Conditions of use · Every effort has been made to
reproduce the code accurately. However there could be errors which would
change the effect of the code. Permission to use these materials is given
only on the condition that the user will be solely responsible for verifying the
accuracy of the information contained herein.x
Text size · You may adjust the size of the text from
your browser's control bar: View, Text Size.
Printing · If the top menu bar stays at the top of the
window as you scroll in your browser, return the browser to the top of the page
before printing or the menu bar may obscure some text. You may print
selected pages of the web page by printing from File, Page Preview
instead of Print. More printing
tips.
Annotations · We have added notes linking to cases and
other information to some sections of the code. You may chose to
or
the annotations.
Redline Display · The Bankruptcy Code
shown is as amended by The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005. You may choose to or
the redline version showing the changes made by the act.
Link to the Code · You may link your web page directly
to this version of the code, or to any subsection. More link
information.
TITLE
11. BANKRUPTCY · UNITED STATES CODE
Chapter 3. Case Administration
Subchapter I. Commencement of a Case
§ 301. Voluntary
cases
§ 302. Joint cases
§ 303. Involuntary
cases
§ 304.
[Deleted]
§ 305. Abstention
§ 306. Limited
appearance
§ 307. United States
trustee
§ 308. Debtor
reporting requirements
Subchapter II. Officers
§ 321. Eligibility to
serve as trustee
§ 322. Qualification
of trustee
§ 323. Role and
capacity of trustee
§ 324. Removal of
trustee or examiner
§ 325. Effect of
vacancy
§ 326. Limitation on
compensation of trustee
§ 327. Employment of
professional persons
§ 328. Limitation on
compensation of professional persons
§ 329. Debtor's
transactions with attorneys
§ 330. Compensation
of officers
§ 331. Interim
compensation
§ 332. Consumer
privacy ombudsman
§ 333. Appointment of
patient care ombudsman
Subchapter III. Administration
§ 341. Meetings of
creditors and equity security holders
§ 342. Notice
§ 343. Examination of
the debtor
§ 344.
Self-incrimination; immunity
§ 345. Money of
estate
§ 346. Special
provisions related to the treatment of State and local taxes
§ 347. Unclaimed
property
§ 348. Effect of
conversion
§ 349. Effect of
dismissal
§ 350. Closing and
reopening cases
§ 351. Disposal
of patient records
Subchapter IV. Administrative Powers
§ 361. Adequate
protection
§ 362. Automatic stay
§ 363. Use, sale, or
lease of property
§ 364. Obtaining
credit
§ 365. Executory
contracts and unexpired leases
§ 366. Utility
service
Subchapter I. Commencement of a Case
11
USC § 301. Voluntary cases
(a) A voluntary case under a chapter of this title
is commenced by the filing with the bankruptcy court of a petition under such
chapter by an entity that may be a debtor under such chapter.
(b) The commencement of a voluntary case under a
chapter of this title constitutes an order for relief under such chapter.
[Rev. 4-29-05]
11
USC § 302. Joint cases
(a) A joint case under a chapter of this title is commenced by the filing
with the bankruptcy court of a single petition under such chapter by an
individual that may be a debtor under such chapter and such individual’s
spouse. The commencement of a joint case under a chapter of this title
constitutes an order for relief under such chapter.
(b) After the commencement of a joint case, the court shall determine the
extent, if any, to which the debtors’ estates shall be consolidated.
[Rev. 4-29-05]
11
USC § 303. Involuntary cases
(a) An involuntary case may be commenced only under chapter
7 or 11 of
this title, and only against a person, except a farmer, family farmer, or a
corporation that is not a moneyed, business, or commercial corporation, that
may be a debtor under the chapter under which such case is commenced.
(b) An involuntary case against a person is commenced
by the filing with the bankruptcy court of a petition under chapter
7 or 11 of
this title—
(1) by three or more entities, each of which is either a holder of a
claim against such person that is not contingent as to liability or the
subject of a bona fide dispute as to liability or amount,
or an indenture trustee representing such a holder,
if such noncontingent, undisputed claims aggregate at
least $10,000 [
Adjusted every 3 years by section
104.] more than the value of any lien on property of the debtor
securing such claims held by the holders of such claims;
(2) if there are fewer than 12 such holders, excluding any employee or
insider of such person and any transferee of a transfer that is voidable
under section
544, 545,
547, 548,
549,
or 724(a)
of this title, by one or more of such holders that hold in the aggregate at
least $10,000 [
Adjusted every 3 years by section
104.] of such claims;
(3) if such person is a partnership—
(A) by fewer than all of the general partners in such partnership; or
(B) if relief has been ordered under this title with respect to all of
the general partners in such partnership, by a general partner in such
partnership, the trustee of such a general partner, or a holder of a claim
against such partnership; or
(4) by a foreign representative of the estate in a foreign proceeding
concerning such person.
(c) After the filing of a petition under this section
but before the case is dismissed or relief is ordered, a creditor holding an
unsecured claim that is not contingent, other than a creditor filing under
subsection (b) of this section, may join in the petition with the same effect
as if such joining creditor were a petitioning creditor under subsection (b)
of this section.
(d) The debtor, or a general partner in a partnership
debtor that did not join in the petition, may file an answer to a petition
under this section.
(e) After notice and a hearing, and for cause, the
court may require the petitioners under this section to file a bond to
indemnify the debtor for such amounts as the court may later allow under
subsection (i) of this section.
(f) Notwithstanding section
363 of this title, except to the extent that the court orders otherwise,
and until an order for relief in the case, any business of the debtor may
continue to operate, and the debtor may continue to use, acquire, or dispose
of property as if an involuntary case concerning the debtor had not been
commenced.
