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TITLE
11. BANKRUPTCY · UNITED STATES CODE
Chapter 1. General Provisions
§ 101. Definitions
§ 102. Rules of
construction
§ 103. Applicability of
chapters
§ 104. Adjustment of
dollar amounts
§ 105. Power of court
§ 106. Waiver of
sovereign immunity
§ 107. Public access to
papers
§ 108. Extension of
time
§ 109. Who may be a
debtor
§ 110. Penalty for
persons who negligently or fraudulently prepare bankruptcy petitions
§ 111. Nonprofit budget
and credit counseling agencies; financial management instructional courses
§ 112. Prohibition on
disclosure of name of minor children
11
USC § 101. Definitions
In this title
the following definitions shall apply--
(1) The term
"accountant" means accountant authorized under applicable law to
practice public accounting, and includes professional accounting association,
corporation, or partnership, if so authorized.
(2) The term
"affiliate" means--
(A) entity that directly or indirectly owns,
controls, or holds with power to vote, 20 percent or more of the outstanding
voting securities of the debtor, other than an entity that holds such
securities--
(i) in a fiduciary or agency capacity without sole discretionary power
to vote such securities; or
(ii) solely to secure a debt, if such entity has not in fact exercised
such power to vote;
(B) corporation 20 percent or more of whose
outstanding voting securities are directly or indirectly owned, controlled,
or held with power to vote, by the debtor, or by an entity that directly or
indirectly owns, controls, or holds with power to vote, 20 percent or more
of the outstanding voting securities of the debtor, other than an entity
that holds such securities--
(i) in a fiduciary or agency capacity without sole discretionary power
to vote such securities; or
(ii) solely to secure a debt, if such entity has not in fact exercised
such power to vote;
(C) person whose business is operated under a
lease or operating agreement by a debtor, or person substantially all of
whose property is operated under an operating agreement with the debtor; or
(D) entity that operates the business or
substantially all of the property of the debtor under a lease or operating
agreement.
(3) The term "assisted
person" means any person whose debts consist primarily of consumer debts
and the value of whose non-exempt property is less than $150,000 [Adjusted
every 3 years by section
104.].
(4) The term
"attorney" means attorney, professional law association,
corporation, or partnership, authorized under applicable law to practice law.
(4A) The term "bankruptcy
assistance" means any goods or services sold or otherwise provided to an
assisted person with the express or implied purpose of providing information,
advice, counsel, document preparation, or filing, or attendance at a
creditors' meeting or appearing in a case or proceeding on behalf of another
or providing legal representation with respect to a case or proceeding under
this title.
(5) The term "claim"
means--
(A) right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured; or
(B) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured.
(6) The term "commodity
broker" means futures commission merchant, foreign futures commission
merchant, clearing organization, leverage transaction merchant, or commodity
options dealer, as defined in section 761
of this title, with respect to which there is a customer, as defined in
section 761
of this title.
(7) The term "community
claim" means claim that arose before the commencement of the case
concerning the debtor for which property of the kind specified in section 541(a)(2)
of this title is liable, whether or not there is any such property at the time
of the commencement of the case.
(7A) The term "commercial
fishing operation" means--
(A) the catching or harvesting of fish, shrimp,
lobsters, urchins, seaweed, shellfish, or other aquatic species or products
of such species; or
(B) for purposes of section
109 and chapter
12, aquaculture activities consisting of raising for market any species
or product described in subparagraph (A).
(7B) The term "commercial
fishing vessel" means a vessel used by a fisherman to carry out a
commercial fishing operation.
(8) The term "consumer
debt" means debt incurred by an individual primarily for a personal,
family, or household purpose.
(9) The term
"corporation"--
(A) includes--
(i) association having a power or privilege that a private corporation,
but not an individual or a partnership, possesses.
(ii) partnership association organized under a law that makes only the
capital subscribed responsible for the debts of such association;
(iii) joint-stock company;
(iv) unincorporated company or association; or
(v) business trust; but
(B) does not include limited partnership.
(10) The term
"creditor" means--
(A) entity that has a claim against the debtor
that arose at the time of or before the order for relief concerning the
debtor;
(B) entity that has a claim against the estate
of a kind specified in section 348(d),
502(f),
502(g),
502(h)
or 502(i)
of this title; or
(C) entity that has a community claim.
(10A) The term "current monthly
income"--
(A) means the average monthly income from all
sources that the debtor receives (or in a joint case the debtor and the
debtor's spouse receive) without regard to whether such income is taxable
income, derived during the 6-month period ending on--
(i) the last day of the calendar month immediately preceding the date
of the commencement of the case if the debtor files the schedule of
current income required by section
521(a)(1)(B)(ii); or
(ii) the date on which current income is determined by the court for
purposes of this title if the debtor does not file the schedule of current
income required by section
521(a)(1)(B)(ii); and
(B) includes any amount paid by any entity
other than the debtor (or in a joint case the debtor and the debtor's
spouse), on a regular basis for the household expenses of the debtor or the
debtor's dependents (and in a joint case the debtor's spouse if not
otherwise a dependent), but excludes benefits received under the Social
Security Act, payments to victims of war crimes or crimes against humanity
on account of their status as victims of such crimes, and payments to
victims of international terrorism (as defined in section 2331 of title 18)
or domestic terrorism (as defined in section 2331 of title 18) on account of
their status as victims of such terrorism.
(11) The term
"custodian" means--
(A) receiver or trustee of any of the property
of the debtor, appointed in a case or proceeding not under this title;
(B) assignee under a general assignment for the
benefit of the debtor's creditors; or
(C) trustee, receiver, or agent under applicable
law, or under a contract, that is appointed or authorized to take charge of
property of the debtor for the purpose of enforcing a lien against such
property, or for the purpose of general administration of such property for
the benefit of the debtor's creditors.
(12) The term "debt"
means liability on a claim.
(12A) The term "debt relief
agency" means any person who provides any bankruptcy assistance to an
assisted person in return for the payment of money or other valuable
consideration, or who is a bankruptcy petition preparer under section
110, but does not include--
(A) any person who is an officer, director,
employee, or agent of a person who provides such assistance or of the
bankruptcy petition preparer;
(B) a nonprofit organization that is exempt
from taxation under section 501(c)(3) of the Internal Revenue Code of 1986;
(C) a creditor of such assisted person, to the
extent that the creditor is assisting such assisted person to restructure
any debt owed by such assisted person to the creditor;
(D) a depository institution (as defined in
section 3 of the Federal Deposit Insurance Act) or any Federal credit union
or State credit union (as those terms are defined in section 101 of the
Federal Credit Union Act), or any affiliate or subsidiary of such depository
institution or credit union; or
(E) an author, publisher, distributor, or
seller of works subject to copyright protection under title 17, when acting
in such capacity.
(13) The term
"debtor" means person or municipality concerning which a case under
this title has been commenced.
(13A) The term "debtor's
principal residence"--
(A) means a residential structure, including incidental property, without
regard to whether that structure is attached to real property; and
(B) includes an individual condominium or cooperative unit, a mobile or
manufactured home, or trailer.
(14) The term "disinterested
person" means a person that--
(A) is not a creditor, an equity security holder, or an
insider;
(B) is not and was not, within 2 years before the date of
the filing of the petition, a director, officer, or employee of the debtor;
and
(C) does not have an interest materially adverse to the
interest of the estate or of any class of creditors or equity security
holders, by reason of any direct or indirect relationship to, connection
with, or interest in, the debtor, or for any other reason.
(14A) The term "domestic
support obligation" means a debt that accrues before, on, or after the
date of the order for relief in a case under this title, including interest
that accrues on that debt as provided under applicable nonbankruptcy law
notwithstanding any other provision of this title, that is--
(A) owed to or recoverable by--
(i) a spouse, former spouse, or child of the debtor or such child's
parent, legal guardian, or responsible relative; or
(ii) a governmental unit;
(B) in the nature of alimony, maintenance, or support (including
assistance provided by a governmental unit) of such spouse, former spouse,
or child of the debtor or such child's parent, without regard to whether
such debt is expressly so designated;
(C) established or subject to establishment before, on, or after the date
of the order for relief in a case under this title, by reason of applicable
provisions of--
(i) a separation agreement, divorce decree, or property settlement
agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance with applicable nonbankruptcy
law by a governmental unit; and
(D) not assigned to a nongovernmental entity, unless that obligation is
assigned voluntarily by the spouse, former spouse, child of the debtor, or
such child's parent, legal guardian, or responsible relative for the purpose
of collecting the debt.
