Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

119 STAT. 23 PUBLIC LAW 109–8—APR. 20, 2005
Public Law 109–8
109th Congress
An Act
To amend title 11 of the United States Code, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES; TABLE OF CONTENTS.
(a) S HORT TITLE.—This Act may be cited as the ‘‘Bankruptcy
Abuse Prevention and Consumer Protection Actof 2005’’.
(b) T
ABLE OF CONTENTS .—The table of contents for this Act
is as follows:
Sec. 1. Short title; references; table of contents.
TITLE I—NEEDS-BASED BANKRUPTCY
Sec. 101. Conversion.
Sec. 102. Dismissal or conversion.Sec. 103. Sense of Congress and study.Sec. 104. Notice of alternatives.Sec. 105. Debtor financial management training test program.Sec. 106. Credit counseling.Sec. 107. Schedules of reasonable and necessary expenses.
TITLE II—ENHANCED CONSUMER PROTECTION
Subtitle A—Penalties for Abusive Creditor Practices
Sec. 201. Promotion of alternative dispute resolution.
Sec. 202. Effect of discharge.Sec. 203. Discouraging abuse of reaffirmation agreement practices.Sec. 204. Preservation of claims and defenses upon sale of predatory loans.Sec. 205. GAO study and report on reaffirmation agreement process.
Subtitle B—Priority Child Support
Sec. 211. Definition of domestic support obligation.
Sec. 212. Priorities for claims for domestic support obligations.Sec. 213. Requirements to obtain confirmation and discharge in cases involving do-
mestic support obligations.
Sec. 214. Exceptions to automatic stay in domestic support obligation proceedings.
Sec. 215. Nondischargeability of certain debts for alimony, maintenance, and sup-
port.
Sec. 216. Continued liability of property.Sec. 217. Protection of domestic support claims against preferential transfer mo-
tions.
Sec. 218. Disposable income defined.Sec. 219. Collection of child support.Sec. 220. Nondischargeability of certain educational benefits and loans.
Subtitle C—Other Consumer Protections
Sec. 221. Amendments to discourage abusive bankruptcy filings.
Sec. 222. Sense of Congress.Sec. 223. Additional amendments to title 11, United States Code.Sec. 224. Protection of retirement savings in bankruptcy.Sec. 225. Protection of education savings in bankruptcy.Bankruptcy
Abuse Preventionand ConsumerProtection Actof 2005.11 USC 101 note.Apr. 20, 2005
[S. 256]
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Sec. 226. Definitions.
Sec. 227. Restrictions on debt relief agencies.Sec. 228. Disclosures.Sec. 229. Requirements for debt relief agencies.Sec. 230. GAO study.Sec. 231. Protection of personally identifiable information.Sec. 232. Consumer privacy ombudsman.Sec. 233. Prohibition on disclosure of name of minor children.Sec. 234. Protection of personal information.
TITLE III—DISCOURAGING BANKRUPTCY ABUSE
Sec. 301. Technical amendments.
Sec. 302. Discouraging bad faith repeat filings.Sec. 303. Curbing abusive filings.Sec. 304. Debtor retention of personal property security.Sec. 305. Relief from the automatic stay when the debtor does not complete in-
tended surrender of consumer debt collateral.
Sec. 306. Giving secured creditors fair treatment in chapter 13.Sec. 307. Domiciliary requirements for exemptions.Sec. 308. Reduction of homestead exemption for fraud.Sec. 309. Protecting secured creditors in chapter 13 cases.Sec. 310. Limitation on luxury goods.Sec. 311. Automatic stay.Sec. 312. Extension of period between bankruptcy discharges.Sec. 313. Definition of household goods and antiques.Sec. 314. Debt incurred to pay nondischargeable debts.Sec. 315. Giving creditors fair notice in chapters 7 and 13 cases.Sec. 316. Dismissal for failure to timely file schedules or provide required informa-
tion.
Sec. 317. Adequate time to prepare for hearing on confirmation of the plan.Sec. 318. Chapter 13 plans to have a 5-year duration in certain cases.Sec. 319. Sense of Congress regarding expansion of rule 9011 of the Federal Rules
of Bankruptcy Procedure.
Sec. 320. Prompt relief from stay in individual cases.Sec. 321. Chapter 11 cases filed by individuals.Sec. 322. Limitations on homestead exemption.Sec. 323. Excluding employee benefit plan participant contributions and other prop-
erty from the estate.
Sec. 324. Exclusive jurisdiction in matters involving bankruptcy professionals.Sec. 325. United States trustee program filing fee increase.Sec. 326. Sharing of compensation.Sec. 327. Fair valuation of collateral.Sec. 328. Defaults based on nonmonetary obligations.Sec. 329. Clarification of postpetition wages and benefits.Sec. 330. Delay of discharge during pendency of certain proceedings.Sec. 331. Limitation on retention bonuses, severance pay, and certain other pay-
ments.
Sec. 332. Fraudulent involuntary bankruptcy.
TITLE IV—GENERAL AND SMALL BUSINESS BANKRUPTCY PROVISIONS
Subtitle A—General Business Bankruptcy Provisions
Sec. 401. Adequate protection for investors.
Sec. 402. Meetings of creditors and equity security holders.Sec. 403. Protection of refinance of security interest.Sec. 404. Executory contracts and unexpired leases.Sec. 405. Creditors and equity security holders committees.Sec. 406. Amendment to section 546 of title 11, United States Code.Sec. 407. Amendments to section 330(a) of title 11, United States Code.Sec. 408. Postpetition disclosure and solicitation.Sec. 409. Preferences.Sec. 410. Venue of certain proceedings.Sec. 411. Period for filing plan under chapter 11.Sec. 412. Fees arising from certain ownership interests.Sec. 413. Creditor representation at first meeting of creditors.Sec. 414. Definition of disinterested person.Sec. 415. Factors for compensation of professional persons.Sec. 416. Appointment of elected trustee.Sec. 417. Utility service.Sec. 418. Bankruptcy fees.Sec. 419. More complete information regarding assets of the estate.
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Subtitle B—Small Business Bankruptcy Provisions
Sec. 431. Flexible rules for disclosure statement and plan.
Sec. 432. Definitions.Sec. 433. Standard form disclosure statement and plan.Sec. 434. Uniform national reporting requirements.Sec. 435. Uniform reporting rules and forms for small business cases.Sec. 436. Duties in small business cases.Sec. 437. Plan filing and confirmation deadlines.Sec. 438. Plan confirmation deadline.Sec. 439. Duties of the United States trustee.Sec. 440. Scheduling conferences.Sec. 441. Serial filer provisions.Sec. 442. Expanded grounds for dismissal or conversion and appointment of trust-
ee.
Sec. 443. Study of operation of title 11, United States Code, with respect to small
businesses.
Sec. 444. Payment of interest.Sec. 445. Priority for administrative expenses.Sec. 446. Duties with respect to a debtor who is a plan administrator of an em-
ployee benefit plan.
Sec. 447. Appointment of committee of retired employees.
TITLE V—MUNICIPAL BANKRUPTCY PROVISIONS
Sec. 501. Petition and proceedings related to petition.
Sec. 502. Applicability of other sections to chapter 9.
TITLE VI—BANKRUPTCY DATA
Sec. 601. Improved bankruptcy statistics.
Sec. 602. Uniform rules for the collection of bankruptcy data.Sec. 603. Audit procedures.Sec. 604. Sense of Congress regarding availability of bankruptcy data.
TITLE VII—BANKRUPTCY TAX PROVISIONS
Sec. 701. Treatment of certain liens.
Sec. 702. Treatment of fuel tax claims.Sec. 703. Notice of request for a determination of taxes.Sec. 704. Rate of interest on tax claims.Sec. 705. Priority of tax claims.Sec. 706. Priority property taxes incurred.Sec. 707. No discharge of fraudulent taxes in chapter 13.Sec. 708. No discharge of fraudulent taxes in chapter 11.Sec. 709. Stay of tax proceedings limited to prepetition taxes.Sec. 710. Periodic payment of taxes in chapter 11 cases.Sec. 711. Avoidance of statutory tax liens prohibited.Sec. 712. Payment of taxes in the conduct of business.Sec. 713. Tardily filed priority tax claims.Sec. 714. Income tax returns prepared by tax authorities.
Sec. 715. Discharge of the estate’s liability for unpaid taxes.Sec. 716. Requirement to file tax returns to confirm chapter 13 plans.Sec. 717. Standards for tax disclosure.Sec. 718. Setoff of tax refunds.Sec. 719. Special provisions related to the treatment of State and local taxes.Sec. 720. Dismissal for failure to timely file tax returns.
TITLE VIII—ANCILLARY AND OTHER CROSS-BORDER CASES
Sec. 801. Amendment to add chapter 15 to title 11, United States Code.
Sec. 802. Other amendments to titles 11 and 28, United States Code.
TITLE IX—FINANCIAL CONTRACT PROVISIONS
Sec. 901. Treatment of certain agreements by conservators or receivers of insured
depository institutions.
Sec. 902. Authority of the FDIC and NCUAB with respect to failed and failing in-
stitutions.
Sec. 903. Amendments relating to transfers of qualified financial contracts.Sec. 904. Amendments relating to disaffirmance or repudiation of qualified finan-
cial contracts.
Sec. 905. Clarifying amendment relating to master agreements.Sec. 906. Federal Deposit Insurance Corporation Improvement Act of 1991.Sec. 907. Bankruptcy law amendments.Sec. 908. Recordkeeping requirements.
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Sec. 909. Exemptions from contemporaneous execution requirement.
Sec. 910. Damage measure.Sec. 911. SIPC stay.
TITLE X—PROTECTION OF FAMILY FARMERS AND FAMILY FISHERMEN
Sec. 1001. Permanent reenactment of chapter 12.
Sec. 1002. Debt limit increase.Sec. 1003. Certain claims owed to governmental units.Sec. 1004. Definition of family farmer.Sec. 1005. Elimination of requirement that family farmer and spouse receive over
50 percent of income from farming operation in year prior to bank-ruptcy.
Sec. 1006. Prohibition of retroactive assessment of disposable income.Sec. 1007. Family fishermen.
TITLE XI—HEALTH CARE AND EMPLOYEE BENEFITS
Sec. 1101. Definitions.
Sec. 1102. Disposal of patient records.Sec. 1103. Administrative expense claim for costs of closing a health care business
and other administrative expenses.
Sec. 1104. Appointment of ombudsman to act as patient advocate.Sec. 1105. Debtor in possession; duty of trustee to transfer patients.Sec. 1106. Exclusion from program participation not subject to automatic stay.
TITLE XII—TECHNICAL AMENDMENTS
Sec. 1201. Definitions.
Sec. 1202. Adjustment of dollar amounts.Sec. 1203. Extension of time.Sec. 1204. Technical amendments.Sec. 1205. Penalty for persons who negligently or fraudulently prepare bankruptcy
petitions.
Sec. 1206. Limitation on compensation of professional persons.Sec. 1207. Effect of conversion.Sec. 1208. Allowance of administrative expenses.Sec. 1209. Exceptions to discharge.Sec. 1210. Effect of discharge.Sec. 1211. Protection against discriminatory treatment.Sec. 1212. Property of the estate.Sec. 1213. Preferences.Sec. 1214. Postpetition transactions.Sec. 1215. Disposition of property of the estate.Sec. 1216. General provisions.Sec. 1217. Abandonment of railroad line.Sec. 1218. Contents of plan.Sec. 1219. Bankruptcy cases and proceedings.Sec. 1220. Knowing disregard of bankruptcy law or rule.Sec. 1221. Transfers made by nonprofit charitable corporations.Sec. 1222. Protection of valid purchase money security interests.Sec. 1223. Bankruptcy Judgeships.Sec. 1224. Compensating trustees.Sec. 1225. Amendment to section 362 of title 11, United States Code.Sec. 1226. Judicial education.Sec. 1227. Reclamation.Sec. 1228. Providing requested tax documents to the court.Sec. 1229. Encouraging creditworthiness.Sec. 1230. Property no longer subject to redemption.Sec. 1231. Trustees.Sec. 1232. Bankruptcy forms.Sec. 1233. Direct appeals of bankruptcy matters to courts of appeals.Sec. 1234. Involuntary cases.Sec. 1235. Federal election law fines and penalties as nondischargeable debt.
TITLE XIII—CONSUMER CREDIT DISCLOSURE
Sec. 1301. Enhanced disclosures under an open end credit plan.
Sec. 1302. Enhanced disclosure for credit extensions secured by a dwelling.Sec. 1303. Disclosures related to ‘‘introductory rates’’.Sec. 1304. Internet-based credit card solicitations.Sec. 1305. Disclosures related to late payment deadlines and penalties.Sec. 1306. Prohibition on certain actions for failure to incur finance charges.
Sec. 1307. Dual use debit card.Sec. 1308. Study of bankruptcy impact of credit extended to dependent students.
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Sec. 1309. Clarification of clear and conspicuous.
TITLE XIV—PREVENTING CORPORATE BANKRUPTCY ABUSE
Sec. 1401. Employee wage and benefit priorities.
Sec. 1402. Fraudulent transfers and obligations.Sec. 1403. Payment of insurance benefits to retired employees.
Sec. 1404. Debts nondischargeable if incurred in violation of securities fraud laws.Sec. 1405. Appointment of trustee in cases of suspected fraud.Sec. 1406. Effective date; application of amendments.
TITLE XV—GENERAL EFFECTIVE DATE; APPLICATION OF AMENDMENTS
Sec. 1501. Effective date; application of amendments.
Sec. 1502. Technical corrections.
TITLE I—NEEDS-BASED BANKRUPTCY
SEC. 101. CONVERSION.
Section 706(c) of title 11, United States Code, is amended
by inserting ‘‘or consents to’’ after ‘‘requests’’.
SEC. 102. DISMISSAL OR CONVERSION.
(a) I NGENERAL .—Section 707 of title 11, United States Code,
is amended—
(1) by striking the section heading and inserting the fol-
lowing:
‘‘§ 707. Dismissal of a case or conversion to a case under
chapter 11 or 13’’ ;
and
(2) in subsection (b)—
(A) by inserting ‘‘(1)’’ after ‘‘(b)’’;(B) in paragraph (1), as so redesignated by subpara-
graph (A) of this paragraph—
(i) in the first sentence—
(I) by striking ‘‘but not at the request or
suggestion of’’ and inserting ‘‘trustee (or bank-ruptcy administrator, if any), or’’;
(II) by inserting ‘‘, or, with the debtor’s con-
sent, convert such a case to a case under chapter11 or 13 of this title,’’ after ‘‘consumer debts’’;and
(III) by striking ‘‘a substantial abuse’’ and
inserting ‘‘an abuse’’; and(ii) by striking the next to last sentence; and
(C) by adding at the end the following:
‘‘(2)(A)(i) In considering under paragraph (1) whether the
granting of relief would be an abuse of the provisions of thischapter, the court shall presume abuse exists if the debtor’s currentmonthly income reduced by the amounts determined under clauses(ii), (iii), and (iv), and multiplied by 60 is not less than the lesserof—
‘‘(I) 25 percent of the debtor’s nonpriority unsecured claims
in the case, or $6,000, whichever is greater; or
‘‘(II) $10,000.
‘‘(ii)(I) The debtor’s monthly expenses shall be the debtor’s
applicable monthly expense amounts specified under the NationalStandards and Local Standards, and the debtor’s actual monthlyexpenses for the categories specified as Other Necessary Expensesissued by the Internal Revenue Service for the area in which
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the debtor resides, as in effect on the date of the order for relief,
for the debtor, the dependents of the debtor, and the spouse ofthe debtor in a joint case, if the spouse is not otherwise a dependent.Such expenses shall include reasonably necessary health insurance,disability insurance, and health savings account expenses for thedebtor, the spouse of the debtor, or the dependents of the debtor.Notwithstanding any other provision of this clause, the monthlyexpenses of the debtor shall not include any payments for debts.In addition, the debtor’s monthly expenses shall include the debtor’sreasonably necessary expenses incurred to maintain the safety ofthe debtor and the family of the debtor from family violence asidentified under section 309 of the Family Violence Preventionand Services Act, or other applicable Federal law. The expensesincluded in the debtor’s monthly expenses described in the precedingsentence shall be kept confidential by the court. In addition, ifit is demonstrated that it is reasonable and necessary, the debtor’smonthly expenses may also include an additional allowance forfood and clothing of up to 5 percent of the food and clothingcategories as specified by the National Standards issued by theInternal Revenue Service.
‘‘(II) In addition, the debtor’s monthly expenses may include,
if applicable, the continuation of actual expenses paid by the debtorthat are reasonable and necessary for care and support of anelderly, chronically ill, or disabled household member or memberof the debtor’s immediate family (including parents, grandparents,siblings, children, and grandchildren of the debtor, the dependentsof the debtor, and the spouse of the debtor in a joint case whois not a dependent) and who is unable to pay for such reasonableand necessary expenses.
‘‘(III) In addition, for a debtor eligible for chapter 13, the
debtor’s monthly expenses may include the actual administrativeexpenses of administering a chapter 13 plan for the district inwhich the debtor resides, up to an amount of 10 percent of theprojected plan payments, as determined under schedules issuedby the Executive Office for United States Trustees.
‘‘(IV) In addition, the debtor’s monthly expenses may include
the actual expenses for each dependent child less than 18 yearsof age, not to exceed $1,500 per year per child, to attend a privateor public elementary or secondary school if the debtor providesdocumentation of such expenses and a detailed explanation of whysuch expenses are reasonable and necessary, and why such expensesare not already accounted for in the National Standards, LocalStandards, or Other Necessary Expenses referred to in subclause(I).
‘‘(V) In addition, the debtor’s monthly expenses may include
an allowance for housing and utilities, in excess of the allowance
specified by the Local Standards for housing and utilities issuedby the Internal Revenue Service, based on the actual expensesfor home energy costs if the debtor provides documentation ofsuch actual expenses and demonstrates that such actual expensesare reasonable and necessary.
‘‘(iii) The debtor’s average monthly payments on account of
secured debts shall be calculated as the sum of—
‘‘(I) the total of all amounts scheduled as contractually
due to secured creditors in each month of the 60 months fol-lowing the date of the petition; and
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‘‘(II) any additional payments to secured creditors necessary
for the debtor, in filing a plan under chapter 13 of this title,to maintain possession of the debtor’s primary residence, motorvehicle, or other property necessary for the support of thedebtor and the debtor’s dependents, that serves as collateralfor secured debts;
divided by 60.
‘‘(iv) The debtor’s expenses for payment of all priority claims
(including priority child support and alimony claims) shall be cal-culated as the total amount of debts entitled to priority, dividedby 60.
‘‘(B)(i) In any proceeding brought under this subsection, the
presumption of abuse may only be rebutted by demonstrating spe-cial circumstances, such as a serious medical condition or a callor order to active duty in the Armed Forces, to the extent suchspecial circumstances that justify additional expenses or adjust-ments of current monthly income for which there is no reasonablealternative.
‘‘(ii) In order to establish special circumstances, the debtor
shall be required to itemize each additional expense or adjustmentof income and to provide—
‘‘(I) documentation for such expense or adjustment to
income; and
‘‘(II) a detailed explanation of the special circumstances
that make such expenses or adjustment to income necessaryand reasonable.‘‘(iii) The debtor shall attest under oath to the accuracy of
any information provided to demonstrate that additional expensesor adjustments to income are required.
‘‘(iv) The presumption of abuse may only be rebutted if the
additional expenses or adjustments to income referred to in clause(i) cause the product of the debtor’s current monthly income reducedby the amounts determined under clauses (ii), (iii), and (iv) ofsubparagraph (A) when multiplied by 60 to be less than the lesserof—
‘‘(I) 25 percent of the debtor’s nonpriority unsecured claims,
or $6,000, whichever is greater; or
‘‘(II) $10,000.
‘‘(C) As part of the schedule of current income and expenditures
required under section 521, the debtor shall include a statementof the debtor’s current monthly income, and the calculations thatdetermine whether a presumption arises under subparagraph (A)(i),that show how each such amount is calculated.
‘‘(D) Subparagraphs (A) through (C) shall not apply, and the
court may not dismiss or convert a case based on any form ofmeans testing, if the debtor is a disabled veteran (as defined in
section 3741(1) of title 38), and the indebtedness occurred primarilyduring a period during which he or she was—
‘‘(i) on active duty (as defined in section 101(d)(1) of title
10); or
‘‘(ii) performing a homeland defense activity (as defined
in section 901(1) of title 32).‘‘(3) In considering under paragraph (1) whether the granting
of relief would be an abuse of the provisions of this chapter ina case in which the presumption in subparagraph (A)(i) of suchparagraph does not arise or is rebutted, the court shall consider—
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‘‘(A) whether the debtor filed the petition in bad faith;
or
‘‘(B) the totality of the circumstances (including whether
the debtor seeks to reject a personal services contract andthe financial need for such rejection as sought by the debtor)of the debtor’s financial situation demonstrates abuse.‘‘(4)(A) The court, on its own initiative or on the motion of
a party in interest, in accordance with the procedures describedin rule 9011 of the Federal Rules of Bankruptcy Procedure, mayorder the attorney for the debtor to reimburse the trustee forall reasonable costs in prosecuting a motion filed under section707(b), including reasonable attorneys’ fees, if—
‘‘(i) a trustee files a motion for dismissal or conversion
under this subsection; and
‘‘(ii) the court—
‘‘(I) grants such motion; and‘‘(II) finds that the action of the attorney for the debtor
in filing a case under this chapter violated rule 9011 ofthe Federal Rules of Bankruptcy Procedure.
‘‘(B) If the court finds that the attorney for the debtor violated
rule 9011 of the Federal Rules of Bankruptcy Procedure, the court,on its own initiative or on the motion of a party in interest, inaccordance with such procedures, may order—
‘‘(i) the assessment of an appropriate civil penalty against
the attorney for the debtor; and
‘‘(ii) the payment of such civil penalty to the trustee, the
United States trustee (or the bankruptcy administrator, if any).‘‘(C) The signature of an attorney on a petition, pleading, or
written motion shall constitute a certification that the attorneyhas—
‘‘(i) performed a reasonable investigation into the cir-
cumstances that gave rise to the petition, pleading, or writtenmotion; and
‘‘(ii) determined that the petition, pleading, or written
motion—
‘‘(I) is well grounded in fact; and‘‘(II) is warranted by existing law or a good faith argu-
ment for the extension, modification, or reversal of existinglaw and does not constitute an abuse under paragraph(1).
‘‘(D) The signature of an attorney on the petition shall constitute
a certification that the attorney has no knowledge after an inquirythat the information in the schedules filed with such petition isincorrect.
‘‘(5)(A) Except as provided in subparagraph (B) and subject
to paragraph (6), the court, on its own initiative or on the motionof a party in interest, in accordance with the procedures describedin rule 9011 of the Federal Rules of Bankruptcy Procedure, mayaward a debtor all reasonable costs (including reasonable attorneys’fees) in contesting a motion filed by a party in interest (otherthan a trustee or United States trustee (or bankruptcy adminis-trator, if any)) under this subsection if—
‘‘(i) the court does not grant the motion; and‘‘(ii) the court finds that—
‘‘(I) the position of the party that filed the motion
violated rule 9011 of the Federal Rules of BankruptcyProcedure; or
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‘‘(II) the attorney (if any) who filed the motion did
not comply with the requirements of clauses (i) and (ii)of paragraph (4)(C), and the motion was made solely forthe purpose of coercing a debtor into waiving a rightguaranteed to the debtor under this title.
‘‘(B) A small business that has a claim of an aggregate amount
less than $1,000 shall not be subject to subparagraph (A)(ii)(I).
‘‘(C) For purposes of this paragraph—
‘‘(i) the term ‘small business’ means an unincorporated
business, partnership, corporation, association, or organizationthat—
‘‘(I) has fewer than 25 full-time employees as deter-
mined on the date on which the motion is filed; and
‘‘(II) is engaged in commercial or business activity;
and‘‘(ii) the number of employees of a wholly owned subsidiary
of a corporation includes the employees of—
‘‘(I) a parent corporation; and‘‘(II) any other subsidiary corporation of the parent
corporation.
‘‘(6) Only the judge or United States trustee (or bankruptcy
administrator, if any) may file a motion under section 707(b), ifthe current monthly income of the debtor, or in a joint case, thedebtor and the debtor’s spouse, as of the date of the order forrelief, when multiplied by 12, is equal to or less than—
‘‘(A) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1 earner;
‘‘(B) in the case of a debtor in a household of 2, 3, or
4 individuals, the highest median family income of theapplicable State for a family of the same number or fewerindividuals; or
‘‘(C) in the case of a debtor in a household exceeding
4 individuals, the highest median family income of theapplicable State for a family of 4 or fewer individuals, plus$525 per month for each individual in excess of 4.‘‘(7)(A) No judge, United States trustee (or bankruptcy adminis-
trator, if any), trustee, or other party in interest may file a motionunder paragraph (2) if the current monthly income of the debtor,including a veteran (as that term is defined in section 101 oftitle 38), and the debtor’s spouse combined, as of the date of theorder for relief when multiplied by 12, is equal to or less than—
‘‘(i) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1 earner;
‘‘(ii) in the case of a debtor in a household of 2, 3, or
4 individuals, the highest median family income of theapplicable State for a family of the same number or fewer
individuals; or
‘‘(iii) in the case of a debtor in a household exceeding
4 individuals, the highest median family income of theapplicable State for a family of 4 or fewer individuals, plus$525 per month for each individual in excess of 4.‘‘(B) In a case that is not a joint case, current monthly income
of the debtor’s spouse shall not be considered for purposes ofsubparagraph (A) if—
‘‘(i)(I) the debtor and the debtor’s spouse are separated
under applicable nonbankruptcy law; or
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‘‘(II) the debtor and the debtor’s spouse are living separate
and apart, other than for the purpose of evading subparagraph(A); and
‘‘(ii) the debtor files a statement under penalty of perjury—
‘‘(I) specifying that the debtor meets the requirement
of subclause (I) or (II) of clause (i); and
‘‘(II) disclosing the aggregate, or best estimate of the
aggregate, amount of any cash or money payments receivedfrom the debtor’s spouse attributed to the debtor’s currentmonthly income.’’.
(b) D
EFINITION .—Section 101 of title 11, United States Code,
is amended by inserting after paragraph (10) the following:
‘‘(10A) ‘current monthly income’—
‘‘(A) means the average monthly income from all
sources that the debtor receives (or in a joint case thedebtor and the debtor’s spouse receive) without regard towhether such income is taxable income, derived duringthe 6-month period ending on—
‘‘(i) the last day of the calendar month immediately
preceding the date of the commencement of the caseif the debtor files the schedule of current incomerequired by section 521(a)(1)(B)(ii); or
‘‘(ii) the date on which current income is deter-
mined by the court for purposes of this title if thedebtor does not file the schedule of current incomerequired 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 thedebtor’s spouse), on a regular basis for the householdexpenses of the debtor or the debtor’s dependents (andin a joint case the debtor’s spouse if not otherwise adependent), but excludes benefits received under the SocialSecurity Act, payments to victims of war crimes or crimesagainst humanity on account of their status as victimsof such crimes, and payments to victims of internationalterrorism (as defined in section 2331 of title 18) or domesticterrorism (as defined in section 2331 of title 18) on accountof their status as victims of such terrorism;’’.
(c) U
NITED STATES TRUSTEE AND BANKRUPTCY ADMINISTRATOR
DUTIES .—Section 704 of title 11, United States Code, is amended—
(1) by inserting ‘‘(a)’’ before ‘‘The trustee shall—’’; and(2) by adding at the end the following:
‘‘(b)(1) With respect to a debtor who is an individual in a
case under this chapter—
‘‘(A) the United States trustee (or the bankruptcy adminis-
trator, if any) shall review all materials filed by the debtorand, not later than 10 days after the date of the first meetingof creditors, file with the court a statement as to whetherthe debtor’s case would be presumed to be an abuse undersection 707(b); and
‘‘(B) not later than 5 days after receiving a statement
under subparagraph (A), the court shall provide a copy ofthe statement to all creditors.‘‘(2) The United States trustee (or bankruptcy administrator,
if any) shall, not later than 30 days after the date of filing astatement under paragraph (1), either file a motion to dismissor convert under section 707(b) or file a statement setting forthDeadlines.
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the reasons the United States trustee (or the bankruptcy adminis-
trator, if any) does not consider such a motion to be appropriate,if the United States trustee (or the bankruptcy administrator, ifany) determines that the debtor’s case should be presumed to bean abuse under section 707(b) and the product of the debtor’scurrent monthly income, multiplied by 12 is not less than—
‘‘(A) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1 earner;or
‘‘(B) in the case of a debtor in a household of 2 or more
individuals, the highest median family income of the applicableState for a family of the same number or fewer individuals.’’.(d) N
OTICE .—Section 342 of title 11, United States Code, is
amended by adding at the end the following:
‘‘(d) In a case under chapter 7 of this title in which the debtor
is an individual and in which the presumption of abuse arisesunder section 707(b), the clerk shall give written notice to allcreditors not later than 10 days after the date of the filing ofthe petition that the presumption of abuse has arisen.’’.
(e) N
ONLIMITATION OF INFORMATION .—Nothing in this title shall
limit the ability of a creditor to provide information to a judge(except for information communicated ex parte, unless otherwisepermitted by applicable law), United States trustee (or bankruptcyadministrator, if any), or trustee.
(f) D
ISMISSAL FOR CERTAIN CRIMES .—Section 707 of title 11,
United States Code, is amended by adding at the end the following:
‘‘(c)(1) In this subsection—
‘‘(A) the term ‘crime of violence’ has the meaning given
such term in section 16 of title 18; and
‘‘(B) the term ‘drug trafficking crime’ has the meaning
given such term in section 924(c)(2) of title 18.‘‘(2) Except as provided in paragraph (3), after notice and a
hearing, the court, on a motion by the victim of a crime of violenceor a drug trafficking crime, may when it is in the best interestof the victim dismiss a voluntary case filed under this chapterby a debtor who is an individual if such individual was convictedof such crime.
‘‘(3) The court may not dismiss a case under paragraph (2)
if the debtor establishes by a preponderance of the evidence thatthe filing of a case under this chapter is necessary to satisfya claim for a domestic support obligation.’’.
(g) C
ONFIRMATION OF PLAN.—Section 1325(a) of title 11, United
States Code, is amended—
(1) in paragraph (5), by striking ‘‘and’’ at the end;(2) in paragraph (6), by striking the period and inserting
a semicolon; and
(3) by inserting after paragraph (6) the following:‘‘(7) the action of the debtor in filing the petition was
in good faith;’’.(h) A
PPLICABILITY OF MEANS TEST TO CHAPTER 13.—Section
1325(b) of title 11, United States Code, is amended—
(1) in paragraph (1)(B), by inserting ‘‘to unsecured credi-
tors’’ after ‘‘to make payments’’; and
(2) by striking paragraph (2) and inserting the following:‘‘(2) For purposes of this subsection, the term ‘disposable
income’ means current monthly income received by the debtor(other than child support payments, foster care payments, or11 USC 101 note.Deadline.
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disability payments for a dependent child made in accordance
with applicable nonbankruptcy law to the extent reasonablynecessary to be expended for such child) less amounts reason-ably necessary to be expended—
‘‘(A)(i) for the maintenance or support of the debtor
or a dependent of the debtor, or for a domestic supportobligation, that first becomes payable after the date thepetition is filed; and
‘‘(ii) for charitable contributions (that meet the defini-
tion of ‘charitable contribution’ under section 548(d)(3) toa qualified religious or charitable entity or organization(as defined in section 548(d)(4)) in an amount not to exceed15 percent of gross income of the debtor for the year inwhich the contributions are made; and
‘‘(B) if the debtor is engaged in business, for the pay-
ment of expenditures necessary for the continuation,preservation, and operation of such business.‘‘(3) Amounts reasonably necessary to be expended under
paragraph (2) shall be determined in accordance with subpara-graphs (A) and (B) of section 707(b)(2), if the debtor has currentmonthly income, when multiplied by 12, greater than—
‘‘(A) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1earner;
‘‘(B) in the case of a debtor in a household of 2, 3,
or 4 individuals, the highest median family income of theapplicable State for a family of the same number or fewerindividuals; or
‘‘(C) in the case of a debtor in a household exceeding
4 individuals, the highest median family income of theapplicable State for a family of 4 or fewer individuals,plus $525 per month for each individual in excess of 4.’’.
(i) S
PECIAL ALLOWANCE FOR HEALTH INSURANCE .—Section
1329(a) of title 11, United States Code, is amended—
(1) in paragraph (2) by striking ‘‘or’’ at the end;(2) in paragraph (3) by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(4) reduce amounts to be paid under the plan by the
actual amount expended by the debtor to purchase health insur-ance for the debtor (and for any dependent of the debtor ifsuch dependent does not otherwise have health insurance cov-erage) if the debtor documents the cost of such insurance anddemonstrates that—
‘‘(A) such expenses are reasonable and necessary;‘‘(B)(i) if the debtor previously paid for health insur-
ance, the amount is not materially larger than the costthe debtor previously paid or the cost necessary to maintainthe lapsed policy; or
‘‘(ii) if the debtor did not have health insurance, the
amount is not materially larger than the reasonable costthat would be incurred by a debtor who purchases healthinsurance, who has similar income, expenses, age, andhealth status, and who lives in the same geographicallocation with the same number of dependents who do nototherwise have health insurance coverage; and
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‘‘(C) the amount is not otherwise allowed for purposes
of determining disposable income under section 1325(b)of this title;
and upon request of any party in interest, files proof thata health insurance policy was purchased.’’.(j) A
DJUSTMENT OF DOLLAR AMOUNTS .—Section 104(b) of title
11, United States Code, is amended by striking ‘‘and 523(a)(2)(C)’’each place it appears and inserting ‘‘523(a)(2)(C), 707(b), and1325(b)(3)’’.
(k) D
EFINITION OF ‘MEDIAN FAMILY INCOME ’.—Section 101 of
title 11, United States Code, is amended by inserting after para-graph (39) the following:
‘‘(39A) ‘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 mostrecent year; and
‘‘(B) if not so calculated and reported in the then cur-
rent year, adjusted annually after such most recent yearuntil the next year in which median family income isboth calculated and reported by the Bureau of the Census,to reflect the percentage change in the Consumer PriceIndex for All Urban Consumers during the period of yearsoccurring after such most recent year and before suchcurrent year;’’.
(k) C
LERICAL AMENDMENT .—The table of sections for chapter
7 of title 11, United States Code, is amended by striking theitem relating to section 707 and inserting the following:
‘‘707. Dismissal of a case or conversion to a case under chapter 11 or 13.’’.
SEC. 103. SENSE OF CONGRESS AND STUDY.
(a) S ENSE OF CONGRESS .—It is the sense of Congress that
the Secretary of the Treasury has the authority to alter the InternalRevenue Service standards established to set guidelines for repay-ment plans as needed to accommodate their use under section707(b) of title 11, United States Code.
(b) S
TUDY .—
(1) I N GENERAL .—Not later than 2 years after the date
of enactment of this Act, the Director of the Executive Officefor United States Trustees shall submit a report to the Com-mittee on the Judiciary of the Senate and the Committee onthe Judiciary of the House of Representatives containing thefindings of the Director regarding the utilization of InternalRevenue Service standards for determining—
(A) the current monthly expenses of a debtor under
section 707(b) of title 11, United States Code; and
(B) the impact that the application of such standards
has had on debtors and on the bankruptcy courts.(2) R
ECOMMENDATION .—The report under paragraph (1)
may include recommendations for amendments to title 11,United States Code, that are consistent with the findings ofthe Director under paragraph (1).
SEC. 104. NOTICE OF ALTERNATIVES.
Section 342(b) of title 11, United States Code, is amended
to read as follows:Deadline.Reports.
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‘‘(b) Before the commencement of a case under this title by
an individual whose debts are primarily consumer debts, the clerkshall 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 chap-ters; and
‘‘(B) the types of services available from credit coun-
seling agencies; and‘‘(2) statements specifying that—
‘‘(A) a person who knowingly and fraudulently conceals
assets or makes a false oath or statement under penaltyof perjury in connection with a case under this title shallbe 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 bythe Attorney General.’’.
SEC. 105. DEBTOR FINANCIAL MANAGEMENT TRAINING TEST PRO-
GRAM.
(a) D EVELOPMENT OF FINANCIAL MANAGEMENT AND TRAINING
CURRICULUM AND MATERIALS .—The Director of the Executive Office
for United States Trustees (in this section referred to as the‘‘Director’’) shall consult with a wide range of individuals whoare experts in the field of debtor education, including trusteeswho serve in cases under chapter 13 of title 11, United StatesCode, and who operate financial management education programsfor debtors, and shall develop a financial management trainingcurriculum and materials that can be used to educate debtorswho are individuals on how to better manage their finances.
(b) T
EST.—
(1) S ELECTION OF DISTRICTS .—The Director shall select 6
judicial districts of the United States in which to test theeffectiveness of the financial management training curriculumand materials developed under subsection (a).
(2) U
SE.—For an 18-month period beginning not later than
270 days after the date of the enactment of this Act, suchcurriculum and materials shall be, for the 6 judicial districtsselected under paragraph (1), used as the instructional courseconcerning personal financial management for purposes of sec-tion 111 of title 11, United States Code.(c) E
VALUATION .—
(1) I N GENERAL .—During the 18-month period referred to
in subsection (b), the Director shall evaluate the effectivenessof—
(A) the financial management training curriculum and
materials developed under subsection (a); and
(B) a sample of existing consumer education programs
such as those described in the Report of the NationalBankruptcy Review Commission (October 20, 1997) thatare representative of consumer education programs carriedout by the credit industry, by trustees serving underchapter 13 of title 11, United States Code, and by consumercounseling groups.(2) R
EPORT .—Not later than 3 months after concluding
such evaluation, the Director shall submit a report to theSpeaker of the House of Representatives and the PresidentDeadline.11 USC 111 note.
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pro tempore of the Senate, for referral to the appropriate
committees of the Congress, containing the findings of theDirector regarding the effectiveness of such curriculum, suchmaterials, and such programs and their costs.
SEC. 106. CREDIT COUNSELING.
(a) W HOMAYBEA DEBTOR .—Section 109 of title 11, United
States Code, is amended by adding at the end the following:
‘‘(h)(1) Subject to paragraphs (2) and (3), and notwithstanding
any other provision of this section, an individual may not be adebtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by suchindividual, received from an approved nonprofit budget and creditcounseling agency described in section 111(a) an individual or groupbriefing (including a briefing conducted by telephone or on theInternet) that outlined the opportunities for available credit coun-seling and assisted such individual in performing a related budgetanalysis.
‘‘(2)(A) Paragraph (1) shall not apply with respect to a debtor
who resides in a district for which the United States trustee (orthe bankruptcy administrator, if any) determines that the approvednonprofit budget and credit counseling agencies for such districtare not reasonably able to provide adequate services to the addi-tional individuals who would otherwise seek credit counseling fromsuch agencies by reason of the requirements of paragraph (1).
‘‘(B) The United States trustee (or the bankruptcy adminis-
trator, if any) who makes a determination described in subpara-graph (A) shall review such determination not later than 1 yearafter the date of such determination, and not less frequently thanannually thereafter. Notwithstanding the preceding sentence, a non-profit budget and credit counseling agency may be disapprovedby the United States trustee (or the bankruptcy administrator,if any) at any time.
‘‘(3)(A) Subject to subparagraph (B), the requirements of para-
graph (1) shall not apply with respect to a debtor who submitsto 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 serv-
ices from an approved nonprofit budget and credit counselingagency, but was unable to obtain the services referred to inparagraph (1) during the 5-day period beginning on the dateon 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 thedebtor meets the requirements of paragraph (1), but in no casemay the exemption apply to that debtor after the date that is30 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 andhearing, is unable to complete those requirements because of inca-pacity, disability, or active military duty in a military combat zone.For the purposes of this paragraph, incapacity means that thedebtor is impaired by reason of mental illness or mental deficiencyso that he is incapable of realizing and making rational decisionsDeadline.
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with respect to his financial responsibilities; and ‘‘disability’’ means
that the debtor is so physically impaired as to be unable, afterreasonable effort, to participate in an in person, telephone, or Inter-net briefing required under paragraph (1).’’.
(b) C
HAPTER 7 D ISCHARGE .—Section 727(a) of title 11, United
States Code, is amended—
(1) in paragraph (9), by striking ‘‘or’’ at the end;(2) in paragraph (10), by striking the period and inserting
‘‘; or’’; and
(3) by adding at the end the following:‘‘(11) after filing the petition, the debtor failed to complete
an instructional course concerning personal financial manage-ment described in section 111, except that this paragraph shallnot apply with respect to a debtor who is a person describedin section 109(h)(4) or who resides in a district for whichthe United States trustee (or the bankruptcy administrator,if any) determines that the approved instructional courses arenot adequate to service the additional individuals who wouldotherwise be required to complete such instructional coursesunder this section (The United States trustee (or the bank-ruptcy administrator, if any) who makes a determinationdescribed in this paragraph shall review such determinationnot later than 1 year after the date of such determination,and not less frequently than annually thereafter.).’’.(c) C
HAPTER 13 D ISCHARGE .—Section 1328 of title 11, United
States Code, is amended by adding at the end the following:
‘‘(g)(1) The court shall not grant a discharge under this section
to a debtor unless after filing a petition the debtor has completedan instructional course concerning personal financial managementdescribed in section 111.
‘‘(2) Paragraph (1) shall not apply with respect to a debtor
who is a person described in section 109(h)(4) or who resides ina district for which the United States trustee (or the bankruptcyadministrator, if any) determines that the approved instructionalcourses are not adequate to service the additional individuals whowould otherwise be required to complete such instructional courseby reason of the requirements of paragraph (1).
‘‘(3) The United States trustee (or the bankruptcy adminis-
trator, if any) who makes a determination described in paragraph(2) shall review such determination not later than 1 year afterthe date of such determination, and not less frequently thanannually thereafter.’’.
(d) D
EBTOR ’SDUTIES .—Section 521 of title 11, United States
Code, is amended—
(1) by inserting ‘‘(a)’’ before ‘‘The debtor shall—’’; and(2) by adding at the end the following:
‘‘(b) In addition to the requirements under subsection (a), a
debtor who is an individual shall file with the court—
‘‘(1) a certificate from the approved nonprofit budget and
credit counseling agency that provided the debtor services undersection 109(h) describing the services provided to the debtor;and
‘‘(2) a copy of the debt repayment plan, if any, developed
under section 109(h) through the approved nonprofit budgetand credit counseling agency referred to in paragraph (1).’’.(e) G
ENERAL PROVISIONS .—Deadline.Deadline.
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(1) I N GENERAL .—Chapter 1 of title 11, United States Code,
is amended by adding at the end the following:
‘‘§ 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) currentlyapproved by the United States trustee (or the bankruptcyadministrator, 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 counselingagency or an instructional course concerning personal financialmanagement as follows:
‘‘(1) The United States trustee (or bankruptcy adminis-
trator, if any) shall have thoroughly reviewed the qualificationsof the nonprofit budget and credit counseling agency or ofthe provider of the instructional course under the standardsset forth in this section, and the services or instructionalcourses that will be offered by such agency or such provider,and may require such agency or such provider that has soughtapproval to provide information with respect to such review.
‘‘(2) The United States trustee (or bankruptcy adminis-
trator, if any) shall have determined that such agency or suchinstructional course fully satisfies the applicable standards setforth in this section.
‘‘(3) If a nonprofit budget and credit counseling agency
or instructional course did not appear on the approved listfor the district under subsection (a) immediately before approvalunder this section, approval under this subsection of suchagency or such instructional course shall be for a probationaryperiod not to exceed 6 months.
‘‘(4) At the conclusion of the applicable probationary period
under paragraph (3), the United States trustee (or bankruptcyadministrator, if any) may only approve for an additional 1-year period, and for successive 1-year periods thereafter, anagency or instructional course that has demonstrated duringthe probationary or applicable subsequent period of approvalthat 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 reviewof such decision in the appropriate district court of the UnitedStates.‘‘(c)(1) The United States trustee (or the bankruptcy adminis-
trator, if any) shall only approve a nonprofit budget and creditcounseling agency that demonstrates that it will provide qualifiedcounselors, maintain adequate provision for safekeeping and pay-ment of client funds, provide adequate counseling with respectto client credit problems, and deal responsibly and effectively withother matters relating to the quality, effectiveness, and financialsecurity of the services it provides.
Deadline.Public
information.Records.
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‘‘(2) To be approved by the United States trustee (or the bank-
ruptcy administrator, if any), a nonprofit budget and credit coun-seling 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 bysuch agency;‘‘(B) if a fee is charged for counseling services, charge
a reasonable fee, and provide services without regard to abilityto pay the fee;
‘‘(C) provide for safekeeping and payment of client funds,
including an annual audit of the trust accounts and appropriateemployee bonding;
‘‘(D) provide full disclosures to a client, including funding
sources, counselor qualifications, possible impact on creditreports, and any costs of such program that will be paid bysuch 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 currentfinancial condition, factors that caused such financial condition,and how such client can develop a plan to respond to theproblems without incurring negative amortization of debt;
‘‘(F) provide trained counselors who receive no commissions
or bonuses based on the outcome of the counseling servicesprovided by such agency, and who have adequate experience,and have been adequately trained to provide counseling servicesto individuals in financial difficulty, including the mattersdescribed in subparagraph (E);
‘‘(G) demonstrate adequate experience and background in
providing credit counseling; and
‘‘(H) have adequate financial resources to provide con-
tinuing support services for budgeting plans over the life ofany repayment plan.‘‘(d) The United States trustee (or the bankruptcy adminis-
trator, if any) shall only approve an instructional course concerningpersonal 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 finan-cial management and that are consistent with stated objec-tives directly related to the goals of such instructionalcourse;
‘‘(C) adequate facilities situated in reasonably conven-
ient locations at which such instructional course is offered,except that such facilities may include the provision ofsuch instructional course by telephone or through the Inter-net, if such instructional course is effective;
‘‘(D) the preparation and retention of reasonable
records (which shall include the debtor’s bankruptcy casenumber) to permit evaluation of the effectiveness of suchinstructional course, including any evaluation of satisfac-tion of instructional course requirements for each debtor
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attending such instructional course, which shall be avail-
able for inspection and evaluation by the Executive Officefor United States Trustees, the United States trustee (orthe bankruptcy administrator, if any), or the chief bank-ruptcy judge for the district in which such instructionalcourse is offered; and‘‘(E) if a fee is charged for the instructional course, charge
a reasonable fee, and provide services without regard to abilityto pay the fee.
‘‘(2) for any 1-year period if the provider thereof has dem-
onstrated 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 financialmanagement; 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 quali-
fications of a nonprofit budget and credit counseling agency referredto in subsection (a), and request production of documents to ensurethe integrity and effectiveness of such agency. The district courtmay, at any time, remove from the approved list under subsection(a) a nonprofit budget and credit counseling agency upon findingsuch 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 creditcounseling agency or an instructional course is no longer approved,in which case the clerk shall remove it from the list maintainedunder subsection (a).
‘‘(g)(1) No nonprofit budget and credit counseling agency may
provide to a credit reporting agency information concerning whethera debtor has received or sought instruction concerning personalfinancial management from such agency.
‘‘(2) A nonprofit budget and credit counseling agency that will-
fully or negligently fails to comply with any requirement underthis title with respect to a debtor shall be liable for damagesin 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 deter-
mined by the court) incurred in an action to recover thosedamages.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for
chapter 1 of title 11, United States Code, is amended by addingat the end the following:
‘‘111. Nonprofit budget and credit counseling agencies; financial management in-
structional courses.’’.
(f) L IMITATION .—Section 362 of title 11, United States Code,
is amended by adding at the end the following:
‘‘(i) If a case commenced under chapter 7, 11, or 13 is dismissed
due to the creation of a debt repayment plan, for purposes ofsubsection (c)(3), any subsequent case commenced by the debtorunder any such chapter shall not be presumed to be filed notin good faith.Notification.
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‘‘(j) On request of a party in interest, the court shall issue
an order under subsection (c) confirming that the automatic stayhas been terminated.’’.
SEC. 107. SCHEDULES OF REASONABLE AND NECESSARY EXPENSES.
For purposes of section 707(b) of title 11, United States Code,
as amended by this Act, the Director of the Executive Office forUnited States Trustees shall, not later than 180 days after thedate of enactment of this Act, issue schedules of reasonable andnecessary administrative expenses of administering a chapter 13plan for each judicial district of the United States.
TITLE II—ENHANCED CONSUMER
PROTECTION
Subtitle A—Penalties for Abusive Creditor
Practices
SEC. 201. PROMOTION OF ALTERNATIVE DISPUTE RESOLUTION.
(a) R EDUCTION OF CLAIM .—Section 502 of title 11, United States
Code, is amended by adding at the end the following:
‘‘(k)(1) The court, on the motion of the debtor and after a
hearing, may reduce a claim filed under this section based inwhole on an unsecured consumer debt by not more than 20 percentof the claim, if—
‘‘(A) the claim was filed by a creditor who unreasonably
refused to negotiate a reasonable alternative repaymentschedule proposed on behalf of the debtor by an approvednonprofit budget and credit counseling agency described insection 111;
‘‘(B) the offer of the debtor under subparagraph (A)—
‘‘(i) was made at least 60 days before the date of
the filing of the petition; and
‘‘(ii) provided for payment of at least 60 percent of
the amount of the debt over a period not to exceed therepayment period of the loan, or a reasonable extensionthereof; and‘‘(C) no part of the debt under the alternative repayment
schedule is nondischargeable.‘‘(2) The debtor shall have the burden of proving, by clear
and convincing evidence, that—
‘‘(A) the creditor unreasonably refused to consider the
debtor’s proposal; and
‘‘(B) the proposed alternative repayment schedule was made
prior to expiration of the 60-day period specified in paragraph(1)(B)(i).’’.(b) L
IMITATION ON AVOIDABILITY .—Section 547 of title 11,
United States Code, is amended by adding at the end the following:
‘‘(h) The trustee may not avoid a transfer if such transfer
was made as a part of an alternative repayment schedule betweenthe debtor and any creditor of the debtor created by an approvednonprofit budget and credit counseling agency.’’.Deadline.