(g) At any time after the commencement of an
involuntary case under chapter
7 of this title but before an order for relief in the case, the court, on
request of a party in interest, after notice to the debtor and a hearing, and
if necessary to preserve the property of the estate or to prevent loss to the
estate, may order the United States trustee to appoint an interim trustee
under section
701 of this title to take possession of the property of the estate and to
operate any business of the debtor. Before an order for relief, the debtor may
regain possession of property in the possession of a trustee ordered appointed
under this subsection if the debtor files such bond as the court requires,
conditioned on the debtor’s accounting for and delivering to the trustee, if
there is an order for relief in the case, such property, or the value, as of
the date the debtor regains possession, of such property.
(h) If the petition is not timely controverted, the
court shall order relief against the debtor in an involuntary case under the
chapter under which the petition was filed. Otherwise, after trial, the court
shall order relief against the debtor in an involuntary case under the chapter
under which the petition was filed, only if—
(1) the debtor is generally not paying such debtor’s debts as such
debts become due unless such debts are the subject of a bona fide dispute;
or
(1) the debtor is generally not paying such debtor's debts as such debts
become due unless such debts are the subject of a bona fide dispute as
to liability or amount; or
(2) within 120 days before the date of the filing of the petition, a
custodian, other than a trustee, receiver, or agent appointed or authorized
to take charge of less than substantially all of the property of the debtor
for the purpose of enforcing a lien against such property, was appointed or
took possession.
(i) If the court dismisses a petition under this
section other than on consent of all petitioners and the debtor, and if the
debtor does not waive the right to judgment under this subsection, the court
may grant judgment—
(1) against the petitioners and in favor of the debtor for—
(A) costs; or
(B) a reasonable attorney’s fee; or
(2) against any petitioner that filed the petition in bad faith, for—
(A) any damages proximately caused by such filing; or
(B) punitive damages.
(j) Only after notice to all creditors and a hearing
may the court dismiss a petition filed under this section—
(1) on the motion of a petitioner;
(2) on consent of all petitioners and the debtor; or
(3) for want of prosecution.
[Rev. 4-29-05]
11
USC § 304.
[Deleted]
[Rev. 4-29-05]
11
USC § 305. Abstention
(a) The court, after notice and a hearing, may dismiss a case under this
title, or may suspend all proceedings in a case under this title, at any time
if—
(1) the interests of creditors and the debtor would be better served by
such dismissal or suspension; or
(2)
(A) a
petition under section
1515 for recognition of a foreign proceeding has been granted; and
(B) the
purposes of chapter
15 of this title would be best served by such dismissal or suspension.
(b) A foreign representative may seek dismissal or suspension under
subsection (a)(2) of this section.
(c) An order under subsection (a) of this section dismissing a case or
suspending all proceedings in a case, or a decision not so to dismiss or
suspend, is not reviewable by appeal or otherwise by the court of appeals
under section
158(d), 1291,
or 1292
of title 28 or by the Supreme Court of the United States under section
1254 of title 28.
[Rev. 4-29-05]
11
USC § 306. Limited appearance
An appearance in a bankruptcy court by a foreign representative in connection
with a petition or request under section
303
or 305
of this title does not submit such foreign representative to the jurisdiction of
any court in the United States for any other purpose, but the bankruptcy court
may condition any order under section
303
or 305
of this title on compliance by such foreign representative with the orders of
such bankruptcy court.
[Rev. 4-29-05]
11
USC § 307. United States trustee
The United States trustee may raise and may appear and be heard on any issue
in any case or proceeding under this title but may not file a plan pursuant to section
1121(c) of this title.
[Rev. 4-29-05]
11
USC § 308. Debtor reporting requirements
(a) For purposes of this section, the term
"profitability" means, with respect to a debtor, the amount of money
that the debtor has earned or lost during current and recent fiscal periods.
(b) A small business debtor shall file periodic financial and other reports
containing information including--
(1) the debtor's profitability;
(2) reasonable approximations of the debtor's projected cash receipts and
cash disbursements over a reasonable period;
(3) comparisons of actual cash receipts and disbursements with
projections in prior reports;
(4)
(A) whether the debtor is--
(i) in compliance in all material respects with postpetition
requirements imposed by this title and the Federal
Rules of Bankruptcy Procedure; and
(ii) timely filing tax returns and other required government filings
and paying taxes and other administrative expenses when due;
(B) if the debtor is not in compliance with the requirements referred
to in subparagraph (A)(i) or filing tax returns and other required
government filings and making the payments referred to in subparagraph
(A)(ii), what the failures are and how, at what cost, and when the debtor
intends to remedy such failures; and
(C) such other matters as are in the best interests of the debtor and
creditors, and in the public interest in fair and efficient procedures
under chapter 11
of this title.
[Rev. 4-29-05]
Subchapter II. Officers
11
USC § 321. Eligibility to serve as trustee
(a) A person may serve as trustee in a case under this title only if such
person is—
(1) an individual that is competent to perform the duties of trustee and,
in a case under chapter 7, 12, or 13 of this title, resides or has an office
in the judicial district within which the case is pending, or in any
judicial district adjacent to such district; or
(2) a corporation authorized by such corporation’s charter or bylaws to
act as trustee, and, in a case under chapter 7, 12, or 13 of this title,
having an office in at least one of such districts.
(b) A person that has served as an examiner in the case may not serve as
trustee in the case.