(15) The term
"entity" includes person, estate, trust, governmental unit, and
United States trustee.
(16) The term "equity
security" means--
(A) share in a corporation, whether or not transferable or denominated
"stock", or similar security;
(B) interest of a limited partner in a limited partnership; or
(C) warrant or right, other than a right to convert, to purchase, sell,
or subscribe to a share, security, or interest of a kind specified in
subparagraph (A) or (B) of this paragraph.
(17) The term "equity
security holder" means holder of an equity security of the debtor.
(18) The term "family
farmer" means--
(A) individual or individual and spouse engaged in a farming operation
whose aggregate debts do not exceed
$3,237,000 [Adjusted
every 3 years by section
104.] and not less than
50 percent of whose aggregate noncontingent,
liquidated debts (excluding a debt for the principal residence of such
individual or such individual and spouse unless such debt arises out of a
farming operation), on the date the case is filed, arise out of a farming
operation owned or operated by such individual or such individual and
spouse, and such individual or such individual and spouse receive from such
farming operation more than 50 percent of such individual's or such
individual and spouse's gross income
for--
(i) the taxable year preceding; or
(ii) each of the 2d and 3d taxable years preceding;
the taxable year in which the case concerning such individual or
such individual and spouse was filed; or
(B) corporation or partnership in which more than 50 percent of the
outstanding stock or equity is held by one family, or by one family and the
relatives of the members of such family, and such family or such relatives
conduct the farming operation, and
(i) more than 80 percent of the value of its assets consists of assets
related to the farming operation;
(ii) its aggregate debts do not exceed
$3,237,000 [Adjusted
every 3 years by section
104.] and not less than
50 percent of its aggregate noncontingent,
liquidated debts (excluding a debt for one dwelling which is owned by such
corporation or partnership and which a shareholder or partner maintains as
a principal residence, unless such debt arises out of a farming
operation), on the date the case is filed, arise out of the farming
operation owned or operated by such corporation or such partnership; and
(iii) if such corporation issues stock, such stock is not publicly
traded.
(19) The term "family
farmer with regular annual income" means family farmer whose annual
income is sufficiently stable and regular to enable such family farmer to make
payments under a plan under chapter 12 of this title.
(19A) The term "family
fisherman" means--
(A) an individual or individual and spouse engaged in a commercial
fishing operation--
(i) whose aggregate debts do not exceed $1,500,000 [Adjusted
every 3 years by section
104.] and not less than 80 percent of whose aggregate
noncontingent, liquidated debts (excluding a debt for the principal
residence of such individual or such individual and spouse, unless such
debt arises out of a commercial fishing operation), on the date the case
is filed, arise out of a commercial fishing operation owned or operated by
such individual or such individual and spouse; and
(ii) who receive from such commercial fishing operation more than 50
percent of such individual's or such individual's and spouse's gross
income for the taxable year preceding the taxable year in which the case
concerning such individual or such individual and spouse was filed; or
(B) a corporation or partnership--
(i) in which more than 50 percent of the outstanding stock or equity is
held by--
(I) 1 family that conducts the commercial fishing operation; or
(II) 1 family and the relatives of the members of such family, and such
family or such relatives conduct the commercial fishing operation; and
(ii)
(I) more than 80 percent of the value of its assets consists of
assets related to the commercial fishing operation;
(II) its aggregate debts do not exceed $1,500,000 [Adjusted
every 3 years by section
104.] and not less than 80 percent of its aggregate
noncontingent, liquidated debts (excluding a debt for 1 dwelling which
is owned by such corporation or partnership and which a shareholder or
partner maintains as a principal residence, unless such debt arises out
of a commercial fishing operation), on the date the case is filed, arise
out of a commercial fishing operation owned or operated by such
corporation or such partnership; and
(III) if such corporation issues stock, such stock is not publicly
traded.
(19B) The term "family fisherman with regular
annual income" means a family fisherman whose annual income is
sufficiently stable and regular to enable such family fisherman to make
payments under a plan under chapter 12 of this title.
(20) The term
"farmer" means (except when such term appears in the term
"family farmer") person that received more than 80 percent of such
person's gross income during the taxable year of such person immediately
preceding the taxable year of such person during which the case under this
title concerning such person was commenced from a farming operation owned or
operated by such person.
(21) The term "farming
operation" includes farming, tillage of the soil, dairy farming,
ranching, production or raising of crops, poultry, or livestock, and
production of poultry or livestock products in an unmanufactured state.
(21A) The term "farmout
agreement" means a written agreement in which--
(A) the owner of a right to drill, produce, or operate liquid or gaseous
hydrocarbons on property agrees or has agreed to transfer or assign all or a
part of such right to another entity; and
(B) such other entity (either directly or through its agents or its
assigns), as consideration, agrees to perform drilling, reworking,
recompleting, testing, or similar or related operations, to develop or
produce liquid or gaseous hydrocarbons on the property.
(21B) The term "Federal
depository institutions regulatory agency" means--
(A) with respect to an insured depository institution (as defined in
section 3(c)(2) of the Federal Deposit Insurance Act) for which no
conservator or receiver has been appointed, the appropriate Federal banking
agency (as defined in section 3(q) of such Act);
(B) with respect to an insured credit union (including an insured credit
union for which the National Credit Union Administration has been appointed
conservator or liquidating agent), the National Credit Union Administration;
(C) with respect to any insured depository institution for which the
Resolution Trust Corporation has been appointed conservator or receiver, the
Resolution Trust Corporation; and
(D) with respect to any insured depository institution for which the
Federal Deposit Insurance Corporation has been appointed conservator or
receiver, the Federal Deposit Insurance Corporation.
(22) The term "financial
institution" means--
(A) a Federal reserve bank, or an entity (domestic or
foreign) that is a commercial or savings bank, industrial savings bank,
savings and loan association, trust company, federally-insured credit union,
or receiver, liquidating agent, or conservator for such entity and, when any
such Federal reserve bank, receiver, liquidating agent, conservator or
entity is acting as agent or custodian for a customer in connection with a
securities contract (as defined in section
741) such customer; or
(B) in connection with a securities contract (as defined
in section
741) an investment company registered under the Investment Company Act
of 1940.
(22A) The term "financial
participant" means--
(A) an entity that, at the time it enters into a
securities contract, commodity contract, swap agreement, repurchase
agreement, or forward contract, or at the time of the date of the filing of
the petition, has one or more agreements or transactions described in
paragraph (1),
(2),
(3), (4),
(5), or (6)
of section
561(a) with the debtor or any other entity (other than an affiliate) of
a total gross dollar value of not less than $1,000,000,000 in notional or
actual principal amount outstanding on any day during the previous 15-month
period, or has gross mark-to-market positions of not less than $100,000,000
(aggregated across counterparties) in one or more such agreements or
transactions with the debtor or any other entity (other than an affiliate)
on any day during the previous 15-month period; or
(B) a clearing organization (as defined in section 402 of
the Federal Deposit Insurance Corporation Improvement Act of 1991).
(23) The term "foreign
proceeding" means a collective judicial or administrative proceeding in a
foreign country, including an interim proceeding, under a law relating to
insolvency or adjustment of debt in which proceeding the assets and affairs of
the debtor are subject to control or supervision by a foreign court, for the
purpose of reorganization or liquidation.
(24) The term "foreign
representative" means a person or body, including a person or body
appointed on an interim basis, authorized in a foreign proceeding to
administer the reorganization or the liquidation of the debtor's assets or
affairs or to act as a representative of such foreign proceeding.