11 USC 707 note.
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SEC. 202. EFFECT OF DISCHARGE.
Section 524 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(i) The willful failure of a creditor to credit payments received
under a plan confirmed under this title, unless the order confirmingthe plan is revoked, the plan is in default, or the creditor hasnot received payments required to be made under the plan inthe manner required by the plan (including crediting the amountsrequired under the plan), shall constitute a violation of an injunctionunder subsection (a)(2) if the act of the creditor to collect andfailure to credit payments in the manner required by the plancaused material injury to the debtor.
‘‘(j) Subsection (a)(2) does not operate as an injunction against
an act by a creditor that is the holder of a secured claim, if—
‘‘(1) such creditor retains a security interest in real property
that is the principal residence of the debtor;
‘‘(2) such act is in the ordinary course of business between
the creditor and the debtor; and
‘‘(3) such act is limited to seeking or obtaining periodic
payments associated with a valid security interest in lieu ofpursuit of in rem relief to enforce the lien.’’.
SEC. 203. DISCOURAGING ABUSE OF REAFFIRMATION AGREEMENT
PRACTICES.
(a) I NGENERAL .—Section 524 of title 11, United States Code,
as amended section 202, is amended—
(1) in subsection (c), by striking paragraph (2) and inserting
the following:
‘‘(2) the debtor received the disclosures described in sub-
section (k) at or before the time at which the debtor signedthe agreement;’’; and
(2) by adding at the end the following:
‘‘(k)(1) The disclosures required under subsection (c)(2) shall
consist of the disclosure statement described in paragraph (3), com-pleted as required in that paragraph, together with the agreementspecified in subsection (c), statement, declaration, motion and orderdescribed, respectively, in paragraphs (4) through (8), and shallbe the only disclosures required in connection with entering intosuch agreement.
‘‘(2) Disclosures made under paragraph (1) shall be made clearly
and conspicuously and in writing. The terms ‘Amount Reaffirmed’and ‘Annual Percentage Rate’ shall be disclosed more conspicuouslythan other terms, data or information provided in connection withthis disclosure, except that the phrases ‘Before agreeing to reaffirma debt, review these important disclosures’ and ‘Summary ofReaffirmation Agreement’ may be equally conspicuous. Disclosuresmay be made in a different order and may use terminology differentfrom that set forth in paragraphs (2) through (8), except thatthe terms ‘Amount Reaffirmed’ and ‘Annual Percentage Rate’ mustbe used where indicated.
‘‘(3) The disclosure statement required under this paragraph
shall consist of the following:
‘‘(A) The statement: ‘Part A: Before agreeing to reaffirm
a debt, review these important disclosures:’;
‘‘(B) Under the heading ‘Summary of Reaffirmation Agree-
ment’, the statement: ‘This Summary is made pursuant tothe requirements of the Bankruptcy Code’;
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‘‘(C) The ‘Amount Reaffirmed’, using that term, which shall
be—
‘‘(i) the total amount of debt that the debtor agrees
to reaffirm by entering into an agreement of the kindspecified in subsection (c), and
‘‘(ii) the total of any fees and costs accrued as of the
date of the disclosure statement, related to such totalamount.‘‘(D) In conjunction with the disclosure of the ‘Amount
Reaffirmed’, the statements—
‘‘(i) ‘The amount of debt you have agreed to reaffirm’;
and
‘‘(ii) ‘Your credit agreement may obligate you to pay
additional amounts which may come due after the dateof this disclosure. Consult your credit agreement.’.‘‘(E) The ‘Annual Percentage Rate’, using that term, which
shall be disclosed as—
‘‘(i) if, at the time the petition is filed, the debt is
an extension of credit under an open end credit plan,as the terms ‘credit’ and ‘open end credit plan’ are definedin section 103 of the Truth in Lending Act, then—
‘‘(I) the annual percentage rate determined under
paragraphs (5) and (6) of section 127(b) of the Truthin Lending Act, as applicable, as disclosed to the debtorin the most recent periodic statement prior to enteringinto an agreement of the kind specified in subsection(c) or, if no such periodic statement has been givento the debtor during the prior 6 months, the annualpercentage rate as it would have been so disclosedat the time the disclosure statement is given to thedebtor, or to the extent this annual percentage rateis not readily available or not applicable, then
‘‘(II) the simple interest rate applicable to the
amount reaffirmed as of the date the disclosure state-ment is given to the debtor, or if different simpleinterest rates apply to different balances, the simpleinterest rate applicable to each such balance, identi-fying the amount of each such balance included inthe amount reaffirmed, or
‘‘(III) if the entity making the disclosure elects,
to disclose the annual percentage rate under subclause(I) and the simple interest rate under subclause (II);or‘‘(ii) if, at the time the petition is filed, the debt is
an extension of credit other than under an open end creditplan, as the terms ‘credit’ and ‘open end credit plan’ are
defined in section 103 of the Truth in Lending Act, then—
‘‘(I) the annual percentage rate under section
128(a)(4) of the Truth in Lending Act, as disclosedto the debtor in the most recent disclosure statementgiven to the debtor prior to the entering into an agree-ment of the kind specified in subsection (c) with respectto the debt, or, if no such disclosure statement wasgiven to the debtor, the annual percentage rate asit would have been so disclosed at the time the disclo-sure statement is given to the debtor, or to the extent
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this annual percentage rate is not readily available
or not applicable, then
‘‘(II) the simple interest rate applicable to the
amount reaffirmed as of the date the disclosure state-ment is given to the debtor, or if different simpleinterest rates apply to different balances, the simpleinterest rate applicable to each such balance, identi-fying the amount of such balance included in theamount reaffirmed, or
‘‘(III) if the entity making the disclosure elects,
to disclose the annual percentage rate under (I) andthe simple interest rate under (II).
‘‘(F) If the underlying debt transaction was disclosed as
a variable rate transaction on the most recent disclosure givenunder the Truth in Lending Act, by stating ‘The interest rateon your loan may be a variable interest rate which changesfrom time to time, so that the annual percentage rate disclosedhere may be higher or lower.’.
‘‘(G) If the debt is secured by a security interest which
has not been waived in whole or in part or determined tobe void by a final order of the court at the time of the disclosure,by disclosing that a security interest or lien in goods or propertyis asserted over some or all of the debts the debtor is reaffirmingand listing the items and their original purchase price thatare subject to the asserted security interest, or if not a pur-chase-money security interest then listing by items or typesand the original amount of the loan.
‘‘(H) At the election of the creditor, a statement of the
repayment schedule using 1 or a combination of the following—
‘‘(i) by making the statement: ‘Your first payment in
the amount of $ lll is due on lll but the future
payment amount may be different. Consult your reaffirma-tion agreement or credit agreement, as applicable.’, andstating the amount of the first payment and the due dateof that payment in the places provided;
‘‘(ii) by making the statement: ‘Your payment schedule
will be:’, and describing the repayment schedule with thenumber, amount, and due dates or period of paymentsscheduled to repay the debts reaffirmed to the extent thenknown by the disclosing party; or
‘‘(iii) by describing the debtor’s repayment obligations
with reasonable specificity to the extent then known bythe disclosing party.‘‘(I) The following statement: ‘Note: When this disclosure
refers to what a creditor ‘‘may’’ do, it does not use the word‘‘may’’ to give the creditor specific permission. The word ‘‘may’’
is used to tell you what might occur if the law permits thecreditor to take the action. If you have questions about yourreaffirming a debt or what the law requires, consult with theattorney who helped you negotiate this agreement reaffirminga debt. If you don’t have an attorney helping you, the judgewill explain the effect of your reaffirming a debt when thehearing on the reaffirmation agreement is held.’.
‘‘(J)(i) The following additional statements:
‘‘ ‘Reaffirming a debt is a serious financial decision. The law
requires you to take certain steps to make sure the decision is
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in your best interest. If these steps are not completed, the reaffirma-
tion agreement is not effective, even though you have signed it.
‘‘ ‘1. Read the disclosures in this Part A carefully. Consider
the decision to reaffirm carefully. Then, if you want to reaffirm,sign the reaffirmation agreement in Part B (or you may usea separate agreement you and your creditor agree on).
‘‘ ‘2. Complete and sign Part D and be sure you can afford
to make the payments you are agreeing to make and havereceived a copy of the disclosure statement and a completedand signed reaffirmation agreement.
‘‘ ‘3. If you were represented by an attorney during the
negotiation of your reaffirmation agreement, the attorney musthave signed the certification in Part C.
‘‘ ‘4. If you were not represented by an attorney during
the negotiation of your reaffirmation agreement, you must havecompleted and signed Part E.
‘‘ ‘5. The original of this disclosure must be filed with the
court by you or your creditor. If a separate reaffirmation agree-ment (other than the one in Part B) has been signed, it mustbe attached.
‘‘ ‘6. If you were represented by an attorney during the
negotiation of your reaffirmation agreement, your reaffirmationagreement becomes effective upon filing with the court unlessthe reaffirmation is presumed to be an undue hardship asexplained in Part D.
‘‘ ‘7. If you were not represented by an attorney during
the negotiation of your reaffirmation agreement, it will notbe effective unless the court approves it. The court will notifyyou of the hearing on your reaffirmation agreement. You mustattend this hearing in bankruptcy court where the judge willreview your reaffirmation agreement. The bankruptcy courtmust approve your reaffirmation agreement as consistent withyour best interests, except that no court approval is requiredif your reaffirmation agreement is for a consumer debt securedby a mortgage, deed of trust, security deed, or other lien onyour real property, like your home.‘‘ ‘Your right to rescind (cancel) your reaffirmation agreement.
You may rescind (cancel) your reaffirmation agreement at anytime before the bankruptcy court enters a discharge order, or beforethe expiration of the 60-day period that begins on the date yourreaffirmation agreement is filed with the court, whichever occurslater. To rescind (cancel) your reaffirmation agreement, you mustnotify the creditor that your reaffirmation agreement is rescinded(or canceled).
‘‘ ‘What are your obligations if you reaffirm the debt? A re-
affirmed debt remains your personal legal obligation. It is notdischarged in your bankruptcy case. That means that if you defaulton your reaffirmed debt after your bankruptcy case is over, yourcreditor may be able to take your property or your wages. Otherwise,your obligations will be determined by the reaffirmation agreementwhich may have changed the terms of the original agreement.For example, if you are reaffirming an open end credit agreement,the creditor may be permitted by that agreement or applicablelaw to change the terms of that agreement in the future undercertain conditions.
‘‘ ‘Are you required to enter into a reaffirmation agreement
by any law? No, you are not required to reaffirm a debt by any
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law. Only agree to reaffirm a debt if it is in your best interest.
Be sure you can afford the payments you agree to make.
‘‘ ‘What if your creditor has a security interest or lien? Your
bankruptcy discharge does not eliminate any lien on your property.A ‘‘lien’’ is often referred to as a security interest, deed of trust,mortgage or security deed. Even if you do not reaffirm and yourpersonal liability on the debt is discharged, because of the lienyour creditor may still have the right to take the security propertyif you do not pay the debt or default on it. If the lien is onan item of personal property that is exempt under your State’slaw or that the trustee has abandoned, you may be able to redeemthe item rather than reaffirm the debt. To redeem, you makea single payment to the creditor equal to the current value ofthe security property, as agreed by the parties or determined bythe court.’.
‘‘(ii) In the case of a reaffirmation under subsection (m)(2),
numbered paragraph 6 in the disclosures required by clause(i) of this subparagraph shall read as follows:
‘‘ ‘6. If you were represented by an attorney during the
negotiation of your reaffirmation agreement, your reaffirmationagreement becomes effective upon filing with the court.’.‘‘(4) The form of such agreement required under this paragraph
shall consist of the following:
‘‘ ‘Part B: Reaffirmation Agreement. I (we) agree to reaffirm
the debts arising under the credit agreement described below.
‘‘ ‘Brief description of credit agreement:‘‘ ‘Description of any changes to the credit agreement made
as part of this reaffirmation agreement:
‘‘ ‘Signature: Date:‘‘ ‘Borrower:‘‘ ‘Co-borrower, if also reaffirming these debts:‘‘ ‘Accepted by creditor:‘‘ ‘Date of creditor acceptance:’.‘‘(5) The declaration shall consist of the following:
‘‘(A) The following certification:
‘‘ ‘Part C: Certification by Debtor’s Attorney (If Any).‘‘ ‘I hereby certify that (1) this agreement represents a fully
informed and voluntary agreement by the debtor; (2) this agreementdoes not impose an undue hardship on the debtor or any dependentof the debtor; and (3) I have fully advised the debtor of the legaleffect and consequences of this agreement and any default underthis agreement.
‘‘ ‘Signature of Debtor’s Attorney: Date:’.
‘‘(B) If a presumption of undue hardship has been estab-
lished with respect to such agreement, such certification shallstate that in the opinion of the attorney, the debtor is ableto make the payment.‘‘(C) In the case of a reaffirmation agreement under subsection
(m)(2), subparagraph (B) is not applicable.
‘‘(6)(A) The statement in support of such agreement, which
the debtor shall sign and date prior to filing with the court, shallconsist of the following:
‘‘ ‘Part D: Debtor’s Statement in Support of Reaffirmation Agree-
ment.
‘‘ ‘1. I believe this reaffirmation agreement will not impose
an undue hardship on my dependents or me. I can afford to makethe payments on the reaffirmed debt because my monthly incomeEffective date.
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(take home pay plus any other income received) is $ lll , and
my actual current monthly expenses including monthly paymentson post-bankruptcy debt and other reaffirmation agreements total$lll , leaving $ lll to make the required payments on this
reaffirmed debt. I understand that if my income less my monthlyexpenses does not leave enough to make the payments, thisreaffirmation agreement is presumed to be an undue hardshipon me and must be reviewed by the court. However, this presump-tion may be overcome if I explain to the satisfaction of the courthow I can afford to make the payments here: lll .
‘‘ ‘2. I received a copy of the Reaffirmation Disclosure Statement
in Part A and a completed and signed reaffirmation agreement.’.
‘‘(B) Where the debtor is represented by an attorney and is
reaffirming a debt owed to a creditor defined in section19(b)(1)(A)(iv) of the Federal Reserve Act, the statement of supportof the reaffirmation agreement, which the debtor shall sign anddate prior to filing with the court, shall consist of the following:
‘‘ ‘I believe this reaffirmation agreement is in my financial
interest. I can afford to make the payments on the reaffirmeddebt. I received a copy of the Reaffirmation Disclosure Statementin Part A and a completed and signed reaffirmation agreement.’.
‘‘(7) The motion that may be used if approval of such agreement
by the court is required in order for it to be effective, shall besigned and dated by the movant and shall consist of the following:
‘‘ ‘Part E: Motion for Court Approval (To be completed only
if the debtor is not represented by an attorney.). I (we), the debtor(s),affirm the following to be true and correct:
‘‘ ‘I am not represented by an attorney in connection with this
reaffirmation agreement.
‘‘ ‘I believe this reaffirmation agreement is in my best interest
based on the income and expenses I have disclosed in my Statementin Support of this reaffirmation agreement, and because (provideany additional relevant reasons the court should consider):
‘‘ ‘Therefore, I ask the court for an order approving this
reaffirmation agreement.’.
‘‘(8) The court order, which may be used to approve such agree-
ment, shall consist of the following:
‘‘ ‘Court Order: The court grants the debtor’s motion and
approves the reaffirmation agreement described above.’.
‘‘(l) Notwithstanding any other provision of this title the fol-
lowing shall apply:
‘‘(1) A creditor may accept payments from a debtor before
and after the filing of an agreement of the kind specifiedin subsection (c) with the court.
‘‘(2) A creditor may accept payments from a debtor under
such agreement that the creditor believes in good faith tobe effective.
‘‘(3) The requirements of subsections (c)(2) and (k) shall
be satisfied if disclosures required under those subsections aregiven in good faith.‘‘(m)(1) Until 60 days after an agreement of the kind specified
in subsection (c) is filed with the court (or such additional periodas the court, after notice and a hearing and for cause, ordersbefore the expiration of such period), it shall be presumed thatsuch agreement is an undue hardship on the debtor if the debtor’smonthly income less the debtor’s monthly expenses as shown onthe debtor’s completed and signed statement in support of such
Applicability.
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agreement required under subsection (k)(6)(A) is less than the
scheduled payments on the reaffirmed debt. This presumption shallbe reviewed by the court. The presumption may be rebutted inwriting by the debtor if the statement includes an explanationthat identifies additional sources of funds to make the paymentsas agreed upon under the terms of such agreement. If the presump-tion is not rebutted to the satisfaction of the court, the courtmay disapprove such agreement. No agreement shall be disapprovedwithout notice and a hearing to the debtor and creditor, and suchhearing shall be concluded before the entry of the debtor’s discharge.
‘‘(2) This subsection does not apply to reaffirmation agreements
where the creditor is a credit union, as defined in section19(b)(1)(A)(iv) of the Federal Reserve Act.’’.
(b) L
AWENFORCEMENT .—
(1) I N GENERAL .—Chapter 9 of title 18, United States Code,
is amended by adding at the end the following:
‘‘§ 158. Designation of United States attorneys and agents
of the Federal Bureau of Investigation to addressabusive reaffirmations of debt and materiallyfraudulent statements in bankruptcy schedules
‘‘(a) I
NGENERAL .—The Attorney General of the United States
shall designate the individuals described in subsection (b) to haveprimary responsibility in carrying out enforcement activities inaddressing violations of section 152 or 157 relating to abusivereaffirmations of debt. In addition to addressing the violationsreferred to in the preceding sentence, the individuals describedunder subsection (b) shall address violations of section 152 or 157relating to materially fraudulent statements in bankruptcy sched-ules that are intentionally false or intentionally misleading.
‘‘(b) U
NITED STATES ATTORNEYS AND AGENTS OF THE FEDERAL
BUREAU OF INVESTIGATION .—The individuals referred to in sub-
section (a) are—
‘‘(1) the United States attorney for each judicial district
of the United States; and
‘‘(2) an agent of the Federal Bureau of Investigation for
each field office of the Federal Bureau of Investigation.‘‘(c) B
ANKRUPTCY INVESTIGATIONS .—Each United States
attorney designated under this section shall, in addition to any
other responsibilities, have primary responsibility for carrying outthe duties of a United States attorney under section 3057.
‘‘(d) B
ANKRUPTCY PROCEDURES .—The bankruptcy courts shall
establish procedures for referring any case that may contain amaterially fraudulent statement in a bankruptcy schedule to theindividuals designated under this section.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for
chapter 9 of title 18, United States Code, is amended by addingat the end the following:
‘‘158. Designation of United States attorneys and agents of the Federal Bureau of
Investigation to address abusive reaffirmations of debt and materiallyfraudulent statements in bankruptcy schedules.’’.
SEC. 204. PRESERVATION OF CLAIMS AND DEFENSES UPON SALE OF
PREDATORY LOANS.
Section 363 of title 11, United States Code, is amended—
(1) by redesignating subsection (o) as subsection (p), and(2) by inserting after subsection (n) the following:
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‘‘(o) Notwithstanding subsection (f), if a person purchases any
interest in a consumer credit transaction that is subject to theTruth in Lending Act or any interest in a consumer credit contract(as defined in section 433.1 of title 16 of the Code of FederalRegulations (January 1, 2004), as amended from time to time),and if such interest is purchased through a sale under this section,then such person shall remain subject to all claims and defensesthat are related to such consumer credit transaction or such con-sumer credit contract, to the same extent as such person wouldbe subject to such claims and defenses of the consumer had suchinterest been purchased at a sale not under this section.’’.
SEC. 205. GAO STUDY AND REPORT ON REAFFIRMATION AGREEMENT
PROCESS.
(a) S TUDY .—The Comptroller General of the United States shall
conduct a study of the reaffirmation agreement process that occursunder title 11 of the United States Code, to determine the overalltreatment of consumers within the context of such process, andshall include in such study consideration of—
(1) the policies and activities of creditors with respect to
reaffirmation agreements; and
(2) whether consumers are fully, fairly, and consistently
informed of their rights pursuant to such title.(b) R
EPORT TO THE CONGRESS .—Not later than 18 months after
the date of the enactment of this Act, the Comptroller Generalshall submit to the President pro tempore of the Senate and theSpeaker of the House of Representatives a report on the resultsof the study conducted under subsection (a), together with rec-ommendations for legislation (if any) to address any abusive orcoercive tactics found in connection with the reaffirmation agree-ment process that occurs under title 11 of the United States Code.
Subtitle B—Priority Child Support
SEC. 211. DEFINITION OF DOMESTIC SUPPORT OBLIGATION.
Section 101 of title 11, United States Code, is amended—
(1) by striking paragraph (12A); and(2) by inserting after paragraph (14) the following:‘‘(14A) ‘domestic support obligation’ means a debt that
accrues before, on, or after the date of the order for reliefin a case under this title, including interest that accrues onthat debt as provided under applicable nonbankruptcy law not-withstanding 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 responsiblerelative; or
‘‘(ii) a governmental unit;
‘‘(B) in the nature of alimony, maintenance, or support
(including assistance provided by a governmental unit) ofsuch spouse, former spouse, or child of the debtor or suchchild’s parent, without regard to whether such debt isexpressly so designated;
‘‘(C) established or subject to establishment before, on,
or after the date of the order for relief in a case underthis title, by reason of applicable provisions of—
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‘‘(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, formerspouse, child of the debtor, or such child’s parent, legalguardian, or responsible relative for the purpose of col-lecting the debt;’’.
SEC. 212. PRIORITIES FOR CLAIMS FOR DOMESTIC SUPPORT OBLIGA-
TIONS.
Section 507(a) of title 11, United States Code, is amended—
(1) by striking paragraph (7);(2) by redesignating paragraphs (1) through (6) as para-
graphs (2) through (7), respectively;
(3) in paragraph (2), as so redesignated, by striking ‘‘First’’
and inserting ‘‘Second’’;
(4) in paragraph (3), as so redesignated, by striking
‘‘Second’’ and inserting ‘‘Third’’;
(5) in paragraph (4), as so redesignated—
(A) by striking ‘‘Third’’ and inserting ‘‘Fourth’’; and(B) by striking the semicolon at the end and inserting
a period;(6) in paragraph (5), as so redesignated, by striking
‘‘Fourth’’ and inserting ‘‘Fifth’’;
(7) in paragraph (6), as so redesignated, by striking ‘‘Fifth’’
and inserting ‘‘Sixth’’;
(8) in paragraph (7), as so redesignated, by striking ‘‘Sixth’’
and inserting ‘‘Seventh’’; and
(9) by inserting before paragraph (2), as so redesignated,
the following:
‘‘(1) First:
‘‘(A) Allowed unsecured claims for domestic support
obligations that, as of the date of the filing of the petitionin a case under this title, are owed to or recoverable bya spouse, former spouse, or child of the debtor, or suchchild’s parent, legal guardian, or responsible relative, with-out regard to whether the claim is filed by such personor is filed by a governmental unit on behalf of such person,on the condition that funds received under this paragraphby a governmental unit under this title after the dateof the filing of the petition shall be applied and distributedin accordance with applicable nonbankruptcy law.
‘‘(B) Subject to claims under subparagraph (A), allowed
unsecured claims for domestic support obligations that,as of the date of the filing of the petition, are assignedby a spouse, former spouse, child of the debtor, or suchchild’s parent, legal guardian, or responsible relative toa governmental unit (unless such obligation is assignedvoluntarily by the spouse, former spouse, child, parent,legal guardian, or responsible relative of the child for thepurpose of collecting the debt) or are owed directly toor recoverable by a governmental unit under applicablenonbankruptcy law, on the condition that funds received
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under this paragraph by a governmental unit under this
title after the date of the filing of the petition be appliedand distributed in accordance with applicable nonbank-ruptcy law.
‘‘(C) If a trustee is appointed or elected under section
701, 702, 703, 1104, 1202, or 1302, the administrativeexpenses of the trustee allowed under paragraphs (1)(A),(2), and (6) of section 503(b) shall be paid before paymentof claims under subparagraphs (A) and (B), to the extentthat the trustee administers assets that are otherwiseavailable for the payment of such claims.’’.
SEC. 213. REQUIREMENTS TO OBTAIN CONFIRMATION AND DISCHARGE
IN CASES INVOLVING DOMESTIC SUPPORT OBLIGATIONS.
Title 11, United States Code, is amended—
(1) in section 1129(a), by adding at the end the following:‘‘(14) If the debtor is required by a judicial or administrative
order, or by statute, to pay a domestic support obligation,the debtor has paid all amounts payable under such orderor such statute for such obligation that first become payableafter the date of the filing of the petition.’’;
(2) in section 1208(c)—
(A) in paragraph (8), by striking ‘‘or’’ at the end;(B) in paragraph (9), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(10) failure of the debtor to pay any domestic support
obligation that first becomes payable after the date of thefiling of the petition.’’;
(3) in section 1222(a)—
(A) in paragraph (2), by striking ‘‘and’’ at the end;(B) in paragraph (3), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(4) notwithstanding any other provision of this section,
a plan may provide for less than full payment of all amountsowed for a claim entitled to priority under section 507(a)(1)(B)only if the plan provides that all of the debtor’s projecteddisposable income for a 5-year period beginning on the datethat the first payment is due under the plan will be appliedto make payments under the plan.’’;
(4) in section 1222(b)—
(A) in paragraph (10), by striking ‘‘and’’ at the end;(B) by redesignating paragraph (11) as paragraph (12);
and
(C) by inserting after paragraph (10) the following:
‘‘(11) provide for the payment of interest accruing after
the date of the filing of the petition on unsecured claims thatare nondischargeable under section 1228(a), except that suchinterest may be paid only to the extent that the debtor hasdisposable income available to pay such interest after makingprovision for full payment of all allowed claims; and’’;
(5) in section 1225(a)—
(A) in paragraph (5), by striking ‘‘and’’ at the end;(B) in paragraph (6), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
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‘‘(7) the debtor has paid all amounts that are required
to be paid under a domestic support obligation and that firstbecome payable after the date of the filing of the petitionif the debtor is required by a judicial or administrative order,or by statute, to pay such domestic support obligation.’’;
(6) in section 1228(a), in the matter preceding paragraph
(1), by inserting ‘‘, and in the case of a debtor who is requiredby a judicial or administrative order, or by statute, to paya domestic support obligation, after such debtor certifies thatall amounts payable under such order or such statute thatare due on or before the date of the certification (includingamounts due before the petition was filed, but only to theextent provided for by the plan) have been paid’’ after ‘‘comple-tion by the debtor of all payments under the plan’’;
(7) in section 1307(c)—
(A) in paragraph (9), by striking ‘‘or’’ at the end;(B) in paragraph (10), by striking the period at the
end and inserting ‘‘; or’’; and
(C) by adding at the end the following:
‘‘(11) failure of the debtor to pay any domestic support
obligation that first becomes payable after the date of thefiling of the petition.’’;
(8) in section 1322(a)—
(A) in paragraph (2), by striking ‘‘and’’ at the end;(B) in paragraph (3), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(4) notwithstanding any other provision of this section,
a plan may provide for less than full payment of all amountsowed for a claim entitled to priority under section 507(a)(1)(B)only if the plan provides that all of the debtor’s projecteddisposable income for a 5-year period beginning on the datethat the first payment is due under the plan will be appliedto make payments under the plan.’’;
(9) in section 1322(b)—
(A) in paragraph (9), by striking ‘‘; and’’ and inserting
a semicolon;
(B) by redesignating paragraph (10) as paragraph (11);
and
(C) inserting after paragraph (9) the following:
‘‘(10) provide for the payment of interest accruing after
the date of the filing of the petition on unsecured claims thatare nondischargeable under section 1328(a), except that suchinterest may be paid only to the extent that the debtor hasdisposable income available to pay such interest after makingprovision for full payment of all allowed claims; and’’;
(10) in section 1325(a), as amended by section 102, by
inserting after paragraph (7) the following:
‘‘(8) the debtor has paid all amounts that are required
to be paid under a domestic support obligation and that firstbecome payable after the date of the filing of the petitionif the debtor is required by a judicial or administrative order,or by statute, to pay such domestic support obligation; and’’;
(11) in section 1328(a), in the matter preceding paragraph
(1), by inserting ‘‘, and in the case of a debtor who is requiredby a judicial or administrative order, or by statute, to paya domestic support obligation, after such debtor certifies that
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all amounts payable under such order or such statute that
are due on or before the date of the certification (includingamounts due before the petition was filed, but only to theextent provided for by the plan) have been paid’’ after ‘‘comple-tion by the debtor of all payments under the plan’’.
SEC. 214. EXCEPTIONS TO AUTOMATIC STAY IN DOMESTIC SUPPORT
OBLIGATION PROCEEDINGS.
Section 362(b) of title 11, United States Code, is amended
by striking paragraph (2) and inserting the following:
‘‘(2) under subsection (a)—
‘‘(A) of the commencement or continuation of a civil
action or proceeding—
‘‘(i) for the establishment of paternity;‘‘(ii) for the establishment or modification of an
order for domestic support obligations;
‘‘(iii) concerning child custody or visitation;‘‘(iv) for the dissolution of a marriage, except to
the extent that such proceeding seeks to determinethe division of property that is property of the estate;or
‘‘(v) regarding domestic violence;
‘‘(B) of the collection of a domestic support obligation
from property that is not property of the estate;
‘‘(C) with respect to the withholding of income that
is property of the estate or property of the debtor forpayment of a domestic support obligation under a judicialor administrative order or a statute;
‘‘(D) of the withholding, suspension, or restriction of
a driver’s license, a professional or occupational license,or a recreational license, under State law, as specifiedin section 466(a)(16) of the Social Security Act;
‘‘(E) of the reporting of overdue support owed by a
parent to any consumer reporting agency as specified insection 466(a)(7) of the Social Security Act;
‘‘(F) of the interception of a tax refund, as specified
in sections 464 and 466(a)(3) of the Social Security Actor under an analogous State law; or
‘‘(G) of the enforcement of a medical obligation, as
specified under title IV of the Social Security Act;’’.
SEC. 215. NONDISCHARGEABILITY OF CERTAIN DEBTS FOR ALIMONY,
MAINTENANCE, AND SUPPORT.
Section 523 of title 11, United States Code, is amended—
(1) in subsection (a)—
(A) by striking paragraph (5) and inserting the fol-
lowing:‘‘(5) for a domestic support obligation;’’; and
(B) by striking paragraph (18);
(2) in subsection (c), by striking ‘‘(6), or (15)’’ each place
it appears and inserting ‘‘or (6)’’; and
(3) in paragraph (15), as added by Public Law 103–394
(108 Stat. 4133)—
(A) by inserting ‘‘to a spouse, former spouse, or child
of the debtor and’’ before ‘‘not of the kind’’;
(B) by inserting ‘‘or’’ after ‘‘court of record,’’; and(C) by striking ‘‘unless—’’ and all that follows through
the end of the paragraph and inserting a semicolon.
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SEC. 216. CONTINUED LIABILITY OF PROPERTY.
Section 522 of title 11, United States Code, is amended—
(1) in subsection (c), by striking paragraph (1) and inserting
the following:
‘‘(1) a debt of a kind specified in paragraph (1) or (5)
of section 523(a) (in which case, notwithstanding any provisionof applicable nonbankruptcy law to the contrary, such propertyshall be liable for a debt of a kind specified in section523(a)(5));’’;
(2) in subsection (f)(1)(A), by striking the dash and all
that follows through the end of the subparagraph and inserting‘‘of a kind that is specified in section 523(a)(5); or’’; and
(3) in subsection (g)(2), by striking ‘‘subsection (f)(2)’’ and
inserting ‘‘subsection (f)(1)(B)’’.
SEC. 217. PROTECTION OF DOMESTIC SUPPORT CLAIMS AGAINST
PREFERENTIAL TRANSFER MOTIONS.
Section 547(c)(7) of title 11, United States Code, is amended
to read as follows:
‘‘(7) to the extent such transfer was a bona fide payment
of a debt for a domestic support obligation;’’.
SEC. 218. DISPOSABLE INCOME DEFINED.
Section 1225(b)(2)(A) of title 11, United States Code, is amended
by inserting ‘‘or for a domestic support obligation that first becomespayable after the date of the filing of the petition’’ after ‘‘dependentof the debtor’’.
SEC. 219. COLLECTION OF CHILD SUPPORT.
(a) D UTIES OF TRUSTEE UNDER CHAPTER 7.—Section 704 of
title 11, United States Code, as amended by section 102, isamended—
(1) in subsection (a)—
(A) in paragraph (8), by striking ‘‘and’’ at the end;(B) in paragraph (9), by striking the period and
inserting a semicolon; and
(C) by adding at the end the following:
‘‘(10) if with respect to the debtor there is a claim for
a domestic support obligation, provide the applicable noticespecified in subsection (c); and’’; and
(2) by adding at the end the following:
‘‘(c)(1) In a case described in subsection (a)(10) to which sub-
section (a)(10) applies, the trustee shall—
‘‘(A)(i) provide written notice to the holder of the claim
described in subsection (a)(10) of such claim and of the rightof such holder to use the services of the State child supportenforcement agency established under sections 464 and 466of the Social Security Act for the State in which such holderresides, for assistance in collecting child support during andafter the case under this title;
‘‘(ii) include in the notice provided under clause (i) the
address and telephone number of such State child supportenforcement agency; and
‘‘(iii) include in the notice provided under clause (i) an
explanation of the rights of such holder to payment of suchclaim under this chapter;
‘‘(B)(i) provide written notice to such State child support
enforcement agency of such claim; andNotices.
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‘‘(ii) include in the notice provided under clause (i) the
name, address, and telephone number of such holder; and
‘‘(C) at such time as the debtor is granted a discharge
under section 727, provide written notice to such holder andto such State child support enforcement agency of—
‘‘(i) the granting of the discharge;‘‘(ii) the last recent known address of the debtor;‘‘(iii) the last recent known name and address of the
debtor’s employer; and
‘‘(iv) the name of each creditor that holds a claim
that—
‘‘(I) is not discharged under paragraph (2), (4),
or (14A) of section 523(a); or
‘‘(II) was reaffirmed by the debtor under section
524(c).
‘‘(2)(A) The holder of a claim described in subsection (a)(10)
or the State child support enforcement agency of the State inwhich such holder resides may request from a creditor describedin paragraph (1)(C)(iv) the last known address of the debtor.
‘‘(B) Notwithstanding any other provision of law, a creditor
that makes a disclosure of a last known address of a debtor inconnection with a request made under subparagraph (A) shall notbe liable by reason of making such disclosure.’’.
(b) D
UTIES OF TRUSTEE UNDER CHAPTER 11.—Section 1106
of title 11, United States Code, is amended—
(1) in subsection (a)—
(A) in paragraph (6), by striking ‘‘and’’ at the end;(B) in paragraph (7), by striking the period and
inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(8) if with respect to the debtor there is a claim for
a domestic support obligation, provide the applicable noticespecified in subsection (c).’’; and
(2) by adding at the end the following:
‘‘(c)(1) In a case described in subsection (a)(8) to which sub-
section (a)(8) applies, the trustee shall—
‘‘(A)(i) provide written notice to the holder of the claim
described in subsection (a)(8) of such claim and of the rightof such holder to use the services of the State child supportenforcement agency established under sections 464 and 466of the Social Security Act for the State in which such holderresides, for assistance in collecting child support during andafter the case under this title; and
‘‘(ii) include in the notice required by clause (i) the address
and telephone number of such State child support enforcementagency;
‘‘(B)(i) provide written notice to such State child support
enforcement agency of such claim; and
‘‘(ii) include in the notice required by clause (i) the name,
address, and telephone number of such holder; and
‘‘(C) at such time as the debtor is granted a discharge
under section 1141, provide written notice to such holder andto such State child support enforcement agency of—
‘‘(i) the granting of the discharge;‘‘(ii) the last recent known address of the debtor;‘‘(iii) the last recent known name and address of the
debtor’s employer; andNotices.
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‘‘(iv) the name of each creditor that holds a claim
that—
‘‘(I) is not discharged under paragraph (2), (4),
or (14A) of section 523(a); or
‘‘(II) was reaffirmed by the debtor under section
524(c).
‘‘(2)(A) The holder of a claim described in subsection (a)(8)
or the State child enforcement support agency of the State inwhich such holder resides may request from a creditor describedin paragraph (1)(C)(iv) the last known address of the debtor.
‘‘(B) Notwithstanding any other provision of law, a creditor
that makes a disclosure of a last known address of a debtor inconnection with a request made under subparagraph (A) shall notbe liable by reason of making such disclosure.’’.
(c) D
UTIES OF TRUSTEE UNDER CHAPTER 12.—Section 1202 of
title 11, United States Code, is amended—
(1) in subsection (b)—
(A) in paragraph (4), by striking ‘‘and’’ at the end;(B) in paragraph (5), by striking the period and
inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(6) if with respect to the debtor there is a claim for
a domestic support obligation, provide the applicable noticespecified in subsection (c).’’; and
(2) by adding at the end the following:
‘‘(c)(1) In a case described in subsection (b)(6) to which sub-
section (b)(6) applies, the trustee shall—
‘‘(A)(i) provide written notice to the holder of the claim
described in subsection (b)(6) of such claim and of the rightof such holder to use the services of the State child supportenforcement agency established under sections 464 and 466of the Social Security Act for the State in which such holderresides, for assistance in collecting child support during andafter the case under this title; and
‘‘(ii) include in the notice provided under clause (i) the
address and telephone number of such State child supportenforcement agency;
‘‘(B)(i) provide written notice to such State child support
enforcement agency of such claim; and
‘‘(ii) include in the notice provided under clause (i) the
name, address, and telephone number of such holder; and
‘‘(C) at such time as the debtor is granted a discharge
under section 1228, provide written notice to such holder andto such State child support enforcement agency of—
‘‘(i) the granting of the discharge;‘‘(ii) the last recent known address of the debtor;
‘‘(iii) the last recent known name and address of the
debtor’s employer; and
‘‘(iv) the name of each creditor that holds a claim
that—
‘‘(I) is not discharged under paragraph (2), (4),
or (14A) of section 523(a); or
‘‘(II) was reaffirmed by the debtor under section
524(c).
‘‘(2)(A) The holder of a claim described in subsection (b)(6)
or the State child support enforcement agency of the State inNotices.
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which such holder resides may request from a creditor described
in paragraph (1)(C)(iv) the last known address of the debtor.
‘‘(B) Notwithstanding any other provision of law, a creditor
that makes a disclosure of a last known address of a debtor inconnection with a request made under subparagraph (A) shall notbe liable by reason of making that disclosure.’’.
(d) D
UTIES OF TRUSTEE UNDER CHAPTER 13.—Section 1302
of title 11, United States Code, is amended—
(1) in subsection (b)—
(A) in paragraph (4), by striking ‘‘and’’ at the end;(B) in paragraph (5), by striking the period and
inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(6) if with respect to the debtor there is a claim for
a domestic support obligation, provide the applicable noticespecified in subsection (d).’’; and
(2) by adding at the end the following:
‘‘(d)(1) In a case described in subsection (b)(6) to which sub-
section (b)(6) applies, the trustee shall—
‘‘(A)(i) provide written notice to the holder of the claim
described in subsection (b)(6) of such claim and of the rightof such holder to use the services of the State child supportenforcement agency established under sections 464 and 466of the Social Security Act for the State in which such holderresides, for assistance in collecting child support during andafter the case under this title; and
‘‘(ii) include in the notice provided under clause (i) the
address and telephone number of such State child supportenforcement agency;
‘‘(B)(i) provide written notice to such State child support
enforcement agency of such claim; and
‘‘(ii) include in the notice provided under clause (i) the
name, address, and telephone number of such holder; and
‘‘(C) at such time as the debtor is granted a discharge
under section 1328, provide written notice to such holder andto such State child support enforcement agency of—
‘‘(i) the granting of the discharge;‘‘(ii) the last recent known address of the debtor;‘‘(iii) the last recent known name and address of the
debtor’s employer; and
‘‘(iv) the name of each creditor that holds a claim
that—
‘‘(I) is not discharged under paragraph (2) or (4)
of section 523(a); or
‘‘(II) was reaffirmed by the debtor under section
524(c).
‘‘(2)(A) The holder of a claim described in subsection (b)(6)
or the State child support enforcement agency of the State inwhich such holder resides may request from a creditor describedin paragraph (1)(C)(iv) the last known address of the debtor.
‘‘(B) Notwithstanding any other provision of law, a creditor
that makes a disclosure of a last known address of a debtor inconnection with a request made under subparagraph (A) shall notbe liable by reason of making that disclosure.’’.Notices.
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SEC. 220. NONDISCHARGEABILITY OF CERTAIN EDUCATIONAL BENE-
FITS AND LOANS.
Section 523(a) of title 11, United States Code, is amended
by striking paragraph (8) and inserting the following:
‘‘(8) unless excepting such debt from discharge under this
paragraph would impose an undue hardship on the debtorand the debtor’s dependents, for—
‘‘(A)(i) an educational benefit overpayment or loan
made, insured, or guaranteed by a governmental unit, ormade under any program funded in whole or in part bya governmental unit or nonprofit institution; or
‘‘(ii) an obligation to repay funds received as an edu-
cational benefit, scholarship, or stipend; or
‘‘(B) any other educational loan that is a qualified
education loan, as defined in section 221(d)(1) of theInternal Revenue Code of 1986, incurred by a debtor whois an individual;’’.
Subtitle C—Other Consumer Protections
SEC. 221. AMENDMENTS TO DISCOURAGE ABUSIVE BANKRUPTCY
FILINGS.
Section 110 of title 11, United States Code, is amended—
(1) in subsection (a)(1), by striking ‘‘or an employee of
an attorney’’ and inserting ‘‘for the debtor or an employeeof such attorney under the direct supervision of such attorney’’;
(2) in subsection (b)—
(A) in paragraph (1), by adding at the end the following:
‘‘If a bankruptcy petition preparer is not an individual,then an officer, principal, responsible person, or partnerof 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.’’; and
(B) by striking paragraph (2) and inserting the fol-
lowing:
‘‘(2)(A) Before preparing any document for filing or accepting
any fees from a debtor, the bankruptcy petition preparer shallprovide to the debtor a written notice which shall be on an officialform prescribed by the Judicial Conference of the United Statesin accordance with rule 9009 of the Federal Rules of BankruptcyProcedure.
‘‘(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 notpractice 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 byreason 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.’’;
(3) in subsection (c)—
(A) in paragraph (2)—Notices.
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(i) by striking ‘‘(2) For purposes’’ and inserting
‘‘(2)(A) Subject to subparagraph (B), for purposes’’; and
(ii) by adding at the end the following:
‘‘(B) If a bankruptcy petition preparer is not an individual,
the identifying number of the bankruptcy petition preparer shallbe the Social Security account number of the officer, principal,responsible person, or partner of the bankruptcy petition preparer.’’;and
(B) by striking paragraph (3);
(4) in subsection (d)—
(A) by striking ‘‘(d)(1)’’ and inserting ‘‘(d)’’; and(B) by striking paragraph (2);
(5) in subsection (e)—
(A) by striking paragraph (2); and(B) by adding at the end the following:
‘‘(2)(A) A bankruptcy petition preparer may not offer a potential
bankruptcy debtor any legal advice, including any legal advicedescribed 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 underthis 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 agreementwith 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.’’;(6) in subsection (f)—
(A) by striking ‘‘(f)(1)’’ and inserting ‘‘(f)’’; and(B) by striking paragraph (2);
(7) in subsection (g)—
(A) by striking ‘‘(g)(1)’’ and inserting ‘‘(g)’’; and(B) by striking paragraph (2);
(8) in subsection (h)—
(A) by redesignating paragraphs (1) through (4) as
paragraphs (2) through (5), respectively;
(B) by inserting before paragraph (2), as so redesig-
nated, the following:
‘‘(1) The Supreme Court may promulgate rules under section
2075 of title 28, or the Judicial Conference of the United Statesmay prescribe guidelines, for setting a maximum allowable feechargeable by a bankruptcy petition preparer. A bankruptcy petitionpreparer shall notify the debtor of any such maximum amountbefore preparing any document for filing for a debtor or acceptingany fee from the debtor.’’;
Notification.
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(C) in paragraph (2), as so redesignated—
(i) by striking ‘‘Within 10 days after the date of
the filing of a petition, a bankruptcy petition preparershall file a’’ and inserting ‘‘A’’;
(ii) by inserting ‘‘by the bankruptcy petition pre-
parer shall be filed together with the petition,’’ after‘‘perjury’’; and
(iii) by adding at the end the following: ‘‘If rules
or guidelines setting a maximum fee for services havebeen promulgated or prescribed under paragraph (1),the declaration under this paragraph shall include acertification that the bankruptcy petition preparer com-plied with the notification requirement under para-graph (1).’’;(D) by striking paragraph (3), as so redesignated, and
inserting the following:
‘‘(3)(A) The court shall disallow and order the immediate turn-
over 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 thefiling of the petition; or
‘‘(ii) found to be in violation of any rule or guideline promul-
gated 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 preparerfails 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).’’; and
(E) in paragraph (4), as so redesignated, by striking
‘‘or the United States trustee’’ and inserting ‘‘the UnitedStates trustee (or the bankruptcy administrator, if any)or the court, on the initiative of the court,’’;(9) in subsection (i)(1), by striking the matter preceding
subparagraph (A) and inserting the following:‘‘(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 Statestrustee (or the bankruptcy administrator, if any), and after noticeand a hearing, the court shall order the bankruptcy petition pre-parer to pay to the debtor—’’;
(10) in subsection (j)—
(A) in paragraph (2)—
(i) in subparagraph (A)(i)(I), by striking ‘‘a violation
of which subjects a person to criminal penalty’’;
(ii) in subparagraph (B)—
(I) by striking ‘‘or has not paid a penalty’’
and inserting ‘‘has not paid a penalty’’; and
(II) by inserting ‘‘or failed to disgorge all fees
ordered by the court’’ after ‘‘a penalty imposedunder this section,’’;
(B) by redesignating paragraph (3) as paragraph (4);
and
(C) by inserting after paragraph (2) the following:
‘‘(3) The court, as part of its contempt power, may enjoin
a bankruptcy petition preparer that has failed to comply with
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a previous order issued under this section. The injunction under
this paragraph may be issued on the motion of the court, thetrustee, or the United States trustee (or the bankruptcy adminis-trator, if any).’’; and
(11) by adding at the end the following:
‘‘(l)(1) A bankruptcy petition preparer who fails to comply with
any provision of subsection (b), (c), (d), (e), (f), (g), or (h) maybe 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 bankruptcypetition 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 anorder imposing a fine on the bankruptcy petition preparer for anyviolation of this section.
‘‘(4)(A) Fines imposed under this subsection in judicial districts
served by United States trustees shall be paid to the United Statestrustee, who shall deposit an amount equal to such fines in aspecial account of the United States Trustee System Fund referredto in section 586(e)(2) of title 28. Amounts deposited under thissubparagraph shall be available to fund the enforcement of thissection on a national basis.
‘‘(B) Fines imposed under this subsection in judicial districts
served by bankruptcy administrators shall be deposited as offsettingreceipts to the fund established under section 1931 of title 28,and shall remain available until expended to reimburse any appro-priation for the amount paid out of such appropriation for expensesof the operation and maintenance of the courts of the UnitedStates.’’.
SEC. 222. SENSE OF CONGRESS.
It is the sense of Congress that States should develop curricula
relating to the subject of personal finance, designed for use inelementary and secondary schools.
SEC. 223. ADDITIONAL AMENDMENTS TO TITLE 11, UNITED STATES
CODE.
Section 507(a) of title 11, United States Code, as amended
by section 212, is amended by inserting after paragraph (9) thefollowing:
‘‘(10) Tenth, allowed claims for death or personal injury
resulting from the operation of a motor vehicle or vessel ifsuch operation was unlawful because the debtor was intoxicatedfrom using alcohol, a drug, or another substance.’’.
SEC. 224. PROTECTION OF RETIREMENT SAVINGS IN BANKRUPTCY.
(a) I NGENERAL .—Section 522 of title 11, United States Code,
is amended—
(1) in subsection (b)—
(A) in paragraph (2)—
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(i) in subparagraph (A), by striking ‘‘and’’ at the
end;
(ii) in subparagraph (B), by striking the period
at the end and inserting ‘‘; and’’;
(iii) by adding at the end the following:
‘‘(C) retirement funds to the extent that those funds are
in a fund or account that is exempt from taxation under section401, 403, 408, 408A, 414, 457, or 501(a) of the Internal RevenueCode of 1986.’’; and
(iv) by striking ‘‘(2)(A) any property’’ and inserting:
‘‘(3) Property listed in this paragraph is—
‘‘(A) any property’’;
(B) by striking paragraph (1) and inserting:
‘‘(2) Property listed in this paragraph is property that is speci-
fied under subsection (d), unless the State law that is applicableto the debtor under paragraph (3)(A) specifically does not soauthorize.’’;
(C) by striking ‘‘(b) Notwithstanding’’ and inserting
‘‘(b)(1) Notwithstanding’’;
(D) by striking ‘‘paragraph (2)’’ each place it appears
and inserting ‘‘paragraph (3)’’;
(E) by striking ‘‘paragraph (1)’’ each place it appears
and inserting ‘‘paragraph (2)’’;
(F) by striking ‘‘Such property is—’’; and(G) by adding at the end the following:
‘‘(4) For purposes of paragraph (3)(C) and subsection (d)(12),
the following shall apply:
‘‘(A) If the retirement funds are in a retirement fund that
has received a favorable determination under section 7805 ofthe Internal Revenue Code of 1986, and that determinationis in effect as of the date of the filing of the petition in acase under this title, those funds shall be presumed to beexempt from the estate.