(c) The United States trustee for the judicial district in which the case
is pending is eligible to serve as trustee in the case if necessary.
[Rev. 4-30-05]
11
USC § 322. Qualification of trustee
(a) Except as provided in subsection (b)(1), a person selected under section
701, 702,
703,
1104,
1163,
1202,
or 1302
of this title to serve as trustee in a case under this title qualifies if
before five days after such selection, and before beginning official duties,
such person has filed with the court a bond in favor of the United States
conditioned on the faithful performance of such official duties.
(b)
(1) The United States trustee qualifies wherever such trustee serves as
trustee in a case under this title.
(2) The United States trustee shall determine—
(A) the amount of a bond required to be filed under subsection (a) of
this section; and
(B) the sufficiency of the surety on such bond.
(c) A trustee is not liable personally or on such trustee’s bond in
favor of the United States for any penalty or forfeiture incurred by the
debtor.
(d) A proceeding on a trustee’s bond may not be commenced after two years
after the date on which such trustee was discharged.
[Rev. 4-30-05]
11
USC § 323. Role and capacity of trustee
(a) The trustee in a case under this title is the representative of the
estate.
(b) The trustee in a case under this title has capacity to sue and be sued.
[Rev. 4-30-05]
11
USC § 324. Removal of trustee or examiner
(a) The court, after notice and a hearing, may remove a trustee, other than
the United States trustee, or an examiner, for cause.
(b) Whenever the court removes a trustee or examiner under subsection (a)
in a case under this title, such trustee or examiner shall thereby be removed
in all other cases under this title in which such trustee or examiner is then
serving unless the court orders otherwise.
[Rev. 4-30-05]
11
USC § 325. Effect of vacancy
A vacancy in the office of trustee during a case does not abate any pending
action or proceeding, and the successor trustee shall be substituted as a party
in such action or proceeding.
[Rev. 4-30-05]
11
USC § 326. Limitation on compensation of trustee
(a) In a case under chapter
7 or 11, the
court may allow reasonable compensation under section
330 of this title of the trustee for the trustee’s services, payable
after the trustee renders such services, not to exceed 25 percent on the first
$5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess
of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of
$1,000,000, and reasonable compensation not to exceed 3 percent of such moneys
in excess of $1,000,000, upon all moneys disbursed or turned over in the case
by the trustee to parties in interest, excluding the debtor, but including
holders of secured claims.
(b) In a case under chapter
12 or 13
of this title, the court may not allow compensation for services or
reimbursement of expenses of the United States trustee or of a standing
trustee appointed under section
586(b) of title 28, but may allow reasonable compensation under section
330 of this title of a trustee appointed under section
1202(a) or 1302(a)
of this title for the trustee’s services, payable after the trustee renders
such services, not to exceed five percent upon all payments under the plan.
(c) If more than one person serves as trustee in the case, the aggregate
compensation of such persons for such service may not exceed the maximum
compensation prescribed for a single trustee by subsection (a) or (b) of this
section, as the case may be.
(d) The court may deny allowance of compensation for services or
reimbursement of expenses of the trustee if the trustee failed to make
diligent inquiry into facts that would permit denial of allowance under section
328(c) of this title or, with knowledge of such facts, employed a
professional person under section
327 of this title.
[Rev. 4-30-05]
11
USC § 327. Employment of professional persons
(a) Except as otherwise provided in this section, the trustee, with the
court’s approval, may employ one or more attorneys, accountants, appraisers,
auctioneers, or other professional persons, that do not hold or represent an
interest adverse to the estate, and that are disinterested persons, to
represent or assist the trustee in carrying out the trustee’s duties under
this title.
(b) If the trustee is authorized to operate the business of the debtor
under section
721, 1202,
or 1108
of this title, and if the debtor has regularly employed attorneys,
accountants, or other professional persons on salary, the trustee may retain
or replace such professional persons if necessary in the operation of such
business.
(c) In a case under chapter
7, 12,
or 11 of this
title, a person is not disqualified for employment under this section solely
because of such person’s employment by or representation of a creditor,
unless there is objection by another creditor or the United States trustee, in
which case the court shall disapprove such employment if there is an actual
conflict of interest.
(d) The court may authorize the trustee to act as attorney or accountant
for the estate if such authorization is in the best interest of the estate.
(e) The trustee, with the court’s approval, may employ, for a specified
special purpose, other than to represent the trustee in conducting the case,
an attorney that has represented the debtor, if in the best interest of the
estate, and if such attorney does not represent or hold any interest adverse
to the debtor or to the estate with respect to the matter on which such
attorney is to be employed.
(f) The trustee may not employ a person that has served as an examiner in
the case.
[Rev. 4-30-05]
11
USC § 328. Limitation on compensation of professional persons
(a) The trustee, or a committee appointed under section
1102 of this title, with the court’s approval, may employ or authorize
the employment of a professional person under section
327 or 1103
of this title, as the case may be, on any reasonable terms and conditions of
employment, including on a retainer, on an hourly basis, on a
fixed or percentage fee basis, or on a contingent fee basis.
Notwithstanding such terms and conditions, the court may allow compensation
different from the compensation provided under such terms and conditions after
the conclusion of such employment, if such terms and conditions prove to have
been improvident in light of developments not capable of being anticipated at
the time of the fixing of such terms and conditions.
(b) If the court has authorized a trustee to serve as an attorney or
accountant for the estate under section
327(d) of this title, the court may allow compensation for the trustee’s
services as such attorney or accountant only to the extent that the trustee
performed services as attorney or accountant for the estate and not for
performance of any of the trustee’s duties that are generally performed by a
trustee without the assistance of an attorney or accountant for the estate.