(25) The term "forward
contract"
means--
(A) a contract (other than a commodity contract)
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 other similar agreement;
(B) any combination of agreements or transactions
referred to in subparagraphs (A) and (C);
(C) any option to enter into an agreement or transaction
referred to in subparagraph (A) or (B);
(D) a master agreement that provides for an agreement or
transaction referred to in subparagraph (A), (B), or (C), together with all
supplements to any such master agreement, without regard to whether such
master agreement provides for an agreement or transaction that is not a
forward contract under this paragraph, except that such master agreement
shall be considered to be a forward contract under this paragraph only with
respect to each agreement or transaction under such master agreement that is
referred to in subparagraph (A), (B), or (C); or
(E) any security agreement or arrangement, or other
credit enhancement related to any agreement or transaction referred to in
subparagraph (A), (B), (C), or (D), including any guarantee or reimbursement
obligation by or to a forward contract merchant or financial participant in
connection with any agreement or transaction referred to in any such
subparagraph, but not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section
562.
(26) The term "forward contract
merchant" means a Federal reserve bank, or an entity the business of
which consists in whole or in part of entering into forward contracts as or
with merchants in a commodity (as defined in section 761) or any similar good,
article, service, right, or interest which is presently or in the future
becomes the subject of dealing in the forward contract trade.
(27) The term
"governmental unit" means United States; State; Commonwealth;
District; Territory; municipality; foreign state; department, agency, or
instrumentality of the United States (but not a United States trustee while
serving as a trustee in a case under this title), a State, a Commonwealth, a
District, a Territory, a municipality, or a foreign state; or other foreign or
domestic government.
(27A) The term "health care
business"--
(A) means any public or private entity (without regard to whether that
entity is organized for profit or not for profit) that is primarily engaged
in offering to the general public facilities and services for--
(i) the diagnosis or treatment of injury, deformity, or disease; and
(ii) surgical, drug treatment, psychiatric, or obstetric care; and
(B) includes--
(i) any--
(I) general or specialized hospital;
(II) ancillary ambulatory, emergency, or surgical treatment facility;
(III) hospice;
(IV) home health agency; and
(V) other health care institution that is similar to an entity
referred to in subclause (I), (II), (III), or (IV); and
(ii) any long-term care facility, including any--
(I) skilled nursing facility;
(II) intermediate care facility;
(III) assisted living facility;
(IV) home for the aged;
(V) domiciliary care facility; and
(VI) health care institution that is related to a facility referred
to in subclause (I), (II), (III), (IV), or (V), if that institution is
primarily engaged in offering room, board, laundry, or personal
assistance with activities of daily living and incidentals to activities
of daily living.
(27B) The term "incidental
property" means, with respect to a debtor's principal residence--
(A) property commonly conveyed with a principal residence in the area
where the real property is located;
(B) all easements, rights, appurtenances, fixtures, rents, royalties,
mineral rights, oil or gas rights or profits, water rights, escrow funds, or
insurance proceeds; and
(C) all replacements or additions.
(28) The term
"indenture" means mortgage, deed of trust, or indenture, under which
there is outstanding a security, other than a voting-trust certificate,
constituting a claim against the debtor, a claim secured by a lien on any of
the debtor's property, or an equity security of the debtor.
(29) The term "indenture
trustee" means trustee under an indenture.
(30) The term "individual
with regular income" means individual whose income is sufficiently stable
and regular to enable such individual to make payments under a plan under
chapter 13 of this title, other than a stockbroker or a commodity broker.
(31) The term
"insider" includes--
(A) if the debtor is an individual--
(i) relative of the debtor or of a general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person
in control;
(B) if the debtor is a corporation--
(i) director of the debtor;
(ii) officer of the debtor;
(iii) person in control of the debtor;
(iv) partnership in which the debtor is a general partner;
(v) general partner of the debtor; or
(vi) relative of a general partner, director, officer, or person in
control of the debtor;
(C) if the debtor is a partnership--
(i) general partner in the debtor;
(ii) relative of a general partner in, general partner of, or person in
control of the debtor;
(iii) partnership in which the debtor is a general partner;
(iv) general partner of the debtor; or
(v) person in control of the debtor;
(D) if the debtor is a municipality, elected official of the debtor or
relative of an elected official of the debtor;
(E) affiliate, or insider of an affiliate as if such affiliate were the
debtor; and
(F) managing agent of the debtor.
(32) The term
"insolvent" means--
(A) with reference to an entity other than a partnership and a
municipality, financial condition such that the sum of such entity's debts
is greater than all of such entity's property, at a fair valuation,
exclusive of--
(i) property transferred, concealed, or removed with intent to hinder,
delay, or defraud such entity's creditors; and
(ii) property that may be exempted from property of the estate under section
522 of this title;
(B) with reference to a partnership, financial condition such that the
sum of such partnership's debts is greater than the aggregate of, at a fair
valuation--
(i) all of such partnership's property, exclusive of property of the
kind specified in subparagraph (A)(i) of this paragraph; and
(ii) the sum of the excess of the value of each general partner's
nonpartnership property, exclusive of property of the kind specified in
subparagraph (A) of this paragraph, over such partner's nonpartnership
debts; and
(C) with reference to a municipality, financial condition such that the
municipality is--
(i) generally not paying its debts as they become due unless such debts
are the subject of a bona fide dispute; or
(ii) unable to pay its debts as they become due.
(33) The term
"institution-affiliated party"--
(A) with respect to an insured depository institution (as defined in
section 3(c)(2) of the Federal Deposit Insurance Act), has the meaning given
it in section 3(u) of the Federal Deposit Insurance Act; and
(B) with respect to an insured credit union, has the meaning given it in
section 206(r) of the Federal Credit Union Act.
(34) The term "insured
credit union" has the meaning given it in section 101(7) of the Federal
Credit Union Act.
(35) The term "insured
depository institution"--
(A) has the meaning given it in section 3(c)(2) of the Federal Deposit
Insurance Act; and
(B) includes an insured credit union (except in the case of
paragraphs (23)
and (35)
of this subsection).
(35A) The term
"intellectual property" means--
(A) trade secret;
(B) invention, process, design, or plant protected under title 35;
(C) patent application;
(D) plant variety;
(E) work of authorship protected under title 17; or
(F) mask work protected under chapter 9 of title 17; to the extent
protected by applicable nonbankruptcy law.
(36) The term "judicial
lien" means lien obtained by judgment, levy, sequestration, or other
legal or equitable process or proceeding.
(37) The term "lien"
means charge against or interest in property to secure payment of a debt or
performance of an obligation.
(38) The term "margin
payment" means, for purposes of the forward contract provisions of this
title, payment or deposit of cash, a security or other property, that is
commonly known in the forward contract trade as original margin, initial
margin, maintenance margin, or variation margin, including mark-to-market
payments, or variation payments.
(38A) The term "master netting
agreement"--
(A) means an agreement providing for the exercise of rights, including
rights of netting, setoff, liquidation, termination, acceleration, or close
out, under or in connection with one or more contracts that are described in
any one or more of paragraphs (1) through (5) of section
561(a), or any security agreement or arrangement or other credit
enhancement related to one or more of the foregoing, including any guarantee
or reimbursement obligation related to 1 or more of the foregoing; and
(B) if the agreement contains provisions relating to agreements or
transactions that are not contracts described in paragraphs (1) through (5)
of section
561(a), shall be deemed to be a master netting agreement only with
respect to those agreements or transactions that are described in any one or
more of paragraphs (1) through (5) of section
561(a).
(38B) The term "master netting
agreement participant" means an entity that, at any time before the date
of the filing of the petition, is a party to an outstanding master netting
agreement with the debtor.
(39) The term "mask
work" has the meaning given it in section 901(a)(2) of title 17.
(39A) The term "median family
income" means for any year--
(A) the median family income both calculated and reported by the Bureau
of the Census in the then most recent year; and
(B) if not so calculated and reported in the then current year, adjusted
annually after such most recent year until the next year in which median
family income is both calculated and reported by the Bureau of the Census,
to reflect the percentage change in the Consumer Price Index for All Urban
Consumers during the period of years occurring after such most recent year
and before such current year.
(40) The term
"municipality" means political subdivision or public agency or
instrumentality of a State.
(40A) The term "patient"
means any individual who obtains or receives services from a health care
business.
(40B) The term "patient
records" means any written document relating to a patient or a record
recorded in a magnetic, optical, or other form of electronic medium.