‘‘(B) If the retirement funds are in a retirement fund that
has not received a favorable determination under such section7805, those funds are exempt from the estate if the debtordemonstrates that—
‘‘(i) no prior determination to the contrary has been
made by a court or the Internal Revenue Service; and
‘‘(ii)(I) the retirement fund is in substantial compliance
with the applicable requirements of the Internal RevenueCode of 1986; or
‘‘(II) the retirement fund fails to be in substantial
compliance with the applicable requirements of the InternalRevenue Code of 1986 and the debtor is not materiallyresponsible for that failure.
‘‘(C) A direct transfer of retirement funds from 1 fund
or account that is exempt from taxation under section 401,403, 408, 408A, 414, 457, or 501(a) of the Internal RevenueCode of 1986, under section 401(a)(31) of the Internal RevenueCode of 1986, or otherwise, shall not cease to qualify for exemp-tion under paragraph (3)(C) or subsection (d)(12) by reasonof such direct transfer.
‘‘(D)(i) Any distribution that qualifies as an eligible rollover
distribution within the meaning of section 402(c) of the InternalRevenue Code of 1986 or that is described in clause (ii) shallApplicability.
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not cease to qualify for exemption under paragraph (3)(C) or
subsection (d)(12) by reason of such distribution.
‘‘(ii) A distribution described in this clause is an amount
that—
‘‘(I) has been distributed from a fund or account that
is exempt from taxation under section 401, 403, 408, 408A,414, 457, or 501(a) of the Internal Revenue Code of 1986;and
‘‘(II) to the extent allowed by law, is deposited in such
a fund or account not later than 60 days after the distribu-tion of such amount.’’; and(2) in subsection (d)—
(A) in the matter preceding paragraph (1), by striking
‘‘subsection (b)(1)’’ and inserting ‘‘subsection (b)(2)’’; and
(B) by adding at the end the following:
‘‘(12) Retirement funds to the extent that those funds are
in a fund or account that is exempt from taxation under section401, 403, 408, 408A, 414, 457, or 501(a) of the Internal RevenueCode of 1986.’’.(b) A
UTOMATIC STAY.—Section 362(b) of title 11, United States
Code, is amended—
(1) in paragraph (17), by striking ‘‘or’’ at the end;(2) in paragraph (18), by striking the period and inserting
a semicolon; and
(3) by inserting after paragraph (18) the following:‘‘(19) under subsection (a), of withholding of income from
a debtor’s wages and collection of amounts withheld, underthe debtor’s agreement authorizing that withholding and collec-tion for the benefit of a pension, profit-sharing, stock bonus,or other plan established under section 401, 403, 408, 408A,414, 457, or 501(c) of the Internal Revenue Code of 1986,that is sponsored by the employer of the debtor, or an affiliate,successor, or predecessor of such employer—
‘‘(A) to the extent that the amounts withheld and col-
lected are used solely for payments relating to a loanfrom a plan under section 408(b)(1) of the Employee Retire-ment Income Security Act of 1974 or is subject to section72(p) of the Internal Revenue Code of 1986; or
‘‘(B) a loan from a thrift savings plan permitted under
subchapter III of chapter 84 of title 5, that satisfies therequirements of section 8433(g) of such title;
but nothing in this paragraph may be construed to providethat any loan made under a governmental plan under section414(d), or a contract or account under section 403(b), of theInternal Revenue Code of 1986 constitutes a claim or a debtunder this title;’’.
(c) E
XCEPTIONS TODISCHARGE .—Section 523(a) of title 11,
United States Code, as amended by section 215, is amended byinserting after paragraph (17) the following:
‘‘(18) owed to a pension, profit-sharing, stock bonus, or
other plan established under section 401, 403, 408, 408A, 414,457, or 501(c) of the Internal Revenue Code of 1986, under—
‘‘(A) a loan permitted under section 408(b)(1) of the
Employee Retirement Income Security Act of 1974, or sub-ject to section 72(p) of the Internal Revenue Code of 1986;or
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‘‘(B) a loan from a thrift savings plan permitted under
subchapter III of chapter 84 of title 5, that satisfies therequirements of section 8433(g) of such title;
but nothing in this paragraph may be construed to providethat any loan made under a governmental plan under section414(d), or a contract or account under section 403(b), of theInternal Revenue Code of 1986 constitutes a claim or a debtunder this title; or’’.(d) P
LAN CONTENTS .—Section 1322 of title 11, United States
Code, is amended by adding at the end the following:
‘‘(f) A plan may not materially alter the terms of a loan
described in section 362(b)(19) and any amounts required to repaysuch loan shall not constitute ‘disposable income’ under section1325.’’.
(e) A
SSET LIMITATION .—
(1) L IMITATION .—Section 522 of title 11, United States
Code, is amended by adding at the end the following:‘‘(n) For assets in individual retirement accounts described in
section 408 or 408A of the Internal Revenue Code of 1986, otherthan a simplified employee pension under section 408(k) of suchCode or a simple retirement account under section 408(p) of suchCode, the aggregate value of such assets exempted under thissection, without regard to amounts attributable to rollover contribu-tions under section 402(c), 402(e)(6), 403(a)(4), 403(a)(5), and403(b)(8) of the Internal Revenue Code of 1986, and earningsthereon, shall not exceed $1,000,000 in a case filed by a debtorwho is an individual, except that such amount may be increasedif the interests of justice so require.’’.
(2) A
DJUSTMENT OF DOLLAR AMOUNTS .—Paragraphs (1) and
(2) of section 104(b) of title 11, United States Code, are amendedby inserting ‘‘522(n),’’ after ‘‘522(d),’’.
SEC. 225. PROTECTION OF EDUCATION SAVINGS IN BANKRUPTCY.
(a) E XCLUSIONS .—Section 541 of title 11, United States Code,
is amended—
(1) in subsection (b)—
(A) in paragraph (4), by striking ‘‘or’’ at the end;(B) by redesignating paragraph (5) as paragraph (9);
and
(C) by inserting after paragraph (4) the following:
‘‘(5) funds placed in an education individual retirement
account (as defined in section 530(b)(1) of the Internal RevenueCode of 1986) not later than 365 days before the date of thefiling of the petition in a case under this title, but—
‘‘(A) only if the designated beneficiary of such account
was a child, stepchild, grandchild, or stepgrandchild ofthe debtor for the taxable year for which funds were placedin such account;
‘‘(B) only to the extent that such funds—
‘‘(i) are not pledged or promised to any entity in
connection with any extension of credit; and
‘‘(ii) are not excess contributions (as described in
section 4973(e) of the Internal Revenue Code of 1986);and‘‘(C) in the case of funds placed in all such accounts
having the same designated beneficiary not earlier than
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720 days nor later than 365 days before such date, only
so much of such funds as does not exceed $5,000;‘‘(6) funds used to purchase a tuition credit or certificate
or contributed to an account in accordance with section529(b)(1)(A) of the Internal Revenue Code of 1986 under aqualified State tuition program (as defined in section 529(b)(1)of such Code) not later than 365 days before the date of thefiling of the petition in a case under this title, but—
‘‘(A) only if the designated beneficiary of the amounts
paid or contributed to such tuition program was a child,stepchild, grandchild, or stepgrandchild of the debtor forthe taxable year for which funds were paid or contributed;
‘‘(B) with respect to the aggregate amount paid or
contributed to such program having the same designatedbeneficiary, only so much of such amount as does notexceed the total contributions permitted under section529(b)(7) of such Code with respect to such beneficiary,as adjusted beginning on the date of the filing of thepetition in a case under this title by the annual increaseor decrease (rounded to the nearest tenth of 1 percent)in the education expenditure category of the ConsumerPrice Index prepared by the Department of Labor; and
‘‘(C) in the case of funds paid or contributed to such
program having the same designated beneficiary not earlierthan 720 days nor later than 365 days before such date,only so much of such funds as does not exceed $5,000;’’;and(2) by adding at the end the following:
‘‘(e) In determining whether any of the relationships specified
in paragraph (5)(A) or (6)(A) of subsection (b) exists, a legallyadopted child of an individual (and a child who is a member ofan individual’s household, if placed with such individual by anauthorized placement agency for legal adoption by such individual),or a foster child of an individual (if such child has as the child’sprincipal place of abode the home of the debtor and is a memberof the debtor’s household) shall be treated as a child of such indi-vidual by blood.’’.
(b) D
EBTOR ’SDUTIES .—Section 521 of title 11, United States
Code, as amended by section 106, is amended by adding at theend the following:
‘‘(c) In addition to meeting the requirements under subsection
(a), a debtor shall file with the court a record of any interestthat a debtor has in an education individual retirement account(as defined in section 530(b)(1) of the Internal Revenue Code of1986) or under a qualified State tuition program (as defined insection 529(b)(1) of such Code).’’.
SEC. 226. DEFINITIONS.
(a) D EFINITIONS .—Section 101 of title 11, United States Code,
is amended—
(1) by inserting after paragraph (2) the following:‘‘(3) ‘assisted person’ means any person whose debts consist
primarily of consumer debts and the value of whose nonexemptproperty is less than $150,000;’’;
(2) by inserting after paragraph (4) the following:‘‘(4A) ‘bankruptcy assistance’ means any goods or services
sold or otherwise provided to an assisted person with the
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express or implied purpose of providing information, advice,
counsel, document preparation, or filing, or attendance at acreditors’ meeting or appearing in a case or proceeding onbehalf of another or providing legal representation with respectto a case or proceeding under this title;’’; and
(3) by inserting after paragraph (12) the following:
‘‘(12A) ‘debt relief agency’ means any person who provides
any bankruptcy assistance to an assisted person in returnfor 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 ofthe bankruptcy petition preparer;
‘‘(B) a nonprofit organization that is exempt from tax-
ation under section 501(c)(3) of the Internal Revenue Codeof 1986;
‘‘(C) a creditor of such assisted person, to the extent
that the creditor is assisting such assisted person torestructure any debt owed by such assisted person to thecreditor;
‘‘(D) a depository institution (as defined in section 3
of the Federal Deposit Insurance Act) or any Federal creditunion or State credit union (as those terms are definedin section 101 of the Federal Credit Union Act), or anyaffiliate or subsidiary of such depository institution orcredit union; or
‘‘(E) an author, publisher, distributor, or seller of works
subject to copyright protection under title 17, when actingin such capacity.’’.
(b) C
ONFORMING AMENDMENT .—Section 104(b) of title 11,
United States Code, is amended by inserting ‘‘101(3),’’ after ‘‘sec-tions’’ each place it appears.
SEC. 227. RESTRICTIONS ON DEBT RELIEF AGENCIES.
(a) E NFORCEMENT .—Subchapter II of chapter 5 of title 11,
United States Code, is amended by adding at the end the following:
‘‘§ 526. Restrictions on debt relief agencies
‘‘(a) A debt relief agency shall not—
‘‘(1) fail to perform any service that such agency informed
an assisted person or prospective assisted person it would pro-vide in connection with a case or proceeding under this title;
‘‘(2) make any statement, or counsel or advise any assisted
person or prospective assisted person to make a statementin a document filed in a case or proceeding under this title,that is untrue and misleading, or that upon the exercise ofreasonable care, should have been known by such agency tobe untrue or misleading;
‘‘(3) misrepresent to any assisted person or prospective
assisted person, directly or indirectly, affirmatively or by mate-rial omission, with respect to—
‘‘(A) the services that such agency will provide to such
person; or
‘‘(B) the benefits and risks that may result if such
person becomes a debtor in a case under this title; or
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‘‘(4) advise an assisted person or prospective assisted person
to incur more debt in contemplation of such person filing acase under this title or to pay an attorney or bankruptcypetition preparer fee or charge for services performed as partof preparing for or representing a debtor in a case under thistitle.‘‘(b) Any waiver by any assisted person of any protection or
right provided under this section shall not be enforceable againstthe debtor by any Federal or State court or any other person,but may be enforced against a debt relief agency.
‘‘(c)(1) Any contract for bankruptcy assistance between a debt
relief agency and an assisted person that does not comply withthe material requirements of this section, section 527, or section528 shall be void and may not be enforced by any Federal orState court or by any other person, other than such assisted person.
‘‘(2) Any debt relief agency shall be liable to an assisted person
in the amount of any fees or charges in connection with providingbankruptcy assistance to such person that such debt relief agencyhas received, for actual damages, and for reasonable attorneys’fees and costs if such agency is found, after notice and a hearing,to have—
‘‘(A) intentionally or negligently failed to comply with any
provision of this section, section 527, or section 528 with respectto a case or proceeding under this title for such assisted person;
‘‘(B) provided bankruptcy assistance to an assisted person
in a case or proceeding under this title that is dismissed orconverted to a case under another chapter of this title becauseof such agency’s intentional or negligent failure to file anyrequired document including those specified in section 521;or
‘‘(C) intentionally or negligently disregarded the material
requirements of this title or the Federal Rules of BankruptcyProcedure applicable to such agency.‘‘(3) In addition to such other remedies as are provided under
State law, whenever the chief law enforcement officer of a State,or an official or agency designated by a State, has reason to believethat any person has violated or is violating this section, the State—
‘‘(A) may bring an action to enjoin such violation;‘‘(B) may bring an action on behalf of its residents to
recover the actual damages of assisted persons arising fromsuch violation, including any liability under paragraph (2);and
‘‘(C) in the case of any successful action under subpara-
graph (A) or (B), shall be awarded the costs of the actionand reasonable attorneys’ fees as determined by the court.‘‘(4) The district courts of the United States for districts located
in the State shall have concurrent jurisdiction of any action undersubparagraph (A) or (B) of paragraph (3).
‘‘(5) Notwithstanding any other provision of Federal law and
in addition to any other remedy provided under Federal or Statelaw, if the court, on its own motion or on the motion of the UnitedStates trustee or the debtor, finds that a person intentionally vio-lated this section, or engaged in a clear and consistent patternor practice of violating this section, the court may—
‘‘(A) enjoin the violation of such section; or‘‘(B) impose an appropriate civil penalty against such per-
son.
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‘‘(d) No provision of this section, section 527, or section 528
shall—
‘‘(1) annul, alter, affect, or exempt any person subject to
such sections from complying with any law of any State exceptto the extent that such law is inconsistent with those sections,and then only to the extent of the inconsistency; or
‘‘(2) be deemed to limit or curtail the authority or ability—
‘‘(A) of a State or subdivision or instrumentality
thereof, to determine and enforce qualifications for thepractice of law under the laws of that State; or
‘‘(B) of a Federal court to determine and enforce the
qualifications for the practice of law before that court.’’.
(b) C
ONFORMING AMENDMENT .—The table of sections for chapter
5 of title 11, United States Code, is amended by inserting afterthe item relating to section 525, the following:
‘‘526. Restrictions on debt relief agencies.’’.
SEC. 228. DISCLOSURES.
(a) D ISCLOSURES .—Subchapter II of chapter 5 of title 11, United
States Code, as amended by section 227, is amended by addingat the end the following:
‘‘§ 527. Disclosures
‘‘(a) A debt relief agency providing bankruptcy assistance to
an assisted person shall provide—
‘‘(1) the written notice required under section 342(b)(1);
and
‘‘(2) to the extent not covered in the written notice described
in paragraph (1), and not later than 3 business days afterthe first date on which a debt relief agency first offers toprovide any bankruptcy assistance services to an assisted per-son, a clear and conspicuous written notice advising assistedpersons that—
‘‘(A) all information that the assisted person is required
to provide with a petition and thereafter during a caseunder this title is required to be complete, accurate, andtruthful;
‘‘(B) all assets and all liabilities are required to be
completely and accurately disclosed in the documents filedto commence the case, and the replacement value of eachasset as defined in section 506 must be stated in thosedocuments where requested after reasonable inquiry toestablish such value;
‘‘(C) current monthly income, the amounts specified
in section 707(b)(2), and, in a case under chapter 13 ofthis title, disposable income (determined in accordance withsection 707(b)(2)), are required to be stated after reasonableinquiry; and
‘‘(D) information that an assisted person provides
during their case may be audited pursuant to this title,and that failure to provide such information may resultin dismissal of the case under this title or other sanction,including a criminal sanction.
‘‘(b) A debt relief agency providing bankruptcy assistance to
an assisted person shall provide each assisted person at the sametime as the notices required under subsection (a)(1) the followingDeadline.Notices.
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statement, to the extent applicable, or one substantially similar.
The statement shall be clear and conspicuous and shall be ina single document separate from other documents or notices pro-vided to the assisted person:
‘‘ ‘IMPORTANT INFORMATION ABOUT BANKRUPTCY
ASSISTANCE SERVICES FROM AN ATTORNEY OR BANK-RUPTCY PETITION PREPARER.
‘‘ ‘If you decide to seek bankruptcy relief, you can represent
yourself, you can hire an attorney to represent you, or you canget help in some localities from a bankruptcy petition preparerwho is not an attorney. THE LAW REQUIRES AN ATTORNEYOR BANKRUPTCY PETITION PREPARER TO GIVE YOU AWRITTEN CONTRACT SPECIFYING WHAT THE ATTORNEYOR BANKRUPTCY PETITION PREPARER WILL DO FOR YOUAND HOW MUCH IT WILL COST. Ask to see the contract beforeyou hire anyone.
‘‘ ‘The following information helps you understand what must
be done in a routine bankruptcy case to help you evaluate howmuch service you need. Although bankruptcy can be complex, manycases are routine.
‘‘ ‘Before filing a bankruptcy case, either you or your attorney
should analyze your eligibility for different forms of debt reliefavailable under the Bankruptcy Code and which form of reliefis most likely to be beneficial for you. Be sure you understandthe relief you can obtain and its limitations. To file a bankruptcycase, documents called a Petition, Schedules and Statement ofFinancial Affairs, as well as in some cases a Statement of Intentionneed to be prepared correctly and filed with the bankruptcy court.You will have to pay a filing fee to the bankruptcy court. Onceyour case starts, you will have to attend the required first meetingof creditors where you may be questioned by a court official calleda ‘trustee’ and by creditors.
‘‘ ‘If you choose to file a chapter 7 case, you may be asked
by a creditor to reaffirm a debt. You may want help decidingwhether to do so. A creditor is not permitted to coerce you intoreaffirming your debts.
‘‘ ‘If you choose to file a chapter 13 case in which you repay
your creditors what you can afford over 3 to 5 years, you mayalso want help with preparing your chapter 13 plan and withthe confirmation hearing on your plan which will be before a bank-ruptcy judge.
‘‘ ‘If you select another type of relief under the Bankruptcy
Code other than chapter 7 or chapter 13, you will want to findout what should be done from someone familiar with that typeof relief.
‘‘ ‘Your bankruptcy case may also involve litigation. You are
generally permitted to represent yourself in litigation in bankruptcycourt, but only attorneys, not bankruptcy petition preparers, cangive you legal advice.’.
‘‘(c) Except to the extent the debt relief agency provides the
required information itself after reasonably diligent inquiry of theassisted person or others so as to obtain such information reason-ably accurately for inclusion on the petition, schedules or statementof financial affairs, a debt relief agency providing bankruptcy assist-ance to an assisted person, to the extent permitted by nonbank-ruptcy law, shall provide each assisted person at the time requiredfor the notice required under subsection (a)(1) reasonably sufficient
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information (which shall be provided in a clear and conspicuous
writing) to the assisted person on how to provide all the informationthe assisted person is required to provide under this title pursuantto section 521, including—
‘‘(1) how to value assets at replacement value, determine
current monthly income, the amounts specified in section707(b)(2) and, in a chapter 13 case, how to determine disposableincome in accordance with section 707(b)(2) and related calcula-tions;
‘‘(2) how to complete the list of creditors, including how
to determine what amount is owed and what address for thecreditor should be shown; and
‘‘(3) how to determine what property is exempt and how
to value exempt property at replacement value as defined insection 506.‘‘(d) A debt relief agency shall maintain a copy of the notices
required under subsection (a) of this section for 2 years after thedate on which the notice is given the assisted person.’’.
(b) C
ONFORMING AMENDMENT .—The table of sections for chapter
5 of title 11, United States Code, as amended by section 227,is amended by inserting after the item relating to section 526the following:
‘‘527. Disclosures.’’.
SEC. 229. REQUIREMENTS FOR DEBT RELIEF AGENCIES.
(a) E NFORCEMENT .—Subchapter II of chapter 5 of title 11,
United States Code, as amended by sections 227 and 228, isamended by adding at the end the following:
‘‘§ 528. Requirements for debt relief agencies
‘‘(a) A debt relief agency shall—
‘‘(1) not later than 5 business days after the first date
on which such agency provides any bankruptcy assistance serv-ices to an assisted person, but prior to such assisted person’spetition under this title being filed, execute a written contractwith such assisted person that explains clearly andconspicuously—
‘‘(A) the services such agency will provide to such
assisted person; and
‘‘(B) the fees or charges for such services, and the
terms of payment;‘‘(2) provide the assisted person with a copy of the fully
executed and completed contract;
‘‘(3) clearly and conspicuously disclose in any advertisement
of bankruptcy assistance services or of the benefits of bank-ruptcy directed to the general public (whether in general media,seminars or specific mailings, telephonic or electronic messages,or otherwise) that the services or benefits are with respectto bankruptcy relief under this title; and
‘‘(4) clearly and conspicuously use the following statement
in such advertisement: ‘We are a debt relief agency. We helppeople file for bankruptcy relief under the Bankruptcy Code.’or a substantially similar statement.‘‘(b)(1) An advertisement of bankruptcy assistance services or
of the benefits of bankruptcy directed to the general publicincludes—Deadline.Contracts.Records.
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‘‘(A) descriptions of bankruptcy assistance in connection
with a chapter 13 plan whether or not chapter 13 is specificallymentioned in such advertisement; and
‘‘(B) statements such as ‘federally supervised repayment
plan’ or ‘Federal debt restructuring help’ or other similar state-ments that could lead a reasonable consumer to believe thatdebt counseling was being offered when in fact the serviceswere directed to providing bankruptcy assistance with a chapter13 plan or other form of bankruptcy relief under this title.‘‘(2) An advertisement, directed to the general public, indicating
that the debt relief agency provides assistance with respect tocredit defaults, mortgage foreclosures, eviction proceedings, exces-sive debt, debt collection pressure, or inability to pay any consumerdebt shall—
‘‘(A) disclose clearly and conspicuously in such advertise-
ment that the assistance may involve bankruptcy relief underthis title; and
‘‘(B) include the following statement: ‘We are a debt relief
agency. We help people file for bankruptcy relief under theBankruptcy Code.’ or a substantially similar statement.’’.(b) C
ONFORMING AMENDMENT .—The table of sections for chapter
5 of title 11, United States Code, as amended by section 227and 228, is amended by inserting after the item relating to section527, the following:
‘‘528. Requirements for debt relief agencies.’’.
SEC. 230. GAO STUDY.
(a) S TUDY .—Not later than 270 days after the date of enactment
of this Act, the Comptroller General of the United States shallconduct a study of the feasibility, effectiveness, and cost of requiringtrustees appointed under title 11, United States Code, or the bank-ruptcy courts, to provide to the Office of Child Support Enforcementpromptly after the commencement of cases by debtors who areindividuals under such title, the names and social security accountnumbers of such debtors for the purposes of allowing such Officeto determine whether such debtors have outstanding obligationsfor child support (as determined on the basis of information inthe Federal Case Registry or other national database).
(b) R
EPORT .—Not later than 300 days after the date of enact-
ment of this Act, the Comptroller General shall submit to thePresident pro tempore of the Senate and the Speaker of the Houseof Representatives a report containing the results of the studyrequired by subsection (a).
SEC. 231. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
(a) L IMITATION .—Section 363(b)(1) of title 11, United States
Code, is amended by striking the period at the end and insertingthe following:‘‘, except that if the debtor in connection with offering a productor a service discloses to an individual a policy prohibiting thetransfer of personally identifiable information about individualsto persons that are not affiliated with the debtor and if suchpolicy is in effect on the date of the commencement of the case,then the trustee may not sell or lease personally identifiableinformation to any person unless—
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‘‘(A) such sale or such lease is consistent with such policy;
or
‘‘(B) after appointment of a consumer privacy ombudsman
in accordance with section 332, and after notice and a hearing,the court approves such sale or such lease—
‘‘(i) giving due consideration to the facts, circumstances,
and conditions of such sale or such lease; and
‘‘(ii) finding that no showing was made that such sale
or such lease would violate applicable nonbankruptcy law.’’.
(b) D
EFINITION .—Section 101 of title 11, United States Code,
is amended by inserting after paragraph (41) the following:
‘‘(41A) ‘personally identifiable information’ means—
‘‘(A) if provided by an individual to the debtor in
connection with obtaining a product or a service from thedebtor primarily for personal, family, or householdpurposes—
‘‘(i) the first name (or initial) and last name of
such individual, whether given at birth or time ofadoption, 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 contactingor identifying such individual physically or electroni-cally;’’.
SEC. 232. CONSUMER PRIVACY OMBUDSMAN.
(a) C ONSUMER PRIVACY OMBUDSMAN .—Title 11 of the United
States Code is amended by inserting after section 331 the following:
‘‘§ 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 laterthan 5 days before the commencement of the hearing, 1 disin-terested person (other than the United States trustee) to serveas the consumer privacy ombudsman in the case and shall requirethat 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 informationto assist the court in its consideration of the facts, circumstances,and conditions of the proposed sale or lease of personally identifiableinformation under section 363(b)(1)(B). Such information mayinclude presentation of—
‘‘(1) the debtor’s privacy policy;Deadline.
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‘‘(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 ombudsmanunder this title.’’.
(b) C
OMPENSATION OF CONSUMER PRIVACY OMBUDSMAN .—Sec-
tion 330(a)(1) of title 11, United States Code, is amended in thematter preceding subparagraph (A), by inserting ‘‘a consumer pri-vacy ombudsman appointed under section 332,’’ before ‘‘an exam-iner’’.
(c) C
ONFORMING AMENDMENT .—The table of sections for sub-
chapter II of chapter 3 of title 11, United States Code, is amendedby adding at the end the following:
‘‘332. Consumer privacy ombudsman.’’.
SEC. 233. PROHIBITION ON DISCLOSURE OF NAME OF MINOR CHIL-
DREN.
(a) P ROHIBITION .—Title 11 of the United States Code, as
amended by section 106, is amended by inserting after section111 the following:
‘‘§ 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 notbe required to disclose in the public records in the case the nameof such minor child. The debtor may be required to disclose thename of such minor child in a nonpublic record that is maintainedby the court and made available by the court for examinationby 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 notdisclose the name of such minor child maintained in such nonpublicrecord.’’.
(b) C
LERICAL AMENDMENT .—The table of sections for chapter
1 of title 11, United States Code, as amended by section 106,is amended by inserting after the item relating to section 111the following:
‘‘112. Prohibition on disclosure of name of minor children.’’.
(c) C ONFORMING AMENDMENT .—Section 107(a) of title 11,
United States Code, is amended by inserting ‘‘and subject to section112’’ after ‘‘section’’.
SEC. 234. PROTECTION OF PERSONAL INFORMATION.
(a) R ESTRICTION OF PUBLIC ACCESS TO CERTAIN INFORMATION
CONTAINED IN BANKRUPTCY CASE FILES.—Section 107 of title 11,
United States Code, is amended by adding at the end the following:
‘‘(c)(1) The bankruptcy court, for cause, may protect an indi-
vidual, with respect to the following types of information to theextent the court finds that disclosure of such information wouldcreate undue risk of identity theft or other unlawful injury tothe individual or the individual’s property:
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‘‘(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 powerof 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.’’.(b) S
ECURITY OF SOCIAL SECURITY ACCOUNT NUMBER OF
DEBTOR IN NOTICE TO CREDITOR .—Section 342(c) of title 11, United
States Code, is amended—
(1) by inserting ‘‘last 4 digits of the’’ before ‘‘taxpayer identi-
fication number’’; and
(2) by adding at the end the following: ‘‘If the notice con-
cerns an amendment that adds a creditor to the schedulesof assets and liabilities, the debtor shall include the full tax-payer identification number in the notice sent to that creditor,but the debtor shall include only the last 4 digits of the taxpayeridentification number in the copy of the notice filed with thecourt.’’.(c) C
ONFORMING AMENDMENT .—Section 107(a) of title 11,
United States Code, is amended by striking ‘‘subsection (b),’’ andinserting ‘‘subsections (b) and (c),’’.
TITLE III—DISCOURAGING
BANKRUPTCY ABUSE
SEC. 301. TECHNICAL AMENDMENTS.
Section 523(a)(17) of title 11, United States Code, is amended—
(1) by striking ‘‘by a court’’ and inserting ‘‘on a prisoner
by any court’’;
(2) by striking ‘‘section 1915(b) or (f)’’ and inserting ‘‘sub-
section (b) or (f)(2) of section 1915’’; and
(3) by inserting ‘‘(or a similar non-Federal law)’’ after ‘‘title
28’’ each place it appears.
SEC. 302. DISCOURAGING BAD FAITH REPEAT FILINGS.
Section 362(c) of title 11, United States Code, is amended—
(1) in paragraph (1), by striking ‘‘and’’ at the end;(2) in paragraph (2), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:‘‘(3) if a single or joint case is filed by or against debtor
who is an individual in a case under chapter 7, 11, or 13,and if a single or joint case of the debtor was pending withinthe preceding 1-year period but was dismissed, other thana case refiled under a chapter other than chapter 7 afterdismissal under section 707(b)—
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‘‘(A) the stay under subsection (a) with respect to any
action taken with respect to a debt or property securingsuch debt or with respect to any lease shall terminatewith respect to the debtor on the 30th day after the filingof the later case;
‘‘(B) on the motion of a party in interest for continu-
ation of the automatic stay and upon notice and a hearing,the court may extend the stay in particular cases as toany or all creditors (subject to such conditions or limitationsas the court may then impose) after notice and a hearingcompleted before the expiration of the 30-day period onlyif the party in interest demonstrates that the filing ofthe later case is in good faith as to the creditors to bestayed; and
‘‘(C) for purposes of subparagraph (B), a case is
presumptively filed not in good faith (but such presumptionmay be rebutted by clear and convincing evidence to thecontrary)—
‘‘(i) as to all creditors, if—
‘‘(I) more than 1 previous case under any of
chapters 7, 11, and 13 in which the individualwas a debtor was pending within the preceding1-year period;
‘‘(II) a previous case under any of chapters
7, 11, and 13 in which the individual was a debtorwas dismissed within such 1-year period, after thedebtor failed to—
‘‘(aa) file or amend the petition or other
documents as required by this title or the courtwithout substantial excuse (but mere inadvert-ence or negligence shall not be a substantialexcuse unless the dismissal was caused bythe negligence of the debtor’s attorney);
‘‘(bb) provide adequate protection as
ordered by the court; or
‘‘(cc) perform the terms of a plan con-
firmed by the court; or‘‘(III) there has not been a substantial change
in the financial or personal affairs of the debtorsince the dismissal of the next most previous caseunder chapter 7, 11, or 13 or any other reasonto conclude that the later case will be concluded—
‘‘(aa) if a case under chapter 7, with a
discharge; or
‘‘(bb) if a case under chapter 11 or 13,
with a confirmed plan that will be fully per-formed; and
‘‘(ii) as to any creditor that commenced an action
under subsection (d) in a previous case in which theindividual was a debtor if, as of the date of dismissalof such case, that action was still pending or hadbeen resolved by terminating, conditioning, or limitingthe stay as to actions of such creditor; and
‘‘(4)(A)(i) if a single or joint case is filed by or against
a debtor who is an individual under this title, and if 2 ormore single or joint cases of the debtor were pending withinthe previous year but were dismissed, other than a case refiledTerminationdate.
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under section 707(b), the stay under subsection (a) shall not
go into effect upon the filing of the later case; and
‘‘(ii) on request of a party in interest, the court shall
promptly enter an order confirming that no stay is in effect;
‘‘(B) if, within 30 days after the filing of the later case,
a party in interest requests the court may order the stayto take effect in the case as to any or all creditors (subjectto such conditions or limitations as the court may impose),after notice and a hearing, only if the party in interest dem-onstrates that the filing of the later case is in good faithas to the creditors to be stayed;
‘‘(C) a stay imposed under subparagraph (B) shall be effec-
tive on the date of the entry of the order allowing the stayto go into effect; and
‘‘(D) for purposes of subparagraph (B), a case is presump-
tively filed not in good faith (but such presumption may berebutted by clear and convincing evidence to the contrary)—
‘‘(i) as to all creditors if—
‘‘(I) 2 or more previous cases under this title in
which the individual was a debtor were pending withinthe 1-year period;
‘‘(II) a previous case under this title in which the
individual was a debtor was dismissed within the timeperiod stated in this paragraph after the debtor failedto file or amend the petition or other documents asrequired by this title or the court without substantialexcuse (but mere inadvertence or negligence shall notbe substantial excuse unless the dismissal was causedby the negligence of the debtor’s attorney), failed toprovide adequate protection as ordered by the court,or failed to perform the terms of a plan confirmedby the court; or
‘‘(III) there has not been a substantial change in
the financial or personal affairs of the debtor sincethe dismissal of the next most previous case underthis title, or any other reason to conclude that thelater case will not be concluded, if a case under chapter7, with a discharge, and if a case under chapter 11or 13, with a confirmed plan that will be fully per-formed; or‘‘(ii) as to any creditor that commenced an action under
subsection (d) in a previous case in which the individualwas a debtor if, as of the date of dismissal of such case,such action was still pending or had been resolved byterminating, conditioning, or limiting the stay as to suchaction of such creditor.’’.
SEC. 303. CURBING ABUSIVE FILINGS.
(a) I NGENERAL .—Section 362(d) of title 11, United States Code,
is amended—
(1) in paragraph (2), by striking ‘‘or’’ at the end;(2) in paragraph (3), by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(4) with respect to a stay of an act against real property
under subsection (a), by a creditor whose claim is securedby an interest in such real property, if the court finds thatEffective date.
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the filing of the petition was part of a scheme to delay, hinder,
and defraud creditors that involved either—
‘‘(A) transfer of all or part ownership of, or other
interest in, such real property without the consent of thesecured creditor or court approval; or
‘‘(B) multiple bankruptcy filings affecting such real
property.
If recorded in compliance with applicable State laws governingnotices of interests or liens in real property, an order enteredunder paragraph (4) shall be binding in any other case underthis title purporting to affect such real property filed not laterthan 2 years after the date of the entry of such order by thecourt, except that a debtor in a subsequent case under this titlemay move for relief from such order based upon changed cir-cumstances or for good cause shown, after notice and a hearing.Any Federal, State, or local governmental unit that accepts noticesof interests or liens in real property shall accept any certifiedcopy of an order described in this subsection for indexing andrecording.’’.
(b) A
UTOMATIC STAY.—Section 362(b) of title 11, United States
Code, as amended by section 224, is amended by inserting afterparagraph (19), the following:
‘‘(20) under subsection (a), of any act to enforce any lien
against or security interest in real property following entryof the order under subsection (d)(4) as to such real propertyin any prior case under this title, for a period of 2 yearsafter the date of the entry of such an order, except that thedebtor, in a subsequent case under this title, may move forrelief from such order based upon changed circumstances orfor other good cause shown, after notice and a hearing;
‘‘(21) under subsection (a), of any act to enforce any lien
against or security interest in real property—
‘‘(A) if the debtor is ineligible under section 109(g)
to be a debtor in a case under this title; or
‘‘(B) if the case under this title was filed in violation
of a bankruptcy court order in a prior case under thistitle prohibiting the debtor from being a debtor in anothercase under this title;’’.
SEC. 304. DEBTOR RETENTION OF PERSONAL PROPERTY SECURITY.
Title 11, United States Code, is amended—
(1) in section 521(a), as so designated by section 106—
(A) in paragraph (4), by striking ‘‘, and’’ at the end
and inserting a semicolon;
(B) in paragraph (5), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(6) in a case under chapter 7 of this title in which the
debtor is an individual, not retain possession of personal prop-erty as to which a creditor has an allowed claim for the pur-chase price secured in whole or in part by an interest insuch personal property unless the debtor, not later than 45days after the first meeting of creditors under section 341(a),either—
‘‘(A) enters into an agreement with the creditor pursu-
ant to section 524(c) with respect to the claim securedby such property; orDeadline.
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‘‘(B) redeems such property from the security interest
pursuant to section 722.
If the debtor fails to so act within the 45-day period referredto in paragraph (6), the stay under section 362(a) is terminatedwith respect to the personal property of the estate or of the debtorwhich is affected, such property shall no longer be property ofthe estate, and the creditor may take whatever action as to suchproperty as is permitted by applicable nonbankruptcy law, unlessthe court determines on the motion of the trustee filed beforethe expiration of such 45-day period, and after notice and a hearing,that such property is of consequential value or benefit to the estate,orders appropriate adequate protection of the creditor’s interest,and orders the debtor to deliver any collateral in the debtor’spossession to the trustee.’’; and
(2) in section 722, by inserting ‘‘in full at the time of
redemption’’ before the period at the end.
SEC. 305. RELIEF FROM THE AUTOMATIC STAY WHEN THE DEBTOR
DOES NOT COMPLETE INTENDED SURRENDER OF CON-SUMER DEBT COLLATERAL.
Title 11, United States Code, is amended—
(1) in section 362, as amended by section 106—
(A) in subsection (c), by striking ‘‘(e), and (f)’’ and
inserting ‘‘(e), (f), and (h)’’;
(B) by redesignating subsection (h) as subsection (k)
and transferring such subsection so as to insert it aftersubsection (j) as added by section 106; and
(C) by inserting after subsection (g) the following:
‘‘(h)(1) In a case in which the debtor is an individual, the
stay provided by subsection (a) is terminated with respect to per-sonal property of the estate or of the debtor securing in wholeor in part a claim, or subject to an unexpired lease, and suchpersonal property shall no longer be property of the estate if thedebtor fails within the applicable time set by section 521(a)(2)—
‘‘(A) to file timely any statement of intention required under
section 521(a)(2) with respect to such personal property orto indicate in such statement that the debtor will either sur-render such personal property or retain it and, if retaining
such personal property, either redeem such personal propertypursuant to section 722, enter into an agreement of the kindspecified in section 524(c) applicable to the debt secured bysuch personal property, or assume such unexpired lease pursu-ant to section 365(p) if the trustee does not do so, as applicable;and
‘‘(B) to take timely the action specified in such statement,
as it may be amended before expiration of the period for takingaction, unless such statement specifies the debtor’s intentionto reaffirm such debt on the original contract terms and thecreditor refuses to agree to the reaffirmation on such terms.‘‘(2) Paragraph (1) does not apply if the court determines,
on the motion of the trustee filed before the expiration of theapplicable time set by section 521(a)(2), after notice and a hearing,that such personal property is of consequential value or benefitto the estate, and orders appropriate adequate protection of thecreditor’s interest, and orders the debtor to deliver any collateralin the debtor’s possession to the trustee. If the court does not
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so determine, the stay provided by subsection (a) shall terminate
upon the conclusion of the hearing on the motion.’’; and
(2) in section 521, as amended by sections 106 and 225—
(A) in subsection (a)(2) by striking ‘‘consumer’’;(B) in subsection (a)(2)(B)—
(i) by striking ‘‘forty-five days after the filing of
a notice of intent under this section’’ and inserting‘‘30 days after the first date set for the meeting ofcreditors under section 341(a)’’; and
(ii) by striking ‘‘forty-five day’’ and inserting ‘‘30-
day’’;(C) in subsection (a)(2)(C) by inserting ‘‘, except as
provided in section 362(h)’’ before the semicolon; and
(D) by adding at the end the following:
‘‘(d) If the debtor fails timely to take the action specified in
subsection (a)(6) of this section, or in paragraphs (1) and (2) ofsection 362(h), with respect to property which a lessor or bailorowns and has leased, rented, or bailed to the debtor or as towhich a creditor holds a security interest not otherwise voidableunder section 522(f), 544, 545, 547, 548, or 549, nothing in thistitle shall prevent or limit the operation of a provision in theunderlying lease or agreement that has the effect of placing thedebtor in default under such lease or agreement by reason ofthe occurrence, pendency, or existence of a proceeding under thistitle or the insolvency of the debtor. Nothing in this subsectionshall be deemed to justify limiting such a provision in any othercircumstance.’’.
SEC. 306. GIVING SECURED CREDITORS FAIR TREATMENT IN CHAPTER
13.
(a) I NGENERAL .—Section 1325(a)(5)(B)(i) of title 11, United
States Code, is amended to read as follows:
‘‘(i) the plan provides that—
‘‘(I) the holder of such claim retain the lien
securing such claim until the earlier of—
‘‘(aa) the payment of the underlying debt
determined under nonbankruptcy law; or
‘‘(bb) discharge under section 1328; and
‘‘(II) if the case under this chapter is dismissed
or converted without completion of the plan, such lienshall also be retained by such holder to the extentrecognized by applicable nonbankruptcy law; and’’.
(b) R
ESTORING THE FOUNDATION FOR SECURED CREDIT .—Section
1325(a) of title 11, United States Code, is amended by addingat the end the following:‘‘For purposes of paragraph (5), section 506 shall not apply toa claim described in that paragraph if the creditor has a purchasemoney security interest securing the debt that is the subject ofthe claim, the debt was incurred within the 910-day precedingthe date of the filing of the petition, and the collateral for thatdebt consists of a motor vehicle (as defined in section 30102 oftitle 49) acquired for the personal use of the debtor, or if collateralfor that debt consists of any other thing of value, if the debtwas incurred during the 1-year period preceding that filing.’’.
(c) D
EFINITIONS .—Section 101 of title 11, United States Code,
is amended—
(1) by inserting after paragraph (13) the following:
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‘‘(13A) ‘debtor’s principal residence’—
‘‘(A) means a residential structure, including incidental
property, without regard to whether that structure isattached to real property; and
‘‘(B) includes an individual condominium or cooperative
unit, a mobile or manufactured home, or trailer;’’; and(2) by inserting after paragraph (27), the following:‘‘(27A) ‘incidental property’ means, with respect to a
debtor’s principal residence—
‘‘(A) property commonly conveyed with a principal resi-
dence 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;’’.
SEC. 307. DOMICILIARY REQUIREMENTS FOR EXEMPTIONS.
Section 522(b)(3) of title 11, United States Code, as so des-
ignated by section 106, is amended—
(1) in subparagraph (A)—
(A) by striking ‘‘180 days’’ and inserting ‘‘730 days’’;
and
(B) by striking ‘‘, or for a longer portion of such 180-
day period than in any other place’’ and inserting ‘‘orif the debtor’s domicile has not been located at a singleState for such 730-day period, the place in which thedebtor’s domicile was located for 180 days immediatelypreceding the 730-day period or for a longer portion ofsuch 180-day period than in any other place’’; and(2) by adding at the end the following:
‘‘If the effect of the domiciliary requirement under subparagraph(A) is to render the debtor ineligible for any exemption, the debtormay elect to exempt property that is specified under subsection(d).’’.
SEC. 308. REDUCTION OF HOMESTEAD EXEMPTION FOR FRAUD.
Section 522 of title 11, United States Code, as amended by
section 224, is amended—
(1) in subsection (b)(3)(A), as so designated by this Act,
by inserting ‘‘subject to subsections (o) and (p),’’ before ‘‘anyproperty’’; and
(2) by adding at the end the following:
‘‘(o) For purposes of subsection (b)(3)(A), and notwithstanding
subsection (a), the value of an interest in—
‘‘(1) real or personal property that the debtor or a dependent
of the debtor uses as a residence;
‘‘(2) a cooperative that owns property that the debtor or
a dependent of the debtor uses as a residence;
‘‘(3) a burial plot for the debtor or a dependent of the
debtor; or
‘‘(4) real or personal property that the debtor or a dependent
of the debtor claims as a homestead;
shall be reduced to the extent that such value is attributableto any portion of any property that the debtor disposed of inthe 10-year period ending on the date of the filing of the petitionwith the intent to hinder, delay, or defraud a creditor and thatthe debtor could not exempt, or that portion that the debtor could
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not exempt, under subsection (b), if on such date the debtor had
held the property so disposed of.’’.
SEC. 309. PROTECTING SECURED CREDITORS IN CHAPTER 13 CASES.
(a) S TOPPING ABUSIVE CONVERSIONS FROM CHAPTER 13.—Sec-
tion 348(f)(1) of title 11, United States Code, is amended—
(1) in subparagraph (A), by striking ‘‘and’’ at the end;(2) in subparagraph (B)—
(A) by striking ‘‘in the converted case, with allowed
secured claims’’ and inserting ‘‘only in a case convertedto a case under chapter 11 or 12, but not in a case convertedto a case under chapter 7, with allowed secured claimsin cases under chapters 11 and 12’’; and
(B) by striking the period and inserting ‘‘; and’’; and
(3) by adding at the end the following:‘‘(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 bythat security unless the full amount of such claim deter-mined under applicable nonbankruptcy law has been paidin full as of the date of conversion, notwithstanding anyvaluation or determination of the amount of an allowedsecured claim made for the purposes of the case underchapter 13; and
‘‘(ii) unless a prebankruptcy default has been fully
cured under the plan at the time of conversion, in anyproceeding under this title or otherwise, the default shallhave the effect given under applicable nonbankruptcy law.’’.
(b) G
IVING DEBTORS THE ABILITY TOKEEP LEASED PERSONAL
PROPERTY BY ASSUMPTION .—Section 365 of title 11, United States
Code, is amended by adding at the end the following:
‘‘(p)(1) If a lease of personal property is rejected or not timely
assumed by the trustee under subsection (d), the leased propertyis no longer property of the estate and the stay under section362(a) is automatically terminated.
‘‘(2)(A) If the debtor in a case under chapter 7 is an individual,
the debtor may notify the creditor in writing that the debtor desiresto assume the lease. Upon being so notified, the creditor may,
at its option, notify the debtor that it is willing to have the leaseassumed by the debtor and may condition such assumption oncure of any outstanding default on terms set by the contract.
‘‘(B) If, not later than 30 days after notice is provided under
subparagraph (A), the debtor notifies the lessor in writing thatthe lease is assumed, the liability under the lease will be assumedby the debtor and not by the estate.
‘‘(C) The stay under section 362 and the injunction under section
524(a)(2) shall not be violated by notification of the debtor andnegotiation of cure under this subsection.
‘‘(3) In a case under chapter 11 in which the debtor is an
individual and in a case under chapter 13, if the debtor is thelessee with respect to personal property and the lease is notassumed in the plan confirmed by the court, the lease is deemedrejected as of the conclusion of the hearing on confirmation. Ifthe lease is rejected, the stay under section 362 and any stayunder section 1301 is automatically terminated with respect tothe property subject to the lease.’’.Deadline.
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(c) A DEQUATE PROTECTION OF LESSORS AND PURCHASE MONEY
SECURED CREDITORS .—
(1) C ONFIRMATION OF PLAN .—Section 1325(a)(5)(B) of title
11, United States Code, as amended by section 306, isamended—
(A) in clause (i), by striking ‘‘and’’ at the end;(B) in clause (ii), by striking ‘‘or’’ at the end and
inserting ‘‘and’’; and
(C) by adding at the end the following:‘‘(iii) if—
‘‘(I) property to be distributed pursuant to this
subsection is in the form of periodic payments, suchpayments shall be in equal monthly amounts; and
‘‘(II) the holder of the claim is secured by personal
property, the amount of such payments shall not beless than an amount sufficient to provide to the holderof such claim adequate protection during the periodof the plan; or’’.
(2) P
AYMENTS .—Section 1326(a) of title 11, United States
Code, is amended to read as follows:‘‘(a)(1) Unless the court orders otherwise, the debtor shall com-
mence making payments not later than 30 days after the dateof the filing of the plan or the order for relief, whichever is earlier,in the amount—
‘‘(A) proposed by the plan to the trustee;‘‘(B) scheduled in a lease of personal property directly to
the lessor for that portion of the obligation that becomes dueafter the order for relief, reducing the payments under subpara-graph (A) by the amount so paid and providing the trusteewith evidence of such payment, including the amount and dateof payment; and
‘‘(C) that provides adequate protection directly to a creditor
holding an allowed claim secured by personal property to theextent the claim is attributable to the purchase of such propertyby the debtor for that portion of the obligation that becomesdue after the order for relief, reducing the payments undersubparagraph (A) by the amount so paid and providing thetrustee with evidence of such payment, including the amountand date of payment.‘‘(2) A payment made under paragraph (1)(A) shall be retained
by the trustee until confirmation or denial of confirmation. If aplan is confirmed, the trustee shall distribute any such paymentin accordance with the plan as soon as is practicable. If a planis not confirmed, the trustee shall return any such payments notpreviously paid and not yet due and owing to creditors pursuantto paragraph (3) to the debtor, after deducting any unpaid claim
allowed under section 503(b).
‘‘(3) Subject to section 363, the court may, upon notice and
a hearing, modify, increase, or reduce the payments required underthis subsection pending confirmation of a plan.
‘‘(4) Not later than 60 days after the date of filing of a case
under this chapter, a debtor retaining possession of personal prop-erty subject to a lease or securing a claim attributable in wholeor in part to the purchase price of such property shall providethe lessor or secured creditor reasonable evidence of the mainte-nance of any required insurance coverage with respect to the use
Deadline.Deadline.
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or ownership of such property and continue to do so for so long
as the debtor retains possession of such property.’’.
SEC. 310. LIMITATION ON LUXURY GOODS.
Section 523(a)(2)(C) of title 11, United States Code, is amended
to read as follows:
‘‘(C)(i) for purposes of subparagraph (A)—
‘‘(I) consumer debts owed to a single creditor and
aggregating more than $500 for luxury goods or serv-ices incurred by an individual debtor on or within90 days before the order for relief under this titleare presumed to be nondischargeable; and
‘‘(II) cash advances aggregating more than $750
that are extensions of consumer credit under an openend credit plan obtained by an individual debtor onor within 70 days before the order for relief underthis title, are presumed to be nondischargeable; and‘‘(ii) for purposes of this subparagraph—
‘‘(I) the terms ‘consumer’, ‘credit’, and ‘open end
credit plan’ have the same meanings as in section103 of the Truth in Lending Act; and
‘‘(II) the term ‘luxury goods or services’ does not
include goods or services reasonably necessary for thesupport or maintenance of the debtor or a dependentof the debtor.’’.
