After a sale of property to which subsection
(g) or (h)
of this section applies, the trustee shall distribute to the debtor’s spouse
or the co-owners of such property, as the case may be, and to the estate, the
proceeds of such sale, less the costs and expenses, not including any
compensation of the trustee, of such sale, according to the interests of such
spouse or co-owners, and of the estate.
(k) At a sale under subsection
(b) of this section of property that is subject to a lien that secures an
allowed claim, unless the court for cause orders otherwise the holder of such
claim may bid at such sale, and, if the holder of such claim purchases such
property, such holder may offset such claim against the purchase price of such
property.
(l) Subject to the provisions of section 365, trustee
may use, sell, or lease property under subsection
(b) or (c)
of this section, or a plan under chapter
11, 12,
or 13
of this title may provide for the use, sale, or lease of property,
notwithstanding any provision in a contract, a lease, or applicable law that
is conditioned on the insolvency or financial condition of the debtor, on the
commencement of a case under this title concerning the debtor, or on the
appointment of or the taking possession by a trustee in a case under this
title or a custodian, and that effects, or gives an option to effect, a
forfeiture, modification, or termination of the debtor’s interest in such
property.
(m) The reversal or modification on appeal of an
authorization under subsection
(b) or (c)
of this section of a sale or lease of property does not affect the validity of
a sale or lease under such authorization to an entity that purchased or leased
such property in good faith, whether or not such entity knew of the pendency
of the appeal, unless such authorization and such sale or lease were stayed
pending appeal.
(n) The trustee may avoid a sale under this section if
the sale price was controlled by an agreement among potential bidders at such
sale, or may recover from a party to such agreement any amount by which the
value of the property sold exceeds the price at which such sale was
consummated, and may recover any costs, attorneys’ fees, or expenses
incurred in avoiding such sale or recovering such amount. In addition to any
recovery under the preceding sentence, the court may grant judgment for
punitive damages in favor of the estate and against any such party that
entered into such an agreement in willful disregard of this subsection.
(o) Notwithstanding subsection
(f), if a person purchases any interest in a consumer credit transaction
that is subject to the Truth in Lending Act or any interest in a consumer
credit contract (as defined in section 433.1 of title 16 of the Code of
Federal Regulations (January 1, 2004), as amended from time to time), and if
such interest is purchased through a sale under this section, then such person
shall remain subject to all claims and defenses that are related to such
consumer credit transaction or such consumer credit contract, to the same
extent as such person would be subject to such claims and defenses of the
consumer had such interest been purchased at a sale not under this section.
(p)
In any hearing under this section--
(1) the trustee has the burden of proof on the issue of adequate
protection; and
(2) the entity asserting an interest in property has the burden of proof
on the issue of the validity, priority, or extent of such interest.
[Rev. 5-4-05]
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