(41) The term "person"
includes individual, partnership, and corporation, but does not include
governmental unit, except that a governmental unit that--
(A) acquires an asset from a person--
(i) as a result of the operation of a loan guarantee agreement; or
(ii) as receiver or liquidating agent of a person;
(B) is a guarantor of a pension benefit payable by or on behalf of the
debtor or an affiliate of the debtor; or
(C) is the legal or beneficial owner of an asset of--
(i) an employee pension benefit plan that is a governmental plan, as
defined in section 414(d) of the Internal Revenue Code of 1986; or
(ii) an eligible deferred compensation plan, as defined in section
457(b) of the Internal Revenue Code of 1986; shall be considered, for
purposes of section 1102
of this title, to be a person with respect to such asset or such benefit.
(41A) The term "personally
identifiable information" means--
(A) if provided by an individual to the debtor in connection with
obtaining a product or a service from the debtor primarily for personal,
family, or household purposes--
(i) the first name (or initial) and last name of such individual,
whether given at birth or time of adoption, or resulting from a lawful
change of name;
(ii) the geographical address of a physical place of residence of such
individual;
(iii) an electronic address (including an e-mail address) of such
individual;
(iv) a telephone number dedicated to contacting such individual at such
physical place of residence;
(v) a social security account number issued to such individual; or
(vi) the account number of a credit card issued to such individual; or
(B) if identified in connection with 1 or more of the items of
information specified in subparagraph (A)--
(i) a birth date, the number of a certificate of birth or adoption, or
a place of birth; or
(ii) any other information concerning an identified individual that, if
disclosed, will result in contacting or identifying such individual
physically or electronically.
(42) The term
"petition" means petition filed under section 301,
302,
303,
or 304
of this title, as the case may be, commencing a case under this title.
(42A) The term
"production payment" means a term overriding royalty satisfiable in
cash or in kind--
(A) contingent on the production of a liquid or gaseous hydrocarbon from
particular real property; and
(B) from a specified volume, or a specified value, from the liquid or
gaseous hydrocarbon produced from such property, and determined without
regard to production costs.
(43) The term
"purchaser" means transferee of a voluntary transfer, and includes
immediate or mediate transferee of such a transferee.
(44) The term
"railroad" means common carrier by railroad engaged in the
transportation of individuals or property or owner of trackage facilities
leased by such a common carrier.
(45) The term
"relative" means individual related by affinity or consanguinity
within the third degree as determined by the common law, or individual in a
step or adoptive relationship within such third degree.
(46) The term "repo
participant" means an entity that, at any time before
the date of the filing of the petition, has an outstanding repurchase
agreement with the debtor.
(47) The term "repurchase
agreement" (which definition also applies to a reverse repurchase
agreement)--
(A) means--
(i) an agreement, including related terms, which provides for the
transfer of one or more certificates of deposit, mortgage related
securities (as defined in section 3 of the Securities Exchange Act of
1934), mortgage loans, interests in mortgage related securities or
mortgage loans, eligible bankers' acceptances, qualified foreign
government securities (defined as a security that is a direct obligation
of, or that is fully guaranteed by, the central government of a member of
the Organization for Economic Cooperation and Development), or securities
that are direct obligations of, or that are fully guaranteed by, the
United States or any agency of the United States against the transfer of
funds by the transferee of such certificates of deposit, eligible bankers'
acceptances, securities, mortgage loans, or interests, with a simultaneous
agreement by such transferee to transfer to the transferor thereof
certificates of deposit, eligible bankers' acceptance, securities,
mortgage loans, or interests of the kind described in this clause, at a
date certain not later than 1 year after such transfer or on demand,
against the transfer of funds;
(ii) any combination of agreements or transactions referred to in
clauses (i) and (iii);
(iii) an option to enter into an agreement or transaction referred to
in clause (i) or (ii);
(iv) a master agreement that provides for an agreement or transaction
referred to in clause (i), (ii), or (iii), together with all supplements
to any such master agreement, without regard to whether such master
agreement provides for an agreement or transaction that is not a
repurchase agreement under this paragraph, except that such master
agreement shall be considered to be a repurchase agreement under this
paragraph only with respect to each agreement or transaction under the
master agreement that is referred to in clause (i), (ii), or (iii); or
(v) any security agreement or arrangement or other credit enhancement
related to any agreement or transaction referred to in clause (i), (ii),
(iii), or (iv), including any guarantee or reimbursement obligation by or
to a repo participant or financial participant in connection with any
agreement or transaction referred to in any such clause, but not to exceed
the damages in connection with any such agreement or transaction, measured
in accordance with section 562 of this title; and
(B) does not include a repurchase obligation under a participation in a
commercial mortgage loan.
(48) The term "securities
clearing agency" means person that is registered as a clearing agency
under section 17A of the Securities Exchange Act of 1934, or
exempt from such registration under such section pursuant to an order of the
Securities and Exchange Commission, or whose business is confined to
the performance of functions of a clearing agency with respect to exempted
securities, as defined in section 3(a)(12) of such Act for the purposes of
such section 17A.
(48A) The term "securities self
regulatory organization" means either a securities association registered
with the Securities and Exchange Commission under section 15A of the
Securities Exchange Act of 1934 or a national securities exchange registered
with the Securities and Exchange Commission under section 6 of the Securities
Exchange Act of 1934.
(49) The term
"security"--
(A) includes--
(i) note;
(ii) stock;
(iii) treasury stock;
(iv) bond;
(v) debenture;
(vi) collateral trust certificate;
(vii) pre-organization certificate or subscription;
(viii) transferable share;
(ix) voting-trust certificate;
(x) certificate of deposit;
(xi) certificate of deposit for security;
(xii) investment contract or certificate of interest or participation
in a profit-sharing agreement or in an oil, gas, or mineral royalty or
lease, if such contract or interest is required to be the subject of a
registration statement filed with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, or is exempt under
section 3(b) of such Act from the requirement to file such a statement;
(xiii) interest of a limited partner in a limited partnership;
(xiv) other claim or interest commonly known as "security";
and
(xv) certificate of interest or participation in, temporary or interim
certificate for, receipt for, or warrant or right to subscribe to or
purchase or sell, a security; but
(B) does not include--
(i) currency, check, draft, bill of exchange, or bank letter of credit;
(ii) leverage transaction, as defined in section
761 of this title;
(iii) commodity futures contract or forward contract;
(iv) option, warrant, or right to subscribe to or purchase or sell a
commodity futures contract;
(v) option to purchase or sell a commodity;
(vi) contract or certificate of a kind specified in subparagraph
(A)(xii) of this paragraph that is not required to be the subject of a
registration statement filed with the Securities and Exchange Commission
and is not exempt under section 3(b) of the Securities Act of 1933 from
the requirement to file such a statement; or
(vii) debt or evidence of indebtedness for goods sold and delivered or
services rendered.
(50) The term "security
agreement" means agreement that creates or provides for a security
interest.
(51) The term "security
interest" means lien created by an agreement.
(51A) The term
"settlement payment" means, for purposes of the forward contract
provisions of this title, a preliminary settlement payment, a partial
settlement payment, an interim settlement payment, a settlement payment on
account, a final settlement payment, a net settlement payment, or any other
similar payment commonly used in the forward contract trade.
(51B) The term "single
asset real estate" means real property constituting a single property or
project, other than residential real property with fewer than 4 residential
units, which generates substantially all of the gross income of a debtor who
is not a family farmer and on which no substantial business is being
conducted by a debtor other than the business of operating the real property
and activities incidental.
(51C) The term "small business
case" means a case filed under chapter
11 of this title in which the debtor is a small business debtor.
(51D) The term "small business
debtor"--
(A) subject to subparagraph (B), means a person engaged in commercial or
business activities (including any affiliate of such person that is also a
debtor under this title and excluding a person whose primary activity is the
business of owning or operating real property or activities incidental
thereto) that has aggregate noncontingent liquidated secured and unsecured
debts as of the date of the petition or the date of the order for relief in
an amount not more than $2,000,000 [Adjusted
every 3 years by section
104.] (excluding debts owed to 1 or more affiliates or insiders)
for a case in which the United States trustee has not appointed under
section 1102(a)(1) a committee of unsecured creditors or where the court has
determined that the committee of unsecured creditors is not sufficiently
active and representative to provide effective oversight of the debtor; and
(B) does not include any member of a group of affiliated debtors that has
aggregate noncontingent liquidated secured and unsecured debts in an amount
greater than $2,000,000 [Adjusted
every 3 years by section
104.] (excluding debt owed to 1 or more affiliates or insiders).