SEC. 311. AUTOMATIC STAY.
(a) I N GENERAL .—Section 362(b) of title 11, United States Code,
as amended by sections 224 and 303, is amended by insertingafter paragraph (21), the following:
‘‘(22) subject to subsection (l), under subsection (a)(3), of
the continuation of any eviction, unlawful detainer action, orsimilar proceeding by a lessor against a debtor involving resi-dential property in which the debtor resides as a tenant undera lease or rental agreement and with respect to which thelessor has obtained before the date of the filing of the bank-ruptcy petition, a judgment for possession of such propertyagainst the debtor;
‘‘(23) subject to subsection (m), under subsection (a)(3),
of an eviction action that seeks possession of the residentialproperty in which the debtor resides as a tenant under alease or rental agreement based on endangerment of such prop-erty or the illegal use of controlled substances on such property,but only if the lessor files with the court, and serves uponthe debtor, a certification under penalty of perjury that suchan eviction action has been filed, or that the debtor, duringthe 30-day period preceding the date of the filing of the certifi-cation, has endangered property or illegally used or allowedto be used a controlled substance on the property;
‘‘(24) under subsection (a), of any transfer that is not avoid-
able under section 544 and that is not avoidable under section549;’’.(b) L
IMITATIONS .—Section 362 of title 11, United States Code,
as amended by sections 106 and 305, is amended by adding atthe end the following:
‘‘(l)(1) Except as otherwise provided in this subsection, sub-
section (b)(22) shall apply on the date that is 30 days after thedate on which the bankruptcy petition is filed, if the debtor files Applicability.
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with the petition and serves upon the lessor a certification under
penalty of perjury that—
‘‘(A) under nonbankruptcy law applicable in the jurisdic-
tion, there are circumstances under which the debtor wouldbe permitted to cure the entire monetary default that gaverise to the judgment for possession, after that judgment forpossession was entered; and
‘‘(B) the debtor (or an adult dependent of the debtor) has
deposited with the clerk of the court, any rent that wouldbecome due during the 30-day period after the filing of thebankruptcy petition.‘‘(2) If, within the 30-day period after the filing of the bank-
ruptcy petition, the debtor (or an adult dependent of the debtor)complies with paragraph (1) and files with the court and servesupon the lessor a further certification under penalty of perjurythat the debtor (or an adult dependent of the debtor) has cured,under nonbankrupcty law applicable in the jurisdiction, the entiremonetary default that gave rise to the judgment under whichpossession is sought by the lessor, subsection (b)(22) shall notapply, unless ordered to apply by the court under paragraph (3).
‘‘(3)(A) If the lessor files an objection to any certification filed
by the debtor under paragraph (1) or (2), and serves such objectionupon the debtor, the court shall hold a hearing within 10 daysafter the filing and service of such objection to determine if thecertification filed by the debtor under paragraph (1) or (2) is true.
‘‘(B) If the court upholds the objection of the lessor filed under
subparagraph (A)—
‘‘(i) subsection (b)(22) shall apply immediately and relief
from the stay provided under subsection (a)(3) shall not berequired to enable the lessor to complete the process to recoverfull possession of the property; and
‘‘(ii) the clerk of the court shall immediately serve upon
the lessor and the debtor a certified copy of the court’s orderupholding the lessor’s objection.‘‘(4) If a debtor, in accordance with paragraph (5), indicates
on the petition that there was a judgment for possession of theresidential rental property in which the debtor resides and doesnot file a certification under paragraph (1) or (2)—
‘‘(A) subsection (b)(22) shall apply immediately upon failure
to file such certification, and relief from the stay providedunder subsection (a)(3) shall not be required to enable thelessor to complete the process to recover full possession ofthe property; and
‘‘(B) the clerk of the court shall immediately serve upon
the lessor and the debtor a certified copy of the docket indi-cating the absence of a filed certification and the applicability
of the exception to the stay under subsection (b)(22).‘‘(5)(A) Where a judgment for possession of residential property
in which the debtor resides as a tenant under a lease or rentalagreement has been obtained by the lessor, the debtor shall soindicate on the bankruptcy petition and shall provide the nameand address of the lessor that obtained that pre-petition judgmenton the petition and on any certification filed under this subsection.
‘‘(B) The form of certification filed with the petition, as specified
in this subsection, shall provide for the debtor to certify, and thedebtor shall certify—
Certification.Applicability.Applicability.Deadline.
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‘‘(i) whether a judgment for possession of residential rental
housing in which the debtor resides has been obtained againstthe debtor before the date of the filing of the petition; and
‘‘(ii) whether the debtor is claiming under paragraph (1)
that under nonbankruptcy law applicable in the jurisdiction,there are circumstances under which the debtor would be per-mitted to cure the entire monetary default that gave rise tothe judgment for possession, after that judgment of possessionwas entered, and has made the appropriate deposit with thecourt.‘‘(C) The standard forms (electronic and otherwise) used in
a bankruptcy proceeding shall be amended to reflect the require-ments of this subsection.
‘‘(D) The clerk of the court shall arrange for the prompt trans-
mittal of the rent deposited in accordance with paragraph (1)(B)to the lessor.
‘‘(m)(1) Except as otherwise provided in this subsection, sub-
section (b)(23) shall apply on the date that is 15 days after thedate on which the lessor files and serves a certification describedin subsection (b)(23).
‘‘(2)(A) If the debtor files with the court an objection to the
truth or legal sufficiency of the certification described in subsection(b)(23) and serves such objection upon the lessor, subsection (b)(23)shall not apply, unless ordered to apply by the court under thissubsection.
‘‘(B) If the debtor files and serves the objection under subpara-
graph (A), the court shall hold a hearing within 10 days afterthe filing and service of such objection to determine if the situationgiving rise to the lessor’s certification under paragraph (1) existedor has been remedied.
‘‘(C) If the debtor can demonstrate to the satisfaction of the
court that the situation giving rise to the lessor’s certification underparagraph (1) did not exist or has been remedied, the stay providedunder subsection (a)(3) shall remain in effect until the terminationof the stay under this section.
‘‘(D) If the debtor cannot demonstrate to the satisfaction of
the court that the situation giving rise to the lessor’s certificationunder paragraph (1) did not exist or has been remedied—
‘‘(i) relief from the stay provided under subsection (a)(3)
shall not be required to enable the lessor to proceed withthe eviction; and
‘‘(ii) the clerk of the court shall immediately serve upon
the lessor and the debtor a certified copy of the court’s orderupholding the lessor’s certification.‘‘(3) If the debtor fails to file, within 15 days, an objection
under paragraph (2)(A)—
‘‘(A) subsection (b)(23) shall apply immediately upon such
failure and relief from the stay provided under subsection (a)(3)shall not be required to enable the lessor to complete theprocess to recover full possession of the property; and
‘‘(B) the clerk of the court shall immediately serve upon
the lessor and the debtor a certified copy of the docket indi-cating such failure.’’.
SEC. 312. EXTENSION OF PERIOD BETWEEN BANKRUPTCY DIS-
CHARGES.
Title 11, United States Code, is amended—Applicability.Deadline.Deadline.Applicability.
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(1) in section 727(a)(8), by striking ‘‘six’’ and inserting
‘‘8’’; and
(2) in section 1328, by inserting after subsection (e) the
following:‘‘(f) Notwithstanding subsections (a) and (b), the court shall
not grant a discharge of all debts provided for in the plan ordisallowed under section 502, if the debtor has received adischarge—
‘‘(1) in a case filed under chapter 7, 11, or 12 of this
title during the 4-year period preceding the date of the orderfor relief under this chapter, or
‘‘(2) in a case filed under chapter 13 of this title during
the 2-year period preceding the date of such order.’’.
SEC. 313. DEFINITION OF HOUSEHOLD GOODS AND ANTIQUES.
(a) D EFINITION .—Section 522(f) of title 11, United States Code,
is amended by adding at the end the following:
‘‘(4)(A) Subject to subparagraph (B), for purposes of paragraph
(1)(B), the term ‘household goods’ means—
‘‘(i) clothing;‘‘(ii) furniture;‘‘(iii) appliances;‘‘(iv) 1 radio;‘‘(v) 1 television;‘‘(vi) 1 VCR;‘‘(vii) linens;‘‘(viii) china;‘‘(ix) crockery;‘‘(x) kitchenware;‘‘(xi) educational materials and educational equipment pri-
marily for the use of minor dependent children of the debtor;
(xii) medical equipment and supplies;‘‘(xiii) furniture exclusively for the use of minor children,
or elderly or disabled dependents of the debtor;
‘‘(xiv) personal effects (including the toys and hobby equip-
ment of minor dependent children and wedding rings) of thedebtor and the dependents of the debtor; and
‘‘(xv) 1 personal computer and related equipment.
‘‘(B) The term ‘household goods’ does not include—
‘‘(i) works of art (unless by or of the debtor, or any relative
of the debtor);
‘‘(ii) electronic entertainment equipment with a fair market
value of more than $500 in the aggregate (except 1 television,1 radio, and 1 VCR);
‘‘(iii) items acquired as antiques with a fair market value
of more than $500 in the aggregate;
‘‘(iv) jewelry with a fair market value of more than $500
in the aggregate (except wedding rings); and
‘‘(v) a computer (except as otherwise provided for in this
section), motor vehicle (including a tractor or lawn tractor),boat, or a motorized recreational device, conveyance, vehicle,watercraft, or aircraft.’’.(b) S
TUDY .—Not later than 2 years after the date of enactment
of this Act, the Director of the Executive Office for United StatesTrustees shall submit a report to the Committee on the Judiciaryof the Senate and the Committee on the Judiciary of the Houseof Representatives containing its findings regarding utilization ofReports.
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the definition of household goods, as defined in section 522(f)(4)
of title 11, United States Code, as added by subsection (a), withrespect to the avoidance of nonpossessory, nonpurchase money secu-rity interests in household goods under section 522(f)(1)(B) of title11, United States Code, and the impact such section 522(f)(4) hashad on debtors and on the bankruptcy courts. Such report mayinclude recommendations for amendments to such section 522(f)(4)consistent with the Director’s findings.
SEC. 314. DEBT INCURRED TO PAY NONDISCHARGEABLE DEBTS.
(a) I NGENERAL .—Section 523(a) of title 11, United States Code,
is amended by inserting after paragraph (14) the following:
‘‘(14A) incurred to pay a tax to a governmental unit, other
than the United States, that would be nondischargeable underparagraph (1);’’.(b) D
ISCHARGE UNDER CHAPTER 13.—Section 1328(a) of title
11, United States Code, is amended by striking paragraphs (1)through (3) and inserting the following:
‘‘(1) provided for under section 1322(b)(5);‘‘(2) of the kind specified in paragraph (2), (3), (4), (5),
(8), or (9) of section 523(a);
‘‘(3) for restitution, or a criminal fine, included in a sentence
on the debtor’s conviction of a crime; or
‘‘(4) for restitution, or damages, awarded in a civil action
against the debtor as a result of willful or malicious injuryby the debtor that caused personal injury to an individualor the death of an individual.’’.
SEC. 315. GIVING CREDITORS FAIR NOTICE IN CHAPTERS 7 AND 13
CASES.
(a) N OTICE .—Section 342 of title 11, United States Code, as
amended by section 102, is amended—
(1) in subsection (c)—
(A) by inserting ‘‘(1)’’ after ‘‘(c)’’;(B) by striking ‘‘, but the failure of such notice to
contain such information shall not invalidate the legaleffect of such notice’’; and
(C) by adding at the end the following:
‘‘(2)(A) If, within the 90 days before the commencement of
a voluntary case, a creditor supplies the debtor in at least 2 commu-nications sent to the debtor with the current account number ofthe debtor and the address at which such creditor requests toreceive correspondence, then any notice required by this title tobe sent by the debtor to such creditor shall be sent to such addressand shall include such account number.
‘‘(B) If a creditor would be in violation of applicable nonbank-
ruptcy law by sending any such communication within such 90-day period and if such creditor supplies the debtor in the last2 communications with the current account number of the debtor
and the address at which such creditor requests to receive cor-respondence, then any notice required by this title to be sent bythe debtor to such creditor shall be sent to such address andshall include such account number.’’; and
(2) by adding at the end the following:
‘‘(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 withthe court and serve on the debtor a notice of address to be usedto provide notice in such case to such creditor.
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‘‘(2) Any notice in such case required to be provided to such
creditor by the debtor or the court later than 5 days after thecourt and the debtor receive such creditor’s notice of address, shallbe 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 particularbankruptcy courts, as so specified by such entity at the time suchnotice is filed, to provide notice to such entity in all cases underchapters 7 and 13 pending in the courts with respect to whichsuch 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 filedunder paragraph (1), to such entity later than 30 days after thefiling of such notice under paragraph (1) shall be provided to suchaddress unless with respect to a particular case a different addressis 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 sub-section) shall not be effective notice until such notice is broughtto the attention of such creditor. If such creditor designates aperson or an organizational subdivision of such creditor to beresponsible for receiving notices under this title and establishesreasonable procedures so that such notices receivable by such cred-itor are to be delivered to such person or such subdivision, thena notice provided to such creditor other than in accordance withthis section (excluding this subsection) shall not be considered tohave been brought to the attention of such creditor until suchnotice 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) (includinga monetary penalty imposed under section 362(k)) or for failureto comply with section 542 or 543 unless the conduct that is thebasis of such violation or of such failure occurs after such creditorreceives notice effective under this section of the order for relief.’’.
(b) D
EBTOR ’SDUTIES .—Section 521 of title 11, United States
Code, as amended by sections 106, 225, and 305, is amended—
(1) in subsection (a), as so designated by section 106, by
amending paragraph (1) to read as follows:
‘‘(1) file—
‘‘(A) a list of creditors; and‘‘(B) unless the court orders otherwise—
‘‘(i) a schedule of assets and liabilities;‘‘(ii) a schedule of current income and current
expenditures;
‘‘(iii) a statement of the debtor’s financial affairs
and, if section 342(b) applies, a certificate—
‘‘(I) of an attorney whose name is indicated
on the petition as the attorney for the debtor,or a bankruptcy petition preparer signing the peti-tion under section 110(b)(1), indicating that suchattorney or the bankruptcy petition preparer deliv-ered to the debtor the notice required by section342(b); or
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‘‘(II) if no attorney is so indicated, and no
bankruptcy petition preparer signed the petition,of the debtor that such notice was received andread by the debtor;‘‘(iv) copies of all payment advices or other evidence
of payment received within 60 days before the dateof the filing of the petition, by the debtor from anyemployer of the debtor;
‘‘(v) a statement of the amount of monthly net
income, itemized to show how the amount is calculated;and
‘‘(vi) a statement disclosing any reasonably antici-
pated increase in income or expenditures over the 12-month period following the date of the filing of thepetition;’’; and
(2) by adding at the end the following:
‘‘(e)(1) If the debtor in a case under chapter 7 or 13 is an
individual and if a creditor files with the court at any time arequest to receive a copy of the petition, schedules, and statementof financial affairs filed by the debtor, then the court shall makesuch petition, such schedules, and such statement available tosuch creditor.
‘‘(2)(A) The debtor shall provide—
‘‘(i) not later than 7 days before the date first set for
the first meeting of creditors, to the trustee a copy of theFederal income tax return required under applicable law (orat the election of the debtor, a transcript of such return) forthe most recent tax year ending immediately before thecommencement of the case and for which a Federal incometax return was filed; and
‘‘(ii) at the same time the debtor complies with clause
(i), a copy of such return (or if elected under clause (i), suchtranscript) to any creditor that timely requests such copy.‘‘(B) If the debtor fails to comply with clause (i) or (ii) of
subparagraph (A), the court shall dismiss the case unless the debtordemonstrates that the failure to so comply is due to circumstancesbeyond the control of the debtor.
‘‘(C) If a creditor requests a copy of such tax return or such
transcript and if the debtor fails to provide a copy of such taxreturn or such transcript to such creditor at the time the debtorprovides such tax return or such transcript to the trustee, thenthe court shall dismiss the case unless the debtor demonstratesthat the failure to provide a copy of such tax return or suchtranscript is due to circumstances beyond the control of the debtor.
‘‘(3) If a creditor in a case under chapter 13 files with the
court at any time a request to receive a copy of the plan filed
by the debtor, then the court shall make available to such creditora copy of the plan—
‘‘(A) at a reasonable cost; and‘‘(B) not later than 5 days after such request is filed.
‘‘(f) At the request of the court, the United States trustee,
or any party in interest in a case under chapter 7, 11, or 13,a debtor who is an individual shall file with the court—
‘‘(1) at the same time filed with the taxing authority, a
copy of each Federal income tax return required underapplicable law (or at the election of the debtor, a transcript
Deadline.Deadline.
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of such tax return) with respect to each tax year of the debtor
ending while the case is pending under such chapter;
‘‘(2) at the same time filed with the taxing authority, each
Federal income tax return required under applicable law (orat the election of the debtor, a transcript of such tax return)that had not been filed with such authority as of the dateof the commencement of the case and that was subsequentlyfiled for any tax year of the debtor ending in the 3-year periodending on the date of the commencement of the case;
‘‘(3) a copy of each amendment to any Federal income
tax return or transcript filed with the court under paragraph(1) or (2); and
‘‘(4) in a case under chapter 13—
‘‘(A) on the date that is either 90 days after the end
of such tax year or 1 year after the date of the commence-ment of the case, whichever is later, if a plan is not con-firmed before such later date; and
‘‘(B) annually after the plan is confirmed and until
the case is closed, not later than the date that is 45 daysbefore the anniversary of the confirmation of the plan;
a statement, under penalty of perjury, of the income andexpenditures of the debtor during the tax year of the debtormost recently concluded before such statement is filed underthis paragraph, and of the monthly income of the debtor, thatshows how income, expenditures, and monthly income are cal-culated.‘‘(g)(1) A statement referred to in subsection (f)(4) shall
disclose—
‘‘(A) the amount and sources of the income of the debtor;‘‘(B) the identity of any person responsible with the debtor
for the support of any dependent of the debtor; and
‘‘(C) the identity of any person who contributed, and the
amount contributed, to the household in which the debtorresides.‘‘(2) The tax returns, amendments, and statement of income
and expenditures described in subsections (e)(2)(A) and (f) shallbe available to the United States trustee (or the bankruptcyadministrator, if any), the trustee, and any party in interest forinspection and copying, subject to the requirements of section 315(c)of the Bankruptcy Abuse Prevention and Consumer Protection Actof 2005.
‘‘(h) If requested by the United States trustee or by the trustee,
the debtor shall provide—
‘‘(1) a document that establishes the identity of the debtor,
including a driver’s license, passport, or other document thatcontains a photograph of the debtor; or
‘‘(2) such other personal identifying information relating
to the debtor that establishes the identity of the debtor.’’.(c)(1) Not later than 180 days after the date of the enactment
of this Act, the Director of the Administrative Office of the UnitedStates Courts shall establish procedures for safeguarding the con-fidentiality of any tax information required to be provided underthis section.
(2) The procedures under paragraph (1) shall include restric-
tions on creditor access to tax information that is required tobe provided under this section.
Deadline.
Procedures.11 USC 521 note.Deadline.
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(3) Not later than 540 days after the date of enactment of
this Act, the Director of the Administrative Office of the UnitedStates Courts shall prepare and submit to the President pro temporeof the Senate and the Speaker of the House of Representativesa report that—
(A) assesses the effectiveness of the procedures established
under paragraph (1); and
(B) if appropriate, includes proposed legislation to—
(i) further protect the confidentiality of tax information;
and
(ii) provide penalties for the improper use by any per-
son of the tax information required to be provided underthis section.
SEC. 316. DISMISSAL FOR FAILURE TO TIMELY FILE SCHEDULES OR
PROVIDE REQUIRED INFORMATION.
Section 521 of title 11, United States Code, as amended by
sections 106, 225, 305, and 315, is amended by adding at theend the following:
‘‘(i)(1) Subject to paragraphs (2) and (4) and notwithstanding
section 707(a), if an individual debtor in a voluntary case underchapter 7 or 13 fails to file all of the information required undersubsection (a)(1) within 45 days after the date of the filing ofthe petition, the case shall be automatically dismissed effectiveon the 46th day after the date of the filing of the petition.
‘‘(2) Subject to paragraph (4) and with respect to a case
described in paragraph (1), any party in interest may request thecourt to enter an order dismissing the case. If requested, the courtshall enter an order of dismissal not later than 5 days after suchrequest.
‘‘(3) Subject to paragraph (4) and upon request of the debtor
made within 45 days after the date of the filing of the petitiondescribed in paragraph (1), the court may allow the debtor anadditional period of not to exceed 45 days to file the informationrequired under subsection (a)(1) if the court finds justification forextending the period for the filing.
‘‘(4) Notwithstanding any other provision of this subsection,
on the motion of the trustee filed before the expiration of theapplicable period of time specified in paragraph (1), (2), or (3),and after notice and a hearing, the court may decline to dismissthe case if the court finds that the debtor attempted in good faithto file all the information required by subsection (a)(1)(B)(iv) andthat the best interests of creditors would be served by administra-tion of the case.’’.
SEC. 317. ADEQUATE TIME TO PREPARE FOR HEARING ON CONFIRMA-
TION OF THE PLAN.
Section 1324 of title 11, United States Code, is amended—
(1) by striking ‘‘After’’ and inserting the following:
‘‘(a) Except as provided in subsection (b) and after’’; and
(2) by adding at the end the following:
‘‘(b) The hearing on confirmation of the plan may be held
not earlier than 20 days and not later than 45 days after thedate of the meeting of creditors under section 341(a), unless thecourt determines that it would be in the best interests of thecreditors and the estate to hold such hearing at an earlier dateand there is no objection to such earlier date.’’.Deadline.Deadline.Deadline.
Reports.
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SEC. 318. CHAPTER 13 PLANS TO HAVE A 5-YEAR DURATION IN CERTAIN
CASES.
Title 11, United States Code, is amended—
(1) by amending section 1322(d) to read as follows:
‘‘(d)(1) If the current monthly income of the debtor and the
debtor’s spouse combined, when multiplied by 12, is not less than—
‘‘(A) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1 earner;
‘‘(B) in the case of a debtor in a household of 2, 3, or
4 individuals, the highest median family income of theapplicable State for a family of the same number or fewerindividuals; or
‘‘(C) in the case of a debtor in a household exceeding
4 individuals, the highest median family income of theapplicable State for a family of 4 or fewer individuals, plus$525 per month for each individual in excess of 4,
the plan may not provide for payments over a period that is longerthan 5 years.
‘‘(2) If the current monthly income of the debtor and the debtor’s
spouse combined, when multiplied by 12, is less than—
‘‘(A) in the case of a debtor in a household of 1 person,
the median family income of the applicable State for 1 earner;
‘‘(B) in the case of a debtor in a household of 2, 3, or
4 individuals, the highest median family income of theapplicable State for a family of the same number or fewerindividuals; or
‘‘(C) in the case of a debtor in a household exceeding
4 individuals, the highest median family income of theapplicable State for a family of 4 or fewer individuals, plus$525 per month for each individual in excess of 4,
the plan may not provide for payments over a period that is longerthan 3 years, unless the court, for cause, approves a longer period,but the court may not approve a period that is longer than 5years.’’;
(2) in section 1325(b)(1)(B), by striking ‘‘three-year period’’
and inserting ‘‘applicable commitment period’’; and
(3) in section 1325(b), as amended by section 102, by adding
at the end the following:‘‘(4) For purposes of this subsection, the ‘applicable commitment
period’—
‘‘(A) subject to subparagraph (B), shall be—
‘‘(i) 3 years; or‘‘(ii) not less than 5 years, if the current monthly
income of the debtor and the debtor’s spouse combined,when multiplied by 12, is not less than—
‘‘(I) in the case of a debtor in a household of
1 person, the median family income of the applicableState for 1 earner;
‘‘(II) in the case of a debtor in a household of
2, 3, or 4 individuals, the highest median family incomeof the applicable State for a family of the same numberor fewer individuals; or
‘‘(III) in the case of a debtor in a household
exceeding 4 individuals, the highest median familyincome of the applicable State for a family of 4 orfewer individuals, plus $525 per month for each indi-vidual in excess of 4; and
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‘‘(B) may be less than 3 or 5 years, whichever is applicable
under subparagraph (A), but only if the plan provides for pay-ment in full of all allowed unsecured claims over a shorterperiod.’’; and
(4) in section 1329(c), by striking ‘‘three years’’ and
inserting ‘‘the applicable commitment period under section1325(b)(1)(B)’’.
SEC. 319. SENSE OF CONGRESS REGARDING EXPANSION OF RULE 9011
OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE.
It is the sense of Congress that rule 9011 of the Federal
Rules of Bankruptcy Procedure (11 U.S.C. App.) should be modifiedto include a requirement that all documents (including schedules),signed and unsigned, submitted to the court or to a trustee bydebtors who represent themselves and debtors who are representedby attorneys be submitted only after the debtors or the debtors’attorneys have made reasonable inquiry to verify that the informa-tion contained in such documents is—
(1) well grounded in fact; and(2) warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law.
SEC. 320. PROMPT RELIEF FROM STAY IN INDIVIDUAL CASES.
Section 362(e) of title 11, United States Code, is amended—
(1) by inserting ‘‘(1)’’ after ‘‘(e)’’; and(2) by adding at the end the following:
‘‘(2) Notwithstanding paragraph (1), in a case under chapter
7, 11, or 13 in which the debtor is an individual, the stay undersubsection (a) shall terminate on the date that is 60 days aftera request is made by a party in interest under subsection (d),unless—
‘‘(A) a final decision is rendered by the court during the
60-day period beginning on the date of the request; or
‘‘(B) such 60-day period is extended—
‘‘(i) by agreement of all parties in interest; or‘‘(ii) by the court for such specific period of time as
the court finds is required for good cause, as describedin findings made by the court.’’.
SEC. 321. CHAPTER 11 CASES FILED BY INDIVIDUALS.
(a) P ROPERTY OF THE ESTATE .—
(1) I N GENERAL .—Subchapter I of chapter 11 of title 11,
United States Code, is amended by adding at the end thefollowing:
‘‘§ 1115. Property of the estate
‘‘(a) In a case in which the debtor is an individual, property
of the estate includes, in addition to the property specified insection 541—
‘‘(1) all property of the kind specified in section 541 that
the debtor acquires after the commencement of the case butbefore the case is closed, dismissed, or converted to a caseunder chapter 7, 12, or 13, whichever occurs first; and
‘‘(2) earnings from services performed by the debtor after
the commencement of the case but before the case is closed,dismissed, or converted to a case under chapter 7, 12, or 13,whichever occurs first.Terminationdate.
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‘‘(b) Except as provided in section 1104 or a confirmed plan
or order confirming a plan, the debtor shall remain in possessionof all property of the estate.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for sub-
chapter I of chapter 11 of title 11, United States Code, isamended by adding at the end the following:
‘‘1115. Property of the estate.’’.
(b) C ONTENTS OF PLAN.—Section 1123(a) of title 11, United
States Code, is amended—
(1) in paragraph (6), by striking ‘‘and’’ at the end;(2) in paragraph (7), by striking the period and inserting
‘‘; and’’; and
(3) by adding at the end the following:‘‘(8) in a case in which the debtor is an individual, provide
for the payment to creditors under the plan of all or suchportion of earnings from personal services performed by thedebtor after the commencement of the case or other futureincome of the debtor as is necessary for the execution of theplan.’’.(c) C
ONFIRMATION OF PLAN.—
(1) R EQUIREMENTS RELATING TO VALUE OF PROPERTY .—Sec-
tion 1129(a) of title 11, United States Code, as amended bysection 213, is amended by adding at the end the following:
‘‘(15) In a case in which the debtor is an individual and
in which the holder of an allowed unsecured claim objectsto the confirmation of the plan—
‘‘(A) the value, as of the effective date of the plan,
of the property to be distributed under the plan on accountof such claim is not less than the amount of such claim;or
‘‘(B) the value of the property to be distributed under
the plan is not less than the projected disposable incomeof the debtor (as defined in section 1325(b)(2)) to be receivedduring the 5-year period beginning on the date that thefirst payment is due under the plan, or during the periodfor which the plan provides payments, whichever islonger.’’.(2) R
EQUIREMENT RELATING TO INTERESTS IN PROPERTY .—
Section 1129(b)(2)(B)(ii) of title 11, United States Code, isamended by inserting before the period at the end the following:‘‘, except that in a case in which the debtor is an individual,the debtor may retain property included in the estate undersection 1115, subject to the requirements of subsection (a)(14)of this section’’.(d) E
FFECT OF CONFIRMATION .—Section 1141(d) of title 11,
United States Code, is amended—
(1) in paragraph (2), by striking ‘‘The confirmation of a
plan does not discharge an individual debtor’’ and inserting‘‘A discharge under this chapter does not discharge a debtorwho is an individual’’; and
(2) by adding at the end the following:
‘‘(5) In a case in which the debtor is an individual—
‘‘(A) unless after notice and a hearing the court orders
otherwise for cause, confirmation of the plan does not dischargeany debt provided for in the plan until the court grants adischarge on completion of all payments under the plan;
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‘‘(B) at any time after the confirmation of the plan, and
after notice and a hearing, the court may grant a dischargeto the debtor who has not completed payments under the planif—
‘‘(i) the value, as of the effective date of the plan,
of property actually distributed under the plan on accountof each allowed unsecured claim is not less than the amountthat would have been paid on such claim if the estateof the debtor had been liquidated under chapter 7 on suchdate; and
‘‘(ii) modification of the plan under section 1127 is
not practicable; and’’.
(e) M
ODIFICATION OF PLAN.—Section 1127 of title 11, United
States Code, is amended by adding at the end the following:
‘‘(e) If the debtor is an individual, the plan may be modified
at any time after confirmation of the plan but before the completionof payments under the plan, whether or not the plan has beensubstantially consummated, upon request of the debtor, the trustee,the United States trustee, or the holder of an allowed unsecuredclaim, to—
‘‘(1) increase or reduce the amount of payments on claims
of a particular class provided for by the plan;
‘‘(2) extend or reduce the time period for such payments;
or
‘‘(3) alter the amount of the distribution to a creditor whose
claim is provided for by the plan to the extent necessary totake account of any payment of such claim made other thanunder the plan.‘‘(f)(1) Sections 1121 through 1128 and the requirements of
section 1129 apply to any modification under subsection (a).
‘‘(2) The plan, as modified, shall become the plan only after
there has been disclosure under section 1125 as the court maydirect, notice and a hearing, and such modification is approved.’’.
SEC. 322. LIMITATIONS ON HOMESTEAD EXEMPTION.
(a) E XEMPTIONS .—Section 522 of title 11, United States Code,
as amended by sections 224 and 308, is amended by adding atthe end the following:
‘‘(p)(1) Except as provided in paragraph (2) of this subsection
and sections 544 and 548, as a result of electing under subsection(b)(3)(A) to exempt property under State or local law, a debtormay not exempt any amount of interest that was acquired bythe debtor during the 1215-day period preceding the date of thefiling of the petition that exceeds in the aggregate $125,000 invalue in—
‘‘(A) real or personal property that the debtor or a
dependent of the debtor uses as a residence;
‘‘(B) a cooperative that owns property that the debtor or
a dependent of the debtor uses as a residence;
‘‘(C) a burial plot for the debtor or a dependent of the
debtor; or
‘‘(D) real or personal property that the debtor or dependent
of the debtor claims as a homestead.‘‘(2)(A) The limitation under paragraph (1) shall not apply
to an exemption claimed under subsection (b)(3)(A) by a familyfarmer for the principal residence of such farmer.Applicability.
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‘‘(B) For purposes of paragraph (1), any amount of such interest
does not include any interest transferred from a debtor’s previousprincipal residence (which was acquired prior to the beginningof such 1215-day period) into the debtor’s current principal resi-dence, if the debtor’s previous and current residences are locatedin the same State.
‘‘(q)(1) As a result of electing under subsection (b)(3)(A) to
exempt property under State or local law, a debtor may not exemptany amount of an interest in property described in subparagraphs(A), (B), (C), and (D) of subsection (p)(1) which exceeds in theaggregate $125,000 if—
‘‘(A) the court determines, after notice and a hearing, that
the debtor has been convicted of a felony (as defined in section3156 of title 18), which under the circumstances, demonstratesthat the filing of the case was an abuse of the provisionsof this title; or
‘‘(B) the debtor owes a debt arising from—
‘‘(i) any violation of the Federal securities laws (as
defined in section 3(a)(47) of the Securities Exchange Actof 1934), any State securities laws, or any regulation ororder issued under Federal securities laws or State securi-ties laws;
‘‘(ii) fraud, deceit, or manipulation in a fiduciary
capacity or in connection with the purchase or sale ofany security registered under section 12 or 15(d) of theSecurities Exchange Act of 1934 or under section 6 ofthe Securities Act of 1933;
‘‘(iii) any civil remedy under section 1964 of title 18;
or
‘‘(iv) any criminal act, intentional tort, or willful or
reckless misconduct that caused serious physical injuryor death to another individual in the preceding 5 years.
‘‘(2) Paragraph (1) shall not apply to the extent the amount
of an interest in property described in subparagraphs (A), (B),(C), and (D) of subsection (p)(1) is reasonably necessary for thesupport of the debtor and any dependent of the debtor.’’.
(b) A
DJUSTMENT OF DOLLAR AMOUNTS .—Paragraphs (1) and
(2) of section 104(b) of title 11, United States Code, as amendedby section 224, are amended by inserting ‘‘522(p), 522(q),’’ after‘‘522(n),’’.
SEC. 323. EXCLUDING EMPLOYEE BENEFIT PLAN PARTICIPANT CON-
TRIBUTIONS AND OTHER PROPERTY FROM THE ESTATE.
Section 541(b) of title 11, United States Code, as amended
by section 225, is amended by adding after paragraph (6), as addedby section 225(a)(1)(C), the following:
‘‘(7) any amount—
‘‘(A) withheld by an employer from the wages of
employees for payment as contributions—
‘‘(i) to—
‘‘(I) an employee benefit plan that is subject
to title I of the Employee Retirement Income Secu-rity Act of 1974 or under an employee benefitplan which is a governmental plan under section414(d) of the Internal Revenue Code of 1986;
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‘‘(II) a deferred compensation plan under sec-
tion 457 of the Internal Revenue Code of 1986;or
‘‘(III) a tax-deferred annuity under section
403(b) of the Internal Revenue Code of 1986;
except that such amount under this subparagraph shallnot constitute disposable income as defined in section1325(b)(2); or
‘‘(ii) to a health insurance plan regulated by State
law whether or not subject to such title; or‘‘(B) received by an employer from employees for pay-
ment as contributions—
‘‘(i) to—
‘‘(I) an employee benefit plan that is subject
to title I of the Employee Retirement Income Secu-rity Act of 1974 or under an employee benefitplan which is a governmental plan under section414(d) of the Internal Revenue Code of 1986;
‘‘(II) a deferred compensation plan under sec-
tion 457 of the Internal Revenue Code of 1986;or
‘‘(III) a tax-deferred annuity under section
403(b) of the Internal Revenue Code of 1986;
except that such amount under this subparagraph shallnot constitute disposable income, as defined in section1325(b)(2); or
‘‘(ii) to a health insurance plan regulated by State
law whether or not subject to such title;’’.
SEC. 324. EXCLUSIVE JURISDICTION IN MATTERS INVOLVING BANK-
RUPTCY PROFESSIONALS.
(a) I NGENERAL .—Section 1334 of title 28, United States Code,
is amended—
(1) in subsection (b), by striking ‘‘Notwithstanding’’ and
inserting ‘‘Except as provided in subsection (e)(2), and notwith-standing’’; and
(2) by striking subsection (e) and inserting the following:
‘‘(e) The district court in which a case under title 11 is com-
menced or is pending shall have exclusive jurisdiction—
‘‘(1) of all the property, wherever located, of the debtor
as of the commencement of such case, and of property of theestate; and
‘‘(2) over all claims or causes of action that involve construc-
tion of section 327 of title 11, United States Code, or rulesrelating to disclosure requirements under section 327.’’.(b) A
PPLICABILITY .—This section shall only apply to cases filed
after the date of enactment of this Act.
SEC. 325. UNITED STATES TRUSTEE PROGRAM FILING FEE INCREASE.
(a) A CTIONS UNDER CHAPTER 7, 11, OR13 OFTITLE 11, U NITED
STATES CODE.—Section 1930(a) of title 28, United States Code,
is amended—
(1) by striking paragraph (1) and inserting the following:‘‘(1) For a case commenced under—
‘‘(A) chapter 7 of title 11, $200; and‘‘(B) chapter 13 of title 11, $150.’’; and
(2) in paragraph (3), by striking ‘‘$800’’ and inserting
‘‘$1000’’.28 USC 1334note.
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(b) U NITED STATES TRUSTEE SYSTEM FUND.—Section 589a(b)
of title 28, United States Code, is amended—
(1) by striking paragraph (1) and inserting the following:‘‘(1)(A) 40.63 percent of the fees collected under section
1930(a)(1)(A) of this title; and
‘‘(B) 70.00 percent of the fees collected under section
1930(a)(1)(B);’’;
(2) in paragraph (2), by striking ‘‘one-half’’ and inserting
‘‘75 percent’’; and
(3) in paragraph (4), by striking ‘‘one-half’’ and inserting
‘‘100 percent’’.(c) C
OLLECTION AND DEPOSIT OF MISCELLANEOUS BANKRUPTCY
FEES.—Section 406(b) of the Judiciary Appropriations Act, 1990
(28 U.S.C. 1931 note) is amended by striking ‘‘pursuant to 28U.S.C. section 1930(b)’’ and all that follows through ‘‘28 U.S.C.section 1931’’ and inserting ‘‘under section 1930(b) of title 28, UnitedStates Code, 31.25 of the fees collected under section 1930(a)(1)(A)of that title, 30.00 percent of the fees collected under section1930(a)(1)(B) of that title, and 25 percent of the fees collectedunder section 1930(a)(3) of that title shall be deposited as offsettingreceipts to the fund established under section 1931 of that title’’.
(d) S
UNSET DATE.—The amendments made by subsections (b)
and (c) shall be effective during the 2-year period beginning onthe date of enactment of this Act.
(e) U
SE OF INCREASED RECEIPTS .—
(1) J UDGES ’ SALARIES AND BENEFITS .—The amount of fees
collected under paragraphs (1) and (3) of section 1930(a) oftitle 28, United States Code, during the 5-year period beginningon the date of enactment of this Act, that is greater thanthe amount that would have been collected if the amendmentsmade by subsection (a) had not taken effect shall be used,to the extent necessary, to pay the salaries and benefits ofthe judges appointed pursuant to section 1223 of this Act.
(2) R
EMAINDER .—Any amount described in paragraph (1),
which is not used for the purpose described in paragraph (1),shall be deposited into the Treasury of the United States tothe extent necessary to offset the decrease in governmentalreceipts resulting from the amendments made by subsections(b) and (c).
SEC. 326. SHARING OF COMPENSATION.
Section 504 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(c) This section shall not apply with respect to sharing, or
agreeing to share, compensation with a bona fide public serviceattorney referral program that operates in accordance with non-Federal law regulating attorney referral services and with rules
of professional responsibility applicable to attorney acceptance ofreferrals.’’.
SEC. 327. FAIR VALUATION OF COLLATERAL.
Section 506(a) of title 11, United States Code, is amended
by—
(1) inserting ‘‘(1)’’ after ‘‘(a)’’; and(2) by adding at the end the following:
‘‘(2) If the debtor is an individual in a case under chapter
7 or 13, such value with respect to personal property securingan allowed claim shall be determined based on the replacement28 USC 1930note.28 USC 589a
note.
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value of such property as of the date of the filing of the petition
without deduction for costs of sale or marketing. With respectto property acquired for personal, family, or household purposes,replacement value shall mean the price a retail merchant wouldcharge for property of that kind considering the age and conditionof the property at the time value is determined.’’.
SEC. 328. DEFAULTS BASED ON NONMONETARY OBLIGATIONS.
(a) E XECUTORY CONTRACTS AND UNEXPIRED LEASES .—Section
365 of title 11, United States Code, is amended—
(1) in subsection (b)—
(A) in paragraph (1)(A), by striking the semicolon at
the end and inserting the following: ‘‘other than a defaultthat is a breach of a provision relating to the satisfactionof any provision (other than a penalty rate or penaltyprovision) relating to a default arising from any failureto perform nonmonetary obligations under an unexpiredlease of real property, if it is impossible for the trusteeto cure such default by performing nonmonetary acts atand after the time of assumption, except that if such defaultarises from a failure to operate in accordance with a non-residential real property lease, then such default shall becured by performance at and after the time of assumptionin accordance with such lease, and pecuniary lossesresulting from such default shall be compensated in accord-ance with the provisions of this paragraph;’’; and
(B) in paragraph (2)(D), by striking ‘‘penalty rate or
provision’’ and inserting ‘‘penalty rate or penalty provision’’;(2) in subsection (c)—
(A) in paragraph (2), by inserting ‘‘or’’ at the end;(B) in paragraph (3), by striking ‘‘; or’’ at the end
and inserting a period; and
(C) by striking paragraph (4);
(3) in subsection (d)—
(A) by striking paragraphs (5) through (9); and(B) by redesignating paragraph (10) as paragraph (5);
and(4) in subsection (f)(1) by striking ‘‘; except that’’ and all
that follows through the end of the paragraph and insertinga period.(b) I
MPAIRMENT OF CLAIMS OR INTERESTS .—Section 1124(2) of
title 11, United States Code, is amended—
(1) in subparagraph (A), by inserting ‘‘or of a kind that
section 365(b)(2) expressly does not require to be cured’’ beforethe semicolon at the end;
(2) in subparagraph (C), by striking ‘‘and’’ at the end;(3) by redesignating subparagraph (D) as subparagraph
(E); and
(4) by inserting after subparagraph (C) the following:
‘‘(D) if such claim or such interest arises from any
failure to perform a nonmonetary obligation, other thana default arising from failure to operate a nonresidentialreal property lease subject to section 365(b)(1)(A), com-pensates the holder of such claim or such interest (otherthan the debtor or an insider) for any actual pecuniaryloss incurred by such holder as a result of such failure;and’’.
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SEC. 329. CLARIFICATION OF POSTPETITION WAGES AND BENEFITS.
Section 503(b)(1)(A) of title 11, United States Code, is amended
to read as follows:
‘‘(A) the actual, necessary costs and expenses of preservingthe estate including—
‘‘(i) wages, salaries, and commissions for services ren-
dered after the commencement of the case; and
‘‘(ii) wages and benefits awarded pursuant to a judicial
proceeding or a proceeding of the National Labor RelationsBoard as back pay attributable to any period of time occur-ring after commencement of the case under this title, asa result of a violation of Federal or State law by thedebtor, without regard to the time of the occurrence ofunlawful conduct on which such award is based or towhether any services were rendered, if the court determinesthat payment of wages and benefits by reason of the oper-
ation of this clause will not substantially increase the prob-ability of layoff or termination of current employees, orof nonpayment of domestic support obligations, during thecase under this title;’’.
SEC. 330. DELAY OF DISCHARGE DURING PENDENCY OF CERTAIN PRO-
CEEDINGS.
(a) C HAPTER 7.—Section 727(a) of title 11, United States Code,
as amended by section 106, is amended—
(1) in paragraph (10), by striking ‘‘or’’ at the end;(2) in paragraph (11) by striking the period at the end
and inserting ‘‘; or’’; and
(3) by inserting after paragraph (11) the following:‘‘(12) the court after notice and a hearing held not more
than 10 days before the date of the entry of the order grantingthe discharge finds that there is reasonable cause to believethat—
‘‘(A) section 522(q)(1) may be applicable to the debtor;
and
‘‘(B) there is pending any proceeding in which the
debtor may be found guilty of a felony of the kind describedin section 522(q)(1)(A) or liable for a debt of the kinddescribed in section 522(q)(1)(B).’’.
(b) C
HAPTER 11.—Section 1141(d) of title 11, United States
Code, as amended by section 321, is amended by adding at theend the following:
‘‘(C) unless after notice and a hearing held not more than
10 days before the date of the entry of the order grantingthe discharge, the court finds that there is no reasonable causeto believe that—
‘‘(i) section 522(q)(1) may be applicable to the debtor;
and
‘‘(ii) there is pending any proceeding in which the
debtor may be found guilty of a felony of the kind describedin section 522(q)(1)(A) or liable for a debt of the kinddescribed in section 522(q)(1)(B).’’.
(c) C
HAPTER 12.—Section 1228 of title 11, United States Code,
is amended—
(1) in subsection (a) by striking ‘‘As’’ and inserting ‘‘Subject
to subsection (d), as’’,
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(2) in subsection (b) by striking ‘‘At’’ and inserting ‘‘Subject
to subsection (d), at’’, and
(3) by adding at the end the following:
‘‘(f) The court may not grant a discharge under this chapter
unless the court after notice and a hearing held not more than10 days before the date of the entry of the order granting thedischarge finds that there is no reasonable cause to believe that—
‘‘(1) section 522(q)(1) may be applicable to the debtor; and‘‘(2) there is pending any proceeding in which the debtor
may be found guilty of a felony of the kind described in section522(q)(1)(A) or liable for a debt of the kind described in section522(q)(1)(B).’’.(d) C
HAPTER 13.—Section 1328 of title 11, United States Code,
as amended by section 106, is amended—
(1) in subsection (a) by striking ‘‘As’’ and inserting ‘‘Subject
to subsection (d), as’’,
(2) in subsection (b) by striking ‘‘At’’ and inserting ‘‘Subject
to subsection (d), at’’, and
(3) by adding at the end the following:
‘‘(h) The court may not grant a discharge under this chapter
unless the court after notice and a hearing held not more than10 days before the date of the entry of the order granting thedischarge finds that there is no reasonable cause to believe that—
‘‘(1) section 522(q)(1) may be applicable to the debtor; and‘‘(2) there is pending any proceeding in which the debtor
may be found guilty of a felony of the kind described in section522(q)(1)(A) or liable for a debt of the kind described in section522(q)(1)(B).’’.
SEC. 331. LIMITATION ON RETENTION BONUSES, SEVERANCE PAY, AND
CERTAIN OTHER PAYMENTS.
Section 503 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(c) Notwithstanding subsection (b), there shall neither be
allowed, nor paid—
‘‘(1) a transfer made to, or an obligation incurred for the
benefit of, an insider of the debtor for the purpose of inducingsuch person to remain with the debtor’s business, absent afinding by the court based on evidence in the record that—
‘‘(A) the transfer or obligation is essential to retention
of the person because the individual has a bona fide joboffer from another business at the same or greater rateof compensation;
‘‘(B) the services provided by the person are essential
to the survival of the business; and
‘‘(C) either—
‘‘(i) the amount of the transfer made to, or obliga-
tion incurred for the benefit of, the person is notgreater than an amount equal to 10 times the amountof the mean transfer or obligation of a similar kindgiven to nonmanagement employees for any purposeduring the calendar year in which the transfer is madeor the obligation is incurred; or
‘‘(ii) if no such similar transfers were made to,
or obligations were incurred for the benefit of, suchnonmanagement employees during such calendar year,the amount of the transfer or obligation is not greater
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than an amount equal to 25 percent of the amount
of any similar transfer or obligation made to orincurred for the benefit of such insider for any purposeduring the calendar year before the year in whichsuch transfer is made or obligation is incurred;
‘‘(2) a severance payment to an insider of the debtor,
unless—
‘‘(A) the payment is part of a program that is generally
applicable to all full-time employees; and
‘‘(B) the amount of the payment is not greater than
10 times the amount of the mean severance pay givento nonmanagement employees during the calendar yearin which the payment is made; or‘‘(3) other transfers or obligations that are outside the
ordinary course of business and not justified by the facts andcircumstances of the case, including transfers made to, orobligations incurred for the benefit of, officers, managers, orconsultants hired after the date of the filing of the petition.’’.
SEC. 332. FRAUDULENT INVOLUNTARY BANKRUPTCY.
(a) S HORT TITLE.—This section may be cited as the ‘‘Involuntary
Bankruptcy Improvement Act of 2005’’.
(b) I NVOLUNTARY CASES .—Section 303 of title 11, United States
Code, is amended by adding at the end the following:
‘‘(l)(1) If—
‘‘(A) the petition under this section is false or contains
any materially false, fictitious, or fraudulent statement;
‘‘(B) the debtor is an individual; and‘‘(C) the court dismisses such petition,
the court, upon the motion of the debtor, shall seal all the recordsof the court relating to such petition, and all references to suchpetition.
‘‘(2) If the debtor is an individual and the court dismisses
a petition under this section, the court may enter an order prohib-iting all consumer reporting agencies (as defined in section 603(f)of the Fair Credit Reporting Act (15 U.S.C. 1681a(f))) from makingany consumer report (as defined in section 603(d) of that Act)that contains any information relating to such petition or to thecase commenced by the filing of such petition.
‘‘(3) Upon the expiration of the statute of limitations described
in section 3282 of title 18, for a violation of section 152 or 157of such title, the court, upon the motion of the debtor and forgood cause, may expunge any records relating to a petition filedunder this section.’’.
(c) B
ANKRUPTCY FRAUD .—Section 157 of title 18, United States
Code, is amended by inserting ‘‘, including a fraudulent involuntarybankruptcy petition under section 303 of such title’’ after ‘‘title11’’.Involuntary
BankruptcyImprovement Actof 2005.11 USC 101 note.
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TITLE IV—GENERAL AND SMALL
BUSINESS BANKRUPTCY PROVISIONS
Subtitle A—General Business Bankruptcy
Provisions
SEC. 401. ADEQUATE PROTECTION FOR INVESTORS.