(c) Except as provided in section
327(c), 327(e),
or 1107(b)
of this title, the court may deny allowance of compensation for services and
reimbursement of expenses of a professional person employed under section
327 or 1103
of this title if, at any time during such professional person’s employment
under section
327 or 1103>
of this title, such professional person is not a disinterested person, or
represents or holds an interest adverse to the interest of the estate with
respect to the matter on which such professional person is employed.
[Rev. 4-30-05]
11
USC § 329. Debtor’s transactions with attorneys
(a) Any attorney representing a debtor in a case under this title, or in
connection with such a case, whether or not such attorney applies for
compensation under this title, shall file with the court a statement of the
compensation paid or agreed to be paid, if such payment or agreement was made
after one year before the date of the filing of the petition, for services
rendered or to be rendered in contemplation of or in connection with the case
by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services,
the court may cancel any such agreement, or order the return of any such
payment, to the extent excessive, to—
(1) the estate, if the property transferred—
(A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan under chapter
11, 12,
or 13
of this title; or
(2) the entity that made such payment.
[Rev. 4-30-05]
11
USC § 330. Compensation of officers
(a)
(1) After notice to the parties in interest and the United States Trustee
and a hearing, and subject to sections
326, 328,
and 329,
the court may award to a trustee, a consumer privacy
ombudsman appointed under section
332, an examiner, an ombudsman appointed under section
333, or a professional person employed under section
327 or 1103--
(A) reasonable compensation for actual, necessary services rendered by
the trustee, examiner, professional person, or attorney and by any
paraprofessional person employed by any such person; and
(B) reimbursement for actual, necessary expenses.
(2) The court may, on its own motion or on the motion of the United
States Trustee, the United States Trustee for the District or Region, the
trustee for the estate, or any other party in interest, award compensation
that is less than the amount of compensation that is requested.
(3) In
determining the amount of reasonable compensation to be awarded to
an examiner, trustee under chapter
11, or professional person, the court shall consider the nature,
the extent, and the value of such services, taking into account all relevant
factors, including--
(A) the time spent on such services;
(B) the rates charged for such services;
(C) whether the services were necessary to the administration of, or
beneficial at the time at which the service was rendered toward the
completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of
time commensurate with the complexity, importance, and nature of the
problem, issue, or task addressed; and
(E) with respect to a professional person, whether the
person is board certified or otherwise has demonstrated skill and
experience in the bankruptcy field; and
(F) whether the compensation is reasonable based
on the customary compensation charged by comparably skilled practitioners
in cases other than cases under this title.
(4)
(A) Except as provided in subparagraph (B), the court shall not allow
compensation for—
(i) unnecessary duplication of services; or
(ii) services that were not—
(I) reasonably likely to benefit the debtor’s estate; or
(II) necessary to the administration of the case.
(B) In a chapter
12 or chapter
13 case in which the debtor is an individual, the court may allow
reasonable compensation to the debtor’s attorney for representing the
interests of the debtor in connection with the bankruptcy case based on a
consideration of the benefit and necessity of such services to the debtor
and the other factors set forth in this section.
(5) The court shall reduce the amount of compensation awarded under this
section by the amount of any interim compensation awarded under section
331, and, if the amount of such interim compensation exceeds the amount
of compensation awarded under this section, may order the return of the
excess to the estate.
(6) Any compensation awarded for the preparation of a fee application
shall be based on the level and skill reasonably required to prepare the
application.
(7) In determining the amount of reasonable compensation
to be awarded to a trustee, the court shall treat such compensation as a
commission, based on section
326.
(b)
(1) There shall be paid from the filing fee in a case under chapter
7 of this title $45 to the trustee serving in such case, after such
trustee’s services are rendered.
(2) The Judicial Conference of the United States—
(A) shall prescribe additional fees of the same kind as prescribed
under section
1914(b) of title 28; and
(B) may prescribe notice of appearance fees and fees charged against
distributions in cases under this title;
to pay $15 to trustees serving in cases after such trustees’ services
are rendered. Beginning 1 year after the date of the enactment of the
Bankruptcy Reform Act of 1994, such $15 shall be paid in addition to the
amount paid under paragraph (1).
(c) Unless the court orders otherwise, in a case under chapter
12 or 13
of this title the compensation paid to the trustee serving in the case shall
not be less than $5 per month from any distribution under the plan during the
administration of the plan.
(d) In a case in which the United States trustee serves as trustee, the
compensation of the trustee under this section shall be paid to the clerk of
the bankruptcy court and deposited by the clerk into the United States Trustee
System Fund established by section
589a of title 28.
[Rev. 4-30-05]
11
USC § 331. Interim compensation
A trustee, an examiner, a debtor’s attorney, or any professional person
employed under section
327 or 1103
of this title may apply to the court not more than once every 120 days after an
order for relief in a case under this title, or more often if the court permits,
for such compensation for services rendered before the date of such an
application or reimbursement for expenses incurred before such date as is
provided under section
330 of this title. After notice and a hearing, the court may allow and
disburse to such applicant such compensation or reimbursement.
[Rev. 4-30-05]
11
USC § 332. Consumer privacy ombudsman
(a) If a hearing is required under section
363(b)(1)(B), the court shall order the United States trustee to appoint,
not later than 5 days before the commencement of the hearing, 1 disinterested
person (other than the United States trustee) to serve as the consumer privacy
ombudsman in the case and shall require that notice of such hearing be timely
given to such ombudsman.