(52) The term
"State" includes the District of Columbia and Puerto Rico, except
for the purpose of defining who may be a debtor under chapter
9 of this title.
(53) The term "statutory
lien" means lien arising solely by force of a statute on specified
circumstances or conditions, or lien of distress for rent, whether or not
statutory, but does not include security interest or judicial lien, whether or
not such interest or lien is provided by or is dependent on a statute and
whether or not such interest or lien is made fully effective by statute.
(53A) The term
"stockbroker" means person--
(A) with respect to which there is a customer, as defined in section 741
of this title; and
(B) that is engaged in the business of effecting transactions in
securities--
(i) for the account of others; or
(ii) with members of the general public, from or for such person's own
account.
(53B) The term "swap
agreement"--
(A) means--
(i) any agreement, including the terms and conditions incorporated by
reference in such agreement, which is--
(I) an interest rate swap, option, future, or forward agreement,
including a rate floor, rate cap, rate collar, cross-currency rate swap,
and basis swap;
(II) a spot, same day-tomorrow, tomorrow-next, forward, or other
foreign exchange or precious metals agreement;
(III) a currency swap, option, future, or forward agreement;
(IV) an equity index or equity swap, option, future, or forward
agreement;
(V) a debt index or debt swap, option, future, or forward agreement;
(VI) a total return, credit spread or credit swap, option, future, or
forward agreement;
(VII) a commodity index or a commodity swap, option, future, or
forward agreement; or
(VIII) a weather swap, weather derivative, or weather option;
(ii) any agreement or transaction that is similar to any other
agreement or transaction referred to in this paragraph and that--
(I) is of a type that has been, is presently, or in the future
becomes, the subject of recurrent dealings in the swap markets
(including terms and conditions incorporated by reference therein); and
(II) is a forward, swap, future, or option on one or more rates,
currencies, commodities, equity securities, or other equity instruments,
debt securities or other debt instruments, quantitative measures
associated with an occurrence, extent of an occurrence, or contingency
associated with a financial, commercial, or economic consequence, or
economic or financial indices or measures of economic or financial risk
or value;
(iii) any combination of agreements or transactions referred to in
this subparagraph;
(iv) any option to enter into an agreement or transaction referred to
in this subparagraph;
(v) a master agreement that provides for an agreement or transaction
referred to in clause (i), (ii), (iii), or (iv), together with all
supplements to any such master agreement, and without regard to whether
the master agreement contains an agreement or transaction that is not a
swap agreement under this paragraph, except that the master agreement
shall be considered to be a swap agreement under this paragraph only
with respect to each agreement or transaction under the master agreement
that is referred to in clause (i), (ii), (iii), or (iv); or
(vi) any security agreement or arrangement or other credit
enhancement related to any agreements or transactions referred to in
clause (i) through (v), including any guarantee or reimbursement
obligation by or to a swap participant or financial participant in
connection with any agreement or transaction referred to in any such
clause, but not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section
562; and
(B) is applicable for purposes of this title only, and shall not be
construed or applied so as to challenge or affect the characterization,
definition, or treatment of any swap agreement under any other statute,
regulation, or rule, including the Securities Act of 1933, the Securities
Exchange Act of 1934, the Public Utility Holding Company Act of 1935, the
Trust Indenture Act of 1939, the Investment Company Act of 1940, the
Investment Advisers Act of 1940, the Securities Investor Protection Act of
1970, the Commodity Exchange Act, the Gramm-Leach-Bliley Act, and the Legal
Certainty for Bank Products Act of 2000.
(53C) The term "swap
participant" means an entity that, at any time before the filing of the
petition, has an outstanding swap agreement with the debtor.
(53D) The term
"timeshare plan" means and shall include that interest purchased in
any arrangement, plan, scheme, or similar device, but not including exchange
programs, whether by membership, agreement, tenancy in common, sale, lease,
deed, rental agreement, license, right to use agreement, or by any other
means, whereby a purchaser, in exchange for consideration, receives a right to
use accommodations, facilities, or recreational sites, whether improved or
unimproved, for a specific period of time less than a full year during any
given year, but not necessarily for consecutive years, and which extends for a
period of more than three years. A "timeshare interest" is that
interest purchased in a timeshare plan which grants the purchaser the right to
use and occupy accommodations, facilities, or recreational sites, whether
improved or unimproved, pursuant to a timeshare plan.
(54) The term "transfer"
means--
(A) the creation of a lien;
(B) the retention of title as a security interest;
(C) the foreclosure of a debtor's equity of redemption; or
(D) each mode, direct or indirect, absolute or conditional, voluntary or
involuntary, of disposing of or parting with--
(i) property; or
(ii) an interest in property.
(54A) The
term "uninsured State member bank" means a State member bank
(as defined in section 3 of the Federal Deposit Insurance Act) the deposits of
which are not insured by the Federal Deposit Insurance Corporation.
(55) The term "United
States", when used in a geographical sense, includes all locations where
the judicial jurisdiction of the United States extends, including territories
and possessions of the United States.
[Rev. 4-29-05]
11
USC § 102. Rules of construction
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.
[Rev. 4-29-05]
11
USC § 103. Applicability of chapters
(a) Except as provided in section
1161 of this title, chapters
1, 3,
and 5
of this title apply in a case under chapter
7, 11, 12,
or 13
of this title, and this chapter, sections
307, 362(n),
555
through 557,
and 559
through 562
apply in a case under chapter
15.
(b) Subchapters
I and II
of chapter 7 of this
title apply only in a case under such chapter.
(c) Subchapter
III of chapter 7
of this title applies only in a case under such chapter concerning a
stockbroker.
(d) Subchapter
IV of chapter 7
of this title applies only in a case under such chapter concerning a commodity
broker.
(e) Scope of Application.— Subchapter
V of chapter 7
of this title shall apply only in a case under such chapter concerning the
liquidation of an uninsured State member bank, or a corporation organized
under section 25A of the Federal Reserve Act, which operates, or operates as,
a multilateral clearing organization pursuant to section 409 of the Federal
Deposit Insurance Corporation Improvement Act of 1991.
(f) Except as provided in section
901 of this title, only chapters
1 and 9
of this title apply in a case under such chapter
9.
(g) Except as provided in section
901 of this title, subchapters
I, II,
and III
of chapter 11 of
this title apply only in a case under such chapter.
(h) Subchapter
IV of chapter 11
of this title applies only in a case under such chapter concerning a railroad.
(i) Chapter
13 of this title applies only in a case under such chapter.
(j) Chapter
12 of this title applies only in a case under such chapter.
[Rev. 4-29-05]
11
USC § 104. Adjustment of dollar amounts
(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 101(3),
101(18),
101(19A),
101(51D),
109(e),
303(b),
507(a),
522(d),
522(f)(3)
and (f)(4),
522(n),
522(p),
522(q),
523(a)(2)(C),
541(b),
547(c)(9),
707(b),
1322(d),
1325(b),
and 1326(b)(3)
of this title and section 1409(b)
of title 28 immediately before such April 1 shall be adjusted—
(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 101(3),
101(18),
101(19A),
101(51D),
109(e),
303(b),
507(a),
522(d),
522(f)(3)
and (f)(4),
522(n),
522(p),
522(q),
523(a)(2)(C),
541(b),
547(c)(9),
707(b),
1322(d),
1325(b),
and 1326(b)(3)
of this title
and section 1409(b)
of title 28.
(3) Adjustments made in accordance with paragraph (1) shall not apply
with respect to cases commenced before the date of such adjustments.
[Rev. 4-29-05]
11
USC § 105. Power of court
(a) The court may issue any order, process, or judgment that is necessary
or appropriate to carry out the provisions of this title. No provision of this
title providing for the raising of an issue by a party in interest shall be
construed to preclude the court from, sua sponte, taking any action or making
any determination necessary or appropriate to enforce or implement court
orders or rules, or to prevent an abuse of process.