(a) D EFINITION .—Section 101 of title 11, United States Code,
is amended by inserting after paragraph (48) the following:
‘‘(48A) ‘securities self regulatory organization’ means either
a securities association registered with the Securities andExchange Commission under section 15A of the SecuritiesExchange Act of 1934 or a national securities exchange reg-istered with the Securities and Exchange Commission undersection 6 of the Securities Exchange Act of 1934;’’.(b) A
UTOMATIC STAY.—Section 362(b) of title 11, United States
Code, as amended by sections 224, 303, and 311, is amended byinserting after paragraph (24) the following:
‘‘(25) under subsection (a), of—
‘‘(A) the commencement or continuation of an investiga-
tion or action by a securities self regulatory organizationto enforce such organization’s regulatory power;
‘‘(B) the enforcement of an order or decision, other
than for monetary sanctions, obtained in an action by suchsecurities self regulatory organization to enforce suchorganization’s regulatory power; or
‘‘(C) any act taken by such securities self regulatory
organization to delist, delete, or refuse to permit quotationof any stock that does not meet applicable regulatoryrequirements;’’.
SEC. 402. MEETINGS OF CREDITORS AND EQUITY SECURITY HOLDERS.
Section 341 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(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 convenea meeting of creditors or equity security holders if the debtorhas filed a plan as to which the debtor solicited acceptances priorto the commencement of the case.’’.
SEC. 403. PROTECTION OF REFINANCE OF SECURITY INTEREST.
Subparagraphs (A), (B), and (C) of section 547(e)(2) of title
11, United States Code, are each amended by striking ‘‘10’’ eachplace it appears and inserting ‘‘30’’.
SEC. 404. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
(a) I NGENERAL .—Section 365(d)(4) of title 11, United States
Code, is amended to read as follows:
‘‘(4)(A) Subject to subparagraph (B), an unexpired lease of non-
residential real property under which the debtor is the lessee shallbe deemed rejected, and the trustee shall immediately surrenderthat nonresidential real property to the lessor, if the trustee doesnot assume or reject the unexpired lease by the earlier of—Deadlines.
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‘‘(i) the date that is 120 days after the date of the order
for relief; or
‘‘(ii) the date of the entry of an order confirming a plan.
‘‘(B)(i) The court may extend the period determined under
subparagraph (A), prior to the expiration of the 120-day period,for 90 days on the motion of the trustee or lessor for cause.
‘‘(ii) If the court grants an extension under clause (i), the
court may grant a subsequent extension only upon prior writtenconsent of the lessor in each instance.’’.
(b) E
XCEPTION .—Section 365(f)(1) of title 11, United States
Code, is amended by striking ‘‘subsection’’ the first place it appearsand inserting ‘‘subsections (b) and’’.
SEC. 405. CREDITORS AND EQUITY SECURITY HOLDERS COMMITTEES.
(a) A PPOINTMENT .—Section 1102(a) of title 11, United States
Code, is amended by adding at the end the following:
‘‘(4) On request of a party in interest and after notice and
a hearing, the court may order the United States trustee to changethe membership of a committee appointed under this subsection,if the court determines that the change is necessary to ensureadequate representation of creditors or equity security holders.The court may order the United States trustee to increase thenumber of members of a committee to include a creditor thatis a small business concern (as described in section 3(a)(1) of theSmall Business Act), if the court determines that the creditor holdsclaims (of the kind represented by the committee) the aggregateamount of which, in comparison to the annual gross revenue ofthat creditor, is disproportionately large.’’.
(b) I
NFORMATION .—Section 1102(b) of title 11, United States
Code, is amended by adding at the end the following:
‘‘(3) A committee appointed under subsection (a) shall—
‘‘(A) provide access to information for creditors who—
‘‘(i) hold claims of the kind represented by that com-
mittee; and
‘‘(ii) are not appointed to the committee;
‘‘(B) solicit and receive comments from the creditors
described in subparagraph (A); and
‘‘(C) be subject to a court order that compels any additional
report or disclosure to be made to the creditors described insubparagraph (A).’’.
SEC. 406. AMENDMENT TO SECTION 546 OF TITLE 11, UNITED STATES
CODE.
Section 546 of title 11, United States Code, is amended—
(1) by redesignating the second subsection (g) (as added
by section 222(a) of Public Law 103–394) as subsection (h);
(2) in subsection (h), as so redesignated, by inserting ‘‘and
subject to the prior rights of holders of security interests insuch goods or the proceeds of such goods’’ after ‘‘consent of
a creditor’’; and
(3) by adding at the end the following:
‘‘(i)(1) Notwithstanding paragraphs (2) and (3) of section 545,
the trustee may not avoid a warehouseman’s lien for storage,transportation, or other costs incidental to the storage and handlingof goods.
‘‘(2) The prohibition under paragraph (1) shall be applied in
a manner consistent with any State statute applicable to suchlien that is similar to section 7–209 of the Uniform Commercial
Applicability.
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Code, as in effect on the date of enactment of the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005, or anysuccessor to such section 7–209.’’.
SEC. 407. AMENDMENTS TO SECTION 330(a) OF TITLE 11, UNITED
STATES CODE.
Section 330(a) of title 11, United States Code, is amended—
(1) in paragraph (3)—
(A) by striking ‘‘(A) In’’ and inserting ‘‘In’’; and(B) by inserting ‘‘to an examiner, trustee under chapter
11, or professional person’’ after ‘‘awarded’’; and(2) by adding at the end the following:
‘‘(7) In determining the amount of reasonable compensation
to be awarded to a trustee, the court shall treat such compensationas a commission, based on section 326.’’.
SEC. 408. POSTPETITION DISCLOSURE AND SOLICITATION.
Section 1125 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(g) Notwithstanding subsection (b), an acceptance or rejection
of the plan may be solicited from a holder of a claim or interestif such solicitation complies with applicable nonbankruptcy lawand if such holder was solicited before the commencement of thecase in a manner complying with applicable nonbankruptcy law.’’.
SEC. 409. PREFERENCES.
Section 547(c) of title 11, United States Code, is amended—
(1) by striking paragraph (2) and inserting the following:‘‘(2) to the extent that such transfer was in payment of
a debt incurred by the debtor in the ordinary course of businessor financial affairs of the debtor and the transferee, and suchtransfer was—
‘‘(A) made in the ordinary course of business or finan-
cial affairs of the debtor and the transferee; or
‘‘(B) made according to ordinary business terms;’’;
(2) in paragraph (8), by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(9) if, in a case filed by a debtor whose debts are not
primarily consumer debts, the aggregate value of all propertythat constitutes or is affected by such transfer is less than$5,000.’’.
SEC. 410. VENUE OF CERTAIN PROCEEDINGS.
Section 1409(b) of title 28, United States Code, is amended
by inserting ‘‘, or a debt (excluding a consumer debt) against anoninsider of less than $10,000,’’ after ‘‘$5,000’’. Section 1409(b)of title 28, United States Code, is further amended by striking‘‘$5,000’’ and inserting ‘‘$15,000’’.
SEC. 411. PERIOD FOR FILING PLAN UNDER CHAPTER 11.
Section 1121(d) of title 11, United States Code, is amended—
(1) by striking ‘‘On’’ and inserting ‘‘(1) Subject to paragraph
(2), on’’; and
(2) by adding at the end the following:
‘‘(2)(A) The 120-day period specified in paragraph (1) may not
be extended beyond a date that is 18 months after the date ofthe order for relief under this chapter.
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‘‘(B) The 180-day period specified in paragraph (1) may not
be extended beyond a date that is 20 months after the date ofthe order for relief under this chapter.’’.
SEC. 412. FEES ARISING FROM CERTAIN OWNERSHIP INTERESTS.
Section 523(a)(16) of title 11, United States Code, is amended—
(1) by striking ‘‘dwelling’’ the first place it appears;(2) by striking ‘‘ownership or’’ and inserting ‘‘ownership,’’;(3) by striking ‘‘housing’’ the first place it appears; and(4) by striking ‘‘but only’’ and all that follows through
‘‘such period,’’ and inserting ‘‘or a lot in a homeowners associa-tion, for as long as the debtor or the trustee has a legal,equitable, or possessory ownership interest in such unit, suchcorporation, or such lot,’’.
SEC. 413. CREDITOR REPRESENTATION AT FIRST MEETING OF CREDI-
TORS.
Section 341(c) of title 11, United States Code, is amended
by inserting at the end the following: ‘‘Notwithstanding any localcourt rule, provision of a State constitution, any otherwiseapplicable nonbankruptcy law, or any other requirement that rep-resentation at the meeting of creditors under subsection (a) beby an attorney, a creditor holding a consumer debt or any represent-ative of the creditor (which may include an entity or an employeeof an entity and may be a representative for more than 1 creditor)shall be permitted to appear at and participate in the meetingof creditors in a case under chapter 7 or 13, either alone or inconjunction with an attorney for the creditor. Nothing in this sub-section shall be construed to require any creditor to be representedby an attorney at any meeting of creditors.’’.
SEC. 414. DEFINITION OF DISINTERESTED PERSON.
Section 101(14) of title 11, United States Code, is amended
to read as follows:
‘‘(14) ‘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, oremployee of the debtor; and
‘‘(C) does not have an interest materially adverse to
the interest of the estate or of any class of creditors orequity security holders, by reason of any direct or indirectrelationship to, connection with, or interest in, the debtor,or for any other reason;’’.
SEC. 415. FACTORS FOR COMPENSATION OF PROFESSIONAL PERSONS.
Section 330(a)(3) of title 11, United States Code, is amended—
(1) in subparagraph (D), by striking ‘‘and’’ at the end;(2) by redesignating subparagraph (E) as subparagraph
(F); and
(3) by inserting after subparagraph (D) the following:‘‘(E) with respect to a professional person, whether the
person is board certified or otherwise has demonstrated skilland experience in the bankruptcy field; and’’.
SEC. 416. APPOINTMENT OF ELECTED TRUSTEE.
Section 1104(b) of title 11, United States Code, is amended—
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(1) by inserting ‘‘(1)’’ after ‘‘(b)’’; and
(2) by adding at the end the following:
‘‘(2)(A) If an eligible, disinterested trustee is elected at a
meeting of creditors under paragraph (1), the United States trusteeshall file a report certifying that election.
‘‘(B) Upon the filing of a report under subparagraph (A)—
‘‘(i) the trustee elected under paragraph (1) shall be consid-
ered to have been selected and appointed for purposes of thissection; and
‘‘(ii) the service of any trustee appointed under subsection
(d) shall terminate.‘‘(C) The court shall resolve any dispute arising out of an
election described in subparagraph (A).’’.
SEC. 417. UTILITY SERVICE.
Section 366 of title 11, United States Code, is amended—
(1) in subsection (a), by striking ‘‘subsection (b)’’ and
inserting ‘‘subsections (b) and (c)’’; and
(2) by adding at the end the following:
‘‘(c)(1)(A) For purposes of this subsection, the term ‘assurance
of payment’ means—
‘‘(i) a cash deposit;‘‘(ii) a letter of credit;‘‘(iii) a certificate of deposit;‘‘(iv) a surety bond;‘‘(v) a prepayment of utility consumption; or‘‘(vi) another form of security that is mutually agreed on
between the utility and the debtor or the trustee.‘‘(B) For purposes of this subsection an administrative expense
priority shall not constitute an assurance of payment.
‘‘(2) Subject to paragraphs (3) and (4), with respect to a case
filed under chapter 11, a utility referred to in subsection (a) mayalter, refuse, or discontinue utility service, if during the 30-dayperiod beginning on the date of the filing of the petition, theutility does not receive from the debtor or the trustee adequateassurance of payment for utility service that is satisfactory tothe utility.
‘‘(3)(A) On request of a party in interest and after notice and
a hearing, the court may order modification of the amount ofan assurance of payment under paragraph (2).
‘‘(B) In making a determination under this paragraph whether
an assurance of payment is adequate, the court may not consider—
‘‘(i) the absence of security before the date of the filing
of the petition;
‘‘(ii) the payment by the debtor of charges for utility service
in a timely manner before the date of the filing of the petition;or
‘‘(iii) the availability of an administrative expense priority.
‘‘(4) Notwithstanding any other provision of law, with respect
to a case subject to this subsection, a utility may recover or setoff against a security deposit provided to the utility by the debtorbefore the date of the filing of the petition without notice or orderof the court.’’.
SEC. 418. BANKRUPTCY FEES.
Section 1930 of title 28, United States Code, is amended—
(1) in subsection (a), by striking ‘‘Notwithstanding section
1915 of this title, the’’ and inserting ‘‘The’’; andReports.
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(2) by adding at the end the following:
‘‘(f)(1) Under the procedures prescribed by the Judicial Con-
ference of the United States, the district court or the bankruptcycourt may waive the filing fee in a case under chapter 7 of title11 for an individual if the court determines that such individualhas income less than 150 percent of the income official povertyline (as defined by the Office of Management and Budget, andrevised annually in accordance with section 673(2) of the OmnibusBudget Reconciliation Act of 1981) applicable to a family of thesize involved and is unable to pay that fee in installments. Forpurposes of this paragraph, the term ‘filing fee’ means the filingfee required by subsection (a), or any other fee prescribed by theJudicial Conference under subsections (b) and (c) that is payableto the clerk upon the commencement of a case under chapter7.
‘‘(2) The district court or the bankruptcy court may waive
for such debtors other fees prescribed under subsections (b) and
(c).
‘‘(3) This subsection does not restrict the district court or the
bankruptcy court from waiving, in accordance with Judicial Con-ference policy, fees prescribed under this section for other debtorsand creditors.’’.
SEC. 419. MORE COMPLETE INFORMATION REGARDING ASSETS OF THE
ESTATE.
(a) I NGENERAL .—
(1) D ISCLOSURE .—The Judicial Conference of the United
States, in accordance with section 2075 of title 28 of the UnitedStates Code and after consideration of the views of the Directorof the Executive Office for United States Trustees, shall proposeamended Federal Rules of Bankruptcy Procedure and in accord-ance with rule 9009 of the Federal Rules of Bankruptcy Proce-dure shall prescribe official bankruptcy forms directing debtorsunder chapter 11 of title 11 of United States Code, to disclosethe information described in paragraph (2) by filing and servingperiodic financial and other reports designed to provide suchinformation.
(2) I
NFORMATION .—The information referred to in para-
graph (1) is the value, operations, and profitability of anyclosely held corporation, partnership, or of any other entityin which the debtor holds a substantial or controlling interest.(b) P
URPOSE .—The purpose of the rules and reports under
subsection (a) shall be to assist parties in interest taking stepsto ensure that the debtor’s interest in any entity referred to insubsection (a)(2) is used for the payment of allowed claims againstdebtor.
Subtitle B—Small Business Bankruptcy
Provisions
SEC. 431. FLEXIBLE RULES FOR DISCLOSURE STATEMENT AND PLAN.
Section 1125 of title 11, United States Code, is amended—
(1) in subsection (a)(1), by inserting before the semicolon
‘‘and in determining whether a disclosure statement providesadequate information, the court shall consider the complexityof the case, the benefit of additional information to creditors28 USC 2073note.
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and other parties in interest, and the cost of providing addi-
tional information’’; and
(2) by striking subsection (f), and inserting the following:
‘‘(f) Notwithstanding subsection (b), in a small business case—
‘‘(1) the court may determine that the plan itself provides
adequate information and that a separate disclosure statementis not necessary;
‘‘(2) the court may approve a disclosure statement sub-
mitted on standard forms approved by the court or adoptedunder section 2075 of title 28; and
‘‘(3)(A) the court may conditionally approve a disclosure
statement subject to final approval after notice and a hearing;
‘‘(B) acceptances and rejections of a plan may be solicited
based on a conditionally approved disclosure statement if thedebtor provides adequate information to each holder of a claimor interest that is solicited, but a conditionally approved disclo-sure statement shall be mailed not later than 25 days beforethe date of the hearing on confirmation of the plan; and
‘‘(C) the hearing on the disclosure statement may be com-
bined with the hearing on confirmation of a plan.’’.
SEC. 432. DEFINITIONS.
(a) D EFINITIONS .—Section 101 of title 11, United States Code,
is amended by striking paragraph (51C) and inserting the following:
‘‘(51C) ‘small business case’ means a case filed under
chapter 11 of this title in which the debtor is a small businessdebtor;
‘‘(51D) ‘small business debtor’—
‘‘(A) subject to subparagraph (B), means a person
engaged in commercial or business activities (includingany affiliate of such person that is also a debtor underthis title and excluding a person whose primary activityis the business of owning or operating real property oractivities incidental thereto) that has aggregate noncontin-gent liquidated secured and unsecured debts as of thedate of the petition or the date of the order for reliefin an amount not more than $2,000,000 (excluding debtsowed to 1 or more affiliates or insiders) for a case inwhich the United States trustee has not appointed undersection 1102(a)(1) a committee of unsecured creditors orwhere the court has determined that the committee ofunsecured creditors is not sufficiently active and represent-ative to provide effective oversight of the debtor; and
‘‘(B) does not include any member of a group of affili-
ated debtors that has aggregate noncontingent liquidatedsecured and unsecured debts in an amount greater than$2,000,000 (excluding debt owed to 1 or more affiliates
or insiders);’’.
(b) C
ONFORMING AMENDMENT .—Section 1102(a)(3) of title 11,
United States Code, is amended by inserting ‘‘debtor’’ after ‘‘smallbusiness’’.
(c) A
DJUSTMENT OF DOLLAR AMOUNTS .—Section 104(b) of title
11, United States Code, as amended by section 226, is amendedby inserting ‘‘101(51D),’’ after ‘‘101(3),’’ each place it appears.
SEC. 433. STANDARD FORM DISCLOSURE STATEMENT AND PLAN.
Within a reasonable period of time after the date of enactment
of this Act, the Judicial Conference of the United States shall28 USC 2073note.Deadline.
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prescribe in accordance with rule 9009 of the Federal Rules of
Bankruptcy Procedure official standard form disclosure statementsand plans of reorganization for small business debtors (as definedin section 101 of title 11, United States Code, as amended bythis Act), designed to achieve a practical balance between—
(1) the reasonable needs of the courts, the United States
trustee, creditors, and other parties in interest for reasonablycomplete information; and
(2) economy and simplicity for debtors.
SEC. 434. UNIFORM NATIONAL REPORTING REQUIREMENTS.
(a) R EPORTING REQUIRED .—
(1) I N GENERAL .—Chapter 3 of title 11, United States Code,
is amended by inserting after section 307 the following:
‘‘§ 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 debtorhas 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 theFederal Rules of Bankruptcy Procedure; and
‘‘(ii) timely filing tax returns and other required govern-
ment filings and paying taxes and other administrativeexpenses when due;‘‘(B) if the debtor is not in compliance with the require-
ments referred to in subparagraph (A)(i) or filing tax returnsand other required government filings and making the pay-ments referred to in subparagraph (A)(ii), what the failuresare and how, at what cost, and when the debtor intends toremedy such failures; and
‘‘(C) such other matters as are in the best interests of
the debtor and creditors, and in the public interest in fairand efficient procedures under chapter 11 of this title.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for
chapter 3 of title 11, United States Code, is amended byinserting after the item relating to section 307 the following:
‘‘308. Debtor reporting requirements.’’.
(b) E FFECTIVE DATE.—The amendments made by subsection
(a) shall take effect 60 days after the date on which rules areprescribed under section 2075 of title 28, United States Code, toestablish forms to be used to comply with section 308 of title11, United States Code, as added by subsection (a).
SEC. 435. UNIFORM REPORTING RULES AND FORMS FOR SMALL BUSI-
NESS CASES.
(a) P ROPOSAL OF RULES AND FORMS .—The Judicial Conference
of the United States shall propose in accordance with section 2073
of title 28 of the United States Code amended Federal Rules of28 USC 2073note.11 USC 308 note.
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Bankruptcy Procedure, and shall prescribe in accordance with rule
9009 of the Federal Rules of Bankruptcy Procedure official bank-ruptcy forms, directing small business debtors to file periodic finan-cial and other reports containing information, including informationrelating to—
(1) the debtor’s profitability;(2) the debtor’s cash receipts and disbursements; and(3) whether the debtor is timely filing tax returns and
paying taxes and other administrative expenses when due.(b) P
URPOSE .—The rules and forms proposed under subsection
(a) shall be designed to achieve a practical balance among—
(1) the reasonable needs of the bankruptcy court, the
United States trustee, creditors, and other parties in interestfor reasonably complete information;
(2) a small business debtor’s interest that required reports
be easy and inexpensive to complete; and
(3) the interest of all parties that the required reports
help such debtor to understand such debtor’s financial conditionand plan the such debtor’s future.
SEC. 436. DUTIES IN SMALL BUSINESS CASES.
(a) D UTIES IN CHAPTER 11 C ASES .—Subchapter I of chapter
11 of title 11, United States Code, as amended by section 321,is amended by adding at the end the following:
‘‘§ 1116. Duties of trustee or debtor in possession in small
business cases
‘‘In a small business case, a trustee or the debtor in possession,
in addition to the duties provided in this title and as otherwiserequired by law, shall—
‘‘(1) append to the voluntary petition or, in an involuntary
case, file not later than 7 days after the date of the orderfor relief—
‘‘(A) its most recent balance sheet, statement of oper-
ations, cash-flow statement, and Federal income tax return;or
‘‘(B) a statement made under penalty of perjury that
no balance sheet, statement of operations, or cash-flowstatement has been prepared and no Federal tax returnhas been filed;‘‘(2) attend, through its senior management personnel and
counsel, meetings scheduled by the court or the United Statestrustee, including initial debtor interviews, scheduling con-ferences, and meetings of creditors convened under section 341unless the court, after notice and a hearing, waives that require-ment upon a finding of extraordinary and compelling cir-cumstances;
‘‘(3) timely file all schedules and statements of financial
affairs, unless the court, after notice and a hearing, grantsan extension, which shall not extend such time period to adate later than 30 days after the date of the order for relief,absent extraordinary and compelling circumstances;
‘‘(4) file all postpetition financial and other reports required
by the Federal Rules of Bankruptcy Procedure or by localrule of the district court;
‘‘(5) subject to section 363(c)(2), maintain insurance cus-
tomary and appropriate to the industry;
Deadline.Deadline.
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‘‘(6)(A) timely file tax returns and other required govern-
ment filings; and
‘‘(B) subject to section 363(c)(2), timely pay all taxes entitled
to administrative expense priority except those being contestedby appropriate proceedings being diligently prosecuted; and
‘‘(7) allow the United States trustee, or a designated rep-
resentative of the United States trustee, to inspect the debtor’sbusiness premises, books, and records at reasonable times,after reasonable prior written notice, unless notice is waivedby the debtor.’’.(b) C
LERICAL AMENDMENT .—The table of sections for chapter
11 of title 11, United States Code, as amended by section 321,is amended by inserting after the item relating to section 1115the following:
‘‘1116. Duties of trustee or debtor in possession in small business cases.’’.
SEC. 437. PLAN FILING AND CONFIRMATION DEADLINES.
Section 1121 of title 11, United States Code, is amended by
striking subsection (e) and inserting the following:
‘‘(e) In a small business case—
‘‘(1) only the debtor may file a plan until after 180 days
after the date of the order for relief, unless that period is—
‘‘(A) extended as provided by this subsection, after
notice and a hearing; or
‘‘(B) the court, for cause, orders otherwise;
‘‘(2) the plan and a disclosure statement (if any) shall
be filed not later than 300 days after the date of the orderfor relief; and
‘‘(3) the time periods specified in paragraphs (1) and (2),
and the time fixed in section 1129(e) within which the planshall be confirmed, may be extended only if—
‘‘(A) the debtor, after providing notice to parties in
interest (including the United States trustee), demonstratesby a preponderance of the evidence that it is more likelythan not that the court will confirm a plan within a reason-able period of time;
‘‘(B) a new deadline is imposed at the time the exten-
sion is granted; and
‘‘(C) the order extending time is signed before the
existing deadline has expired.’’.
SEC. 438. PLAN CONFIRMATION DEADLINE.
Section 1129 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(e) In a small business case, the court shall confirm a plan
that complies with the applicable provisions of this title and thatis filed in accordance with section 1121(e) not later than 45 daysafter the plan is filed unless the time for confirmation is extendedin accordance with section 1121(e)(3).’’.
SEC. 439. DUTIES OF THE UNITED STATES TRUSTEE.
Section 586(a) of title 28, United States Code, is amended—
(1) in paragraph (3)—
(A) in subparagraph (G), by striking ‘‘and’’ at the end;(B) by redesignating subparagraph (H) as subpara-
graph (I); and
(C) by inserting after subparagraph (G) the following:
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‘‘(H) in small business cases (as defined in section
101 of title 11), performing the additional duties specifiedin title 11 pertaining to such cases; and’’;(2) in paragraph (5), by striking ‘‘and’’ at the end;(3) in paragraph (6), by striking the period at the end
and inserting a semicolon; and
(4) by adding at the end the following:‘‘(7) in each of such small business cases—
‘‘(A) conduct an initial debtor interview as soon as
practicable after the date of the order for relief but beforethe first meeting scheduled under section 341(a) of title11, at which time the United States trustee shall—
‘‘(i) begin to investigate the debtor’s viability;‘‘(ii) inquire about the debtor’s business plan;‘‘(iii) explain the debtor’s obligations to file monthly
operating reports and other required reports;
‘‘(iv) attempt to develop an agreed scheduling
order; and
‘‘(v) inform the debtor of other obligations;
‘‘(B) if determined to be appropriate and advisable,
visit the appropriate business premises of the debtor,ascertain the state of the debtor’s books and records, andverify that the debtor has filed its tax returns; and
‘‘(C) review and monitor diligently the debtor’s activi-
ties, to identify as promptly as possible whether the debtorwill be unable to confirm a plan; and‘‘(8) in any case in which the United States trustee finds
material grounds for any relief under section 1112 of title11, the United States trustee shall apply promptly after makingthat finding to the court for relief.’’.
SEC. 440. SCHEDULING CONFERENCES.
Section 105(d) of title 11, United States Code, is amended—
(1) in the matter preceding paragraph (1), by striking ‘‘,
may’’; and
(2) by striking paragraph (1) and inserting the following:‘‘(1) shall hold such status conferences as are necessary
to further the expeditious and economical resolution of thecase; and’’.
SEC. 441. SERIAL FILER PROVISIONS.
Section 362 of title 11, United States Code, as amended by
sections 106, 305, and 311, is amended—
(1) in subsection (k), as so redesignated by section 305—
(A) by striking ‘‘An’’ and inserting ‘‘(1) Except as pro-
vided in paragraph (2), an’’; and
(B) by adding at the end the following:
‘‘(2) If such violation is based on an action taken by an entity
in the good faith belief that subsection (h) applies to the debtor,
the recovery under paragraph (1) of this subsection against suchentity shall be limited to actual damages.’’; and
(2) by adding at the end the following:
‘‘(n)(1) Except as provided in paragraph (2), subsection (a) does
not apply in a case in which the debtor—
‘‘(A) is a debtor in a small business case pending at the
time the petition is filed;
‘‘(B) was a debtor in a small business case that was dis-
missed for any reason by an order that became final in theApplicability.
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2-year period ending on the date of the order for relief entered
with respect to the petition;
‘‘(C) was a debtor in a small business case in which a
plan was confirmed in the 2-year period ending on the dateof the order for relief entered with respect to the petition;or
‘‘(D) is an entity that has acquired substantially all of
the assets or business of a small business debtor describedin subparagraph (A), (B), or (C), unless such entity establishesby a preponderance of the evidence that such entity acquiredsubstantially all of the assets or business of such small businessdebtor in good faith and not for the purpose of evading thisparagraph.‘‘(2) Paragraph (1) does not apply—
‘‘(A) to an involuntary case involving no collusion by the
debtor with creditors; or
‘‘(B) to the filing of a petition if—
‘‘(i) the debtor proves by a preponderance of the evi-
dence that the filing of the petition resulted from cir-cumstances beyond the control of the debtor not foreseeableat the time the case then pending was filed; and
‘‘(ii) it is more likely than not that the court will
confirm a feasible plan, but not a liquidating plan, withina reasonable period of time.’’.
SEC. 442. EXPANDED GROUNDS FOR DISMISSAL OR CONVERSION AND
APPOINTMENT OF TRUSTEE.
(a) E XPANDED GROUNDS FOR DISMISSAL OR CONVERSION .—Sec-
tion 1112 of title 11, United States Code, is amended by strikingsubsection (b) and inserting the following:
‘‘(b)(1) Except as provided in paragraph (2) of this subsection,
subsection (c) of this section, and section 1104(a)(3), on requestof a party in interest, and after notice and a hearing, absentunusual circumstances specifically identified by the court that estab-lish that the requested conversion or dismissal is not in the bestinterests of creditors and the estate, the court shall convert acase under this chapter to a case under chapter 7 or dismissa case under this chapter, whichever is in the best interests of
creditors and the estate, if the movant establishes cause.
‘‘(2) The relief provided in paragraph (1) shall not be granted
absent unusual circumstances specifically identified by the courtthat establish that such relief is not in the best interests of creditorsand the estate, if the debtor or another party in interest objectsand establishes that—
‘‘(A) there is a reasonable likelihood that a plan will be
confirmed within the timeframes established in sections 1121(e)and 1129(e) of this title, or if such sections do not apply,within a reasonable period of time; and
‘‘(B) the grounds for granting such relief include an act
or omission of the debtor other than under paragraph (4)(A)—
‘‘(i) for which there exists a reasonable justification
for the act or omission; and
‘‘(ii) that will be cured within a reasonable period of
time fixed by the court.
‘‘(3) The court shall commence the hearing on a motion under
this subsection not later than 30 days after filing of the motion,
Deadlines.
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and shall decide the motion not later than 15 days after commence-
ment of such hearing, unless the movant expressly consents toa continuance for a specific period of time or compelling cir-cumstances prevent the court from meeting the time limits estab-lished by this paragraph.
‘‘(4) For purposes of this subsection, the term ‘cause’ includes—
‘‘(A) substantial or continuing loss to or diminution of the
estate and the absence of a reasonable likelihood of rehabilita-tion;
‘‘(B) gross mismanagement of the estate;‘‘(C) failure to maintain appropriate insurance that poses
a risk to the estate or to the public;
‘‘(D) unauthorized use of cash collateral substantially harm-
ful to 1 or more creditors;
‘‘(E) failure to comply with an order of the court;‘‘(F) unexcused failure to satisfy timely any filing or
reporting requirement established by this title or by any ruleapplicable to a case under this chapter;
‘‘(G) failure to attend the meeting of creditors convened
under section 341(a) or an examination ordered under rule2004 of the Federal Rules of Bankruptcy Procedure withoutgood cause shown by the debtor;
‘‘(H) failure timely to provide information or attend
meetings reasonably requested by the United States trustee(or the bankruptcy administrator, if any);
‘‘(I) failure timely to pay taxes owed after the date of
the order for relief or to file tax returns due after the dateof the order for relief;
‘‘(J) failure to file a disclosure statement, or to file or
confirm a plan, within the time fixed by this title or by orderof the court;
‘‘(K) failure to pay any fees or charges required under
chapter 123 of title 28;
‘‘(L) revocation of an order of confirmation under section
1144;
‘‘(M) inability to effectuate substantial consummation of
a confirmed plan;
‘‘(N) material default by the debtor with respect to a con-
firmed plan;
‘‘(O) termination of a confirmed plan by reason of the
occurrence of a condition specified in the plan; and
‘‘(P) failure of the debtor to pay any domestic support
obligation that first becomes payable after the date of thefiling of the petition.’’.(b) A
DDITIONAL GROUNDS FOR APPOINTMENT OF TRUSTEE .—
Section 1104(a) of title 11, United States Code, is amended—
(1) in paragraph (1), by striking ‘‘or’’ at the end;(2) in paragraph (2), by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(3) if grounds exist to convert or dismiss the case under
section 1112, but the court determines that the appointmentof a trustee or an examiner is in the best interests of creditorsand the estate.’’.
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SEC. 443. STUDY OF OPERATION OF TITLE 11, UNITED STATES CODE,
WITH RESPECT TO SMALL BUSINESSES.
Not later than 2 years after the date of enactment of this
Act, the Administrator of the Small Business Administration, inconsultation with the Attorney General, the Director of the Execu-tive Office for United States Trustees, and the Director of the
Administrative Office of the United States Courts, shall—
(1) conduct a study to determine—
(A) the internal and external factors that cause small
businesses, especially sole proprietorships, to becomedebtors in cases under title 11, United States Code, andthat cause certain small businesses to successfully completecases under chapter 11 of such title; and
(B) how Federal laws relating to bankruptcy may be
made more effective and efficient in assisting smallbusinesses to remain viable; and(2) submit to the President pro tempore of the Senate
and the Speaker of the House of Representatives a reportsummarizing that study.
SEC. 444. PAYMENT OF INTEREST.
Section 362(d)(3) of title 11, United States Code, is amended—
(1) by inserting ‘‘or 30 days after the court determines
that the debtor is subject to this paragraph, whichever is later’’after ‘‘90-day period)’’; and
(2) by striking subparagraph (B) and inserting the fol-
lowing:
‘‘(B) the debtor has commenced monthly payments
that—
‘‘(i) may, in the debtor’s sole discretion, notwith-
standing section 363(c)(2), be made from rents or otherincome generated before, on, or after the date of thecommencement of the case by or from the propertyto each creditor whose claim is secured by such realestate (other than a claim secured by a judgment lienor by an unmatured statutory lien); and
‘‘(ii) are in an amount equal to interest at the
then applicable nondefault contract rate of intereston the value of the creditor’s interest in the real estate;or’’.
SEC. 445. PRIORITY FOR ADMINISTRATIVE EXPENSES.
Section 503(b) of title 11, United States Code, is amended—
(1) in paragraph (5), by striking ‘‘and’’ at the end;(2) in paragraph (6), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:‘‘(7) with respect to a nonresidential real property lease
previously assumed under section 365, and subsequentlyrejected, a sum equal to all monetary obligations due, excludingthose arising from or relating to a failure to operate or apenalty provision, for the period of 2 years following the laterof the rejection date or the date of actual turnover of thepremises, without reduction or setoff for any reason whatsoeverexcept for sums actually received or to be received from anentity other than the debtor, and the claim for remainingReports.
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sums due for the balance of the term of the lease shall be
a claim under section 502(b)(6);’’.
SEC. 446. DUTIES WITH RESPECT TO A DEBTOR WHO IS A PLAN
ADMINISTRATOR OF AN EMPLOYEE BENEFIT PLAN.
(a) I NGENERAL .—Section 521(a) of title 11, United States Code,
as amended by sections 106 and 304, is amended—
(1) in paragraph (5), by striking ‘‘and’’ at the end;(2) in paragraph (6), by striking the period at the end
and inserting ‘‘; and’’; and
(3) by adding after paragraph (6) the following:‘‘(7) unless a trustee is serving in the case, continue to
perform the obligations required of the administrator (asdefined in section 3 of the Employee Retirement Income Secu-rity Act of 1974) of an employee benefit plan if at the timeof the commencement of the case the debtor (or any entitydesignated by the debtor) served as such administrator.’’.(b) D
UTIES OF TRUSTEES .—Section 704(a) of title 11, United
States Code, as amended by sections 102 and 219, is amended—
(1) in paragraph (10), by striking ‘‘and’’ at the end; and(2) by adding at the end the following:‘‘(11) if, at the time of the commencement of the case,
the debtor (or any entity designated by the debtor) servedas the administrator (as defined in section 3 of the EmployeeRetirement Income Security Act of 1974) of an employee benefitplan, continue to perform the obligations required of theadministrator; and’’.(c) C
ONFORMING AMENDMENT .—Section 1106(a)(1) of title 11,
United States Code, is amended to read as follows:
‘‘(1) perform the duties of the trustee, as specified in para-
graphs (2), (5), (7), (8), (9), (10), and (11) of section 704;’’.
SEC. 447. APPOINTMENT OF COMMITTEE OF RETIRED EMPLOYEES.
Section 1114(d) of title 11, United States Code, is amended—
(1) by striking ‘‘appoint’’ and inserting ‘‘order the appoint-
ment of’’, and
(2) by adding at the end the following: ‘‘The United States
trustee shall appoint any such committee.’’.
TITLE V—MUNICIPAL BANKRUPTCY
PROVISIONS
SEC. 501. PETITION AND PROCEEDINGS RELATED TO PETITION.
(a) T ECHNICAL AMENDMENT RELATING TO MUNICIPALITIES .—
Section 921(d) of title 11, United States Code, is amended byinserting ‘‘notwithstanding section 301(b)’’ before the period at theend.
(b) C
ONFORMING AMENDMENT .—Section 301 of title 11, United
States Code, is amended—
(1) by inserting ‘‘(a)’’ before ‘‘A voluntary’’; and(2) by striking the last sentence and inserting the following:
‘‘(b) The commencement of a voluntary case under a chapter
of this title constitutes an order for relief under such chapter.’’.
SEC. 502. APPLICABILITY OF OTHER SECTIONS TO CHAPTER 9.
Section 901(a) of title 11, United States Code, is amended—
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(1) by inserting ‘‘555, 556,’’ after ‘‘553,’’; and
(2) by inserting ‘‘559, 560, 561, 562,’’ after ‘‘557,’’.
TITLE VI—BANKRUPTCY DATA
SEC. 601. IMPROVED BANKRUPTCY STATISTICS.
(a) I NGENERAL .—Chapter 6 of title 28, United States Code,
is amended by adding at the end the following:
‘‘§ 159. Bankruptcy statistics
‘‘(a) The clerk of the district court, or the clerk of the bankruptcy
court if one is certified pursuant to section 156(b) of this title,shall collect statistics regarding debtors who are individuals withprimarily consumer debts seeking relief under chapters 7, 11, and13 of title 11. Those statistics shall be in a standardized formatprescribed by the Director of the Administrative Office of the UnitedStates Courts (referred to in this section as the ‘Director’).
‘‘(b) The Director shall—
‘‘(1) compile the statistics referred to in subsection (a);‘‘(2) make the statistics available to the public; and‘‘(3) not later than July 1, 2008, and annually thereafter,
prepare, and submit to Congress a report concerning theinformation collected under subsection (a) that contains ananalysis of the information.‘‘(c) The compilation required under subsection (b) shall—
‘‘(1) be itemized, by chapter, with respect to title 11;‘‘(2) be presented in the aggregate and for each district;
and
‘‘(3) include information concerning—
‘‘(A) the total assets and total liabilities of the debtors
described in subsection (a), and in each category of assetsand liabilities, as reported in the schedules prescribedpursuant to section 2075 of this title and filed by debtors;
‘‘(B) the current monthly income, average income, and
average expenses of debtors as reported on the schedulesand statements that each such debtor files under sections521 and 1322 of title 11;
‘‘(C) the aggregate amount of debt discharged in cases
filed during the reporting period, determined as the dif-ference between the total amount of debt and obligationsof a debtor reported on the schedules and the amountof such debt reported in categories which are predominantlynondischargeable;
‘‘(D) the average period of time between the date of
the filing of the petition and the closing of the case forcases closed during the reporting period;
‘‘(E) for cases closed during the reporting period—
‘‘(i) the number of cases in which a reaffirmation
agreement was filed; and
‘‘(ii)(I) the total number of reaffirmation agree-
ments filed;
‘‘(II) of those cases in which a reaffirmation agree-
ment was filed, the number of cases in which thedebtor was not represented by an attorney; andPublic
information.Deadline.Reports.
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‘‘(III) of those cases in which a reaffirmation agree-
ment was filed, the number of cases in which thereaffirmation agreement was approved by the court;‘‘(F) with respect to cases filed under chapter 13 of
title 11, for the reporting period—
‘‘(i)(I) the number of cases in which a final order
was entered determining the value of property securinga claim in an amount less than the amount of theclaim; and
‘‘(II) the number of final orders entered deter-
mining the value of property securing a claim;
‘‘(ii) the number of cases dismissed, the number
of cases dismissed for failure to make payments underthe plan, the number of cases refiled after dismissal,and the number of cases in which the plan was com-pleted, separately itemized with respect to the numberof modifications made before completion of the plan,if any; and
‘‘(iii) the number of cases in which the debtor
filed another case during the 6-year period precedingthe filing;‘‘(G) the number of cases in which creditors were fined
for misconduct and any amount of punitive damagesawarded by the court for creditor misconduct; and
‘‘(H) the number of cases in which sanctions under
rule 9011 of the Federal Rules of Bankruptcy Procedurewere imposed against debtor’s attorney or damagesawarded under such Rule.’’.
(b) C
LERICAL AMENDMENT .—The table of sections for chapter
6 of title 28, United States Code, is amended by adding at theend the following:
‘‘159. Bankruptcy statistics.’’.
(c) E FFECTIVE DATE.—The amendments made by this section
shall take effect 18 months after the date of enactment of thisAct.
SEC. 602. UNIFORM RULES FOR THE COLLECTION OF BANKRUPTCY
DATA.
(a) A MENDMENT .—Chapter 39 of title 28, United States Code,
is amended by adding at the end the following:
‘‘§ 589b. Bankruptcy data
‘‘(a) R ULES .—The Attorney General shall, within a reasonable
time after the effective date of this section, issue rules requiringuniform forms for (and from time to time thereafter to appropriatelymodify and approve)—
‘‘(1) final reports by trustees in cases under chapters 7,
12, and 13 of title 11; and
‘‘(2) periodic reports by debtors in possession or trustees
in cases under chapter 11 of title 11.‘‘(b) R
EPORTS .—Each report referred to in subsection (a) shall
be designed (and the requirements as to place and manner offiling shall be established) so as to facilitate compilation of dataand maximum possible access of the public, both by physical inspec-tion at one or more central filing locations, and by electronic accessthrough the Internet or other appropriate media.Publicinformation.Internet.28 USC 159 note.
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‘‘(c) R EQUIRED INFORMATION .—The information required to be
filed in the reports referred to in subsection (b) shall be thatwhich is in the best interests of debtors and creditors, and inthe public interest in reasonable and adequate information toevaluate the efficiency and practicality of the Federal bankruptcysystem. In issuing rules proposing the forms referred to in sub-section (a), the Attorney General shall strike the best achievablepractical balance between—
‘‘(1) the reasonable needs of the public for information
about the operational results of the Federal bankruptcy system;
‘‘(2) economy, simplicity, and lack of undue burden on per-
sons with a duty to file reports; and
‘‘(3) appropriate privacy concerns and safeguards.
‘‘(d) F
INAL REPORTS .—The uniform forms for final reports
required under subsection (a) for use by trustees under chapters7, 12, and 13 of title 11 shall, in addition to such other mattersas are required by law or as the Attorney General in the discretionof the Attorney General shall propose, include with respect toa case under such title—
‘‘(1) information about the length of time the case was
pending;
‘‘(2) assets abandoned;‘‘(3) assets exempted;‘‘(4) receipts and disbursements of the estate;‘‘(5) expenses of administration, including for use under
section 707(b), actual costs of administering cases under chapter13 of title 11;
‘‘(6) claims asserted;‘‘(7) claims allowed; and‘‘(8) distributions to claimants and claims discharged with-
out payment,
in each case by appropriate category and, in cases under chapters12 and 13 of title 11, date of confirmation of the plan, each modifica-tion thereto, and defaults by the debtor in performance underthe plan.
‘‘(e) P
ERIODIC REPORTS .—The uniform forms for periodic reports
required under subsection (a) for use by trustees or debtors inpossession under chapter 11 of title 11 shall, in addition to suchother matters as are required by law or as the Attorney Generalin the discretion of the Attorney General shall propose, include—
‘‘(1) information about the industry classification, published
by the Department of Commerce, for the businesses conductedby the debtor;
‘‘(2) length of time the case has been pending;‘‘(3) number of full-time employees as of the date of the
order for relief and at the end of each reporting period sincethe case was filed;
‘‘(4) cash receipts, cash disbursements and profitability of
the debtor for the most recent period and cumulatively sincethe date of the order for relief;
‘‘(5) compliance with title 11, whether or not tax returns
and tax payments since the date of the order for relief havebeen timely filed and made;
‘‘(6) all professional fees approved by the court in the case
for the most recent period and cumulatively since the dateof the order for relief (separately reported, for the professionalfees incurred by or on behalf of the debtor, between those
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that would have been incurred absent a bankruptcy case and
those not); and
‘‘(7) plans of reorganization filed and confirmed and, with
respect thereto, by class, the recoveries of the holders, expressedin aggregate dollar values and, in the case of claims, as apercentage of total claims of the class allowed.’’.(b) C
LERICAL AMENDMENT .—The table of sections for chapter
39 of title 28, United States Code, is amended by adding at theend the following:
‘‘589b. Bankruptcy data.’’.
SEC. 603. AUDIT PROCEDURES.
(a) I NGENERAL .—
(1) E STABLISHMENT OF PROCEDURES .—The Attorney Gen-
eral (in judicial districts served by United States trustees)and the Judicial Conference of the United States (in judicialdistricts served by bankruptcy administrators) shall establishprocedures to determine the accuracy, veracity, and complete-ness of petitions, schedules, and other information that thedebtor is required to provide under sections 521 and 1322of title 11, United States Code, and, if applicable, section 111of such title, in cases filed under chapter 7 or 13 of suchtitle in which the debtor is an individual. Such audits shallbe in accordance with generally accepted auditing standardsand performed by independent certified public accountants orindependent licensed public accountants, provided that theAttorney General and the Judicial Conference, as appropriate,may develop alternative auditing standards not later than 2years after the date of enactment of this Act.
(2) P
ROCEDURES .—Those procedures required by paragraph
(1) shall—
(A) establish a method of selecting appropriate quali-
fied persons to contract to perform those audits;
(B) establish a method of randomly selecting cases
to be audited, except that not less than 1 out of every250 cases in each Federal judicial district shall be selectedfor audit;
(C) require audits of schedules of income and expenses
that reflect greater than average variances from the statis-tical norm of the district in which the schedules werefiled if those variances occur by reason of higher incomeor higher expenses than the statistical norm of the districtin which the schedules were filed; and
(D) establish procedures for providing, not less fre-
quently than annually, public information concerning theaggregate results of such audits including the percentageof cases, by district, in which a material misstatementof income or expenditures is reported.
(b) A
MENDMENTS .—Section 586 of title 28, United States Code,
is amended—
(1) in subsection (a), by striking paragraph (6) and inserting
the following:
‘‘(6) make such reports as the Attorney General directs,
including the results of audits performed under section 603(a)of the Bankruptcy Abuse Prevention and Consumer ProtectionAct of 2005;’’; andReports.Public
information.28 USC 586 note.
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(2) by adding at the end the following:
‘‘(f)(1) The United States trustee for each district is authorized
to contract with auditors to perform audits in cases designatedby the United States trustee, in accordance with the proceduresestablished under section 603(a) of the Bankruptcy Abuse Preven-tion and Consumer Protection Act of 2005.
‘‘(2)(A) The report of each audit referred to in paragraph (1)
shall be filed with the court and transmitted to the United Statestrustee. Each report shall clearly and conspicuously specify anymaterial misstatement of income or expenditures or of assets identi-fied by the person performing the audit. In any case in whicha material misstatement of income or expenditures or of assetshas been reported, the clerk of the district court (or the clerkof the bankruptcy court if one is certified under section 156(b)of this title) shall give notice of the misstatement to the creditorsin the case.
‘‘(B) If a material misstatement of income or expenditures or
of assets is reported, the United States trustee shall—
‘‘(i) report the material misstatement, if appropriate, to
the United States Attorney pursuant to section 3057 of title18; and
‘‘(ii) if advisable, take appropriate action, including but
not limited to commencing an adversary proceeding to revokethe debtor’s discharge pursuant to section 727(d) of title 11.’’.(c) A
MENDMENTS TO SECTION 521 OFTITLE 11, U.S.C.—Section
521(a) of title 11, United States Code, as so designated by section106, is amended in each of paragraphs (3) and (4) by inserting‘‘or an auditor serving under section 586(f) of title 28’’ after ‘‘servingin the case’’.
(d) A
MENDMENTS TO SECTION 727 OFTITLE 11, U.S.C.—Section
727(d) of title 11, United States Code, is amended—
(1) in paragraph (2), by striking ‘‘or’’ at the end;(2) in paragraph (3), by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(4) the debtor has failed to explain satisfactorily—
‘‘(A) a material misstatement in an audit referred to
in section 586(f) of title 28; or
‘‘(B) a failure to make available for inspection all nec-
essary accounts, papers, documents, financial records, files,and all other papers, things, or property belonging to thedebtor that are requested for an audit referred to in section586(f) of title 28.’’.
(e) E
FFECTIVE DATE.—The amendments made by this section
shall take effect 18 months after the date of enactment of thisAct.
SEC. 604. SENSE OF CONGRESS REGARDING AVAILABILITY OF BANK-
RUPTCY DATA.
It is the sense of Congress that—
(1) the national policy of the United States should be that
all data held by bankruptcy clerks in electronic form, to theextent such data reflects only public records (as defined insection 107 of title 11, United States Code), should be releasedin a usable electronic form in bulk to the public, subject tosuch appropriate privacy concerns and safeguards as Congress11 USC 521 note.Notice.
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and the Judicial Conference of the United States may deter-
mine; and
(2) there should be established a bankruptcy data system
in which—
(A) a single set of data definitions and forms are used
to collect data nationwide; and
(B) data for any particular bankruptcy case are aggre-
gated in the same electronic record.
TITLE VII—BANKRUPTCY TAX
PROVISIONS
SEC. 701. TREATMENT OF CERTAIN LIENS.