(b) The consumer privacy ombudsman may appear and be heard at such hearing
and shall provide to the court information to assist the court in its
consideration of the facts, circumstances, and conditions of the proposed sale
or lease of personally identifiable information under section
363(b)(1)(B). Such information may include presentation of--
(1) the debtor's privacy policy;
(2) the potential losses or gains of privacy to consumers if such sale or
such lease is approved by the court;
(3) the potential costs or benefits to consumers if such sale or such
lease is approved by the court; and
(4) the potential alternatives that would mitigate potential privacy
losses or potential costs to consumers.
(c) A consumer privacy ombudsman shall not disclose any personally
identifiable information obtained by the ombudsman under this title.
[Rev. 4-30-05]
11
USC § 333. Appointment of patient care ombudsman
(a)
(1) If the debtor in a case under chapter
7, 9,
or 11 is a
health care business, the court shall order, not later than 30 days after
the commencement of the case, the appointment of an ombudsman to monitor the
quality of patient care and to represent the interests of the patients of
the health care business unless the court finds that the appointment of such
ombudsman is not necessary for the protection of patients under the specific
facts of the case.
(2)
(A) If the court orders the appointment of an ombudsman under paragraph
(1), the United States trustee shall appoint 1 disinterested person (other
than the United States trustee) to serve as such ombudsman.
(B) If the debtor is a health care business that provides long-term
care, then the United States trustee may appoint the State Long-Term Care
Ombudsman appointed under the Older Americans Act of 1965 for the State in
which the case is pending to serve as the ombudsman required by paragraph
(1).
(C) If the United States trustee does not appoint a State Long-Term
Care Ombudsman under subparagraph (B), the court shall notify the State
Long-Term Care Ombudsman appointed under the Older Americans Act of 1965
for the State in which the case is pending, of the name and address of the
person who is appointed under subparagraph (A).
(b) An ombudsman appointed under subsection (a) shall--
(1) monitor the quality of patient care provided to patients of the
debtor, to the extent necessary under the circumstances, including
interviewing patients and physicians;
(2) not later than 60 days after the date of appointment, and not less
frequently than at 60-day intervals thereafter, report to the court after
notice to the parties in interest, at a hearing or in writing, regarding the
quality of patient care provided to patients of the debtor; and
(3) if such ombudsman determines that the quality of patient care
provided to patients of the debtor is declining significantly or is
otherwise being materially compromised, file with the court a motion or a
written report, with notice to the parties in interest immediately upon
making such determination.
(c)
(1) An ombudsman appointed under subsection (a) shall maintain any
information obtained by such ombudsman under this section that relates to
patients (including information relating to patient records) as confidential
information. Such ombudsman may not review confidential patient records
unless the court approves such review in advance and imposes restrictions on
such ombudsman to protect the confidentiality of such records.
(2) An ombudsman appointed under subsection (a)(2)(B) shall have access
to patient records consistent with authority of such ombudsman under the
Older Americans Act of 1965 and under non-Federal laws governing the State
Long-Term Care Ombudsman program.
[Rev. 4-30-05]
Subchapter III. Administration
11
USC § 341. Meetings of creditors and equity security holders
(a) Within a reasonable time after the order for
relief in a case under this title, the United States trustee shall convene and
preside at a meeting of creditors.
(b) The United States trustee may convene a meeting of
any equity security holders.
(c) The court may not preside at, and may not attend,
any meeting under this section including any final meeting of creditors. Notwithstanding
any local court rule, provision of a State constitution, any otherwise
applicable nonbankruptcy law, or any other requirement that representation at
the meeting of creditors under subsection (a) be by an attorney, a creditor
holding a consumer debt or any representative of the creditor (which may
include an entity or an employee of an entity and may be a representative for
more than 1 creditor) shall be permitted to appear at and participate in the
meeting of creditors in a case under chapter 7 or 13, either alone or in
conjunction with an attorney for the creditor. Nothing in this subsection
shall be construed to require any creditor to be represented by an attorney at
any meeting of creditors.
(d) Prior to the conclusion of the meeting of
creditors or equity security holders, the trustee shall orally examine the
debtor to ensure that the debtor in a case under chapter 7 of this title is
aware of—
(1) the potential consequences of seeking a discharge in bankruptcy,
including the effects on credit history;
(2) the debtor’s ability to file a petition under a different chapter
of this title;
(3) the effect of receiving a discharge of debts under this title; and
(4) the effect of reaffirming a debt, including the debtor’s knowledge
of the provisions of section
524(d) of this title.
(e) Notwithstanding subsections (a)
and (b), the court, on the request of a party in interest and after notice and
a hearing, for cause may order that the United States trustee not convene a
meeting of creditors or equity security holders if the debtor has filed a plan
as to which the debtor solicited acceptances prior to the commencement of the
case.
[Rev. 4-30-05]
11
USC § 342. Notice
[Sample notice
given by U. S. Bankruptcy Court, District of Arizona]
(a) There shall be given such notice as is appropriate, including notice to
any holder of a community claim, of an order for relief in a case under this
title.
(b) Before the commencement of a case under this title by
an individual whose debts are primarily consumer debts, the clerk shall give
to such individual written notice containing--
(1) a brief description of--
(A) chapters
7, 11, 12,
and 13
and the general purpose, benefits, and costs of proceeding under each of
those chapters; and
(B) the types of services available from credit
counseling agencies; and
(2) statements specifying that--
(A) a person who knowingly and fraudulently conceals
assets or makes a false oath or statement under penalty of perjury in
connection with a case under this title shall be subject to fine,
imprisonment, or both; and
(B) all information supplied by a debtor in connection
with a case under this title is subject to examination by the Attorney
General.