(b) Notwithstanding subsection (a) of this section, a court may not appoint
a receiver in a case under this title.
(c) The ability of any district judge or other officer or employee of a
district court to exercise any of the authority or responsibilities conferred
upon the court under this title shall be determined by reference to the
provisions relating to such judge, officer, or employee set forth in title
28. This subsection shall not be interpreted to exclude bankruptcy judges
and other officers or employees appointed pursuant to chapter
6 of title 28 from its operation.
(d) The court, on its own motion or on the request of a party in interest--
(1) shall hold such status conferences as are necessary
to further the expeditious and economical resolution of the case; and
(2) unless inconsistent with another provision of this title or with
applicable Federal Rules of Bankruptcy
Procedure, 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.
[Rev. 4-29-05]
11
USC § 106. Waiver of sovereign immunity
(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.
[Rev. 4-29-05]
11
USC § 107. Public access to papers
(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.
(c)
(1) The bankruptcy court, for cause, may protect an individual, with
respect to the following types of information to the extent the court finds
that disclosure of such information would create undue risk of identity
theft or other unlawful injury to the individual or the individual's
property:
A) Any means of identification (as defined in section 1028(d) of title 18) contained in a paper filed, or to
be filed, in a case under this title.
(B) Other information contained in a paper described in subparagraph
(A).
(2) Upon ex parte application demonstrating cause, the court shall
provide access to information protected pursuant to paragraph (1) to an
entity acting pursuant to the police or regulatory power of a domestic
governmental unit.
(3) The United States trustee, bankruptcy administrator, trustee, and any
auditor serving under section 586(f) of title 28--
(A) shall have full access to all information contained in any paper
filed or submitted in a case under this title; and
(B) shall not disclose information specifically protected by the court
under this title.
[Rev. 4-29-05]
11
USC § 108. Extension of time
(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.
[Rev. 4-29-05]
11
USC § 109. Who may be a debtor
(a) Notwithstanding any other provision of this
section, only a person that resides or has a domicile, a place of business, or
property in the United States, or a municipality, may be a debtor under this
title.
(b) A person may be a debtor under chapter
7 of this title only if such person is not—
(1) a railroad;
(2) a domestic insurance company, bank, savings
bank, cooperative bank, savings and loan association, building and loan
association, homestead association, a New Markets Venture Capital company as
defined in section 351 of the Small Business Investment Act of 1958, a small
business investment company licensed by the Small Business Administration
under
section
301 of the Small Business Investment Act of 1958, credit union, or
industrial bank or similar institution which is an insured bank as defined
in section 3(h) of the Federal Deposit Insurance Act, except that an
uninsured State member bank, or a corporation organized under section 25A of
the Federal Reserve Act, which operates, or operates as, a multilateral
clearing organization pursuant to section 409 of the Federal Deposit
Insurance Corporation Improvement Act of 1991 may be a debtor if a petition
is filed at the direction of the Board of Governors of the Federal Reserve
System; or
(3)
(A) a foreign insurance company, engaged in such business in the United
States; or
(B) a foreign bank, savings bank, cooperative bank, savings and loan
association, building and loan association, or credit union, that has a
branch or agency (as defined in section 1(b) of the International Banking
Act of 1978 in the United States.
(c) An entity may be a debtor
under chapter
9 of this title if and only if such entity—
(1) is a municipality;
(2) is specifically authorized, in its capacity
as a municipality or by name, to be a debtor under such chapter by State
law, or by a governmental officer or organization empowered by State law to
authorize such entity to be a debtor under such chapter;
(3) is insolvent;
(4) desires to effect a plan to adjust such
debts; and
(5)
(A) has obtained the agreement of creditors holding at least a majority
in amount of the claims of each class that such entity intends to impair
under a plan in a case under such chapter;
(B) has negotiated in good faith with creditors and has failed to
obtain the agreement of creditors holding at least a majority in amount of
the claims of each class that such entity intends to impair under a plan
in a case under such chapter;
(C) is unable to negotiate with creditors because such negotiation is
impracticable; or
(D) reasonably believes that a creditor may attempt to obtain a
transfer that is avoidable under section
547 of this title.
(d) Only a railroad, a person that may be a debtor
under chapter 7 of
this title (except a stockbroker or a commodity broker), and an uninsured
State member bank, or a corporation organized under section 25A of the Federal
Reserve Act, which operates, or operates as, a multilateral clearing
organization pursuant to section 409 of the Federal Deposit Insurance
Corporation Improvement Act of 1991 may be a debtor under chapter
11 of this title.
(e) Only an individual with regular income that owes,
on the date of the filing of the petition, noncontingent, liquidated,
unsecured debts of less than $250,000 []
and noncontingent, liquidated, secured debts of less than $750,000 [],
or an individual with regular income and such individual’s spouse, except a
stockbroker or a commodity broker, that owe, on the date of the filing of the
petition, noncontingent, liquidated, unsecured debts that aggregate less than
$250,000 []
and noncontingent, liquidated, secured debts of less than $750,000 []
may be a debtor under chapter
13 of this title.
[Dollar amounts in this paragraph are adjusted on April 1
every 3 years by section
104. Adjusted amounts for
are in brackets.]
(f) Only a family farmer or family
fisherman with regular annual income may be a debtor under chapter
12 of this title.
(g) Notwithstanding any other provision of this
section, no individual or family farmer may be a debtor under this title who
has been a debtor in a case pending under this title at any time in the
preceding 180 days if—
(1) the case was dismissed by the court for
willful failure of the debtor to abide by orders of the court, or to appear
before the court in proper prosecution of the case; or
(2) the debtor requested and obtained the
voluntary dismissal of the case following the filing of a request for relief
from the automatic stay provided by section
362 of this title.
(h)
(1) Subject to paragraphs (2) and
(3), and notwithstanding any other provision of this section, an individual
may not be a debtor under this title unless such individual has, during the
180-day period preceding the date of filing of the petition by such
individual, received from an approved nonprofit budget and credit counseling
agency described in section
111(a) an individual or group briefing (including a briefing conducted
by telephone or on the Internet) that outlined the opportunities for
available credit counseling and assisted such individual in performing a
related budget analysis.
(2)
(A) Paragraph (1) shall not apply with respect to a debtor who resides
in a district for which the United States trustee (or the bankruptcy
administrator, if any) determines that the approved nonprofit budget and
credit counseling agencies for such district are not reasonably able to
provide adequate services to the additional individuals who would
otherwise seek credit counseling from such agencies by reason of the
requirements of paragraph (1).
(B) The United States trustee (or the bankruptcy administrator, if any)
who makes a determination described in subparagraph (A) shall review such
determination not later than 1 year after the date of such determination,
and not less frequently than annually thereafter. Notwithstanding the
preceding sentence, a nonprofit budget and credit counseling agency may be
disapproved by the United States trustee (or the bankruptcy administrator,
if any) at any time.
(3)
(A) Subject to subparagraph (B), the requirements of paragraph (1)
shall not apply with respect to a debtor who submits to the court a
certification that--
(i) describes exigent circumstances that merit a waiver of the
requirements of paragraph (1);
(ii) states that the debtor requested credit counseling services from
an approved nonprofit budget and credit counseling agency, but was
unable to obtain the services referred to in paragraph (1) during the
5-day period beginning on the date on which the debtor made that
request; and
(iii) is satisfactory to the court.
(B) With respect to a debtor, an exemption under subparagraph (A) shall
cease to apply to that debtor on the date on which the debtor meets the
requirements of paragraph (1), but in no case may the exemption apply to
that debtor after the date that is 30 days after the debtor files a
petition, except that the court, for cause, may order an additional 15
days.
(4) The requirements of paragraph (1) shall not
apply with respect to a debtor whom the court determines, after notice and
hearing, is unable to complete those requirements because of incapacity,
disability, or active military duty in a military combat zone. For the
purposes of this paragraph, incapacity means that the debtor is impaired by
reason of mental illness or mental deficiency so that he is incapable of
realizing and making rational decisions with respect to his financial
responsibilities; and "disability" means that the debtor is so
physically impaired as to be unable, after reasonable effort, to participate
in an in person, telephone, or Internet briefing required under paragraph
(1).