(a) T REATMENT OF CERTAIN LIENS.—Section 724 of title 11,
United States Code, is amended—
(1) in subsection (b), in the matter preceding paragraph
(1), by inserting ‘‘(other than to the extent that there is aproperly perfected unavoidable tax lien arising in connectionwith an ad valorem tax on real or personal property of theestate)’’ after ‘‘under this title’’;
(2) in subsection (b)(2), by inserting ‘‘(except that such
expenses, other than claims for wages, salaries, or commissionsthat arise after the date of the filing of the petition, shallbe limited to expenses incurred under chapter 7 of this titleand shall not include expenses incurred under chapter 11 ofthis title)’’ after ‘‘507(a)(1)’’; and
(3) by adding at the end the following:
‘‘(e) Before subordinating a tax lien on real or personal property
of the estate, the trustee shall—
‘‘(1) exhaust the unencumbered assets of the estate; and‘‘(2) in a manner consistent with section 506(c), recover
from property securing an allowed secured claim the reasonable,necessary costs and expenses of preserving or disposing ofsuch property.‘‘(f) Notwithstanding the exclusion of ad valorem tax liens under
this section and subject to the requirements of subsection (e), thefollowing may be paid from property of the estate which secures
a tax lien, or the proceeds of such property:
‘‘(1) Claims for wages, salaries, and commissions that are
entitled to priority under section 507(a)(4).
‘‘(2) Claims for contributions to an employee benefit plan
entitled to priority under section 507(a)(5).’’.(b) D
ETERMINATION OF TAXLIABILITY .—Section 505(a)(2) of title
11, United States Code, is amended—
(1) in subparagraph (A), by striking ‘‘or’’ at the end;(2) in subparagraph (B), by striking the period at the
end and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(C) the amount or legality of any amount arising in connec-
tion with an ad valorem tax on real or personal propertyof the estate, if the applicable period for contesting or redeter-mining that amount under any law (other than a bankruptcylaw) has expired.’’.
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SEC. 702. TREATMENT OF FUEL TAX CLAIMS.
Section 501 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(e) A claim arising from the liability of a debtor for fuel
use tax assessed consistent with the requirements of section 31705of title 49 may be filed by the base jurisdiction designated pursuantto the International Fuel Tax Agreement (as defined in section31701 of title 49) and, if so filed, shall be allowed as a singleclaim.’’.
SEC. 703. NOTICE OF REQUEST FOR A DETERMINATION OF TAXES.
Section 505(b) of title 11, United States Code, is amended—
(1) in the first sentence, by inserting ‘‘at the address and
in the manner designated in paragraph (1)’’ after ‘‘determina-tion of such tax’’;
(2) by striking ‘‘(1) upon payment’’ and inserting ‘‘(A) upon
payment’’;
(3) by striking ‘‘(A) such governmental unit’’ and inserting
‘‘(i) such governmental unit’’;
(4) by striking ‘‘(B) such governmental unit’’ and inserting
‘‘(ii) such governmental unit’’;
(5) by striking ‘‘(2) upon payment’’ and inserting ‘‘(B) upon
payment’’;
(6) by striking ‘‘(3) upon payment’’ and inserting ‘‘(C) upon
payment’’;
(7) by striking ‘‘(b)’’ and inserting ‘‘(2)’’; and(8) by inserting before paragraph (2), as so designated,
the following:‘‘(b)(1)(A) The clerk shall maintain a list under which a Federal,
State, or local governmental unit responsible for the collection oftaxes within the district may—
‘‘(i) designate an address for service of requests under
this subsection; and
‘‘(ii) describe where further information concerning addi-
tional requirements for filing such requests may be found.‘‘(B) If such governmental unit does not designate an address
and provide such address to the clerk under subparagraph (A),any request made under this subsection may be served at theaddress for the filing of a tax return or protest with the appropriatetaxing authority of such governmental unit.’’.
SEC. 704. RATE OF INTEREST ON TAX CLAIMS.
(a) I NGENERAL .—Subchapter I of chapter 5 of title 11, United
States Code, is amended by adding at the end the following:
‘‘§ 511. Rate of interest on tax claims
‘‘(a) If any provision of this title requires the payment of interest
on a tax claim or on an administrative expense tax, or the paymentof interest to enable a creditor to receive the present value ofthe allowed amount of a tax claim, the rate of interest shall bethe rate determined under applicable nonbankruptcy law.
‘‘(b) In the case of taxes paid under a confirmed plan under
this title, the rate of interest shall be determined as of the calendarmonth in which the plan is confirmed.’’.Records.
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(b) C LERICAL AMENDMENT .—The table of sections for subchapter
I of chapter 5 of title 11, United States Code, is amended byadding at the end the following:
‘‘511. Rate of interest on tax claims.’’.
SEC. 705. PRIORITY OF TAX CLAIMS.
Section 507(a)(8) of title 11, United States Code, is amended—
(1) in subparagraph (A)—
(A) in the matter preceding clause (i), by inserting
‘‘for a taxable year ending on or before the date of thefiling of the petition’’ after ‘‘gross receipts’’;
(B) in clause (i), by striking ‘‘for a taxable year ending
on or before the date of the filing of the petition’’; and
(C) by striking clause (ii) and inserting the following:
‘‘(ii) assessed within 240 days before the date of
the filing of the petition, exclusive of—
‘‘(I) any time during which an offer in com-
promise with respect to that tax was pending orin effect during that 240-day period, plus 30 days;and
‘‘(II) any time during which a stay of pro-
ceedings against collections was in effect in a priorcase under this title during that 240-day period,plus 90 days.’’; and
(2) by adding at the end the following:
‘‘An otherwise applicable time period specified in this paragraphshall be suspended for any period during which a governmentalunit is prohibited under applicable nonbankruptcy law fromcollecting a tax as a result of a request by the debtor fora hearing and an appeal of any collection action taken orproposed against the debtor, plus 90 days; plus any time duringwhich the stay of proceedings was in effect in a prior caseunder this title or during which collection was precluded bythe existence of 1 or more confirmed plans under this title,plus 90 days.’’.
SEC. 706. PRIORITY PROPERTY TAXES INCURRED.
Section 507(a)(8)(B) of title 11, United States Code, is amended
by striking ‘‘assessed’’ and inserting ‘‘incurred’’.
SEC. 707. NO DISCHARGE OF FRAUDULENT TAXES IN CHAPTER 13.
Section 1328(a)(2) of title 11, United States Code, as amended
by section 314, is amended by striking ‘‘paragraph’’ and inserting‘‘section 507(a)(8)(C) or in paragraph (1)(B), (1)(C),’’.
SEC. 708. NO DISCHARGE OF FRAUDULENT TAXES IN CHAPTER 11.
Section 1141(d) of title 11, United States Code, as amended
by sections 321 and 330, is amended by adding at the end thefollowing:
‘‘(6) Notwithstanding paragraph (1), the confirmation of a plan
does not discharge a debtor that is a corporation from any debt—
‘‘(A) of a kind specified in paragraph (2)(A) or (2)(B) of
section 523(a) that is owed to a domestic governmental unit,or owed to a person as the result of an action filed undersubchapter III of chapter 37 of title 31 or any similar Statestatute; orDeadline.
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‘‘(B) for a tax or customs duty with respect to which the
debtor—
‘‘(i) made a fraudulent return; or‘‘(ii) willfully attempted in any manner to evade or
to defeat such tax or such customs duty.’’.
SEC. 709. STAY OF TAX PROCEEDINGS LIMITED TO PREPETITION
TAXES.
Section 362(a)(8) of title 11, United States Code, is amended
by striking ‘‘the debtor’’ and inserting ‘‘a corporate debtor’s taxliability for a taxable period the bankruptcy court may determineor concerning the tax liability of a debtor who is an individualfor a taxable period ending before the date of the order for reliefunder this title’’.
SEC. 710. PERIODIC PAYMENT OF TAXES IN CHAPTER 11 CASES.
Section 1129(a)(9) of title 11, United States Code, is amended—
(1) in subparagraph (B), by striking ‘‘and’’ at the end;(2) in subparagraph (C), by striking ‘‘deferred cash pay-
ments,’’ and all that follows through the end of the subpara-graph, and inserting ‘‘regular installment payments in cash—
‘‘(i) of a total value, as of the effective date of
the plan, equal to the allowed amount of such claim;
‘‘(ii) over a period ending not later than 5 years
after the date of the order for relief under section301, 302, or 303; and
‘‘(iii) in a manner not less favorable than the most
favored nonpriority unsecured claim provided for bythe plan (other than cash payments made to a classof creditors under section 1122(b)); and’’; and
(3) by adding at the end the following:
‘‘(D) with respect to a secured claim which would other-
wise meet the description of an unsecured claim of agovernmental unit under section 507(a)(8), but for thesecured status of that claim, the holder of that claim willreceive on account of that claim, cash payments, in thesame manner and over the same period, as prescribedin subparagraph (C).’’.
SEC. 711. AVOIDANCE OF STATUTORY TAX LIENS PROHIBITED.
Section 545(2) of title 11, United States Code, is amended
by inserting before the semicolon at the end the following: ‘‘, exceptin any case in which a purchaser is a purchaser described insection 6323 of the Internal Revenue Code of 1986, or in anyother similar provision of State or local law’’.
SEC. 712. PAYMENT OF TAXES IN THE CONDUCT OF BUSINESS.
(a) P AYMENT OF TAXES REQUIRED .—Section 960 of title 28,
United States Code, is amended—
(1) by inserting ‘‘(a)’’ before ‘‘Any’’; and(2) by adding at the end the following:
‘‘(b) A tax under subsection (a) shall be paid on or before
the due date of the tax under applicable nonbankruptcy law,unless—
‘‘(1) the tax is a property tax secured by a lien against
property that is abandoned under section 554 of title 11, withina reasonable period of time after the lien attaches, by thetrustee in a case under title 11; or
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‘‘(2) payment of the tax is excused under a specific provision
of title 11.‘‘(c) In a case pending under chapter 7 of title 11, payment
of a tax may be deferred until final distribution is made undersection 726 of title 11, if—
‘‘(1) the tax was not incurred by a trustee duly appointed
or elected under chapter 7 of title 11; or
‘‘(2) before the due date of the tax, an order of the court
makes a finding of probable insufficiency of funds of the estateto pay in full the administrative expenses allowed under section503(b) of title 11 that have the same priority in distributionunder section 726(b) of title 11 as the priority of that tax.’’.(b) P
AYMENT OF ADVALOREM TAXES REQUIRED .—Section
503(b)(1)(B)(i) of title 11, United States Code, is amended byinserting ‘‘whether secured or unsecured, including property taxesfor which liability is in rem, in personam, or both,’’ before ‘‘except’’.
(c) R
EQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE TAXES
ELIMINATED .—Section 503(b)(1) of title 11, United States Code,
is amended—
(1) in subparagraph (B), by striking ‘‘and’’ at the end;(2) in subparagraph (C), by adding ‘‘and’’ at the end; and(3) by adding at the end the following:‘‘(D) notwithstanding the requirements of subsection (a),
a governmental unit shall not be required to file a requestfor the payment of an expense described in subparagraph (B)or (C), as a condition of its being an allowed administrativeexpense;’’.(d) P
AYMENT OF TAXES AND FEES AS SECURED CLAIMS .—Section
506 of title 11, United States Code, is amended—
(1) in subsection (b), by inserting ‘‘or State statute’’ after
‘‘agreement’’; and
(2) in subsection (c), by inserting ‘‘, including the payment
of all ad valorem property taxes with respect to the property’’before the period at the end.
SEC. 713. TARDILY FILED PRIORITY TAX CLAIMS.
Section 726(a)(1) of title 11, United States Code, is amended
by striking ‘‘before the date on which the trustee commences dis-tribution under this section;’’ and inserting the following: ‘‘on orbefore the earlier of—
‘‘(A) the date that is 10 days after the mailing to
creditors of the summary of the trustee’s final report; or
‘‘(B) the date on which the trustee commences final
distribution under this section;’’.
SEC. 714. INCOME TAX RETURNS PREPARED BY TAX AUTHORITIES.
Section 523(a) of title 11, United States Code, as amended
by sections 215 and 224, is amended—
(1) in paragraph (1)(B)—
(A) in the matter preceding clause (i), by inserting
‘‘or equivalent report or notice,’’ after ‘‘a return,’’;
(B) in clause (i), by inserting ‘‘or given’’ after ‘‘filed’’;
and
(C) in clause (ii)—
(i) by inserting ‘‘or given’’ after ‘‘filed’’; and(ii) by inserting ‘‘, report, or notice’’ after ‘‘return’’;
and
(2) by adding at the end the following:
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‘‘For purposes of this subsection, the term ‘return’ means a return
that satisfies the requirements of applicable nonbankruptcy law(including applicable filing requirements). Such term includes areturn prepared pursuant to section 6020(a) of the Internal RevenueCode of 1986, or similar State or local law, or a written stipulationto a judgment or a final order entered by a nonbankruptcy tribunal,but does not include a return made pursuant to section 6020(b)of the Internal Revenue Code of 1986, or a similar State or locallaw.’’.
SEC. 715. DISCHARGE OF THE ESTATE’S LIABILITY FOR UNPAID TAXES.
Section 505(b)(2) of title 11, United States Code, as amended
by section 703, is amended by inserting ‘‘the estate,’’ after ‘‘misrepre-sentation,’’.
SEC. 716. REQUIREMENT TO FILE TAX RETURNS TO CONFIRM
CHAPTER 13 PLANS.
(a) F ILING OF PREPETITION TAXRETURNS REQUIRED FOR PLAN
CONFIRMATION .—Section 1325(a) of title 11, United States Code,
as amended by sections 102, 213, and 306, is amended by insertingafter paragraph (8) the following:
‘‘(9) the debtor has filed all applicable Federal, State, and
local tax returns as required by section 1308.’’.(b) A
DDITIONAL TIME PERMITTED FOR FILING TAXRETURNS .—
(1) I N GENERAL .—Subchapter I of chapter 13 of title 11,
United States Code, is amended by adding at the end thefollowing:
‘‘§ 1308. Filing of prepetition tax returns
‘‘(a) Not later than the day before the date on which the
meeting of the creditors is first scheduled to be held under section341(a), if the debtor was required to file a tax return underapplicable nonbankruptcy law, the debtor shall file with appropriatetax authorities all tax returns for all taxable periods ending duringthe 4-year period ending on the date of the filing of the petition.
‘‘(b)(1) Subject to paragraph (2), if the tax returns required
by subsection (a) have not been filed by the date on which themeeting of creditors is first scheduled to be held under section341(a), the trustee may hold open that meeting for a reasonableperiod of time to allow the debtor an additional period of timeto file any unfiled returns, but such additional period of timeshall not extend beyond—
‘‘(A) for any return that is past due as of the date of
the filing of the petition, the date that is 120 days after thedate of that meeting; or
‘‘(B) for any return that is not past due as of the date
of the filing of the petition, the later of—
‘‘(i) the date that is 120 days after the date of that
meeting; or
‘‘(ii) the date on which the return is due under the
last automatic extension of time for filing that return towhich the debtor is entitled, and for which request istimely made, in accordance with applicable nonbankruptcylaw.Deadlines.
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‘‘(2) After notice and a hearing, and order entered before the
tolling of any applicable filing period determined under this sub-section, if the debtor demonstrates by a preponderance of the evi-dence that the failure to file a return as required under this sub-section is attributable to circumstances beyond the control of thedebtor, the court may extend the filing period established by thetrustee under this subsection for—
‘‘(A) a period of not more than 30 days for returns described
in paragraph (1); and
‘‘(B) a period not to extend after the applicable extended
due date for a return described in paragraph (2).‘‘(c) For purposes of this section, the term ‘return’ includes
a return prepared pursuant to subsection (a) or (b) of section 6020of the Internal Revenue Code of 1986, or a similar State or locallaw, or a written stipulation to a judgment or a final order enteredby a nonbankruptcy tribunal.’’.
(2) C
ONFORMING AMENDMENT .—The table of sections for
subchapter I of chapter 13 of title 11, United States Code,is amended by adding at the end the following:
‘‘1308. Filing of prepetition tax returns.’’.
(c) D ISMISSAL OR CONVERSION ON FAILURE TOCOMPLY .—Section
1307 of title 11, United States Code, is amended—
(1) by redesignating subsections (e) and (f) as subsections
(f) and (g), respectively; and
(2) by inserting after subsection (d) the following:
‘‘(e) Upon the failure of the debtor to file a tax return under
section 1308, on request of a party in interest or the United Statestrustee and after notice and a hearing, the court shall dismissa case or convert a case under this chapter to a case under chapter7 of this title, whichever is in the best interest of the creditorsand the estate.’’.
(d) T
IMELY FILED CLAIMS .—Section 502(b)(9) of title 11, United
States Code, is amended by inserting before the period at theend the following: ‘‘, and except that in a case under chapter13, a claim of a governmental unit for a tax with respect to areturn filed under section 1308 shall be timely if the claim isfiled on or before the date that is 60 days after the date onwhich such return was filed as required’’.
(e) R
ULES FOR OBJECTIONS TO CLAIMS AND TO CONFIRMATION .—
It is the sense of Congress that the Judicial Conference of theUnited States should, as soon as practicable after the date ofenactment of this Act, propose amended Federal Rules of Bank-ruptcy Procedure that provide—
(1) notwithstanding the provisions of Rule 3015(f), in cases
under chapter 13 of title 11, United States Code, that anobjection to the confirmation of a plan filed by a governmentalunit on or before the date that is 60 days after the dateon which the debtor files all tax returns required under sections1308 and 1325(a)(7) of title 11, United States Code, shall betreated for all purposes as if such objection had been timely
filed before such confirmation; and
(2) in addition to the provisions of Rule 3007, in a case
under chapter 13 of title 11, United States Code, that noobjection to a claim for a tax with respect to which a returnis required to be filed under section 1308 of title 11, United
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States Code, shall be filed until such return has been filed
as required.
SEC. 717. STANDARDS FOR TAX DISCLOSURE.
Section 1125(a)(1) of title 11, United States Code, is amended—
(1) by inserting ‘‘including a discussion of the potential
material Federal tax consequences of the plan to the debtor,any successor to the debtor, and a hypothetical investor typicalof the holders of claims or interests in the case,’’ after ‘‘records,’’;and
(2) by striking ‘‘a hypothetical reasonable investor typical
of holders of claims or interests’’ and inserting ‘‘such a hypo-thetical investor’’.
SEC. 718. SETOFF OF TAX REFUNDS.
Section 362(b) of title 11, United States Code, as amended
by sections 224, 303, 311, and 401, is amended by inserting afterparagraph (25) the following:
‘‘(26) under subsection (a), of the setoff under applicable
nonbankruptcy law of an income tax refund, by a governmentalunit, with respect to a taxable period that ended before thedate of the order for relief against an income tax liabilityfor a taxable period that also ended before the date of theorder for relief, except that in any case in which the setoffof an income tax refund is not permitted under applicablenonbankruptcy law because of a pending action to determinethe amount or legality of a tax liability, the governmentalunit may hold the refund pending the resolution of the action,unless the court, on the motion of the trustee and after noticeand a hearing, grants the taxing authority adequate protection(within the meaning of section 361) for the secured claim ofsuch authority in the setoff under section 506(a);’’.
SEC. 719. SPECIAL PROVISIONS RELATED TO THE TREATMENT OF
STATE AND LOCAL TAXES.
(a) I NGENERAL .—
(1) S PECIAL PROVISIONS .—Section 346 of title 11, United
States Code, is amended to read as follows:
‘‘§ 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 con-cerning a debtor under this title, and the income, gain, loss, deduc-tions, and credits of such estate shall be taxed to or claimed bythe estate, a separate taxable estate is also created for purposesof any State and local law imposing a tax on or measured byincome and such income, gain, loss, deductions, and credits shallbe taxed to or claimed by the estate and may not be taxed toor claimed by the debtor. The preceding sentence shall not applyif the case is dismissed. The trustee shall make tax returns ofincome 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 concerninga 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 taxedto or claimed by the debtor under a State or local law imposing
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a tax on or measured by income and may not be taxed to or
claimed by the estate. The trustee shall make such tax returnsof income of corporations and of partnerships as are required underany State or local law, but with respect to partnerships, shallmake such returns only to the extent such returns are also requiredto be made under such Code. The estate shall be liable for anytax imposed on such corporation or partnership, but not for anytax 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 ormeasured by income that is a debtor in a case under this title,any gain or loss resulting from a distribution of property fromsuch 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 thecommencement of the case, is gain, loss, income, deduction, orcredit, as the case may be, of the partner or member, and ifsuch 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 acase under this title shall terminate only if and to the extentthat the taxable period of such debtor terminates under the InternalRevenue Code of 1986.
‘‘(e) The estate in any case described in subsection (a) shall
use the same accounting method as the debtor used immediatelybefore the commencement of the case, if such method of accountingcomplies 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 debtorto the estate or from the estate to the debtor shall not be treatedas a disposition for purposes of any provision assigning tax con-sequences to a disposition, except to the extent that such transferis treated as a disposition under the Internal Revenue Code of1986.
‘‘(g) Whenever a tax is imposed pursuant to a State or local
law imposing a tax on or measured by income pursuant to sub-section (a) or (b), such tax shall be imposed at rates generallyapplicable to the same types of entities under such State or locallaw.
‘‘(h) The trustee shall withhold from any payment of claims
for wages, salaries, commissions, dividends, interest, or other pay-ments, or collect, any amount required to be withheld or collectedunder applicable State or local tax law, and shall pay such withheldor collected amount to the appropriate governmental unit at thetime and in the manner required by such tax law, and with thesame priority as the claim from which such amount was withheldor 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 ofany tax attribute from one taxable period to a subsequent taxableperiod, the estate shall succeed to such tax attribute in any casein 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 underparagraph (1) to the extent consistent with the Internal RevenueCode of 1986.
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‘‘(3) The estate may carry back any loss or tax attribute to
a taxable period of the debtor that ended before the date of theorder 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 debtorunder 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 dischargeof indebtedness in a case under this title, except to the extent,if any, that such income is subject to tax under the Internal RevenueCode of 1986.
‘‘(2) Whenever the Internal Revenue Code of 1986 provides
that the amount excluded from gross income in respect of thedischarge of indebtedness in a case under this title shall be appliedto reduce the tax attributes of the debtor or the estate, a similarreduction shall be made under any State or local law imposinga tax on or measured by income to the extent such State or locallaw recognizes such attributes. Such State or local law may alsoprovide for the reduction of other attributes to the extent thatthe full amount of income from the discharge of indebtedness hasnot 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 determinedunder applicable nonbankruptcy law.
‘‘(2) For Federal tax purposes, the provisions of this section
are subject to the Internal Revenue Code of 1986 and otherapplicable Federal nonbankruptcy law.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for
chapter 3 of title 11, United States Code, is amended by strikingthe item relating to section 346 and inserting the following:
‘‘346. Special provisions related to the treatment of State and local taxes.’’.
(b) C ONFORMING AMENDMENTS .—Title 11 of the United States
Code is amended—
(1) by striking section 728;(2) in the table of sections for chapter 7 by striking the
item relating to section 728;
(3) in section 1146—
(A) by striking subsections (a) and (b); and(B) by redesignating subsections (c) and (d) as sub-
sections (a) and (b), respectively; and(4) in section 1231—
(A) by striking subsections (a) and (b); and(B) by redesignating subsections (c) and (d) as sub-
sections (a) and (b), respectively.
SEC. 720. DISMISSAL FOR FAILURE TO TIMELY FILE TAX RETURNS.
Section 521 of title 11, United States Code, as amended by
sections 106, 225, 305, 315, and 316, is amended by adding atthe end the following:
‘‘(j)(1) Notwithstanding any other provision of this title, if the
debtor fails to file a tax return that becomes due after thecommencement of the case or to properly obtain an extension of
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the due date for filing such return, the taxing authority may request
that the court enter an order converting or dismissing the case.
‘‘(2) If the debtor does not file the required return or obtain
the extension referred to in paragraph (1) within 90 days aftera request is filed by the taxing authority under that paragraph,the court shall convert or dismiss the case, whichever is in thebest interests of creditors and the estate.’’.
TITLE VIII—ANCILLARY AND OTHER
CROSS-BORDER CASES
SEC. 801. AMENDMENT TO ADD CHAPTER 15 TO TITLE 11, UNITED
STATES CODE.
(a) I NGENERAL .—Title 11, United States Code, is amended
by inserting after chapter 13 the following:
‘‘CHAPTER 15—ANCILLARY AND OTHER CROSS-BORDER
CASES
‘‘Sec.
‘‘1501. Purpose and scope of application.
‘‘SUBCHAPTER I—GENERAL PROVISIONS
‘‘1502. Definitions.
‘‘1503. International obligations of the United States.‘‘1504. Commencement of ancillary case.‘‘1505. Authorization to act in a foreign country.‘‘1506. Public policy exception.‘‘1507. Additional assistance.‘‘1508. Interpretation.
‘‘SUBCHAPTER II—ACCESS OF FOREIGN REPRESENTATIVES AND
CREDITORS TO THE COURT
‘‘1509. Right of direct access.
‘‘1510. Limited jurisdiction.‘‘1511. Commencement of case under section 301 or 303.‘‘1512. Participation of a foreign representative in a case under this title.‘‘1513. Access of foreign creditors to a case under this title.‘‘1514. Notification to foreign creditors concerning a case under this title.
‘‘SUBCHAPTER III—RECOGNITION OF A FOREIGN PROCEEDING AND
RELIEF
‘‘1515. Application for recognition.
‘‘1516. Presumptions concerning recognition.‘‘1517. Order granting recognition.‘‘1518. Subsequent information.‘‘1519. Relief that may be granted upon filing petition for recognition.‘‘1520. Effects of recognition of a foreign main proceeding.‘‘1521. Relief that may be granted upon recognition.‘‘1522. Protection of creditors and other interested persons.‘‘1523. Actions to avoid acts detrimental to creditors.‘‘1524. Intervention by a foreign representative.
‘‘SUBCHAPTER IV—COOPERATION WITH FOREIGN COURTS AND FOREIGN
REPRESENTATIVES
‘‘1525. Cooperation and direct communication between the court and foreign courts
or foreign representatives.
‘‘1526. Cooperation and direct communication between the trustee and foreign
courts or foreign representatives.
‘‘1527. Forms of cooperation.
‘‘SUBCHAPTER V—CONCURRENT PROCEEDINGS
‘‘1528. Commencement of a case under this title after recognition of a foreign main
proceeding.Deadline.
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‘‘1529. Coordination of a case under this title and a foreign proceeding.
‘‘1530. Coordination of more than 1 foreign proceeding.‘‘1531. Presumption of insolvency based on recognition of a foreign main proceeding.‘‘1532. Rule of payment in concurrent proceedings.
‘‘§ 1501. Purpose and scope of application
‘‘(a) The purpose of this chapter is to incorporate the Model
Law on Cross-Border Insolvency so as to provide effective mecha-nisms for dealing with cases of cross-border insolvency with theobjectives of—
‘‘(1) cooperation between—
‘‘(A) courts of the United States, United States trustees,
trustees, examiners, debtors, and debtors in possession;and
‘‘(B) the courts and other competent authorities of for-
eign countries involved in cross-border insolvency cases;‘‘(2) greater legal certainty for trade and investment;‘‘(3) fair and efficient administration of cross-border insol-
vencies that protects the interests of all creditors, and otherinterested entities, including the debtor;
‘‘(4) protection and maximization of the value of the debtor’s
assets; and
‘‘(5) facilitation of the rescue of financially troubled
businesses, thereby protecting investment and preservingemployment.‘‘(b) This chapter applies where—
‘‘(1) assistance is sought in the United States by a foreign
court or a foreign representative in connection with a foreignproceeding;
‘‘(2) assistance is sought in a foreign country in connection
with a case under this title;
‘‘(3) a foreign proceeding and a case under this title with
respect to the same debtor are pending concurrently; or
‘‘(4) creditors or other interested persons in a foreign
country have an interest in requesting the commencement of,or participating in, a case or proceeding under this title.‘‘(c) This chapter does not apply to—
‘‘(1) a proceeding concerning an entity, other than a foreign
insurance company, identified by exclusion in section 109(b);
‘‘(2) an individual, or to an individual and such individual’s
spouse, who have debts within the limits specified in section109(e) and who are citizens of the United States or alienslawfully admitted for permanent residence in the United States;or
‘‘(3) an entity subject to a proceeding under the Securities
Investor Protection Act of 1970, a stockbroker subject to sub-chapter III of chapter 7 of this title, or a commodity brokersubject to subchapter IV of chapter 7 of this title.‘‘(d) The court may not grant relief under this chapter with
respect to any deposit, escrow, trust fund, or other security requiredor permitted under any applicable State insurance law or regulationfor the benefit of claim holders in the United States.
‘‘SUBCHAPTER I—GENERAL PROVISIONS
‘‘§ 1502. Definitions
‘‘For the purposes of this chapter, the term—Applicability.
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‘‘(1) ‘debtor’ means an entity that is the subject of a foreign
proceeding;
‘‘(2) ‘establishment’ means any place of operations where
the debtor carries out a nontransitory economic activity;
‘‘(3) ‘foreign court’ means a judicial or other authority com-
petent to control or supervise a foreign proceeding;
‘‘(4) ‘foreign main proceeding’ means a foreign proceeding
pending in the country where the debtor has the center ofits main interests;
‘‘(5) ‘foreign nonmain proceeding’ means a foreign pro-
ceeding, other than a foreign main proceeding, pending in acountry where the debtor has an establishment;
‘‘(6) ‘trustee’ includes a trustee, a debtor in possession
in a case under any chapter of this title, or a debtor underchapter 9 of this title;
‘‘(7) ‘recognition’ means the entry of an order granting
recognition of a foreign main proceeding or foreign nonmainproceeding under this chapter; and
‘‘(8) ‘within the territorial jurisdiction of the United States’,
when used with reference to property of a debtor, refers totangible property located within the territory of the UnitedStates and intangible property deemed under applicable non-bankruptcy law to be located within that territory, includingany property subject to attachment or garnishment that mayproperly be seized or garnished by an action in a Federalor State court in the United States.
‘‘§ 1503. International obligations of the United States
‘‘To the extent that this chapter conflicts with an obligation
of the United States arising out of any treaty or other form ofagreement to which it is a party with one or more other countries,the requirements of the treaty or agreement prevail.
‘‘§ 1504. Commencement of ancillary case
‘‘A case under this chapter is commenced by the filing of a
petition for recognition of a foreign proceeding under section 1515.
‘‘§ 1505. Authorization to act in a foreign country
‘‘A trustee or another entity (including an examiner) may be
authorized by the court to act in a foreign country on behalf ofan estate created under section 541. An entity authorized to actunder this section may act in any way permitted by the applicableforeign law.
‘‘§ 1506. Public policy exception
‘‘Nothing in this chapter prevents the court from refusing to
take an action governed by this chapter if the action would bemanifestly contrary to the public policy of the United States.
‘‘§ 1507. Additional assistance
‘‘(a) Subject to the specific limitations stated elsewhere in this
chapter the court, if recognition is granted, may provide additionalassistance to a foreign representative under this title or underother laws of the United States.
‘‘(b) In determining whether to provide additional assistance
under this title or under other laws of the United States, the
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court shall consider whether such additional assistance, consistent
with the principles of comity, will reasonably assure—
‘‘(1) just treatment of all holders of claims against or
interests in the debtor’s property;
‘‘(2) protection of claim holders in the United States against
prejudice and inconvenience in the processing of claims in suchforeign proceeding;
‘‘(3) prevention of preferential or fraudulent dispositions
of property of the debtor;
‘‘(4) distribution of proceeds of the debtor’s property
substantially in accordance with the order prescribed by thistitle; and
‘‘(5) if appropriate, the provision of an opportunity for a
fresh start for the individual that such foreign proceeding con-cerns.
‘‘§ 1508. Interpretation
‘‘In interpreting this chapter, the court shall consider its inter-
national origin, and the need to promote an application of thischapter that is consistent with the application of similar statutesadopted by foreign jurisdictions.
‘‘SUBCHAPTER II—ACCESS OF FOREIGN REPRESENTATIVES
AND CREDITORS TO THE COURT
‘‘§ 1509. Right of direct access
‘‘(a) A foreign representative may commence a case under sec-
tion 1504 by filing directly with the court a petition for recognitionof a foreign proceeding under section 1515.
‘‘(b) If the court grants recognition under section 1517, and
subject to any limitations that the court may impose consistentwith the policy of this chapter—
‘‘(1) the foreign representative has the capacity to sue and
be sued in a court in the United States;
‘‘(2) the foreign representative may apply directly to a
court in the United States for appropriate relief in that court;and
‘‘(3) a court in the United States shall grant comity or
cooperation to the foreign representative.‘‘(c) A request for comity or cooperation by a foreign representa-
tive in a court in the United States other than the court whichgranted recognition shall be accompanied by a certified copy ofan order granting recognition under section 1517.
‘‘(d) If the court denies recognition under this chapter, the
court may issue any appropriate order necessary to prevent theforeign representative from obtaining comity or cooperation fromcourts in the United States.
‘‘(e) Whether or not the court grants recognition, and subject
to sections 306 and 1510, a foreign representative is subject toapplicable nonbankruptcy law.
‘‘(f) Notwithstanding any other provision of this section, the
failure of a foreign representative to commence a case or to obtainrecognition under this chapter does not affect any right the foreignrepresentative may have to sue in a court in the United Statesto collect or recover a claim which is the property of the debtor.
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‘‘§ 1510. Limited jurisdiction
‘‘The sole fact that a foreign representative files a petition
under section 1515 does not subject the foreign representative tothe jurisdiction of any court in the United States for any otherpurpose.
‘‘§ 1511. Commencement of case under section 301 or 303
‘‘(a) Upon recognition, a foreign representative may commence—
‘‘(1) an involuntary case under section 303; or‘‘(2) a voluntary case under section 301 or 302, if the
foreign proceeding is a foreign main proceeding.‘‘(b) The petition commencing a case under subsection (a) must
be accompanied by a certified copy of an order granting recognition.The court where the petition for recognition has been filed mustbe advised of the foreign representative’s intent to commence acase under subsection (a) prior to such commencement.
‘‘§ 1512. Participation of a foreign representative in a case
under this title
‘‘Upon recognition of a foreign proceeding, the foreign represent-
ative in the recognized proceeding is entitled to participate asa party in interest in a case regarding the debtor under this title.
‘‘§ 1513. Access of foreign creditors to a case under this title
‘‘(a) Foreign creditors have the same rights regarding the
commencement of, and participation in, a case under this titleas domestic creditors.
‘‘(b)(1) Subsection (a) does not change or codify present law
as to the priority of claims under section 507 or 726, except thatthe claim of a foreign creditor under those sections shall not begiven a lower priority than that of general unsecured claims withoutpriority solely because the holder of such claim is a foreign creditor.
‘‘(2)(A) Subsection (a) and paragraph (1) do not change or codify
present law as to the allowability of foreign revenue claims orother foreign public law claims in a proceeding under this title.
‘‘(B) Allowance and priority as to a foreign tax claim or other
foreign public law claim shall be governed by any applicable taxtreaty of the United States, under the conditions and circumstancesspecified therein.
‘‘§ 1514. Notification to foreign creditors concerning a case
under this title
‘‘(a) Whenever in a case under this title notice is to be given
to creditors generally or to any class or category of creditors, suchnotice shall also be given to the known creditors generally, orto creditors in the notified class or category, that do not haveaddresses in the United States. The court may order that appro-priate steps be taken with a view to notifying any creditor whoseaddress is not yet known.
‘‘(b) Such notification to creditors with foreign addresses
described in subsection (a) shall be given individually, unless thecourt considers that, under the circumstances, some other formof notification would be more appropriate. No letter or other for-mality is required.
‘‘(c) When a notification of commencement of a case is to be
given to foreign creditors, such notification shall—
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‘‘(1) indicate the time period for filing proofs of claim and
specify the place for filing such proofs of claim;
‘‘(2) indicate whether secured creditors need to file proofs
of claim; and
‘‘(3) contain any other information required to be included
in such notification to creditors under this title and the ordersof the court.‘‘(d) Any rule of procedure or order of the court as to notice
or the filing of a proof of claim shall provide such additional timeto creditors with foreign addresses as is reasonable under thecircumstances.
‘‘SUBCHAPTER III—RECOGNITION OF A FOREIGN
PROCEEDING AND RELIEF
‘‘§ 1515. Application for recognition
‘‘(a) A foreign representative applies to the court for recognition
of a foreign proceeding in which the foreign representative hasbeen appointed by filing a petition for recognition.
‘‘(b) A petition for recognition shall be accompanied by—
‘‘(1) a certified copy of the decision commencing such foreign
proceeding and appointing the foreign representative;
‘‘(2) a certificate from the foreign court affirming the exist-
ence of such foreign proceeding and of the appointment ofthe foreign representative; or
‘‘(3) in the absence of evidence referred to in paragraphs
(1) and (2), any other evidence acceptable to the court of theexistence of such foreign proceeding and of the appointmentof the foreign representative.‘‘(c) A petition for recognition shall also be accompanied by
a statement identifying all foreign proceedings with respect to thedebtor that are known to the foreign representative.
‘‘(d) The documents referred to in paragraphs (1) and (2) of
subsection (b) shall be translated into English. The court mayrequire a translation into English of additional documents.
‘‘§ 1516. Presumptions concerning recognition
‘‘(a) If the decision or certificate referred to in section 1515(b)
indicates that the foreign proceeding is a foreign proceeding andthat the person or body is a foreign representative, the court isentitled to so presume.
‘‘(b) The court is entitled to presume that documents submitted
in support of the petition for recognition are authentic, whetheror not they have been legalized.
‘‘(c) In the absence of evidence to the contrary, the debtor’s
registered office, or habitual residence in the case of an individual,is presumed to be the center of the debtor’s main interests.
‘‘§ 1517. Order granting recognition
‘‘(a) Subject to section 1506, after notice and a hearing, an
order recognizing a foreign proceeding shall be entered if—
‘‘(1) such foreign proceeding for which recognition is sought
is a foreign main proceeding or foreign nonmain proceedingwithin the meaning of section 1502;
‘‘(2) the foreign representative applying for recognition is
a person or body; and
‘‘(3) the petition meets the requirements of section 1515.Certification.
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‘‘(b) Such foreign proceeding shall be recognized—
‘‘(1) as a foreign main proceeding if it is pending in the
country where the debtor has the center of its main interests;or
‘‘(2) as a foreign nonmain proceeding if the debtor has
an establishment within the meaning of section 1502 in theforeign country where the proceeding is pending.‘‘(c) A petition for recognition of a foreign proceeding shall
be decided upon at the earliest possible time. Entry of an orderrecognizing a foreign proceeding constitutes recognition under thischapter.
‘‘(d) The provisions of this subchapter do not prevent modifica-
tion or termination of recognition if it is shown that the groundsfor granting it were fully or partially lacking or have ceased toexist, but in considering such action the court shall give due weightto possible prejudice to parties that have relied upon the ordergranting recognition. A case under this chapter may be closedin the manner prescribed under section 350.
‘‘§ 1518. Subsequent information
‘‘From the time of filing the petition for recognition of a foreign
proceeding, the foreign representative shall file with the courtpromptly a notice of change of status concerning—
‘‘(1) any substantial change in the status of such foreign
proceeding or the status of the foreign representative’s appoint-ment; and
‘‘(2) any other foreign proceeding regarding the debtor that
becomes known to the foreign representative.
‘‘§ 1519. Relief that may be granted upon filing petition for
recognition
‘‘(a) From the time of filing a petition for recognition until
the court rules on the petition, the court may, at the requestof the foreign representative, where relief is urgently needed toprotect the assets of the debtor or the interests of the creditors,grant relief of a provisional nature, including—
‘‘(1) staying execution against the debtor’s assets;‘‘(2) entrusting the administration or realization of all or
part of the debtor’s assets located in the United States tothe foreign representative or another person authorized bythe court, including an examiner, in order to protect and pre-serve the value of assets that, by their nature or becauseof other circumstances, are perishable, susceptible to devalu-ation or otherwise in jeopardy; and
‘‘(3) any relief referred to in paragraph (3), (4), or (7)
of section 1521(a).‘‘(b) Unless extended under section 1521(a)(6), the relief granted
under this section terminates when the petition for recognitionis granted.
‘‘(c) It is a ground for denial of relief under this section that
such relief would interfere with the administration of a foreignmain proceeding.
‘‘(d) The court may not enjoin a police or regulatory act of
a governmental unit, including a criminal action or proceeding,under this section.
‘‘(e) The standards, procedures, and limitations applicable to
an injunction shall apply to relief under this section.
Applicability.Notice.
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‘‘(f) The exercise of rights not subject to the stay arising under
section 362(a) pursuant to paragraph (6), (7), (17), or (27) of section362(b) or pursuant to section 362(n) shall not be stayed by anyorder of a court or administrative agency in any proceeding underthis chapter.
‘‘§ 1520. Effects of recognition of a foreign main proceeding
‘‘(a) Upon recognition of a foreign proceeding that is a foreign
main proceeding—
‘‘(1) sections 361 and 362 apply with respect to the debtor
and the property of the debtor that is within the territorialjurisdiction of the United States;
‘‘(2) sections 363, 549, and 552 apply to a transfer of an
interest of the debtor in property that is within the territorialjurisdiction of the United States to the same extent that thesections would apply to property of an estate;
‘‘(3) unless the court orders otherwise, the foreign rep-
resentative may operate the debtor’s business and may exercisethe rights and powers of a trustee under and to the extentprovided by sections 363 and 552; and
‘‘(4) section 552 applies to property of the debtor that
is within the territorial jurisdiction of the United States.‘‘(b) Subsection (a) does not affect the right to commence an
individual action or proceeding in a foreign country to the extentnecessary to preserve a claim against the debtor.
‘‘(c) Subsection (a) does not affect the right of a foreign rep-
resentative or an entity to file a petition commencing a case underthis title or the right of any party to file claims or take otherproper actions in such a case.
‘‘§ 1521. Relief that may be granted upon recognition
‘‘(a) Upon recognition of a foreign proceeding, whether main
or nonmain, where necessary to effectuate the purpose of thischapter and to protect the assets of the debtor or the interestsof the creditors, the court may, at the request of the foreign rep-resentative, grant any appropriate relief, including—
‘‘(1) staying the commencement or continuation of an indi-
vidual action or proceeding concerning the debtor’s assets,rights, obligations or liabilities to the extent they have notbeen stayed under section 1520(a);
‘‘(2) staying execution against the debtor’s assets to the
extent it has not been stayed under section 1520(a);
‘‘(3) suspending the right to transfer, encumber or otherwise
dispose of any assets of the debtor to the extent this righthas not been suspended under section 1520(a);
‘‘(4) providing for the examination of witnesses, the taking
of evidence or the delivery of information concerning thedebtor’s assets, affairs, rights, obligations or liabilities;
‘‘(5) entrusting the administration or realization of all or
part of the debtor’s assets within the territorial jurisdictionof the United States to the foreign representative or anotherperson, including an examiner, authorized by the court;
‘‘(6) extending relief granted under section 1519(a); and‘‘(7) granting any additional relief that may be available
to a trustee, except for relief available under sections 522,544, 545, 547, 548, 550, and 724(a).Applicability.
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‘‘(b) Upon recognition of a foreign proceeding, whether main
or nonmain, the court may, at the request of the foreign representa-tive, entrust the distribution of all or part of the debtor’s assetslocated in the United States to the foreign representative or anotherperson, including an examiner, authorized by the court, providedthat the court is satisfied that the interests of creditors in theUnited States are sufficiently protected.
‘‘(c) In granting relief under this section to a representative
of a foreign nonmain proceeding, the court must be satisfied thatthe relief relates to assets that, under the law of the United States,should be administered in the foreign nonmain proceeding or con-cerns information required in that proceeding.
‘‘(d) The court may not enjoin a police or regulatory act of
a governmental unit, including a criminal action or proceeding,under this section.
‘‘(e) The standards, procedures, and limitations applicable to
an injunction shall apply to relief under paragraphs (1), (2), (3),and (6) of subsection (a).
‘‘(f) The exercise of rights not subject to the stay arising under
section 362(a) pursuant to paragraph (6), (7), (17), or (27) of section362(b) or pursuant to section 362(n) shall not be stayed by anyorder of a court or administrative agency in any proceeding underthis chapter.
‘‘§ 1522. Protection of creditors and other interested persons
‘‘(a) The court may grant relief under section 1519 or 1521,
or may modify or terminate relief under subsection (c), only ifthe interests of the creditors and other interested entities, includingthe debtor, are sufficiently protected.
‘‘(b) The court may subject relief granted under section 1519
or 1521, or the operation of the debtor’s business under section1520(a)(3), to conditions it considers appropriate, including thegiving of security or the filing of a bond.
‘‘(c) The court may, at the request of the foreign representative
or an entity affected by relief granted under section 1519 or 1521,or at its own motion, modify or terminate such relief.
‘‘(d) Section 1104(d) shall apply to the appointment of an exam-
iner under this chapter. Any examiner shall comply with the quali-fication requirements imposed on a trustee by section 322.
‘‘§ 1523. Actions to avoid acts detrimental to creditors
‘‘(a) Upon recognition of a foreign proceeding, the foreign rep-
resentative has standing in a case concerning the debtor pendingunder another chapter of this title to initiate actions under sections522, 544, 545, 547, 548, 550, 553, and 724(a).
‘‘(b) When a foreign proceeding is a foreign nonmain proceeding,
the court must be satisfied that an action under subsection (a)relates to assets that, under United States law, should be adminis-tered in the foreign nonmain proceeding.
‘‘§ 1524. Intervention by a foreign representative
‘‘Upon recognition of a foreign proceeding, the foreign represent-
ative may intervene in any proceedings in a State or Federalcourt in the United States in which the debtor is a party.
Applicability.Applicability.
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‘‘SUBCHAPTER IV—COOPERATION WITH FOREIGN COURTS
AND FOREIGN REPRESENTATIVES
‘‘§ 1525. Cooperation and direct communication between the
court and foreign courts or foreign representa-tives
‘‘(a) Consistent with section 1501, the court shall cooperate
to the maximum extent possible with a foreign court or a foreignrepresentative, either directly or through the trustee.
‘‘(b) The court is entitled to communicate directly with, or
to request information or assistance directly from, a foreign courtor a foreign representative, subject to the rights of a party ininterest to notice and participation.
‘‘§ 1526. Cooperation and direct communication between the
trustee and foreign courts or foreign representa-tives
‘‘(a) Consistent with section 1501, the trustee or other person,
including an examiner, authorized by the court, shall, subject tothe supervision of the court, cooperate to the maximum extentpossible with a foreign court or a foreign representative.
‘‘(b) The trustee or other person, including an examiner, author-
ized by the court is entitled, subject to the supervision of thecourt, to communicate directly with a foreign court or a foreignrepresentative.
‘‘§ 1527. Forms of cooperation
‘‘Cooperation referred to in sections 1525 and 1526 may be
implemented by any appropriate means, including—
‘‘(1) appointment of a person or body, including an exam-
iner, to act at the direction of the court;
‘‘(2) communication of information by any means considered
appropriate by the court;
‘‘(3) coordination of the administration and supervision of
the debtor’s assets and affairs;
‘‘(4) approval or implementation of agreements concerning
the coordination of proceedings; and
‘‘(5) coordination of concurrent proceedings regarding the
same debtor.
‘‘SUBCHAPTER V—CONCURRENT PROCEEDINGS
‘‘§ 1528. Commencement of a case under this title after rec-
ognition of a foreign main proceeding
‘‘After recognition of a foreign main proceeding, a case under
another chapter of this title may be commenced only if the debtorhas assets in the United States. The effects of such case shallbe restricted to the assets of the debtor that are within the terri-torial jurisdiction of the United States and, to the extent necessaryto implement cooperation and coordination under sections 1525,1526, and 1527, to other assets of the debtor that are withinthe jurisdiction of the court under sections 541(a) of this title,and 1334(e) of title 28, to the extent that such other assets arenot subject to the jurisdiction and control of a foreign proceedingthat has been recognized under this chapter.
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‘‘§ 1529. Coordination of a case under this title and a foreign
proceeding
‘‘If a foreign proceeding and a case under another chapter
of this title are pending concurrently regarding the same debtor,the court shall seek cooperation and coordination under sections1525, 1526, and 1527, and the following shall apply:
‘‘(1) If the case in the United States pending at the time
the petition for recognition of such foreign proceeding is filed—
‘‘(A) any relief granted under section 1519 or 1521
must be consistent with the relief granted in the casein the United States; and
‘‘(B) section 1520 does not apply even if such foreign
proceeding is recognized as a foreign main proceeding.‘‘(2) If a case in the United States under this title com-
mences after recognition, or after the date of the filing ofthe petition for recognition, of such foreign proceeding—
‘‘(A) any relief in effect under section 1519 or 1521
shall be reviewed by the court and shall be modified orterminated if inconsistent with the case in the UnitedStates; and
‘‘(B) if such foreign proceeding is a foreign main pro-
ceeding, the stay and suspension referred to in section1520(a) shall be modified or terminated if inconsistent withthe relief granted in the case in the United States.‘‘(3) In granting, extending, or modifying relief granted
to a representative of a foreign nonmain proceeding, the courtmust be satisfied that the relief relates to assets that, underthe laws of the United States, should be administered in theforeign nonmain proceeding or concerns information requiredin that proceeding.
‘‘(4) In achieving cooperation and coordination under sec-
tions 1528 and 1529, the court may grant any of the reliefauthorized under section 305.
‘‘§ 1530. Coordination of more than 1 foreign proceeding
‘‘In matters referred to in section 1501, with respect to more
than 1 foreign proceeding regarding the debtor, the court shallseek cooperation and coordination under sections 1525, 1526, and1527, and the following shall apply:
‘‘(1) Any relief granted under section 1519 or 1521 to a
representative of a foreign nonmain proceeding after recognitionof a foreign main proceeding must be consistent with the foreignmain proceeding.
‘‘(2) If a foreign main proceeding is recognized after recogni-
tion, or after the filing of a petition for recognition, of a foreignnonmain proceeding, any relief in effect under section 1519or 1521 shall be reviewed by the court and shall be modifiedor terminated if inconsistent with the foreign main proceeding.