(c)
(1) If notice is required to be given by the
debtor to a creditor under this title, any rule, any applicable law, or any
order of the court, such notice shall contain the name, address, and last
4 digits of the taxpayer identification number of the debtor.
If the notice concerns an amendment that adds a creditor to
the schedules of assets and liabilities, the debtor shall include the full
taxpayer identification number in the notice sent to that creditor, but the
debtor shall include only the last 4 digits of the taxpayer identification
number in the copy of the notice filed with the court.
(2)
(A) If, within the 90 days before the commencement of a
voluntary case, a creditor supplies the debtor in at least 2
communications sent to the debtor with the current account number of the
debtor and the address at which such creditor requests to receive
correspondence, then any notice required by this title to be sent by the
debtor to such creditor shall be sent to such address and shall include
such account number.
(B) If a creditor would be in violation of applicable
nonbankruptcy law by sending any such communication within such 90-day
period and if such creditor supplies the debtor in the last 2
communications with the current account number of the debtor and the
address at which such creditor requests to receive correspondence, then
any notice required by this title to be sent by the debtor to such
creditor shall be sent to such address and shall include such account
number.
(d) In a case under chapter
7 of this title in which the debtor is an individual and in which the
presumption of abuse arises under section
707(b), the clerk shall give written notice to all creditors not later
than 10 days after the date of the filing of the petition that the presumption
of abuse has arisen.
(e)
(1) In a case under chapter
7 or 13
of this title of a debtor who is an individual, a creditor at any time may
both file with the court and serve on the debtor a notice of address to be
used to provide notice in such case to such creditor.
(2) Any notice in such case required to be provided to
such creditor by the debtor or the court later than 5 days after the court
and the debtor receive such creditor's notice of address, shall be provided
to such address.
(f)
(1) An entity may file with any bankruptcy court a notice
of address to be used by all the bankruptcy courts or by particular
bankruptcy courts, as so specified by such entity at the time such notice is
filed, to provide notice to such entity in all cases under chapters
7 and 13
pending in the courts with respect to which such notice is filed, in which
such entity is a creditor.
(2) In any case filed under chapter
7 or 13,
any notice required to be provided by a court with respect to which a notice
is filed under paragraph (1), to such entity later than 30 days after the
filing of such notice under paragraph (1) shall be provided to such address
unless with respect to a particular case a different address is specified in
a notice filed and served in accordance with subsection (e).
(3) A notice filed under paragraph (1) may be withdrawn
by such entity.
(g)
(1) Notice provided to a creditor by the debtor or the
court other than in accordance with this section (excluding this subsection)
shall not be effective notice until such notice is brought to the attention
of such creditor. If such creditor designates a person or an organizational
subdivision of such creditor to be responsible for receiving notices under
this title and establishes reasonable procedures so that such notices
receivable by such creditor are to be delivered to such person or such
subdivision, then a notice provided to such creditor other than in
accordance with this section (excluding this subsection) shall not be
considered to have been brought to the attention of such creditor until such
notice is received by such person or such subdivision.
(2) A monetary penalty may not be imposed on a creditor
for a violation of a stay in effect under section
362(a) (including a monetary penalty imposed under section
362(k)) or for failure to comply with section
542 or 543
unless the conduct that is the basis of such violation or of such failure
occurs after such creditor receives notice effective under this section of
the order for relief.
[Rev. 4-30-05]
11
USC § 343. Examination of the debtor
The debtor shall appear and submit to examination under oath at the meeting
of creditors under section
341(a) of this title. Creditors, any indenture trustee, any trustee or
examiner in the case, or the United States trustee may examine the debtor. The
United States trustee may administer the oath required under this section.
[Rev. 4-30-05]
11
USC § 344. Self-incrimination; immunity
Immunity for persons required to submit to examination, to testify, or to
provide information in a case under this title may be granted under part V of
title 18.
[Rev. 4-30-05]
11
USC § 345. Money of estates
(a) A trustee in a case under this title may make such deposit or
investment of the money of the estate for which such trustee serves as will
yield the maximum reasonable net return on such money, taking into account the
safety of such deposit or investment.
(b) Except with respect to a deposit or investment that is insured or
guaranteed by the United States or by a department, agency, or instrumentality
of the United States or backed by the full faith and credit of the United
States, the trustee shall require from an entity with which such money is
deposited or invested—
(1) a bond—
(A) in favor of the United States;
(B) secured by the undertaking of a corporate surety approved by the
United States trustee for the district in which the case is pending; and
(C) conditioned on—
(i) a proper accounting for all money so deposited or invested and
for any return on such money;
(ii) prompt repayment of such money and return; and
(iii) faithful performance of duties as a depository; or
(2) the deposit of securities of the kind specified in section
9303 of title 31;
unless the court for cause orders otherwise.
(c) An entity with which such moneys are deposited or invested is
authorized to deposit or invest such moneys as may be required under this
section.
[Rev. 4-30-05]
11
USC § 346. Special
provisions related to the treatment of State and local taxes
(a) Whenever the Internal Revenue Code of 1986 provides
that a separate taxable estate or entity is created in a case concerning a
debtor under this title, and the income, gain, loss, deductions, and credits
of such estate shall be taxed to or claimed by the estate, a separate taxable
estate is also created for purposes of any State and local law imposing a tax
on or measured by income and such income, gain, loss, deductions, and credits
shall be taxed to or claimed by the estate and may not be taxed to or claimed
by the debtor. The preceding sentence shall not apply if the case is
dismissed. The trustee shall make tax returns of income required under any
such State or local law.