[Rev. 4-29-05]
11
USC § 110. Penalty for persons who negligently or fraudulently prepare
bankruptcy petitions
(a) In this section—
(1) "bankruptcy petition preparer"
means a person, other than an attorney for
the debtor or an employee of such attorney under the direct supervision of
such attorney, who prepares for compensation a document for filing;
and
(2) "document for filing" means a
petition or any other document prepared for filing by a debtor in a United
States bankruptcy court or a United States district court in connection with
a case under this title.
(b)
(1) A bankruptcy petition preparer who prepares a
document for filing shall sign the document and print on the document the
preparer’s name and address. If a bankruptcy petition
preparer is not an individual, then an officer, principal, responsible
person, or partner of the bankruptcy petition preparer shall be required
to--
(A) sign the document for filing; and
(B) print on the document the name and
address of that officer, principal, responsible person, or partner.
(2)
(A) Before preparing any
document for filing or accepting any fees from a debtor, the bankruptcy
petition preparer shall provide to the debtor a written notice which shall
be on an official form prescribed by the Judicial Conference of the United
States in accordance with rule
9009 of the Federal Rules of Bankruptcy Procedure.
(B) The notice under subparagraph (A)--
(i) shall inform the debtor in simple language that a bankruptcy
petition preparer is not an attorney and may not practice law or give
legal advice;
(ii) may contain a description of examples of legal advice that a
bankruptcy petition preparer is not authorized to give, in addition to
any advice that the preparer may not give by reason of subsection
(e)(2); and
(iii) shall--
(I) be signed by the debtor and, under penalty of perjury, by the
bankruptcy petition preparer; and
(II) be filed with any document for filing.
(c)
(1) A bankruptcy petition preparer who prepares a
document for filing shall place on the document, after the preparer’s
signature, an identifying number that identifies individuals who prepared
the document.
(2)
(A) Subject to subparagraph (B), for
purposes of this section, the identifying number of a bankruptcy
petition preparer shall be the Social Security account number of each
individual who prepared the document or assisted in its preparation.
(B) If a bankruptcy petition
preparer is not an individual, the identifying number of the bankruptcy
petition preparer shall be the Social Security account number of the
officer, principal, responsible person, or partner of the bankruptcy
petition preparer.
(d) A bankruptcy petition
preparer shall, not later than the time at which a document for filing is
presented for the debtor’s signature, furnish to the debtor a copy of the
document.
(e)
(1) A bankruptcy petition preparer shall not
execute any document on behalf of a debtor.
(2)
(A) A bankruptcy petition
preparer may not offer a potential bankruptcy debtor any legal advice,
including any legal advice described in subparagraph (B).
(B) The legal advice referred to in
subparagraph (A) includes advising the debtor--
(i) whether--
(I) to file a petition under this title; or
(II) commencing a case under chapter
7, 11,
12,
or 13
is appropriate;
(ii) whether the debtor's debts will be discharged in a case under
this title;
(iii) whether the debtor will be able to retain the debtor's home,
car, or other property after commencing a case under this title;
(iv) concerning--
(I) the tax consequences of a case brought under this title; or
(II) the dischargeability of tax claims;
(v) whether the debtor may or should promise to repay debts to a
creditor or enter into a reaffirmation agreement with a creditor to
reaffirm a debt;
(vi) concerning how to characterize the nature of the debtor's
interests in property or the debtor's debts; or
(vii) concerning bankruptcy procedures and rights.
(f) A bankruptcy petition
preparer shall not use the word "legal" or any similar term in any
advertisements, or advertise under any category that includes the word
"legal" or any similar term.
(g) A bankruptcy petition
preparer shall not collect or receive any payment from the debtor or on behalf
of the debtor for the court fees in connection with filing the petition.
(h)
(1) The Supreme Court may
promulgate rules under section
2075 of title 28, or the Judicial Conference of the United States may
prescribe guidelines, for setting a maximum allowable fee chargeable by a
bankruptcy petition preparer. A bankruptcy petition preparer shall notify
the debtor of any such maximum amount before preparing any document for
filing for a debtor or accepting any fee from the debtor.
(2) A declaration under
penalty of perjury by the bankruptcy petition preparer shall
be filed together with the petition, disclosing any fee received from
or on behalf of the debtor within 12 months immediately prior to the filing
of the case, and any unpaid fee charged to the debtor. If
rules or guidelines setting a maximum fee for services have been promulgated
or prescribed under paragraph (1), the declaration under this paragraph
shall include a certification that the bankruptcy petition preparer complied
with the notification requirement under paragraph (1).
(3)
(A) The court shall disallow and order the
immediate turnover to the bankruptcy trustee any fee referred to in
paragraph (2) found to be in excess of the value of any services--
(i) rendered by the bankruptcy petition preparer during the 12-month
period immediately preceding the date of the filing of the petition; or
(ii) found to be in violation of any rule or guideline promulgated or
prescribed under paragraph (1).
(B) All fees charged by a bankruptcy
petition preparer may be forfeited in any case in which the bankruptcy
petition preparer fails to comply with this subsection or subsection
(b), (c),
(d),
(e),
(f),
or (g).
(C) An individual may exempt any funds
recovered under this paragraph under section
522(b).
(4) The debtor, the trustee,
a creditor, the
United States trustee (or the bankruptcy administrator, if any) or the
court, on the initiative of the court, may file a motion for an order
under paragraph (2).
(5)
A bankruptcy petition preparer shall be fined not more than $500 for each
failure to comply with a court order to turn over funds within 30 days of
service of such order.
(i)
(1) If a bankruptcy petition
preparer violates this section or commits any act that the court finds to be
fraudulent, unfair, or deceptive, on the motion of the debtor, trustee,
United States trustee (or the bankruptcy administrator, if any), and after
notice and a hearing, the court shall order the bankruptcy petition preparer
to pay to the debtor--
(A) the debtor’s actual damages;
(B) the greater of--
(i) $2,000; or
(ii) twice the amount paid by the debtor to the bankruptcy petition
preparer for the preparer’s services; and
(C) reasonable attorneys’ fees and costs
in moving for damages under this subsection.
(2) If the trustee or creditor moves for damages
on behalf of the debtor under this subsection, the bankruptcy petition
preparer shall be ordered to pay the movant the additional amount of $1,000
plus reasonable attorneys’ fees and costs incurred.
(j)
(1) A debtor for whom a bankruptcy petition
preparer has prepared a document for filing, the trustee, a creditor, or the
United States trustee in the district in which the bankruptcy petition
preparer resides, has conducted business, or the United States trustee in
any other district in which the debtor resides may bring a civil action to
enjoin a bankruptcy petition preparer from engaging in any conduct in
violation of this section or from further acting as a bankruptcy petition
preparer.
(2)
(A) In an action under paragraph (1), if the
court finds that—
(i) a bankruptcy petition preparer has—
(I) engaged in conduct in violation of this section or of any
provision of this title;
(II) misrepresented the preparer’s experience or education as a
bankruptcy petition preparer; or
(III) engaged in any other fraudulent, unfair, or deceptive
conduct; and
(ii) injunctive relief is appropriate to prevent the recurrence of
such conduct,
the court may enjoin the bankruptcy petition preparer from engaging in
such conduct.
(B) If the court finds that a bankruptcy
petition preparer has continually engaged in conduct described in
subclause (I), (II), or (III) of clause (i) and that an injunction
prohibiting such conduct would not be sufficient to prevent such person’s
interference with the proper administration of this title, has
not paid a penalty imposed under this section, or
failed to disgorge all fees ordered by the court the court may
enjoin the person from acting as a bankruptcy petition preparer.
(3) The court, as part of its
contempt power, may enjoin a bankruptcy petition preparer that has failed to
comply with a previous order issued under this section. The injunction under
this paragraph may be issued on the motion of the court, the trustee, or the
United States trustee (or the bankruptcy administrator, if any).
(4)
The court shall award to a debtor, trustee, or creditor that brings a
successful action under this subsection reasonable
attorneys' fees and costs of the action, to be paid
by the bankruptcy petition preparer.
(k) Nothing in this section shall be construed to
permit activities that are otherwise prohibited by law, including rules and
laws that prohibit the unauthorized practice of law.