‘‘(3) If, after recognition of a foreign nonmain proceeding,
another foreign nonmain proceeding is recognized, the courtshall grant, modify, or terminate relief for the purpose of facili-tating coordination of the proceedings.
‘‘§ 1531. Presumption of insolvency based on recognition of
a foreign main proceeding
‘‘In the absence of evidence to the contrary, recognition of
a foreign main proceeding is, for the purpose of commencing aApplicability.Applicability.
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proceeding under section 303, proof that the debtor is generally
not paying its debts as such debts become due.
‘‘§ 1532. Rule of payment in concurrent proceedings
‘‘Without prejudice to secured claims or rights in rem, a creditor
who has received payment with respect to its claim in a foreignproceeding pursuant to a law relating to insolvency may not receivea payment for the same claim in a case under any other chapterof this title regarding the debtor, so long as the payment to othercreditors of the same class is proportionately less than the paymentthe creditor has already received.’’.
(b) C
LERICAL AMENDMENT .—The table of chapters for title 11,
United States Code, is amended by inserting after the item relatingto chapter 13 the following:
‘‘15. Ancillary and Other Cross-Border Cases ……………………………………… 1501’’.
SEC. 802. OTHER AMENDMENTS TO TITLES 11 AND 28, UNITED STATES
CODE.
(a) A PPLICABILITY OF CHAPTERS .—Section 103 of title 11, United
States Code, is amended—
(1) in subsection (a), by inserting before the period the
following: ‘‘, and this chapter, sections 307, 362(n), 555 through557, and 559 through 562 apply in a case under chapter 15’’;and
(2) by adding at the end the following:
‘‘(k) Chapter 15 applies only in a case under such chapter,
except that—
‘‘(1) sections 1505, 1513, and 1514 apply in all cases under
this title; and
‘‘(2) section 1509 applies whether or not a case under
this title is pending.’’.(b) D
EFINITIONS .—Section 101 of title 11, United States Code,
is amended by striking paragraphs (23) and (24) and insertingthe following:
‘‘(23) ‘foreign proceeding’ means a collective judicial or
administrative proceeding in a foreign country, including aninterim proceeding, under a law relating to insolvency or adjust-ment of debt in which proceeding the assets and affairs ofthe debtor are subject to control or supervision by a foreigncourt, for the purpose of reorganization or liquidation;
‘‘(24) ‘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 reorganiza-tion or the liquidation of the debtor’s assets or affairs or toact as a representative of such foreign proceeding;’’.(c) A
MENDMENTS TO TITLE 28, U NITED STATES CODE.—
(1) P ROCEDURES .—Section 157(b)(2) of title 28, United
States Code, is amended—
(A) in subparagraph (N), by striking ‘‘and’’ at the end;(B) in subparagraph (O), by striking the period at
the end and inserting ‘‘; and’’; and
(C) by adding at the end the following:‘‘(P) recognition of foreign proceedings and other mat-
ters under chapter 15 of title 11.’’.(2) B
ANKRUPTCY CASES AND PROCEEDINGS .—Section 1334(c)
of title 28, United States Code, is amended by striking ‘‘Nothing
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in’’ and inserting ‘‘Except with respect to a case under chapter
15 of title 11, nothing in’’.
(3) D UTIES OF TRUSTEES .—Section 586(a)(3) of title 28,
United States Code, is amended by striking ‘‘or 13’’ andinserting ‘‘13, or 15’’.
(4) V
ENUE OF CASES ANCILLARY TO FOREIGN PROCEEDINGS .—
Section 1410 of title 28, United States Code, is amended toread as follows:
‘‘§ 1410. Venue of cases ancillary to foreign proceedings
‘‘A case under chapter 15 of title 11 may be commenced in
the district court of the United States for the district—
‘‘(1) in which the debtor has its principal place of business
or principal assets in the United States;
‘‘(2) if the debtor does not have a place of business or
assets in the United States, in which there is pending againstthe debtor an action or proceeding in a Federal or State court;or
‘‘(3) in a case other than those specified in paragraph
(1) or (2), in which venue will be consistent with the interestsof justice and the convenience of the parties, having regardto the relief sought by the foreign representative.’’.(d) O
THER SECTIONS OF TITLE 11.—Title 11 of the United States
Code is amended—
(1) in section 109(b), by striking paragraph (3) and inserting
the following:
‘‘(3)(A) a foreign insurance company, engaged in such busi-
ness in the United States; or
‘‘(B) a foreign bank, savings bank, cooperative bank, savings
and loan association, building and loan association, or creditunion, that has a branch or agency (as defined in section1(b) of the International Banking Act of 1978 in the UnitedStates.’’;
(2) in section 303, by striking subsection (k);(3) by striking section 304;(4) in the table of sections for chapter 3 by striking the
item relating to section 304;
(5) in section 306 by striking ‘‘, 304,’’ each place it appears;(6) in section 305(a) by striking paragraph (2) and inserting
the following:
‘‘(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.’’; and
(7) in section 508—
(A) by striking subsection (a); and(B) in subsection (b), by striking ‘‘(b)’’.
TITLE IX—FINANCIAL CONTRACT
PROVISIONS
SEC. 901. TREATMENT OF CERTAIN AGREEMENTS BY CONSERVATORS
OR RECEIVERS OF INSURED DEPOSITORY INSTITUTIONS.
(a) D EFINITION OF QUALIFIED FINANCIAL CONTRACT .—
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(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)) is amended—
(A) by striking ‘‘subsection—’’ and inserting ‘‘sub-
section, the following definitions shall apply:’’; and
(B) in clause (i), by inserting ‘‘, resolution, or order’’
after ‘‘any similar agreement that the Corporation deter-mines by regulation’’.(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) isamended—
(A) by striking ‘‘subsection—’’ and inserting ‘‘sub-
section, the following definitions shall apply:’’; and
(B) in clause (i), by inserting ‘‘, resolution, or order’’
after ‘‘any similar agreement that the Board determinesby regulation’’.
(b) D
EFINITION OF SECURITIES CONTRACT .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(ii) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(ii)) is amended to read as follows:
‘‘(ii) S
ECURITIES CONTRACT .—The term ‘securities
contract’—
‘‘(I) means a contract for the purchase, sale,
or loan of a security, a certificate of deposit, amortgage loan, or any interest in a mortgage loan,a group or index of securities, certificates ofdeposit, or mortgage loans or interests therein(including any interest therein or based on thevalue thereof) or any option on any of the fore-going, including any option to purchase or sellany such security, certificate of deposit, mortgageloan, interest, group or index, or option, andincluding any repurchase or reverse repurchasetransaction on any such security, certificate ofdeposit, mortgage loan, interest, group or index,or option;
‘‘(II) does not include any purchase, sale, or
repurchase obligation under a participation in acommercial mortgage loan unless the Corporationdetermines by regulation, resolution, or order toinclude any such agreement within the meaningof such term;
‘‘(III) means any option entered into on a
national securities exchange relating to foreigncurrencies;
‘‘(IV) means the guarantee by or to any securi-
ties clearing agency of any settlement of cash,securities, certificates of deposit, mortgage loansor interests therein, group or index of securities,certificates of deposit, or mortgage loans orinterests therein (including any interest thereinor based on the value thereof) or option on anyof the foregoing, including any option to purchaseor sell any such security, certificate of deposit,mortgage loan, interest, group or index, or option;
‘‘(V) means any margin loan;
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‘‘(VI) means any other agreement or trans-
action that is similar to any agreement or trans-action referred to in this clause;
‘‘(VII) means any combination of the agree-
ments or transactions referred to in this clause;
‘‘(VIII) means any option to enter into any
agreement or transaction referred to in this clause;
‘‘(IX) means a master agreement that provides
for an agreement or transaction referred to in sub-clause (I), (III), (IV), (V), (VI), (VII), or (VIII),together with all supplements to any such masteragreement, without regard to whether the masteragreement provides for an agreement or trans-action that is not a securities contract under thisclause, except that the master agreement shallbe considered to be a securities contract underthis clause only with respect to each agreementor transaction under the master agreement thatis referred to in subclause (I), (III), (IV), (V), (VI),(VII), or (VIII); and
‘‘(X) means any security agreement or arrange-
ment or other credit enhancement related to anyagreement or transaction referred to in this clause,including any guarantee or reimbursement obliga-tion in connection with any agreement or trans-action referred to in this clause.’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D)(ii) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(ii)) isamended to read as follows:
‘‘(ii) S
ECURITIES CONTRACT .—The term ‘securities
contract’—
‘‘(I) means a contract for the purchase, sale,
or loan of a security, a certificate of deposit, amortgage loan, or any interest in a mortgage loan,a group or index of securities, certificates ofdeposit, or mortgage loans or interests therein(including any interest therein or based on thevalue thereof) or any option on any of the fore-going, including any option to purchase or sellany such security, certificate of deposit, mortgageloan, interest, group or index, or option, andincluding any repurchase or reverse repurchasetransaction on any such security, certificate ofdeposit, mortgage loan, interest, group or index,or option;
‘‘(II) does not include any purchase, sale, or
repurchase obligation under a participation in acommercial mortgage loan unless the Board deter-mines by regulation, resolution, or order to includeany such agreement within the meaning of suchterm;
‘‘(III) means any option entered into on a
national securities exchange relating to foreigncurrencies;
‘‘(IV) means the guarantee by or to any securi-
ties clearing agency of any settlement of cash,securities, certificates of deposit, mortgage loans
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or interests therein, group or index of securities,
certificates of deposit, or mortgage loans orinterests therein (including any interest thereinor based on the value thereof) or option on anyof the foregoing, including any option to purchaseor sell any such security, certificate of deposit,mortgage loan, interest, group or index, or option;
‘‘(V) means any margin loan;‘‘(VI) means any other agreement or trans-
action that is similar to any agreement or trans-action referred to in this clause;
‘‘(VII) means any combination of the agree-
ments or transactions referred to in this clause;
‘‘(VIII) means any option to enter into any
agreement or transaction referred to in this clause;
‘‘(IX) means a master agreement that provides
for an agreement or transaction referred to in sub-clause (I), (III), (IV), (V), (VI), (VII), or (VIII),together with all supplements to any such masteragreement, without regard to whether the masteragreement provides for an agreement or trans-action that is not a securities contract under thisclause, except that the master agreement shallbe considered to be a securities contract underthis clause only with respect to each agreementor transaction under the master agreement thatis referred to in subclause (I), (III), (IV), (V), (VI),(VII), or (VIII); and
‘‘(X) means any security agreement or arrange-
ment or other credit enhancement related to anyagreement or transaction referred to in this clause,including any guarantee or reimbursement obliga-tion in connection with any agreement or trans-action referred to in this clause.’’.
(c) D
EFINITION OF COMMODITY CONTRACT .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(iii) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(iii)) is amended to read as follows:
‘‘(iii) C
OMMODITY CONTRACT .—The term ‘com-
modity contract’ means—
‘‘(I) with respect to a futures commission mer-
chant, a contract for the purchase or sale of acommodity for future delivery on, or subject tothe rules of, a contract market or board of trade;
‘‘(II) with respect to a foreign futures commis-
sion merchant, a foreign future;
‘‘(III) with respect to a leverage transaction
merchant, a leverage transaction;
‘‘(IV) with respect to a clearing organization,
a contract for the purchase or sale of a commodityfor future delivery on, or subject to the rules of,a contract market or board of trade that is clearedby such clearing organization, or commodity optiontraded on, or subject to the rules of, a contractmarket or board of trade that is cleared by suchclearing organization;
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‘‘(V) with respect to a commodity options
dealer, a commodity option;
‘‘(VI) any other agreement or transaction that
is similar to any agreement or transaction referredto in this clause;
‘‘(VII) any combination of the agreements or
transactions referred to in this clause;
‘‘(VIII) any option to enter into any agreement
or transaction referred to in this clause;
‘‘(IX) a master agreement that provides for
an agreement or transaction referred to in sub-clause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII),together with all supplements to any such masteragreement, without regard to whether the masteragreement provides for an agreement or trans-action that is not a commodity contract under thisclause, except that the master agreement shallbe considered to be a commodity contract underthis clause only with respect to each agreementor transaction under the master agreement thatis referred to in subclause (I), (II), (III), (IV), (V),(VI), (VII), or (VIII); or
‘‘(X) any security agreement or arrangement
or other credit enhancement related to any agree-ment or transaction referred to in this clause,including any guarantee or reimbursement obliga-tion in connection with any agreement or trans-action referred to in this clause.’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D)(iii) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(iii)) isamended to read as follows:
‘‘(iii) C
OMMODITY CONTRACT .—The term ‘com-
modity contract’ means—
‘‘(I) with respect to a futures commission mer-
chant, a contract for the purchase or sale of acommodity for future delivery on, or subject tothe rules of, a contract market or board of trade;
‘‘(II) with respect to a foreign futures commis-
sion merchant, a foreign future;
‘‘(III) with respect to a leverage transaction
merchant, a leverage transaction;
‘‘(IV) with respect to a clearing organization,
a contract for the purchase or sale of a commodityfor future delivery on, or subject to the rules of,a contract market or board of trade that is clearedby such clearing organization, or commodity option
traded on, or subject to the rules of, a contractmarket or board of trade that is cleared by suchclearing organization;
‘‘(V) with respect to a commodity options
dealer, a commodity option;
‘‘(VI) any other agreement or transaction that
is similar to any agreement or transaction referredto in this clause;
‘‘(VII) any combination of the agreements or
transactions referred to in this clause;
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‘‘(VIII) any option to enter into any agreement
or transaction referred to in this clause;
‘‘(IX) a master agreement that provides for
an agreement or transaction referred to in sub-clause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII),together with all supplements to any such masteragreement, without regard to whether the masteragreement provides for an agreement or trans-action that is not a commodity contract under thisclause, except that the master agreement shallbe considered to be a commodity contract underthis clause only with respect to each agreementor transaction under the master agreement thatis referred to in subclause (I), (II), (III), (IV), (V),(VI), (VII), or (VIII); or
‘‘(X) any security agreement or arrangement
or other credit enhancement related to any agree-ment or transaction referred to in this clause,including any guarantee or reimbursement obliga-tion in connection with any agreement or trans-action referred to in this clause.’’.
(d) D
EFINITION OF FORWARD CONTRACT .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(iv) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(iv)) is amended to read as follows:
‘‘(iv) F
ORWARD CONTRACT .—The term ‘forward con-
tract’ means—
‘‘(I) a contract (other than a commodity con-
tract) for the purchase, sale, or transfer of a com-modity or any similar good, article, service, right,or interest which is presently or in the futurebecomes the subject of dealing in the forward con-tract trade, or product or byproduct thereof, witha maturity date more than 2 days after the datethe contract is entered into, including, arepurchase transaction, reverse repurchase trans-action, consignment, lease, swap, hedge trans-action, deposit, loan, option, allocated transaction,unallocated transaction, or any other similaragreement;
‘‘(II) any combination of agreements or trans-
actions referred to in subclauses (I) and (III);
‘‘(III) any option to enter into any agreement
or transaction referred to in subclause (I) or (II);
‘‘(IV) a master agreement that provides for
an agreement or transaction referred to in sub-
clauses (I), (II), or (III), together with all supple-ments to any such master agreement, withoutregard to whether the master agreement providesfor an agreement or transaction that is not a for-ward contract under this clause, except that themaster agreement shall be considered to be a for-ward contract under this clause only with respectto each agreement or transaction under the masteragreement that is referred to in subclause (I), (II),or (III); or
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‘‘(V) any security agreement or arrangement
or other credit enhancement related to any agree-ment or transaction referred to in subclause (I),(II), (III), or (IV), including any guarantee orreimbursement obligation in connection with anyagreement or transaction referred to in any suchsubclause.’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D)(iv) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(iv)) isamended to read as follows:
‘‘(iv) F
ORWARD CONTRACT .—The term ‘forward con-
tract’ means—
‘‘(I) a contract (other than a commodity con-
tract) for the purchase, sale, or transfer of a com-modity or any similar good, article, service, right,or interest which is presently or in the futurebecomes the subject of dealing in the forward con-tract trade, or product or byproduct thereof, witha maturity date more than 2 days after the datethe contract is entered into, including, arepurchase transaction, reverse repurchase trans-action, consignment, lease, swap, hedge trans-action, deposit, loan, option, allocated transaction,unallocated transaction, or any other similaragreement;
‘‘(II) any combination of agreements or trans-
actions referred to in subclauses (I) and (III);
‘‘(III) any option to enter into any agreement
or transaction referred to in subclause (I) or (II);
‘‘(IV) a master agreement that provides for
an agreement or transaction referred to in sub-clauses (I), (II), or (III), together with all supple-ments to any such master agreement, withoutregard to whether the master agreement providesfor an agreement or transaction that is not a for-ward contract under this clause, except that themaster agreement shall be considered to be a for-ward contract under this clause only with respectto each agreement or transaction under the masteragreement that is referred to in subclause (I), (II),or (III); or
‘‘(V) any security agreement or arrangement
or other credit enhancement related to any agree-ment or transaction referred to in subclause (I),(II), (III), or (IV), including any guarantee orreimbursement obligation in connection with anyagreement or transaction referred to in any suchsubclause.’’.
(e) D
EFINITION OF REPURCHASE AGREEMENT .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(v) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(v)) is amended to read as follows:
‘‘(v) R
EPURCHASE AGREEMENT .—The term
‘repurchase agreement’ (which definition also appliesto a reverse repurchase agreement)—
‘‘(I) means an agreement, including related
terms, which provides for the transfer of one or
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more certificates of deposit, mortgage-related secu-
rities (as such term is defined in the SecuritiesExchange Act of 1934), mortgage loans, interestsin mortgage-related securities or mortgage loans,eligible bankers’ acceptances, qualified foreigngovernment securities or securities that are directobligations of, or that are fully guaranteed by,the United States or any agency of the UnitedStates against the transfer of funds by the trans-feree of such certificates of deposit, eligiblebankers’ acceptances, securities, mortgage loans,or interests with a simultaneous agreement bysuch transferee to transfer to the transferor thereofcertificates of deposit, eligible bankers’ accept-ances, securities, mortgage loans, or interests asdescribed above, at a date certain not later than1 year after such transfers or on demand, againstthe transfer of funds, or any other similar agree-ment;
‘‘(II) does not include any repurchase obliga-
tion under a participation in a commercial mort-gage loan unless the Corporation determines byregulation, resolution, or order to include any suchparticipation within the meaning of such term;
‘‘(III) means any combination of agreements
or transactions referred to in subclauses (I) and(IV);
‘‘(IV) means any option to enter into any agree-
ment or transaction referred to in subclause (I)or (III);
‘‘(V) means a master agreement that provides
for an agreement or transaction referred to in sub-clause (I), (III), or (IV), together with all supple-ments to any such master agreement, withoutregard to whether the master agreement providesfor an agreement or transaction that is not arepurchase agreement under this clause, exceptthat the master agreement shall be consideredto be a repurchase agreement under this subclauseonly with respect to each agreement or transactionunder the master agreement that is referred toin subclause (I), (III), or (IV); and
‘‘(VI) means any security agreement or
arrangement or other credit enhancement relatedto any agreement or transaction referred to insubclause (I), (III), (IV), or (V), including any guar-
antee or reimbursement obligation in connectionwith any agreement or transaction referred to inany such subclause.
For purposes of this clause, the term ‘qualified foreigngovernment security’ means a security that is a directobligation of, or that is fully guaranteed by, the centralgovernment of a member of the Organization for Eco-nomic Cooperation and Development (as determinedby regulation or order adopted by the appropriate Fed-eral banking authority).’’.
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(2) I NSURED CREDIT UNIONS .—Section 207(c)(8)(D)(v) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(v)) isamended to read as follows:
‘‘(v) R
EPURCHASE AGREEMENT .—The term
‘repurchase agreement’ (which definition also appliesto a reverse repurchase agreement)—
‘‘(I) means an agreement, including related
terms, which provides for the transfer of one ormore certificates of deposit, mortgage-related secu-rities (as such term is defined in the SecuritiesExchange Act of 1934), mortgage loans, interestsin mortgage-related securities or mortgage loans,eligible bankers’ acceptances, qualified foreigngovernment securities or securities that are directobligations of, or that are fully guaranteed by,the United States or any agency of the UnitedStates against the transfer of funds by the trans-feree of such certificates of deposit, eligiblebankers’ acceptances, securities, mortgage loans,or interests with a simultaneous agreement bysuch transferee to transfer to the transferor thereofcertificates of deposit, eligible bankers’ accept-ances, securities, mortgage loans, or interests asdescribed above, at a date certain not later than1 year after such transfers or on demand, againstthe transfer of funds, or any other similar agree-ment;
‘‘(II) does not include any repurchase obliga-
tion under a participation in a commercial mort-gage loan unless the Board determines by regula-tion, resolution, or order to include any suchparticipation within the meaning of such term;
‘‘(III) means any combination of agreements
or transactions referred to in subclauses (I) and(IV);
‘‘(IV) means any option to enter into any agree-
ment or transaction referred to in subclause (I)or (III);
‘‘(V) means a master agreement that provides
for an agreement or transaction referred to in sub-clause (I), (III), or (IV), together with all supple-ments to any such master agreement, withoutregard to whether the master agreement providesfor an agreement or transaction that is not arepurchase agreement under this clause, exceptthat the master agreement shall be consideredto be a repurchase agreement under this subclauseonly with respect to each agreement or transactionunder the master agreement that is referred toin subclause (I), (III), or (IV); and
‘‘(VI) means any security agreement or
arrangement or other credit enhancement relatedto any agreement or transaction referred to insubclause (I), (III), (IV), or (V), including any guar-antee or reimbursement obligation in connectionwith any agreement or transaction referred to inany such subclause.
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For purposes of this clause, the term ‘qualified foreign
government security’ means a security that is a directobligation of, or that is fully guaranteed by, the centralgovernment of a member of the Organization for Eco-nomic Cooperation and Development (as determinedby regulation or order adopted by the appropriate Fed-eral banking authority).’’.
(f) D
EFINITION OF SWAP AGREEMENT .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(vi) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(vi)) is amended to read as follows:
‘‘(vi) S
WAP AGREEMENT .—The term ‘swap agree-
ment’ means—
‘‘(I) any agreement, including the terms and
conditions incorporated by reference in any suchagreement, which is an interest rate swap, option,future, or forward agreement, including a ratefloor, rate cap, rate collar, cross-currency rateswap, and basis swap; a spot, same day-tomorrow,tomorrow-next, forward, or other foreign exchangeor precious metals agreement; a currency swap,option, future, or forward agreement; an equityindex or equity swap, option, future, or forwardagreement; a debt index or debt swap, option,future, or forward agreement; a total return, creditspread or credit swap, option, future, or forwardagreement; a commodity index or commodity swap,option, future, or forward agreement; or a weatherswap, weather derivative, or weather option;
‘‘(II) any agreement or transaction that is
similar to any other agreement or transactionreferred to in this clause and that is of a typethat has been, is presently, or in the futurebecomes, the subject of recurrent dealings in theswap markets (including terms and conditionsincorporated by reference in such agreement) andthat is a forward, swap, future, or option on oneor more rates, currencies, commodities, equitysecurities or other equity instruments, debt securi-ties or other debt instruments, quantitative meas-ures associated with an occurrence, extent of anoccurrence, or contingency associated with a finan-cial, commercial, or economic consequence, or eco-nomic or financial indices or measures of economicor financial risk or value;
‘‘(III) any combination of agreements or trans-
actions referred to in this clause;
‘‘(IV) any option to enter into any agreement
or transaction referred to in this clause;
‘‘(V) a master agreement that provides for an
agreement or transaction referred to in subclause(I), (II), (III), or (IV), together with all supplementsto any such master agreement, without regard towhether the master agreement contains an agree-ment or transaction that is not a swap agreementunder this clause, except that the master agree-ment shall be considered to be a swap agreement
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under this clause only with respect to each agree-
ment or transaction under the master agreementthat is referred to in subclause (I), (II), (III), or(IV); and
‘‘(VI) any security agreement or arrangement
or other credit enhancement related to any agree-ments or transactions referred to in subclause (I),(II), (III), (IV), or (V), including any guaranteeor reimbursement obligation in connection withany agreement or transaction referred to in anysuch subclause.
Such term is applicable for purposes of this subsectiononly and shall not be construed or applied so as tochallenge or affect the characterization, definition, ortreatment of any swap agreement under any otherstatute, regulation, or rule, including the SecuritiesAct of 1933, the Securities Exchange Act of 1934, thePublic Utility Holding Company Act of 1935, the TrustIndenture Act of 1939, the Investment Company Actof 1940, the Investment Advisers Act of 1940, theSecurities Investor Protection Act of 1970, the Com-modity Exchange Act, the Gramm-Leach-Bliley Act,and the Legal Certainty for Bank Products Act of2000.’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) is amendedby adding at the end the following new clause:
‘‘(vi) S
WAP AGREEMENT .—The term ‘swap agree-
ment’ means—
‘‘(I) any agreement, including the terms and
conditions incorporated by reference in any suchagreement, which is an interest rate swap, option,future, or forward agreement, including a ratefloor, rate cap, rate collar, cross-currency rateswap, and basis swap; a spot, same day-tomorrow,tomorrow-next, forward, or other foreign exchangeor precious metals agreement; a currency swap,option, future, or forward agreement; an equityindex or equity swap, option, future, or forwardagreement; a debt index or debt swap, option,future, or forward agreement; a total return, creditspread or credit swap, option, future, or forwardagreement; a commodity index or commodity swap,option, future, or forward agreement; or a weatherswap, weather derivative, or weather option;
‘‘(II) any agreement or transaction that is
similar to any other agreement or transactionreferred to in this clause and that is of a typethat has been, is presently, or in the futurebecomes, the subject of recurrent dealings in theswap markets (including terms and conditionsincorporated by reference in such agreement) andthat is a forward, swap, future, or option on oneor more rates, currencies, commodities, equitysecurities or other equity instruments, debt securi-ties or other debt instruments, quantitative meas-ures associated with an occurrence, extent of anApplicability.
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occurrence, or contingency associated with a finan-
cial, commercial, or economic consequence, or eco-nomic or financial indices or measures of economicor financial risk or value;
‘‘(III) any combination of agreements or trans-
actions referred to in this clause;
‘‘(IV) any option to enter into any agreement
or transaction referred to in this clause;
‘‘(V) a master agreement that provides for an
agreement or transaction referred to in subclause(I), (II), (III), or (IV), together with all supplementsto any such master agreement, without regard towhether the master agreement contains an agree-ment or transaction that is not a swap agreementunder this clause, except that the master agree-ment shall be considered to be a swap agreementunder this clause only with respect to each agree-ment or transaction under the master agreementthat is referred to in subclause (I), (II), (III), or(IV); and
‘‘(VI) any security agreement or arrangement
or other credit enhancement related to any agree-ments or transactions referred to in subclause (I),(II), (III), (IV), or (V), including any guaranteeor reimbursement obligation in connection withany agreement or transaction referred to in anysuch subclause.
Such term is applicable for purposes of this subsectiononly and shall not be construed or applied so as tochallenge or affect the characterization, definition, ortreatment of any swap agreement under any otherstatute, regulation, or rule, including the SecuritiesAct of 1933, the Securities Exchange Act of 1934, thePublic Utility Holding Company Act of 1935, the TrustIndenture Act of 1939, the Investment Company Actof 1940, the Investment Advisers Act of 1940, theSecurities Investor Protection Act of 1970, the Com-modity Exchange Act, the Gramm-Leach-Bliley Act,and the Legal Certainty for Bank Products Act of2000.’’.
(g) D
EFINITION OF TRANSFER .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(viii) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(viii)) is amended to read as follows:
‘‘(viii) T
RANSFER .—The term ‘transfer’ means every
mode, direct or indirect, absolute or conditional, vol-untary or involuntary, of disposing of or parting withproperty or with an interest in property, includingretention of title as a security interest and foreclosureof the depository institution’s equity of redemption.’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) (as amendedby subsection (f) of this section) is amended by adding atthe end the following new clause:
‘‘(viii) T
RANSFER .—The term ‘transfer’ means every
mode, direct or indirect, absolute or conditional, vol-untary or involuntary, of disposing of or parting withApplicability.
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property or with an interest in property, including
retention of title as a security interest and foreclosureof the depository institution’s equity of redemption.’’.
(h) T
REATMENT OF QUALIFIED FINANCIAL CONTRACTS .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)) is amended—
(A) in subparagraph (A)—
(i) by striking ‘‘paragraph (10)’’ and inserting
‘‘paragraphs (9) and (10)’’;
(ii) in clause (i), by striking ‘‘to cause the termi-
nation or liquidation’’ and inserting ‘‘such person hasto cause the termination, liquidation, or acceleration’’;and
(iii) by striking clause (ii) and inserting the fol-
lowing new clause:
‘‘(ii) any right under any security agreement or
arrangement or other credit enhancement related toone or more qualified financial contracts described inclause (i);’’; and(B) in subparagraph (E), by striking clause (ii) and
inserting the following:
‘‘(ii) any right under any security agreement or
arrangement or other credit enhancement related toone or more qualified financial contracts described inclause (i);’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8) of the Fed-
eral Credit Union Act (12 U.S.C. 1787(c)(8)) is amended—
(A) in subparagraph (A)—
(i) by striking ‘‘paragraph (12)’’ and inserting
‘‘paragraphs (9) and (10)’’;
(ii) in clause (i), by striking ‘‘to cause the termi-
nation or liquidation’’ and inserting ‘‘such person hasto cause the termination, liquidation, or acceleration’’;and
(iii) by striking clause (ii) and inserting the fol-
lowing new clause:
‘‘(ii) any right under any security agreement or
arrangement or other credit enhancement related to1 or more qualified financial contracts described inclause (i);’’; and(B) in subparagraph (E), by striking clause (ii) and
inserting the following new clause:
‘‘(ii) any right under any security agreement or
arrangement or other credit enhancement related to1 or more qualified financial contracts described inclause (i);’’.
(i) A
VOIDANCE OF TRANSFERS .—
(1) FDIC- INSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(C)(i) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(C)(i)) is amended by inserting ‘‘section 5242 of theRevised Statutes of the United States or any other Federalor State law relating to the avoidance of preferential or fraudu-lent transfers,’’ before ‘‘the Corporation’’.
(2) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(C)(i) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(8)(C)(i)) is amendedby inserting ‘‘section 5242 of the Revised Statutes of the United
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States or any other Federal or State law relating to the avoid-
ance of preferential or fraudulent transfers,’’ before ‘‘the Board’’.
SEC. 902. AUTHORITY OF THE FDIC AND NCUAB WITH RESPECT TO
FAILED AND FAILING INSTITUTIONS.
(a) F EDERAL DEPOSIT INSURANCE CORPORATION .—
(1) I N GENERAL .—Section 11(e)(8) of the Federal Deposit
Insurance Act (12 U.S.C. 1821(e)(8)) is amended—
(A) in subparagraph (E), by striking ‘‘other than para-
graph (12) of this subsection, subsection (d)(9)’’ andinserting ‘‘other than subsections (d)(9) and (e)(10)’’; and
(B) by adding at the end the following new subpara-
graphs:
‘‘(F) C
LARIFICATION .—No provision of law shall be con-
strued as limiting the right or power of the Corporation,or authorizing any court or agency to limit or delay, inany manner, the right or power of the Corporation totransfer any qualified financial contract in accordance withparagraphs (9) and (10) of this subsection or to disaffirmor repudiate any such contract in accordance with sub-section (e)(1) of this section.
‘‘(G) W
ALKAWAY CLAUSES NOT EFFECTIVE .—
‘‘(i) I N GENERAL .—Notwithstanding the provisions
of subparagraphs (A) and (E), and sections 403 and404 of the Federal Deposit Insurance CorporationImprovement Act of 1991, no walkaway clause shallbe enforceable in a qualified financial contract of aninsured depository institution in default.
‘‘(ii) W
ALKAWAY CLAUSE DEFINED .—For purposes
of this subparagraph, the term ‘walkaway clause’means a provision in a qualified financial contractthat, after calculation of a value of a party’s positionor an amount due to or from 1 of the parties in accord-ance with its terms upon termination, liquidation, oracceleration of the qualified financial contract, eitherdoes not create a payment obligation of a party orextinguishes a payment obligation of a party in wholeor in part solely because of such party’s status asa nondefaulting party.’’.
(2) T
ECHNICAL AND CONFORMING AMENDMENT .—Section
11(e)(12)(A) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(12)(A)) is amended by inserting ‘‘or the exercise ofrights or powers by’’ after ‘‘the appointment of’’.(b) N
ATIONAL CREDIT UNION ADMINISTRATION BOARD .—
(1) I N GENERAL .—Section 207(c)(8) of the Federal Credit
Union Act (12 U.S.C. 1787(c)(8)) is amended—
(A) in subparagraph (E) (as amended by section
901(h)), by striking ‘‘other than paragraph (12) of thissubsection, subsection (b)(9)’’ and inserting ‘‘other than sub-sections (b)(9) and (c)(10)’’; and
(B) by adding at the end the following new subpara-
graphs:
‘‘(F) C
LARIFICATION .—No provision of law shall be con-
strued as limiting the right or power of the Board, orauthorizing any court or agency to limit or delay, in anymanner, the right or power of the Board to transfer anyqualified financial contract in accordance with paragraphs
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(9) and (10) of this subsection or to disaffirm or repudiate
any such contract in accordance with subsection (c)(1) ofthis section.
‘‘(G) W
ALKAWAY CLAUSES NOT EFFECTIVE .—
‘‘(i) I N GENERAL .—Notwithstanding the provisions
of subparagraphs (A) and (E), and sections 403 and404 of the Federal Deposit Insurance CorporationImprovement Act of 1991, no walkaway clause shallbe enforceable in a qualified financial contract of aninsured credit union in default.
‘‘(ii) W
ALKAWAY CLAUSE DEFINED .—For purposes
of this subparagraph, the term ‘walkaway clause’means a provision in a qualified financial contractthat, after calculation of a value of a party’s positionor an amount due to or from 1 of the parties in accord-ance with its terms upon termination, liquidation, oracceleration of the qualified financial contract, eitherdoes not create a payment obligation of a party orextinguishes a payment obligation of a party in wholeor in part solely because of such party’s status asa nondefaulting party.’’.
(2) T
ECHNICAL AND CONFORMING AMENDMENT .—Section
207(c)(12)(A) of the Federal Credit Union Act (12 U.S.C.1787(c)(12)(A)) is amended by inserting ‘‘or the exercise of rightsor powers by’’ after ‘‘the appointment of’’.
SEC. 903. AMENDMENTS RELATING TO TRANSFERS OF QUALIFIED
FINANCIAL CONTRACTS.
(a) FDIC-I NSURED DEPOSITORY INSTITUTIONS .—
(1) T RANSFERS OF QUALIFIED FINANCIAL CONTRACTS TO
FINANCIAL INSTITUTIONS .—Section 11(e)(9) of the Federal
Deposit Insurance Act (12 U.S.C. 1821(e)(9)) is amended toread as follows:
‘‘(9) T
RANSFER OF QUALIFIED FINANCIAL CONTRACTS .—
‘‘(A) I N GENERAL .—In making any transfer of assets
or liabilities of a depository institution in default whichincludes any qualified financial contract, the conservatoror receiver for such depository institution shall either—
‘‘(i) transfer to one financial institution, other than
a financial institution for which a conservator, receiver,trustee in bankruptcy, or other legal custodian hasbeen appointed or which is otherwise the subject ofa bankruptcy or insolvency proceeding—
‘‘(I) all qualified financial contracts between
any person or any affiliate of such person andthe depository institution in default;
‘‘(II) all claims of such person or any affiliate
of such person against such depository institutionunder any such contract (other than any claimwhich, under the terms of any such contract, issubordinated to the claims of general unsecuredcreditors of such institution);
‘‘(III) all claims of such depository institution
against such person or any affiliate of such personunder any such contract; and
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‘‘(IV) all property securing or any other credit
enhancement for any contract described in sub-clause (I) or any claim described in subclause (II)or (III) under any such contract; or‘‘(ii) transfer none of the qualified financial con-
tracts, claims, property or other credit enhancementreferred to in clause (i) (with respect to such personand any affiliate of such person).‘‘(B) T
RANSFER TO FOREIGN BANK , FOREIGN FINANCIAL
INSTITUTION , OR BRANCH OR AGENCY OF A FOREIGN BANK
OR FINANCIAL INSTITUTION .—In transferring any qualified
financial contracts and related claims and property undersubparagraph (A)(i), the conservator or receiver for thedepository institution shall not make such transfer to aforeign bank, financial institution organized under the lawsof a foreign country, or a branch or agency of a foreignbank or financial institution unless, under the lawapplicable to such bank, financial institution, branch oragency, to the qualified financial contracts, and to anynetting contract, any security agreement or arrangementor other credit enhancement related to one or more quali-fied financial contracts, the contractual rights of the partiesto such qualified financial contracts, netting contracts,security agreements or arrangements, or other creditenhancements are enforceable substantially to the sameextent as permitted under this section.
‘‘(C) T
RANSFER OF CONTRACTS SUBJECT TO THE RULES
OF A CLEARING ORGANIZATION .—In the event that a conser-
vator or receiver transfers any qualified financial contractand related claims, property, and credit enhancementspursuant to subparagraph (A)(i) and such contract iscleared by or subject to the rules of a clearing organization,the clearing organization shall not be required to acceptthe transferee as a member by virtue of the transfer.
‘‘(D) D
EFINITIONS .—For purposes of this paragraph, the
term ‘financial institution’ means a broker or dealer, adepository institution, a futures commission merchant, orany other institution, as determined by the Corporationby regulation to be a financial institution, and the term‘clearing organization’ has the same meaning as in section402 of the Federal Deposit Insurance Corporation Improve-ment Act of 1991.’’.(2) N
OTICE TO QUALIFIED FINANCIAL CONTRACT
COUNTERPARTIES .—Section 11(e)(10)(A) of the Federal Deposit
Insurance Act (12 U.S.C. 1821(e)(10)(A)) is amended in thematerial immediately following clause (ii) by striking ‘‘the con-
servator’’ and all that follows through the period and insertingthe following: ‘‘the conservator or receiver shall notify anyperson who is a party to any such contract of such transferby 5:00 p.m. (eastern time) on the business day following thedate of the appointment of the receiver in the case of a receiver-ship, or the business day following such transfer in the caseof a conservatorship.’’.
(3) R
IGHTS AGAINST RECEIVER AND CONSERVATOR AND
TREATMENT OF BRIDGE BANKS .—Section 11(e)(10) of the Federal
Deposit Insurance Act (12 U.S.C. 1821(e)(10)) is amended—
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(A) by redesignating subparagraph (B) as subpara-
graph (D); and
(B) by inserting after subparagraph (A) the following
new subparagraphs:
‘‘(B) C ERTAIN RIGHTS NOT ENFORCEABLE .—
‘‘(i) R ECEIVERSHIP .—A person who is a party to
a qualified financial contract with an insured deposi-tory institution may not exercise any right that suchperson has to terminate, liquidate, or net such contractunder paragraph (8)(A) of this subsection or section403 or 404 of the Federal Deposit Insurance Corpora-tion Improvement Act of 1991, solely by reason ofor incidental to the appointment of a receiver for thedepository institution (or the insolvency or financialcondition of the depository institution for which thereceiver has been appointed)—
‘‘(I) until 5:00 p.m. (eastern time) on the busi-
ness day following the date of the appointmentof the receiver; or
‘‘(II) after the person has received notice that
the contract has been transferred pursuant toparagraph (9)(A).‘‘(ii) C
ONSERVATORSHIP .—A person who is a party
to a qualified financial contract with an insured deposi-tory institution may not exercise any right that suchperson has to terminate, liquidate, or net such contractunder paragraph (8)(E) of this subsection or section403 or 404 of the Federal Deposit Insurance Corpora-tion Improvement Act of 1991, solely by reason ofor incidental to the appointment of a conservator forthe depository institution (or the insolvency or financialcondition of the depository institution for which theconservator has been appointed).
‘‘(iii) N
OTICE .—For purposes of this paragraph, the
Corporation as receiver or conservator of an insureddepository institution shall be deemed to have notifieda person who is a party to a qualified financial contractwith such depository institution if the Corporation hastaken steps reasonably calculated to provide noticeto such person by the time specified in subparagraph(A).‘‘(C) T
REATMENT OF BRIDGE BANKS .—The following
institutions shall not be considered to be a financial institu-tion for which a conservator, receiver, trustee in bank-ruptcy, or other legal custodian has been appointed orwhich is otherwise the subject of a bankruptcy or insolvencyproceeding for purposes of paragraph (9):
‘‘(i) A bridge bank.‘‘(ii) A depository institution organized by the Cor-
poration, for which a conservator is appointed either—
‘‘(I) immediately upon the organization of the
institution; or
‘‘(II) at the time of a purchase and assumption
transaction between the depository institution andthe Corporation as receiver for a depository institu-tion in default.’’.
(b) I
NSURED CREDIT UNIONS .—
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(1) T RANSFERS OF QUALIFIED FINANCIAL CONTRACTS TO
FINANCIAL INSTITUTIONS .—Section 207(c)(9) of the Federal
Credit Union Act (12 U.S.C. 1787(c)(9)) is amended to readas follows:
‘‘(9) T
RANSFER OF QUALIFIED FINANCIAL CONTRACTS .—
‘‘(A) I N GENERAL .—In making any transfer of assets
or liabilities of a credit union in default which includesany qualified financial contract, the conservator or liqui-dating agent for such credit union shall either—
‘‘(i) transfer to 1 financial institution, other than
a financial institution for which a conservator, receiver,trustee in bankruptcy, or other legal custodian hasbeen appointed or which is otherwise the subject ofa bankruptcy or insolvency proceeding—
‘‘(I) all qualified financial contracts between
any person or any affiliate of such person andthe credit union in default;
‘‘(II) all claims of such person or any affiliate
of such person against such credit union underany such contract (other than any claim which,under the terms of any such contract, is subordi-nated to the claims of general unsecured creditorsof such credit union);
‘‘(III) all claims of such credit union against
such person or any affiliate of such person underany such contract; and
‘‘(IV) all property securing or any other credit
enhancement for any contract described in sub-clause (I) or any claim described in subclause (II)or (III) under any such contract; or‘‘(ii) transfer none of the qualified financial con-
tracts, claims, property or other credit enhancementreferred to in clause (i) (with respect to such personand any affiliate of such person).‘‘(B) T
RANSFER TO FOREIGN BANK , FOREIGN FINANCIAL
INSTITUTION , OR BRANCH OR AGENCY OF A FOREIGN BANK
OR FINANCIAL INSTITUTION .—In transferring any qualified
financial contracts and related claims and property undersubparagraph (A)(i), the conservator or liquidating agentfor the credit union shall not make such transfer to aforeign bank, financial institution organized under the lawsof a foreign country, or a branch or agency of a foreignbank or financial institution unless, under the lawapplicable to such bank, financial institution, branch oragency, to the qualified financial contracts, and to anynetting contract, any security agreement or arrangementor other credit enhancement related to 1 or more qualifiedfinancial contracts, the contractual rights of the partiesto such qualified financial contracts, netting contracts,security agreements or arrangements, or other creditenhancements are enforceable substantially to the sameextent as permitted under this section.
‘‘(C) T
RANSFER OF CONTRACTS SUBJECT TO THE RULES
OF A CLEARING ORGANIZATION .—In the event that a conser-
vator or liquidating agent transfers any qualified financialcontract and related claims, property, and credit enhance-ments pursuant to subparagraph (A)(i) and such contract
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is cleared by or subject to the rules of a clearing organiza-
tion, the clearing organization shall not be required toaccept the transferee as a member by virtue of the transfer.
‘‘(D) D
EFINITIONS .—For purposes of this paragraph—
‘‘(i) the term ‘financial institution’ means a broker
or dealer, a depository institution, a futures commis-sion merchant, a credit union, or any other institution,as determined by the Board by regulation to be afinancial institution; and
‘‘(ii) the term ‘clearing organization’ has the same
meaning as in section 402 of the Federal Deposit Insur-ance Corporation Improvement Act of 1991.’’.
(2) N
OTICE TO QUALIFIED FINANCIAL CONTRACT
COUNTERPARTIES .—Section 207(c)(10)(A) of the Federal Credit
Union Act (12 U.S.C. 1787(c)(10)(A)) is amended in the materialimmediately following clause (ii) by striking ‘‘the conservator’’and all that follows through the period and inserting the fol-lowing: ‘‘the conservator or liquidating agent shall notify anyperson who is a party to any such contract of such transferby 5:00 p.m. (eastern time) on the business day following thedate of the appointment of the liquidating agent in the caseof a liquidation, or the business day following such transferin the case of a conservatorship.’’.
(3) R
IGHTS AGAINST LIQUIDATING AGENT AND CONSERVATOR
AND TREATMENT OF BRIDGE BANKS .—Section 207(c)(10) of the
Federal Credit Union Act (12 U.S.C. 1787(c)(10)) is amended—
(A) by redesignating subparagraph (B) as subpara-
graph (D); and
(B) by inserting after subparagraph (A) the following
new subparagraphs:
‘‘(B) C ERTAIN RIGHTS NOT ENFORCEABLE .—
‘‘(i) L IQUIDATION .—A person who is a party to a
qualified financial contract with an insured creditunion may not exercise any right that such personhas to terminate, liquidate, or net such contract underparagraph (8)(A) of this subsection or section 403 or404 of the Federal Deposit Insurance CorporationImprovement Act of 1991, solely by reason of or inci-dental to the appointment of a liquidating agent forthe credit union institution (or the insolvency or finan-cial condition of the credit union for which the liqui-dating agent has been appointed)—
‘‘(I) until 5:00 p.m. (eastern time) on the busi-
ness day following the date of the appointmentof the liquidating agent; or
‘‘(II) after the person has received notice that
the contract has been transferred pursuant toparagraph (9)(A).‘‘(ii) C
ONSERVATORSHIP .—A person who is a party
to a qualified financial contract with an insured creditunion may not exercise any right that such personhas to terminate, liquidate, or net such contract underparagraph (8)(E) of this subsection or section 403 or404 of the Federal Deposit Insurance CorporationImprovement Act of 1991, solely by reason of or inci-dental to the appointment of a conservator for thecredit union or the insolvency or financial condition
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of the credit union for which the conservator has been
appointed).
‘‘(iii) N OTICE .—For purposes of this paragraph, the
Board as conservator or liquidating agent of an insuredcredit union shall be deemed to have notified a personwho is a party to a qualified financial contract withsuch credit union if the Board has taken steps reason-ably calculated to provide notice to such person bythe time specified in subparagraph (A).‘‘(C) T
REATMENT OF BRIDGE BANKS .—The following
institutions shall not be considered to be a financial institu-tion for which a conservator, receiver, trustee in bank-ruptcy, or other legal custodian has been appointed orwhich is otherwise the subject of a bankruptcy or insolvencyproceeding for purposes of paragraph (9):
‘‘(i) A bridge bank.‘‘(ii) A credit union organized by the Board, for
which a conservator is appointed either—
‘‘(I) immediately upon the organization of the
credit union; or
‘‘(II) at the time of a purchase and assumption
transaction between the credit union and theBoard as receiver for a credit union in default.’’.
SEC. 904. AMENDMENTS RELATING TO DISAFFIRMANCE OR REPUDI-
ATION OF QUALIFIED FINANCIAL CONTRACTS.
(a) FDIC-I NSURED DEPOSITORY INSTITUTIONS .—Section 11(e) of
the Federal Deposit Insurance Act (12 U.S.C. 1821(e)) is amended—
(1) by redesignating paragraphs (11) through (15) as para-
graphs (12) through (16), respectively;
(2) by inserting after paragraph (10) the following new
paragraph:
‘‘(11) D ISAFFIRMANCE OR REPUDIATION OF QUALIFIED FINAN –
CIAL CONTRACTS .—In exercising the rights of disaffirmance or
repudiation of a conservator or receiver with respect to anyqualified financial contract to which an insured depositoryinstitution is a party, the conservator or receiver for suchinstitution shall either—
‘‘(A) disaffirm or repudiate all qualified financial con-
tracts between—
‘‘(i) any person or any affiliate of such person;
and
‘‘(ii) the depository institution in default; or
‘‘(B) disaffirm or repudiate none of the qualified finan-
cial contracts referred to in subparagraph (A) (with respectto such person or any affiliate of such person).’’; and(3) by adding at the end the following new paragraph:‘‘(17) S
AVINGS CLAUSE .—The meanings of terms used in
this subsection are applicable for purposes of this subsectiononly, and shall not be construed or applied so as to challengeor affect the characterization, definition, or treatment of anysimilar terms under any other statute, regulation, or rule,including the Gramm-Leach-Bliley Act, the Legal Certaintyfor Bank Products Act of 2000, the securities laws (as thatterm is defined in section 3(a)(47) of the Securities ExchangeAct of 1934), and the Commodity Exchange Act.’’.
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(b) I NSURED CREDIT UNIONS .—Section 207(c) of the Federal
Credit Union Act (12 U.S.C. 1787(c)) is amended—
(1) by redesignating paragraphs (11), (12), and (13) as
paragraphs (12), (13), and (14), respectively;
(2) by inserting after paragraph (10) the following new
paragraph:
‘‘(11) D ISAFFIRMANCE OR REPUDIATION OF QUALIFIED FINAN –
CIAL CONTRACTS .—In exercising the rights of disaffirmance or
repudiation of a conservator or liquidating agent with respectto any qualified financial contract to which an insured creditunion is a party, the conservator or liquidating agent for suchcredit union shall either—
‘‘(A) disaffirm or repudiate all qualified financial con-
tracts between—
‘‘(i) any person or any affiliate of such person;
and
‘‘(ii) the credit union in default; or
‘‘(B) disaffirm or repudiate none of the qualified finan-
cial contracts referred to in subparagraph (A) (with respectto such person or any affiliate of such person).’’; and(3) by adding at the end the following new paragraph:‘‘(15) S
AVINGS CLAUSE .—The meanings of terms used in
this subsection are applicable for purposes of this subsectiononly, and shall not be construed or applied so as to challengeor affect the characterization, definition, or treatment of anysimilar terms under any other statute, regulation, or rule,including the Gramm-Leach-Bliley Act, the Legal Certaintyfor Bank Products Act of 2000, the securities laws (as thatterm is defined in section (a)(47) of the Securities ExchangeAct of 1934), and the Commodity Exchange Act.’’.