(b) Whenever the Internal Revenue Code of 1986 provides that no separate
taxable estate shall be created in a case concerning a debtor under this
title, and the income, gain, loss, deductions, and credits of an estate shall
be taxed to or claimed by the debtor, such income, gain, loss, deductions, and
credits shall be taxed to or claimed by the debtor under a State or local law
imposing a tax on or measured by income and may not be taxed to or claimed by
the estate. The trustee shall make such tax returns of income of corporations
and of partnerships as are required under any State or local law, but with
respect to partnerships, shall make such returns only to the extent such
returns are also required to be made under such Code. The estate shall be
liable for any tax imposed on such corporation or partnership, but not for any
tax imposed on partners or members.
(c) With respect to a partnership or any entity treated as a partnership
under a State or local law imposing a tax on or measured by income that is a
debtor in a case under this title, any gain or loss resulting from a
distribution of property from such partnership, or any distributive share of
any income, gain, loss, deduction, or credit of a partner or member that is
distributed, or considered distributed, from such partnership, after the
commencement of the case, is gain, loss, income, deduction, or credit, as the
case may be, of the partner or member, and if such partner or member is a
debtor in a case under this title, shall be subject to tax in accordance with
subsection (a) or (b).
(d) For purposes of any State or local law imposing a tax on or measured by
income, the taxable period of a debtor in a case under this title shall
terminate only if and to the extent that the taxable period of such debtor
terminates under the Internal Revenue Code of 1986.
(e) The estate in any case described in subsection (a) shall use the same
accounting method as the debtor used immediately before the commencement of
the case, if such method of accounting complies with applicable nonbankruptcy
tax law.
(f) For purposes of any State or local law imposing a tax on or measured by
income, a transfer of property from the debtor to the estate or from the
estate to the debtor shall not be treated as a disposition for purposes of any
provision assigning tax consequences to a disposition, except to the extent
that such transfer is treated as a disposition under the Internal Revenue Code
of 1986.
(g) Whenever a tax is imposed pursuant to a State or local law imposing a
tax on or measured by income pursuant to subsection (a) or (b), such tax shall
be imposed at rates generally applicable to the same types of entities under
such State or local law.
(h) The trustee shall withhold from any payment of claims for wages,
salaries, commissions, dividends, interest, or other payments, or collect, any
amount required to be withheld or collected under applicable State or local
tax law, and shall pay such withheld or collected amount to the appropriate
governmental unit at the time and in the manner required by such tax law, and
with the same priority as the claim from which such amount was withheld or
collected was paid.
(i)
(1) To the extent that any State or local law imposing a tax on or
measured by income provides for the carryover of any tax attribute from one
taxable period to a subsequent taxable period, the estate shall succeed to
such tax attribute in any case in which such estate is subject to tax under
subsection (a).
(2) After such a case is closed or dismissed, the debtor shall succeed to
any tax attribute to which the estate succeeded under paragraph (1) to the
extent consistent with the Internal Revenue Code of 1986.
(3) The estate may carry back any loss or tax attribute to a taxable
period of the debtor that ended before the date of the order for relief
under this title to the extent that--
(A) applicable State or local tax law provides for a carryback in the
case of the debtor; and
(B) the same or a similar tax attribute may be carried back by the
estate to such a taxable period of the debtor under the Internal Revenue
Code of 1986.
(j)
(1) For purposes of any State or local law imposing a tax on or measured
by income, income is not realized by the estate, the debtor, or a successor
to the debtor by reason of discharge of indebtedness in a case under this
title, except to the extent, if any, that such income is subject to tax
under the Internal Revenue Code of 1986.
(2) Whenever the Internal Revenue Code of 1986 provides that the amount
excluded from gross income in respect of the discharge of indebtedness in a
case under this title shall be applied to reduce the tax attributes of the
debtor or the estate, a similar reduction shall be made under any State or
local law imposing a tax on or measured by income to the extent such State
or local law recognizes such attributes. Such State or local law may also
provide for the reduction of other attributes to the extent that the full
amount of income from the discharge of indebtedness has not been applied.
(k)
(1) Except as provided in this section and section
505, the time and manner of filing tax returns and the items of income,
gain, loss, deduction, and credit of any taxpayer shall be determined under
applicable nonbankruptcy law.
(2) For Federal tax purposes, the provisions of this section are subject
to the Internal Revenue Code of 1986 and other applicable Federal
nonbankruptcy law.
[Rev. 4-30-05]
11
USC § 347. Unclaimed property
(a) Ninety days after the final distribution under section
726, 1226,
or 1326
of this title in a case under chapter
7, 12,
or 13
of this title, as the case may be, the trustee shall stop payment on any check
remaining unpaid, and any remaining property of the estate shall be paid into
the court and disposed of under chapter
129 of title 28.
(b) Any security, money, or other property remaining unclaimed at the
expiration of the time allowed in a case under chapter
9, 11, or 12
of this title for the presentation of a security or the performance of any
other act as a condition to participation in the distribution under any plan
confirmed under section
943(b), 1129,
1173,
or 1225
of this title, as the case may be, becomes the property of the debtor or of
the entity acquiring the assets of the debtor under the plan, as the case may
be.
[Rev. 4-30-05]
11
USC § 348. Effect of conversion
(a) Conversion of a case from a case under one chapter of this title to a
case under another chapter of this title constitutes an order for relief under
the chapter to which the case is converted, but, except as provided in
subsections (b) and (c) of this section, does not effect a change in the date
of the filing of the petition, the commencement of the case, or the order for
relief.