(l)
(1) A bankruptcy petition preparer who fails to
comply with any provision of subsection
(b), (c),
(d),
(e),
(f),
(g),
or (h)
may be fined not more than $500 for each such failure.
(2) The court shall triple the amount of a fine
assessed under paragraph (1) in any case in which the court finds that a
bankruptcy petition preparer--
(A) advised the debtor to exclude assets or
income that should have been included on applicable schedules;
(B) advised the debtor to use a false Social
Security account number;
(C) failed to inform the debtor that the
debtor was filing for relief under this title; or
(D) prepared a document for filing in a
manner that failed to disclose the identity of the bankruptcy petition
preparer.
(3) A debtor, trustee, creditor, or United States
trustee (or the bankruptcy administrator, if any) may file a motion for an
order imposing a fine on the bankruptcy petition preparer for any violation
of this section.
(4)
(A) Fines imposed under this subsection in
judicial districts served by United States trustees shall be paid to the
United States trustee, who shall deposit an amount equal to such fines in
a special account of the United States Trustee System Fund referred to in section
586(e)(2) of title 28. Amounts deposited under this subparagraph shall
be available to fund the enforcement of this section on a national basis.
(B) Fines imposed under this subsection in
judicial districts served by bankruptcy administrators shall be deposited
as offsetting receipts to the fund established under section
1931 of title 28, and shall remain available until expended to
reimburse any appropriation for the amount paid out of such appropriation
for expenses of the operation and maintenance of the courts of the United
States.
[Rev. 4-29-05]
11
USC § 111. Nonprofit budget and credit counseling agencies;
financial management instructional courses
(a) The clerk shall maintain a
publicly available list of--
(1) nonprofit budget and credit counseling
agencies that provide 1 or more services described in section 109(h)
currently approved by the United States trustee (or the bankruptcy
administrator, if any); and
(2) instructional courses concerning personal
financial management currently approved by the United States trustee (or the
bankruptcy administrator, if any), as applicable.
(b) The United States trustee (or bankruptcy
administrator, if any) shall only approve a nonprofit budget and credit
counseling agency or an instructional course concerning personal financial
management as follows:
(1) The United States trustee (or bankruptcy
administrator, if any) shall have thoroughly reviewed the qualifications of
the nonprofit budget and credit counseling agency or of the provider of the
instructional course under the standards set forth in this section, and the
services or instructional courses that will be offered by such agency or
such provider, and may require such agency or such provider that has sought
approval to provide information with respect to such review.
(2) The United States trustee (or bankruptcy
administrator, if any) shall have determined that such agency or such
instructional course fully satisfies the applicable standards set forth in
this section.
(3) If a nonprofit budget and credit counseling
agency or instructional course did not appear on the approved list for the
district under subsection (a) immediately before approval under this
section, approval under this subsection of such agency or such instructional
course shall be for a probationary period not to exceed 6 months.
(4) At the conclusion of the applicable
probationary period under paragraph (3), the United States trustee (or
bankruptcy administrator, if any) may only approve for an additional 1-year
period, and for successive 1-year periods thereafter, an agency or
instructional course that has demonstrated during the probationary or
applicable subsequent period of approval that such agency or instructional
course--
(A) has met the standards set forth under this section during such
period; and
(B) can satisfy such standards in the future.
(5) Not later than 30 days after any final
decision under paragraph (4), an interested person may seek judicial review
of such decision in the appropriate district court of the United States.
(c)
(1) The United States trustee (or the bankruptcy
administrator, if any) shall only approve a nonprofit budget and credit
counseling agency that demonstrates that it will provide qualified
counselors, maintain adequate provision for safekeeping and payment of
client funds, provide adequate counseling with respect to client credit
problems, and deal responsibly and effectively with other matters relating
to the quality, effectiveness, and financial security of the services it
provides.
(2) To be approved by the United States trustee
(or the bankruptcy administrator, if any), a nonprofit budget and credit
counseling agency shall, at a minimum--
(A) have a board of directors the majority of which--
(i) are not employed by such agency; and
(ii) will not directly or indirectly benefit financially from the
outcome of the counseling services provided by such agency;
(B) if a fee is charged for counseling services, charge a reasonable
fee, and provide services without regard to ability to pay the fee;
(C) provide for safekeeping and payment of client funds, including an
annual audit of the trust accounts and appropriate employee bonding;
(D) provide full disclosures to a client, including funding sources,
counselor qualifications, possible impact on credit reports, and any costs
of such program that will be paid by such client and how such costs will
be paid;
(E) provide adequate counseling with respect to a client's credit
problems that includes an analysis of such client's current financial
condition, factors that caused such financial condition, and how such
client can develop a plan to respond to the problems without incurring
negative amortization of debt;
(F) provide trained counselors who receive no commissions or bonuses
based on the outcome of the counseling services provided by such agency,
and who have adequate experience, and have been adequately trained to
provide counseling services to individuals in financial difficulty,
including the matters described in subparagraph (E);
(G) demonstrate adequate experience and background in providing credit
counseling; and
(H) have adequate financial resources to provide continuing support
services for budgeting plans over the life of any repayment plan.
(d) The United States trustee (or the bankruptcy
administrator, if any) shall only approve an instructional course concerning
personal financial management--
(1) for an initial probationary period under
subsection (b)(3) if the course will provide at a minimum--
(A) trained personnel with adequate experience and training in
providing effective instruction and services;
(B) learning materials and teaching methodologies designed to assist
debtors in understanding personal financial management and that are
consistent with stated objectives directly related to the goals of such
instructional course;
(C) adequate facilities situated in reasonably convenient locations at
which such instructional course is offered, except that such facilities
may include the provision of such instructional course by telephone or
through the Internet, if such instructional course is effective;
(D) the preparation and retention of reasonable records (which shall
include the debtor's bankruptcy case number) to permit evaluation of the
effectiveness of such instructional course, including any evaluation of
satisfaction of instructional course requirements for each debtor
attending such instructional course, which shall be available for
inspection and evaluation by the Executive Office for United States
Trustees, the United States trustee (or the bankruptcy administrator, if
any), or the chief bankruptcy judge for the district in which such
instructional course is offered; and
(E) if a fee is charged for the instructional course, charge a
reasonable fee, and provide services without regard to ability to pay the
fee.
(2) for any 1-year period if the provider thereof
has demonstrated that the course meets the standards of paragraph (1) and,
in addition--
(A) has been effective in assisting a substantial number of debtors to
understand personal financial management; and
(B) is otherwise likely to increase substantially the debtor's
understanding of personal financial management.
(e) The district court may, at any time, investigate
the qualifications of a nonprofit budget and credit counseling agency referred
to in subsection (a), and request production of documents to ensure the
integrity and effectiveness of such agency. The district court may, at any
time, remove from the approved list under subsection (a) a nonprofit budget
and credit counseling agency upon finding such agency does not meet the
qualifications of subsection (b).
(f) The United States trustee (or the bankruptcy
administrator, if any) shall notify the clerk that a nonprofit budget and
credit counseling agency or an instructional course is no longer approved, in
which case the clerk shall remove it from the list maintained under subsection
(a).
(g)
(1) No nonprofit budget and credit counseling
agency may provide to a credit reporting agency information concerning
whether a debtor has received or sought instruction concerning personal
financial management from such agency.
(2) A nonprofit budget and credit counseling
agency that willfully or negligently fails to comply with any requirement
under this title with respect to a debtor shall be liable for damages in an
amount equal to the sum of--
(A) any actual damages sustained by the debtor as a result of the
violation; and
(B) any court costs or reasonable attorneys' fees (as determined by the
court) incurred in an action to recover those damages.
[Rev. 4-29-05]
11
USC § 112. Prohibition on disclosure of name of minor
children
The debtor may be required to provide information regarding
a minor child involved in matters under this title but may not be required to
disclose in the public records in the case the name of such minor child. The
debtor may be required to disclose the name of such minor child in a nonpublic
record that is maintained by the court and made available by the court for
examination by the United States trustee, the trustee, and the auditor (if
any) serving under section 586(f) of title 28, in the case. The court, the
United States trustee, the trustee, and such auditor shall not disclose the
name of such minor child maintained in such nonpublic record.
[Rev. 4-29-05]
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