(b) Unless the court for cause orders otherwise, in sections
701(a), 727(a)(10),
727(b),
728(a),
728(b),
1102(a),
1110(a)(1),
1121(b),
1121(c),
1141(d)(4),
1146(a),
1146(b),
1201(a),
1221,
1228(a),
1301(a),
and 1305(a)
of this title, "the order for relief under this chapter" in a
chapter to which a case has been converted under section
706, 1112,
1208,
or 1307
of this title means the conversion of such case to such chapter.
(c) Sections
342 and 365(d)
of this title apply in a case that has been converted under section
706, 1112,
1208,
or 1307
of this title, as if the conversion order were the order for relief.
(d) A claim against the estate or the debtor that arises after the order
for relief but before conversion in a case that is converted under section
1112, 1208,
or 1307
of this title, other than a claim specified in section
503(b) of this title, shall be treated for all purposes as if such claim
had arisen immediately before the date of the filing of the petition.
(e) Conversion of a case under section
706, 1112,
1208,
or 1307
of this title terminates the service of any trustee or examiner that is
serving in the case before such conversion.
(f)
(1) Except as provided in paragraph (2), when a case under chapter
13 of this title is converted to a case under another chapter under this
title--
(A) property of the estate in the converted case shall consist of
property of the estate, as of the date of filing of the petition, that
remains in the possession of or is under the control of the debtor on the
date of conversion;
(B) valuations of property and of allowed secured claims in the chapter
13 case shall apply only
in a case converted to a case under chapter
11 or 12,
but not in a case converted to a case under chapter
7, with allowed secured claims in cases under chapters
11 and 12
reduced to the extent that they have been paid in accordance with the chapter
13 plan;
and
(C) with respect to cases converted from chapter
13--
(i) the claim of any creditor holding security as of
the date of the petition shall continue to be secured by that security
unless the full amount of such claim determined under applicable
nonbankruptcy law has been paid in full as of the date of conversion,
notwithstanding any valuation or determination of the amount of an
allowed secured claim made for the purposes of the case under chapter
13; and
(ii) unless a prebankruptcy default has been fully
cured under the plan at the time of conversion, in any proceeding under
this title or otherwise, the default shall have the effect given under
applicable nonbankruptcy law.
(2) If the debtor converts a case under chapter
13 of this title to a case under another chapter under this title in bad
faith, the property of the estate in the converted
case shall consist of the property of the estate as of the date of
conversion.
[Rev. 4-30-05]
11
USC § 349. Effect of dismissal
(a) Unless the court, for cause, orders otherwise, the dismissal of a case
under this title does not bar the discharge, in a later case under this title,
of debts that were dischargeable in the case dismissed; nor does the dismissal
of a case under this title prejudice the debtor with regard to the filing of a
subsequent petition under this title, except as provided in section
109(g) of this title.
(b) Unless the court, for cause, orders otherwise, a dismissal of a case
other than under section 742 of this title—
(1) reinstates—
(A) any proceeding or custodianship superseded under section
543 of this title;
(B) any transfer avoided under section
522, 544,
545,
547,
548,
549,
or 724(a)
of this title, or preserved under section
510(c)(2), 522(i)(2),
or 551
of this title; and
(C) any lien voided under section
506(d) of this title;
(2) vacates any order, judgment, or transfer ordered, under section
522(i)(1), 542,
550,
or 553 of
this title; and
(3) revests the property of the estate in the entity in which such
property was vested immediately before the commencement of the case under
this title.
[Rev. 4-30-05]
11
USC § 350. Closing and reopening cases
(a) After an estate is fully administered and the court has discharged the
trustee, the court shall close the case.
(b) A case may be reopened in the court in which such case was closed to
administer assets, to accord relief to the debtor, or for other cause.
[Rev. 4-30-05]
11
USC § 351. Disposal of patient records
If a health care business commences a case under chapter
7, 9,
or 11, and the
trustee does not have a sufficient amount of funds to pay for the storage of
patient records in the manner required under applicable Federal or State law,
the following requirements shall apply:
(1) The trustee shall--
(A) promptly publish notice, in 1 or more appropriate newspapers, that if
patient records are not claimed by the patient or an insurance provider (if
applicable law permits the insurance provider to make that claim) by the
date that is 365 days after the date of that notification, the trustee will
destroy the patient records; and
(B) during the first 180 days of the 365-day period described in
subparagraph (A), promptly attempt to notify directly each patient that is
the subject of the patient records and appropriate insurance carrier
concerning the patient records by mailing to the most recent known address
of that patient, or a family member or contact person for that patient, and
to the appropriate insurance carrier an appropriate notice regarding the
claiming or disposing of patient records.
(2) If, after providing the notification under paragraph (1), patient
records are not claimed during the 365-day period described under that
paragraph, the trustee shall mail, by certified mail, at the end of such
365-day period a written request to each appropriate Federal agency to request
permission from that agency to deposit the patient records with that agency,
except that no Federal agency is required to accept patient records under this
paragraph.
(3) If, following the 365-day period described in paragraph (2) and after
providing the notification under paragraph (1), patient records are not
claimed by a patient or insurance provider, or request is not granted by a
Federal agency to deposit such records with that agency, the trustee shall
destroy those records by--
(A) if the records are written, shredding or burning the records; or
(B) if the records are magnetic, optical, or other electronic records, by
otherwise destroying those records so that those records cannot be
retrieved.
[Rev. 4-30-05]
</ |
Doney
& Associates PLC Home Page