SEC. 905. CLARIFYING AMENDMENT RELATING TO MASTER AGREE-
MENTS.
(a) FDIC-I NSURED DEPOSITORY INSTITUTIONS .—Section
11(e)(8)(D)(vii) of the Federal Deposit Insurance Act (12 U.S.C.1821(e)(8)(D)(vii)) is amended to read as follows:
‘‘(vii) T
REATMENT OF MASTER AGREEMENT AS ONE
AGREEMENT .—Any master agreement for any contract
or agreement described in any preceding clause of thissubparagraph (or any master agreement for suchmaster agreement or agreements), together with allsupplements to such master agreement, shall betreated as a single agreement and a single qualifiedfinancial contract. If a master agreement containsprovisions relating to agreements or transactions thatare not themselves qualified financial contracts, themaster agreement shall be deemed to be a qualifiedfinancial contract only with respect to those trans-actions that are themselves qualified financial con-tracts.’’.
(b) I
NSURED CREDIT UNIONS .—Section 207(c)(8)(D) of the Fed-
eral Credit Union Act (12 U.S.C. 1787(c)(8)(D)) is amended byinserting after clause (vi) (as added by section 901(f)) the followingnew clause:
‘‘(vii) T
REATMENT OF MASTER AGREEMENT AS ONE
AGREEMENT .—Any master agreement for any contract
or agreement described in any preceding clause of this
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subparagraph (or any master agreement for such
master agreement or agreements), together with allsupplements to such master agreement, shall betreated as a single agreement and a single qualifiedfinancial contract. If a master agreement containsprovisions relating to agreements or transactions thatare not themselves qualified financial contracts, themaster agreement shall be deemed to be a qualifiedfinancial contract only with respect to those trans-actions that are themselves qualified financial con-tracts.’’.
SEC. 906. FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVE-
MENT ACT OF 1991.
(a) D EFINITIONS .—Section 402 of the Federal Deposit Insurance
Corporation Improvement Act of 1991 (12 U.S.C. 4402) isamended—
(1) in paragraph (2)—
(A) in subparagraph (A)(ii), by inserting before the
semicolon ‘‘, or is exempt from such registration by orderof the Securities and Exchange Commission’’; and
(B) in subparagraph (B), by inserting before the period
‘‘, that has been granted an exemption under section 4(c)(1)of the Commodity Exchange Act, or that is a multilateralclearing organization (as defined in section 408 of thisAct)’’;(2) in paragraph (6)—
(A) by redesignating subparagraphs (B) through (D)
as subparagraphs (C) through (E), respectively;
(B) by inserting after subparagraph (A) the following
new subparagraph:
‘‘(B) an uninsured national bank or an uninsured State
bank that is a member of the Federal Reserve System,if the national bank or State member bank is not eligibleto make application to become an insured bank under
section 5 of the Federal Deposit Insurance Act;’’; and
(C) by amending subparagraph (C), so redesignated,
to read as follows:
‘‘(C) a branch or agency of a foreign bank, a foreign
bank and any branch or agency of the foreign bank, orthe foreign bank that established the branch or agency,as those terms are defined in section 1(b) of the Inter-national Banking Act of 1978;’’;(3) in paragraph (11), by inserting before the period ‘‘and
any other clearing organization with which such clearingorganization has a netting contract’’;
(4) by amending paragraph (14)(A)(i) to read as follows:
‘‘(i) means a contract or agreement between 2 or
more financial institutions, clearing organizations, ormembers that provides for netting present or futurepayment obligations or payment entitlements(including liquidation or close out values relating tosuch obligations or entitlements) among the partiesto the agreement; and’’; and
(5) by adding at the end the following new paragraph:
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‘‘(15) P AYMENT .—The term ‘payment’ means a payment
of United States dollars, another currency, or a composite cur-rency, and a noncash delivery, including a payment or deliveryto liquidate an unmatured obligation.’’.(b) E
NFORCEABILITY OF BILATERAL NETTING CONTRACTS .—Sec-
tion 403 of the Federal Deposit Insurance Corporation ImprovementAct of 1991 (12 U.S.C. 4403) is amended—
(1) by striking subsection (a) and inserting the following:
‘‘(a) G
ENERAL RULE.—Notwithstanding any other provision of
State or Federal law (other than paragraphs (8)(E), (8)(F), and(10)(B) of section 11(e) of the Federal Deposit Insurance Act, para-graphs (8)(E), (8)(F), and (10)(B) of section 207(c) of the FederalCredit Union Act, or any order authorized under section 5(b)(2)of the Securities Investor Protection Act of 1970), the coveredcontractual payment obligations and the covered contractual pay-ment entitlements between any 2 financial institutions shall benetted in accordance with, and subject to the conditions of, theterms of any applicable netting contract (except as provided insection 561(b)(2) of title 11, United States Code).’’; and
(2) by adding at the end the following new subsection:
‘‘(f) E
NFORCEABILITY OF SECURITY AGREEMENTS .—The provi-
sions of any security agreement or arrangement or other creditenhancement related to one or more netting contracts betweenany 2 financial institutions shall be enforceable in accordance withtheir terms (except as provided in section 561(b)(2) of title 11,United States Code), and shall not be stayed, avoided, or otherwiselimited by any State or Federal law (other than paragraphs (8)(E),(8)(F), and (10)(B) of section 11(e) of the Federal Deposit InsuranceAct, paragraphs (8)(E), (8)(F), and (10)(B) of section 207(c) of theFederal Credit Union Act, and section 5(b)(2) of the SecuritiesInvestor Protection Act of 1970).’’.
(c) E
NFORCEABILITY OF CLEARING ORGANIZATION NETTING CON-
TRACTS .—Section 404 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (12 U.S.C. 4404) is amended—
(1) by striking subsection (a) and inserting the following:
‘‘(a) G ENERAL RULE.—Notwithstanding any other provision of
State or Federal law (other than paragraphs (8)(E), (8)(F), and(10)(B) of section 11(e) of the Federal Deposit Insurance Act, para-graphs (8)(E), (8)(F), and (10)(B) of section 207(c) of the FederalCredit Union Act, and any order authorized under section 5(b)(2)of the Securities Investor Protection Act of 1970), the coveredcontractual payment obligations and the covered contractual pay-ment entitlements of a member of a clearing organization to andfrom all other members of a clearing organization shall be nettedin accordance with and subject to the conditions of any applicablenetting contract (except as provided in section 561(b)(2) of title11, United States Code).’’; and
(2) by adding at the end the following new subsection:
‘‘(h) E
NFORCEABILITY OF SECURITY AGREEMENTS .—The provi-
sions of any security agreement or arrangement or other creditenhancement related to one or more netting contracts betweenany 2 members of a clearing organization shall be enforceablein accordance with their terms (except as provided in section561(b)(2) of title 11, United States Code), and shall not be stayed,avoided, or otherwise limited by any State or Federal law (otherthan paragraphs (8)(E), (8)(F), and (10)(B) of section 11(e) of theFederal Deposit Insurance Act, paragraphs (8)(E), (8)(F), and (10)(B)
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of section 207(c) of the Federal Credit Union Act, and section
5(b)(2) of the Securities Investor Protection Act of 1970).’’.
(d) E NFORCEABILITY OF CONTRACTS WITHUNINSURED NATIONAL
BANKS , U NINSURED FEDERAL BRANCHES AND AGENCIES , CERTAIN
UNINSURED STATE MEMBER BANKS , AND EDGE ACTCORPORA –
TIONS .—The Federal Deposit Insurance Corporation Improvement
Act of 1991 (12 U.S.C. 4401 et seq.) is amended—
(1) by redesignating section 407 as section 407A; and(2) by inserting after section 406 the following new section:
‘‘SEC. 407. TREATMENT OF CONTRACTS WITH UNINSURED NATIONAL
BANKS, UNINSURED FEDERAL BRANCHES AND AGEN-CIES, CERTAIN UNINSURED STATE MEMBER BANKS, ANDEDGE ACT CORPORATIONS.
‘‘(a) I NGENERAL .—Notwithstanding any other provision of law,
paragraphs (8), (9), (10), and (11) of section 11(e) of the FederalDeposit Insurance Act shall apply to an uninsured national bankor uninsured Federal branch or Federal agency, a corporation char-tered under section 25A of the Federal Reserve Act, or an uninsuredState member bank which operates, or operates as, a multilateralclearing organization pursuant to section 409 of this Act, exceptthat for such purpose—
‘‘(1) any reference to the ‘Corporation as receiver’ or ‘the
receiver or the Corporation’ shall refer to the receiver appointedby the Comptroller of the Currency in the case of an uninsurednational bank or uninsured Federal branch or agency, or tothe receiver appointed by the Board of Governors of the FederalReserve System in the case of a corporation chartered undersection 25A of the Federal Reserve Act or an uninsured Statemember bank;
‘‘(2) any reference to the ‘Corporation’ (other than in section
11(e)(8)(D) of such Act), the ‘Corporation, whether acting assuch or as conservator or receiver’, a ‘receiver’, or a ‘conservator’shall refer to the receiver or conservator appointed by theComptroller of the Currency in the case of an uninsurednational bank or uninsured Federal branch or agency, or tothe receiver or conservator appointed by the Board of Governorsof the Federal Reserve System in the case of a corporationchartered under section 25A of the Federal Reserve Act oran uninsured State member bank; and
‘‘(3) any reference to an ‘insured depository institution’
or ‘depository institution’ shall refer to an uninsured nationalbank, an uninsured Federal branch or Federal agency, a cor-poration chartered under section 25A of the Federal ReserveAct, or an uninsured State member bank which operates, oroperates as, a multilateral clearing organization pursuant tosection 409 of this Act.‘‘(b) L
IABILITY .—The liability of a receiver or conservator of
an uninsured national bank, uninsured Federal branch or agency,a corporation chartered under section 25A of the Federal ReserveAct, or an uninsured State member bank which operates, or oper-ates as, a multilateral clearing organization pursuant to section409 of this Act, shall be determined in the same manner andsubject to the same limitations that apply to receivers and conserva-tors of insured depository institutions under section 11(e) of theFederal Deposit Insurance Act.
‘‘(c) R
EGULATORY AUTHORITY .—Applicability.12 USC 4406a.12 USC 4407.
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‘‘(1) I N GENERAL .—The Comptroller of the Currency in the
case of an uninsured national bank or uninsured Federal branchor agency and the Board of Governors of the Federal ReserveSystem in the case of a corporation chartered under section25A of the Federal Reserve Act, or an uninsured State memberbank that operates, or operates as, a multilateral clearingorganization pursuant to section 409 of this Act, in consultationwith the Federal Deposit Insurance Corporation, may eachpromulgate regulations solely to implement this section.
‘‘(2) S
PECIFIC REQUIREMENT .—In promulgating regulations,
limited solely to implementing paragraphs (8), (9), (10), and(11) of section 11(e) of the Federal Deposit Insurance Act,the Comptroller of the Currency and the Board of Governorsof the Federal Reserve System each shall ensure that theregulations generally are consistent with the regulations andpolicies of the Federal Deposit Insurance Corporation adoptedpursuant to the Federal Deposit Insurance Act.‘‘(d) D
EFINITIONS .—For purposes of this section, the terms ‘Fed-
eral branch’, ‘Federal agency’, and ‘foreign bank’ have the samemeanings as in section 1(b) of the International Banking Act of1978.’’.
SEC. 907. BANKRUPTCY LAW AMENDMENTS.
(a) D EFINITIONS OF FORWARD CONTRACT , REPURCHASE AGREE –
MENT , SECURITIES CLEARING AGENCY , SWAP AGREEMENT , C OM-
MODITY CONTRACT , AND SECURITIES CONTRACT .—Title 11, United
States Code, is amended—
(1) in section 101—
(A) in paragraph (25)—
(i) by striking ‘‘means a contract’’ and inserting
‘‘means—‘‘(A) a contract’’;
(ii) by striking ‘‘, or any combination thereof or
option thereon;’’ and inserting ‘‘, or any other similaragreement;’’; and
(iii) by adding at the end the following:
‘‘(B) any combination of agreements or transactions
referred to in subparagraphs (A) and (C);
‘‘(C) any option to enter into an agreement or trans-
action referred to in subparagraph (A) or (B);
‘‘(D) a master agreement that provides for an agree-
ment or transaction referred to in subparagraph (A), (B),or (C), together with all supplements to any such masteragreement, without regard to whether such master agree-ment provides for an agreement or transaction that isnot a forward contract under this paragraph, except thatsuch master agreement shall be considered to be a forwardcontract under this paragraph only with respect to eachagreement or transaction under such master agreementthat 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 trans-action referred to in subparagraph (A), (B), (C), or (D),including any guarantee or reimbursement obligation byor to a forward contract merchant or financial participantin connection with any agreement or transaction referredto in any such subparagraph, but not to exceed the damages
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in connection with any such agreement or transaction,
measured in accordance with section 562;’’;
(B) in paragraph (46), by striking ‘‘on any day during
the period beginning 90 days before the date of’’ andinserting ‘‘at any time before’’;
(C) by amending paragraph (47) to read as follows:
‘‘(47) ‘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 certificatesof deposit, mortgage related securities (as defined insection 3 of the Securities Exchange Act of 1934), mort-gage loans, interests in mortgage related securitiesor mortgage loans, eligible bankers’ acceptances, quali-fied foreign government securities (defined as a secu-rity that is a direct obligation of, or that is fully guaran-teed by, the central government of a member of theOrganization for Economic Cooperation and Develop-ment), or securities that are direct obligations of, orthat are fully guaranteed by, the United States orany agency of the United States against the transferof funds by the transferee of such certificates of deposit,eligible bankers’ acceptances, securities, mortgageloans, or interests, with a simultaneous agreement bysuch transferee to transfer to the transferor thereofcertificates of deposit, eligible bankers’ acceptance,securities, mortgage loans, or interests of the kinddescribed in this clause, at a date certain not laterthan 1 year after such transfer or on demand, againstthe 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 trans-
action 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 suchmaster agreement, without regard to whether suchmaster agreement provides for an agreement or trans-action that is not a repurchase agreement under thisparagraph, except that such master agreement shallbe considered to be a repurchase agreement underthis paragraph only with respect to each agreementor transaction under the master agreement that isreferred to in clause (i), (ii), or (iii); or
‘‘(v) any security agreement or arrangement or
other credit enhancement related to any agreementor transaction referred to in clause (i), (ii), (iii), or(iv), including any guarantee or reimbursement obliga-tion by or to a repo participant or financial participantin connection with any agreement or transactionreferred to in any such clause, but not to exceed thedamages in connection with any such agreement ortransaction, measured in accordance with section 562of this title; and
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‘‘(B) does not include a repurchase obligation under
a participation in a commercial mortgage loan;’’;
(D) in paragraph (48), by inserting ‘‘, or exempt from
such registration under such section pursuant to an orderof the Securities and Exchange Commission,’’ after ‘‘1934’’;and
(E) by amending paragraph (53B) to read as follows:
‘‘(53B) ‘swap agreement’—
‘‘(A) means—
‘‘(i) any agreement, including the terms and condi-
tions incorporated by reference in such agreement,which is—
‘‘(I) an interest rate swap, option, future, or
forward agreement, including a rate floor, ratecap, rate collar, cross-currency rate swap, andbasis swap;
‘‘(II) a spot, same day-tomorrow, tomorrow-
next, forward, or other foreign exchange or pre-cious metals agreement;
‘‘(III) a currency swap, option, future, or for-
ward 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 inthis paragraph and that—
‘‘(I) is of a type that has been, is presently,
or in the future becomes, the subject of recurrentdealings in the swap markets (including termsand conditions incorporated by reference therein);and
‘‘(II) is a forward, swap, future, or option on
one or more rates, currencies, commodities, equitysecurities, or other equity instruments, debt securi-ties or other debt instruments, quantitative meas-ures associated with an occurrence, extent of anoccurrence, or contingency associated with a finan-cial, commercial, or economic consequence, or eco-
nomic or financial indices or measures of economicor financial risk or value;‘‘(iii) any combination of agreements or trans-
actions 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 agree-
ment or transaction referred to in clause (i), (ii), (iii),or (iv), together with all supplements to any suchmaster agreement, and without regard to whether the
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master agreement contains an agreement or trans-
action that is not a swap agreement under this para-graph, except that the master agreement shall beconsidered to be a swap agreement under this para-graph only with respect to each agreement or trans-action under the master agreement that is referredto in clause (i), (ii), (iii), or (iv); or
‘‘(vi) any security agreement or arrangement or
other credit enhancement related to any agreementsor transactions referred to in clause (i) through (v),including any guarantee or reimbursement obligationby or to a swap participant or financial participantin connection with any agreement or transactionreferred to in any such clause, but not to exceed thedamages in connection with any such agreement ortransaction, 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 oraffect the characterization, definition, or treatment of anyswap agreement under any other statute, regulation, orrule, including the Securities Act of 1933, the SecuritiesExchange Act of 1934, the Public Utility Holding CompanyAct of 1935, the Trust Indenture Act of 1939, the Invest-ment Company Act of 1940, the Investment Advisers Actof 1940, the Securities Investor Protection Act of 1970,the Commodity Exchange Act, the Gramm-Leach-BlileyAct, and the Legal Certainty for Bank Products Act of2000;’’;(2) in section 741(7), by striking paragraph (7) and inserting
the following:
‘‘(7) ‘securities contract’—
‘‘(A) means—
‘‘(i) a contract for the purchase, sale, or loan of
a security, a certificate of deposit, a mortgage loanor any interest in a mortgage loan, a group or indexof securities, certificates of deposit, or mortgage loansor interests therein (including an interest therein orbased on the value thereof), or option on any of theforegoing, including an option to purchase or sell anysuch security, certificate of deposit, mortgage loan,interest, group or index, or option, and including anyrepurchase or reverse repurchase transaction on anysuch security, certificate of deposit, mortgage loan,interest, group or index, or option;
‘‘(ii) any option entered into on a national securities
exchange relating to foreign currencies;
‘‘(iii) the guarantee by or to any securities clearing
agency of a settlement of cash, securities, certificatesof deposit, mortgage loans or interests therein, groupor index of securities, or mortgage loans or intereststherein (including any interest therein or based onthe value thereof), or option on any of the foregoing,including an option to purchase or sell any such secu-rity, certificate of deposit, mortgage loan, interest,group or index, or option;
‘‘(iv) any margin loan;Applicability.
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‘‘(v) any other agreement or transaction that is
similar to an agreement or transaction referred to inthis subparagraph;
‘‘(vi) any combination of the agreements or trans-
actions referred to in this subparagraph;
‘‘(vii) any option to enter into any agreement or
transaction referred to in this subparagraph;
‘‘(viii) a master agreement that provides for an
agreement or transaction referred to in clause (i), (ii),(iii), (iv), (v), (vi), or (vii), together with all supplementsto any such master agreement, without regard towhether the master agreement provides for an agree-ment or transaction that is not a securities contractunder this subparagraph, except that such masteragreement shall be considered to be a securities con-tract under this subparagraph only with respect toeach agreement or transaction under such masteragreement that is referred to in clause (i), (ii), (iii),(iv), (v), (vi), or (vii); or
‘‘(ix) any security agreement or arrangement or
other credit enhancement related to any agreementor transaction referred to in this subparagraph,including any guarantee or reimbursement obligationby or to a stockbroker, securities clearing agency, finan-cial institution, or financial participant in connectionwith any agreement or transaction referred to in thissubparagraph, but not to exceed the damages inconnection with any such agreement or transaction,measured in accordance with section 562; and‘‘(B) does not include any purchase, sale, or repurchase
obligation under a participation in a commercial mortgageloan;’’; and(3) in section 761(4)—
(A) by striking ‘‘or’’ at the end of subparagraph (D);
and
(B) by adding at the end the following:‘‘(F) any other agreement or transaction that is similar
to an agreement or transaction referred to in this para-graph;
‘‘(G) any combination of the agreements or transactions
referred to in this paragraph;
‘‘(H) any option to enter into an agreement or trans-
action referred to in this paragraph;
‘‘(I) a master agreement that provides for an agreement
or transaction referred to in subparagraph (A), (B), (C),(D), (E), (F), (G), or (H), together with all supplementsto such master agreement, without regard to whether themaster agreement provides for an agreement or transactionthat is not a commodity contract under this paragraph,except that the master agreement shall be considered tobe a commodity contract under this paragraph only withrespect to each agreement or transaction under the masteragreement that is referred to in subparagraph (A), (B),(C), (D), (E), (F), (G), or (H); or
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‘‘(J) any security agreement or arrangement or other
credit enhancement related to any agreement or trans-action referred to in this paragraph, including any guar-antee or reimbursement obligation by or to a commoditybroker or financial participant in connection with anyagreement or transaction referred to in this paragraph,but not to exceed the damages in connection with anysuch agreement or transaction, measured in accordancewith section 562;’’.
(b) D
EFINITIONS OF FINANCIAL INSTITUTION , FINANCIAL PARTICI –
PANT , AND FORWARD CONTRACT MERCHANT .—Section 101 of title
11, United States Code, is amended—
(1) by striking paragraph (22) and inserting the following:‘‘(22) ‘financial institution’ means—
‘‘(A) a Federal reserve bank, or an entity (domestic
or foreign) that is a commercial or savings bank, industrialsavings bank, savings and loan association, trust company,federally-insured credit union, or receiver, liquidatingagent, or conservator for such entity and, when any suchFederal reserve bank, receiver, liquidating agent, conser-vator or entity is acting as agent or custodian for a cus-tomer in connection with a securities contract (as definedin section 741) such customer; or
‘‘(B) in connection with a securities contract (as defined
in section 741) an investment company registered underthe Investment Company Act of 1940;’’;(2) by inserting after paragraph (22) the following:‘‘(22A) ‘financial participant’ means—
‘‘(A) an entity that, at the time it enters into a securi-
ties contract, commodity contract, swap agreement,repurchase agreement, or forward contract, or at the timeof the date of the filing of the petition, has one or moreagreements or transactions described in paragraph (1), (2),(3), (4), (5), or (6) of section 561(a) with the debtor orany other entity (other than an affiliate) of a total grossdollar value of not less than $1,000,000,000 in notionalor actual principal amount outstanding on any day duringthe previous 15-month period, or has gross mark-to-marketpositions of not less than $100,000,000 (aggregated acrosscounterparties) in one or more such agreements or trans-actions with the debtor or any other entity (other thanan affiliate) on any day during the previous 15-monthperiod; or
‘‘(B) a clearing organization (as defined in section 402
of the Federal Deposit Insurance Corporation ImprovementAct of 1991);’’; and
(3) by striking paragraph (26) and inserting the following:‘‘(26) ‘forward contract merchant’ means a Federal reserve
bank, or an entity the business of which consists in wholeor in part of entering into forward contracts as or with mer-chants in a commodity (as defined in section 761) or any similargood, article, service, right, or interest which is presently orin the future becomes the subject of dealing in the forwardcontract trade;’’.(c) D
EFINITION OF MASTER NETTING AGREEMENT AND MASTER
NETTING AGREEMENT PARTICIPANT .—Section 101 of title 11, United
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States Code, is amended by inserting after paragraph (38) the
following new paragraphs:
‘‘(38A) ‘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 connec-tion with one or more contracts that are described in anyone or more of paragraphs (1) through (5) of section 561(a),or any security agreement or arrangement or other creditenhancement related to one or more of the foregoing,including any guarantee or reimbursement obligationrelated to 1 or more of the foregoing; and
‘‘(B) if the agreement contains provisions relating to
agreements or transactions that are not contracts describedin paragraphs (1) through (5) of section 561(a), shall bedeemed to be a master netting agreement only with respectto those agreements or transactions that are describedin any one or more of paragraphs (1) through (5) of section561(a);‘‘(38B) ‘master netting agreement participant’ means an
entity that, at any time before the date of the filing of thepetition, is a party to an outstanding master netting agreementwith the debtor;’’.(d) S
WAP AGREEMENTS , SECURITIES CONTRACTS , C OMMODITY
CONTRACTS , FORWARD CONTRACTS , REPURCHASE AGREEMENTS , AND
MASTER NETTING AGREEMENTS UNDER THE AUTOMATIC -STAY.—
(1) I N GENERAL .—Section 362(b) of title 11, United States
Code, as amended by sections 224, 303, 311, 401, and 718,is amended—
(A) in paragraph (6), by inserting ‘‘, pledged to, under
the control of,’’ after ‘‘held by’’;
(B) in paragraph (7), by inserting ‘‘, pledged to, under
the control of,’’ after ‘‘held by’’;
(C) by striking paragraph (17) and inserting the fol-
lowing:‘‘(17) under subsection (a), of the setoff by a swap partici-
pant or financial participant of a mutual debt and claim underor in connection with one or more swap agreements that con-stitutes the setoff of a claim against the debtor for any paymentor other transfer of property due from the debtor under orin connection with any swap agreement against any paymentdue to the debtor from the swap participant or financial partici-pant under or in connection with any swap agreement oragainst cash, securities, or other property held by, pledgedto, under the control of, or due from such swap participantor financial participant to margin, guarantee, secure, or settle
any swap agreement;’’; and
(D) by inserting after paragraph (26) the following:
‘‘(27) under subsection (a), of the setoff by a master netting
agreement participant of a mutual debt and claim under orin connection with one or more master netting agreementsor any contract or agreement subject to such agreements thatconstitutes the setoff of a claim against the debtor for anypayment or other transfer of property due from the debtorunder or in connection with such agreements or any contractor agreement subject to such agreements against any payment
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due to the debtor from such master netting agreement partici-
pant under or in connection with such agreements or anycontract or agreement subject to such agreements or againstcash, securities, or other property held by, pledged to, underthe control of, or due from such master netting agreementparticipant to margin, guarantee, secure, or settle such agree-ments or any contract or agreement subject to such agreements,to the extent that such participant is eligible to exercise suchoffset rights under paragraph (6), (7), or (17) for each individualcontract covered by the master netting agreement in issue;and’’.
(2) L
IMITATION .—Section 362 of title 11, United States
Code, as amended by sections 106, 305, 311, and 441, isamended by adding at the end the following:‘‘(o) The exercise of rights not subject to the stay arising under
subsection (a) pursuant to paragraph (6), (7), (17), or (27) of sub-section (b) shall not be stayed by any order of a court or administra-tive agency in any proceeding under this title.’’.
(e) L
IMITATION OF AVOIDANCE POWERS UNDER MASTER NETTING
AGREEMENT .—Section 546 of title 11, United States Code, is
amended—
(1) in subsection (g) (as added by section 103 of Public
Law 101–311)—
(A) by striking ‘‘under a swap agreement’’;(B) by striking ‘‘in connection with a swap agreement’’
and inserting ‘‘under or in connection with any swap agree-ment’’; and
(C) by inserting ‘‘or financial participant’’ after ‘‘swap
participant’’; and(2) by adding at the end the following:
‘‘(j) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and
548(b) the trustee may not avoid a transfer made by or to amaster netting agreement participant under or in connection withany master netting agreement or any individual contract coveredthereby that is made before the commencement of the case, exceptunder section 548(a)(1)(A) and except to the extent that the trusteecould otherwise avoid such a transfer made under an individualcontract covered by such master netting agreement.’’.
(f) F
RAUDULENT TRANSFERS OF MASTER NETTING AGREE –
MENTS .—Section 548(d)(2) of title 11, United States Code, is
amended—
(1) in subparagraph (C), by striking ‘‘and’’ at the end;(2) in subparagraph (D), by striking the period and
inserting ‘‘; and’’; and
(3) by adding at the end the following new subparagraph:‘‘(E) a master netting agreement participant that receives
a transfer in connection with a master netting agreement orany individual contract covered thereby takes for value to theextent of such transfer, except that, with respect to a transferunder any individual contract covered thereby, to the extentthat such master netting agreement participant otherwise didnot take (or is otherwise not deemed to have taken) suchtransfer for value.’’.(g) T
ERMINATION OR ACCELERATION OF SECURITIES CON-
TRACTS .—Section 555 of title 11, United States Code, is amended—
(1) by amending the section heading to read as follows:
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‘‘§ 555. Contractual right to liquidate, terminate, or accel-
erate a securities contract’’ ;
and
(2) in the first sentence, by striking ‘‘liquidation’’ and
inserting ‘‘liquidation, termination, or acceleration’’.(h) T
ERMINATION OR ACCELERATION OF COMMODITIES OR FOR-
WARD CONTRACTS .—Section 556 of title 11, United States Code,
is amended—
(1) by amending the section heading to read as follows:
‘‘§ 556. Contractual right to liquidate, terminate, or accel-
erate a commodities contract or forward con-tract’’ ;
(2) in the first sentence, by striking ‘‘liquidation’’ and
inserting ‘‘liquidation, termination, or acceleration’’; and
(3) in the second sentence, by striking ‘‘As used’’ and all
that follows through ‘‘right,’’ and inserting ‘‘As used in thissection, the term ‘contractual right’ includes a right set forthin a rule or bylaw of a derivatives clearing organization (asdefined in the Commodity Exchange Act), a multilateralclearing organization (as defined in the Federal Deposit Insur-ance Corporation Improvement Act of 1991), a national securi-ties exchange, a national securities association, a securitiesclearing agency, a contract market designated under the Com-modity Exchange Act, a derivatives transaction executionfacility registered under the Commodity Exchange Act, or aboard of trade (as defined in the Commodity Exchange Act)or in a resolution of the governing board thereof and a right,’’.(i) T
ERMINATION OR ACCELERATION OF REPURCHASE AGREE –
MENTS .—Section 559 of title 11, United States Code, is amended—
(1) by amending the section heading to read as follows:
‘‘§ 559. Contractual right to liquidate, terminate, or accel-
erate a repurchase agreement’’ ;
(2) in the first sentence, by striking ‘‘liquidation’’ and
inserting ‘‘liquidation, termination, or acceleration’’; and
(3) in the third sentence, by striking ‘‘As used’’ and all
that follows through ‘‘right,’’ and inserting ‘‘As used in thissection, the term ‘contractual right’ includes a right set forthin a rule or bylaw of a derivatives clearing organization (asdefined in the Commodity Exchange Act), a multilateralclearing organization (as defined in the Federal Deposit Insur-ance Corporation Improvement Act of 1991), a national securi-ties exchange, a national securities association, a securitiesclearing agency, a contract market designated under the Com-modity Exchange Act, a derivatives transaction executionfacility registered under the Commodity Exchange Act, or aboard of trade (as defined in the Commodity Exchange Act)or in a resolution of the governing board thereof and a right,’’.(j) L
IQUIDATION , T ERMINATION , ORACCELERATION OF SWAP
AGREEMENTS .—Section 560 of title 11, United States Code, is
amended—
(1) by amending the section heading to read as follows:
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‘‘§ 560. Contractual right to liquidate, terminate, or accel-
erate a swap agreement’’ ;
(2) in the first sentence, by striking ‘‘termination of a
swap agreement’’ and inserting ‘‘liquidation, termination, oracceleration of one or more swap agreements’’;
(3) by striking ‘‘in connection with any swap agreement’’
and inserting ‘‘in connection with the termination, liquidation,or acceleration of one or more swap agreements’’; and
(4) in the second sentence, by striking ‘‘As used’’ and all
that follows through ‘‘right,’’ and inserting ‘‘As used in thissection, the term ‘contractual right’ includes a right set forthin a rule or bylaw of a derivatives clearing organization (asdefined in the Commodity Exchange Act), a multilateralclearing organization (as defined in the Federal Deposit Insur-ance Corporation Improvement Act of 1991), a national securi-ties exchange, a national securities association, a securitiesclearing agency, a contract market designated under the Com-modity Exchange Act, a derivatives transaction executionfacility registered under the Commodity Exchange Act, or aboard of trade (as defined in the Commodity Exchange Act)or in a resolution of the governing board thereof and a right,’’.(k) L
IQUIDATION , T ERMINATION , A CCELERATION , OROFFSET
UNDER A MASTER NETTING AGREEMENT AND ACROSS CONTRACTS .—
(1) I N GENERAL .—Title 11, United States Code, is amended
by inserting after section 560 the following:
‘‘§ 561. Contractual right to terminate, liquidate, accelerate,
or offset under a master netting agreement andacross contracts; proceedings under chapter 15
‘‘(a) Subject to subsection (b), the exercise of any contractual
right, because of a condition of the kind specified in section 365(e)(1),to cause the termination, liquidation, or acceleration of or to offsetor net termination values, payment amounts, or other transferobligations arising under or in connection with one or more (orthe termination, liquidation, or acceleration of one or more)—
‘‘(1) securities contracts, as defined in section 741(7);‘‘(2) commodity contracts, as defined in section 761(4);‘‘(3) forward contracts;‘‘(4) repurchase agreements;‘‘(5) swap agreements; or‘‘(6) master netting agreements,
shall not be stayed, avoided, or otherwise limited by operationof any provision of this title or by any order of a court or administra-tive agency in any proceeding under this title.
‘‘(b)(1) A party may exercise a contractual right described in
subsection (a) to terminate, liquidate, or accelerate only to theextent that such party could exercise such a right under section555, 556, 559, or 560 for each individual contract covered by themaster netting agreement in issue.
‘‘(2) If a debtor is a commodity broker subject to subchapter
IV of chapter 7—
‘‘(A) a party may not net or offset an obligation to the
debtor arising under, or in connection with, a commodity con-tract traded on or subject to the rules of a contract marketdesignated under the Commodity Exchange Act or a derivativestransaction execution facility registered under the CommodityExchange Act against any claim arising under, or in connection
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with, other instruments, contracts, or agreements listed in sub-
section (a) except to the extent that the party has positivenet equity in the commodity accounts at the debtor, as cal-culated under such subchapter; and
‘‘(B) another commodity broker may not net or offset an
obligation to the debtor arising under, or in connection with,a commodity contract entered into or held on behalf of a cus-tomer of the debtor and traded on or subject to the rulesof a contract market designated under the CommodityExchange Act or a derivatives transaction execution facilityregistered under the Commodity Exchange Act against anyclaim arising under, or in connection with, other instruments,contracts, or agreements listed in subsection (a).‘‘(3) No provision of subparagraph (A) or (B) of paragraph
(2) shall prohibit the offset of claims and obligations that ariseunder—
‘‘(A) a cross-margining agreement or similar arrangement
that has been approved by the Commodity Futures TradingCommission or submitted to the Commodity Futures TradingCommission under paragraph (1) or (2) of section 5c(c) of theCommodity Exchange Act and has not been abrogated or ren-dered ineffective by the Commodity Futures Trading Commis-sion; or
‘‘(B) any other netting agreement between a clearing
organization (as defined in section 761) and another entitythat has been approved by the Commodity Futures TradingCommission.‘‘(c) As used in this section, the term ‘contractual right’ includes
a right set forth in a rule or bylaw of a derivatives clearing organiza-tion (as defined in the Commodity Exchange Act), a multilateralclearing organization (as defined in the Federal Deposit InsuranceCorporation Improvement Act of 1991), a national securitiesexchange, a national securities association, a securities clearingagency, a contract market designated under the CommodityExchange Act, a derivatives transaction execution facility registeredunder the Commodity Exchange Act, or a board of trade (as definedin the Commodity Exchange Act) or in a resolution of the governingboard thereof, and a right, whether or not evidenced in writing,arising under common law, under law merchant, or by reasonof normal business practice.
‘‘(d) Any provisions of this title relating to securities contracts,
commodity contracts, forward contracts, repurchase agreements,swap agreements, or master netting agreements shall apply ina case under chapter 15, so that enforcement of contractual provi-sions of such contracts and agreements in accordance with theirterms will not be stayed or otherwise limited by operation of anyprovision of this title or by order of a court in any case underthis title, and to limit avoidance powers to the same extent asin a proceeding under chapter 7 or 11 of this title (such enforcementnot to be limited based on the presence or absence of assets ofthe debtor in the United States).’’.
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(2) C ONFORMING AMENDMENT .—The table of sections for
chapter 5 of title 11, United States Code, is amended byinserting after the item relating to section 560 the following:
‘‘561. Contractual right to terminate, liquidate, accelerate, or offset under a master
netting agreement and across contracts; proceedings under chapter 15.’’.
(l) C OMMODITY BROKER LIQUIDATIONS .—Title 11, United States
Code, is amended by inserting after section 766 the following:
‘‘§ 767. Commodity broker liquidation and forward contract
merchants, commodity brokers, stockbrokers,financial institutions, financial participants,securities clearing agencies, swap participants,repo participants, and master netting agreementparticipants
‘‘Notwithstanding any other provision of this title, the exercise
of rights by a forward contract merchant, commodity broker, stock-broker, financial institution, financial participant, securitiesclearing agency, swap participant, repo participant, or master net-ting agreement participant under this title shall not affect thepriority of any unsecured claim it may have after the exerciseof such rights.’’.
(m) S
TOCKBROKER LIQUIDATIONS .—Title 11, United States Code,
is amended by inserting after section 752 the following:
‘‘§ 753. Stockbroker liquidation and forward contract mer-
chants, commodity brokers, stockbrokers, finan-cial institutions, financial participants, securitiesclearing agencies, swap participants, repoparticipants, and master netting agreementparticipants
‘‘Notwithstanding any other provision of this title, the exercise
of rights by a forward contract merchant, commodity broker, stock-broker, financial institution, financial participant, securitiesclearing agency, swap participant, repo participant, or master net-ting agreement participant under this title shall not affect thepriority of any unsecured claim it may have after the exerciseof such rights.’’.
(n) S
ETOFF .—Section 553 of title 11, United States Code, is
amended—
(1) in subsection (a)(2)(B)(ii), by inserting before the semi-
colon the following: ‘‘(except for a setoff of a kind describedin section 362(b)(6), 362(b)(7), 362(b)(17), 362(b)(27), 555, 556,559, 560, or 561)’’;
(2) in subsection (a)(3)(C), by inserting before the period
the following: ‘‘(except for a setoff of a kind described in section362(b)(6), 362(b)(7), 362(b)(17), 362(b)(27), 555, 556, 559, 560,or 561)’’; and
(3) in subsection (b)(1), by striking ‘‘362(b)(14),’’ and
inserting ‘‘362(b)(17), 362(b)(27), 555, 556, 559, 560, 561,’’.(o) S
ECURITIES CONTRACTS , COMMODITY CONTRACTS , AND FOR-
WARD CONTRACTS .—Title 11, United States Code, is amended—
(1) in section 362(b)(6), by striking ‘‘financial institutions,’’
each place such term appears and inserting ‘‘financial institu-tion, financial participant,’’;
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(2) in sections 362(b)(7) and 546(f), by inserting ‘‘or financial
participant’’ after ‘‘repo participant’’ each place such termappears;
(3) in section 546(e), by inserting ‘‘financial participant,’’
after ‘‘financial institution,’’;
(4) in section 548(d)(2)(B), by inserting ‘‘financial partici-
pant,’’ after ‘‘financial institution,’’;
(5) in section 548(d)(2)(C), by inserting ‘‘or financial partici-
pant’’ after ‘‘repo participant’’;
(6) in section 548(d)(2)(D), by inserting ‘‘or financial partici-
pant’’ after ‘‘swap participant’’;
(7) in section 555—
(A) by inserting ‘‘financial participant,’’ after ‘‘financial
institution,’’; and
(B) by striking the second sentence and inserting the
following: ‘‘As used in this section, the term ‘contractualright’ includes a right set forth in a rule or bylaw ofa derivatives clearing organization (as defined in the Com-modity Exchange Act), a multilateral clearing organization(as defined in the Federal Deposit Insurance CorporationImprovement Act of 1991), a national securities exchange,a national securities association, a securities clearingagency, a contract market designated under the CommodityExchange Act, a derivatives transaction execution facilityregistered under the Commodity Exchange Act, or a boardof trade (as defined in the Commodity Exchange Act), orin a resolution of the governing board thereof, and a right,whether or not in writing, arising under common law,under law merchant, or by reason of normal business prac-tice.’’;(8) in section 556, by inserting ‘‘, financial participant,’’
after ‘‘commodity broker’’;
(9) in section 559, by inserting ‘‘or financial participant’’
after ‘‘repo participant’’ each place such term appears; and
(10) in section 560, by inserting ‘‘or financial participant’’
after ‘‘swap participant’’.(p) C
ONFORMING AMENDMENTS .—Title 11, United States Code,
is amended—
(1) in the table of sections for chapter 5—
(A) by amending the items relating to sections 555
and 556 to read as follows:
‘‘555. Contractual right to liquidate, terminate, or accelerate a securities contract.
‘‘556. Contractual right to liquidate, terminate, or accelerate a commodities contract
or forward contract.’’;
and
(B) by amending the items relating to sections 559
and 560 to read as follows:
‘‘559. Contractual right to liquidate, terminate, or accelerate a repurchase agree-
ment.
‘‘560. Contractual right to liquidate, terminate, or accelerate a swap agreement.’’;
and
(2) in the table of sections for chapter 7—
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(A) by inserting after the item relating to section 766
the following:
‘‘767. Commodity broker liquidation and forward contract merchants, commodity
brokers, stockbrokers, financial institutions, financial participants, secu-rities clearing agencies, swap participants, repo participants, and mas-ter netting agreement participants.’’;
and
(B) by inserting after the item relating to section 752
the following:
‘‘753. Stockbroker liquidation and forward contract merchants, commodity brokers,
stockbrokers, financial institutions, financial participants, securitiesclearing agencies, swap participants, repo participants, and master net-ting agreement participants.’’.
SEC. 908. RECORDKEEPING REQUIREMENTS.
(a) FDIC-I NSURED DEPOSITORY INSTITUTIONS .—Section 11(e)(8)
of the Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)) isamended by adding at the end the following new subparagraph:
‘‘(H) R
ECORDKEEPING REQUIREMENTS .—The Corpora-
tion, in consultation with the appropriate Federal bankingagencies, may prescribe regulations requiring more detailedrecordkeeping by any insured depository institution withrespect to qualified financial contracts (including marketvaluations) only if such insured depository institution isin a troubled condition (as such term is defined by theCorporation pursuant to section 32).’’.
(b) I
NSURED CREDIT UNIONS .—Section 207(c)(8) of the Federal
Credit Union Act (12 U.S.C. 1787(c)(8)) is amended by addingat the end the following new subparagraph:
‘‘(H) R
ECORDKEEPING REQUIREMENTS .—The Board, in
consultation with the appropriate Federal banking agen-cies, may prescribe regulations requiring more detailedrecordkeeping by any insured credit union with respectto qualified financial contracts (including market valu-ations) only if such insured credit union is in a troubledcondition (as such term is defined by the Board pursuantto section 212).’’.
SEC. 909. EXEMPTIONS FROM CONTEMPORANEOUS EXECUTION
REQUIREMENT.
Section 13(e)(2) of the Federal Deposit Insurance Act (12 U.S.C.
1823(e)(2)) is amended to read as follows:
‘‘(2) E XEMPTIONS FROM CONTEMPORANEOUS EXECUTION
REQUIREMENT .—An agreement to provide for the lawful
collateralization of—
‘‘(A) deposits of, or other credit extension by, a Federal,
State, or local governmental entity, or of any depositorreferred to in section 11(a)(2), including an agreement toprovide collateral in lieu of a surety bond;
‘‘(B) bankruptcy estate funds pursuant to section
345(b)(2) of title 11, United States Code;
‘‘(C) extensions of credit, including any overdraft, from
a Federal reserve bank or Federal home loan bank; or
‘‘(D) one or more qualified financial contracts, as
defined in section 11(e)(8)(D),
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shall not be deemed invalid pursuant to paragraph (1)(B) solely
because such agreement was not executed contemporaneouslywith the acquisition of the collateral or because of pledges,delivery, or substitution of the collateral made in accordancewith such agreement.’’.
SEC. 910. DAMAGE MEASURE.
(a) I NGENERAL .—Title 11, United States Code, is amended—
(1) by inserting after section 561, as added by section
907, the following:
‘‘§ 562. Timing of damage measurement in connection with
swap agreements, securities contracts, forwardcontracts, commodity contracts, repurchaseagreements, and master netting agreements
‘‘(a) If the trustee rejects a swap agreement, securities contract
(as defined in section 741), forward contract, commodity contract(as defined in section 761), repurchase agreement, or master nettingagreement pursuant to section 365(a), or if a forward contractmerchant, stockbroker, financial institution, securities clearingagency, repo participant, financial participant, master nettingagreement participant, or swap participant liquidates, terminates,or accelerates such contract or agreement, damages shall be meas-ured as of the earlier of—
‘‘(1) the date of such rejection; or‘‘(2) the date or dates of such liquidation, termination,
or acceleration.‘‘(b) If there are not any commercially reasonable determinants
of value as of any date referred to in paragraph (1) or (2) ofsubsection (a), damages shall be measured as of the earliest subse-quent date or dates on which there are commercially reasonabledeterminants of value.
‘‘(c) For the purposes of subsection (b), if damages are not
measured as of the date or dates of rejection, liquidation, termi-nation, or acceleration, and the forward contract merchant, stock-broker, financial institution, securities clearing agency, repo partici-pant, financial participant, master netting agreement participant,or swap participant or the trustee objects to the timing of themeasurement of damages—
‘‘(1) the trustee, in the case of an objection by a forward
contract merchant, stockbroker, financial institution, securities
clearing agency, repo participant, financial participant, masternetting agreement participant, or swap participant; or
‘‘(2) the forward contract merchant, stockbroker, financial
institution, securities clearing agency, repo participant, finan-cial participant, master netting agreement participant, or swapparticipant, in the case of an objection by the trustee,
has the burden of proving that there were no commercially reason-able determinants of value as of such date or dates.’’; and
(2) in the table of sections for chapter 5, by inserting
after the item relating to section 561 (as added by section907) the following new item:
‘‘562. Timing of damage measure in connection with swap agreements, securities
contracts, forward contracts, commodity contracts, repurchase agree-ments, or master netting agreements.’’.
(b) C LAIMS ARISING FROM REJECTION .—Section 502(g) of title
11, United States Code, is amended—
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(1) by inserting ‘‘(1)’’ after ‘‘(g)’’; and
(2) by adding at the end the following:
‘‘(2) A claim for damages calculated in accordance with section
562 shall be allowed under subsection (a), (b), or (c), or disallowedunder subsection (d) or (e), as if such claim had arisen beforethe date of the filing of the petition.’’.
SEC. 911. SIPC STAY.
Section 5(b)(2) of the Securities Investor Protection Act of 1970
(15 U.S.C. 78eee(b)(2)) is amended by adding at the end the fol-lowing new subparagraph:
‘‘(C) E
XCEPTION FROM STAY .—
‘‘(i) Notwithstanding section 362 of title 11, United
States Code, neither the filing of an application undersubsection (a)(3) nor any order or decree obtained bySIPC from the court shall operate as a stay of anycontractual rights of a creditor to liquidate, terminate,or accelerate a securities contract, commodity contract,forward contract, repurchase agreement, swap agree-
ment, or master netting agreement, as those termsare defined in sections 101, 741, and 761 of title 11,United States Code, to offset or net termination values,payment amounts, or other transfer obligations arisingunder or in connection with one or more of such con-tracts or agreements, or to foreclose on any cash collat-eral pledged by the debtor, whether or not with respectto one or more of such contracts or agreements.
‘‘(ii) Notwithstanding clause (i), such application,
order, or decree may operate as a stay of the foreclosureon, or disposition of, securities collateral pledged bythe debtor, whether or not with respect to one ormore of such contracts or agreements, securities soldby the debtor under a repurchase agreement, or securi-ties lent under a securities lending agreement.
‘‘(iii) As used in this subparagraph, the term
‘contractual right’ includes a right set forth in a ruleor bylaw of a national securities exchange, a nationalsecurities association, or a securities clearing agency,a right set forth in a bylaw of a clearing organizationor contract market or in a resolution of the governingboard thereof, and a right, whether or not in writing,arising under common law, under law merchant, orby reason of normal business practice.’’.
TITLE X—PROTECTION OF FAMILY
FARMERS AND FAMILY FISHERMEN
SEC. 1001. PERMANENT REENACTMENT OF CHAPTER 12.
(a) R EENACTMENT .—
(1) I N GENERAL .—Chapter 12 of title 11, United States
Code, as reenacted by section 149 of division C of the OmnibusConsolidated and Emergency Supplemental Appropriations Act,1999 (Public Law 105–277), and as in effect on June 30, 2005,is hereby reenacted.
(2) E
FFECTIVE DATE OF REENACTMENT .—Paragraph (1) shall
take effect on July 1, 2005.11 USC 1201 et
seq.11 USC 1201
note.
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(b) A MENDMENTS —Chapter 12 of title 11, United States Code,
as reenacted by subsection (a), is amended by this Act.
(c) C ONFORMING AMENDMENT .—Section 302 of the Bankruptcy
Judges, United States Trustees, and Family Farmer BankruptcyAct of 1986 (28 U.S.C. 581 note) is amended by striking subsection(f).
SEC. 1002. DEBT LIMIT INCREASE.
Section 104(b) of title 11, United States Code, as amended
by section 226, is amended by inserting ‘‘101(18),’’ after ‘‘101(3),’’each place it appears.
SEC. 1003. CERTAIN CLAIMS OWED TO GOVERNMENTAL UNITS.
(a) C ONTENTS OF PLAN.—Section 1222(a)(2) of title 11, United
States Code, as amended by section 213, is amended to read asfollows:
‘‘(2) provide for the full payment, in deferred cash pay-
ments, of all claims entitled to priority under section 507,unless—
‘‘(A) the claim is a claim owed to a governmental unit
that arises as a result of the sale, transfer, exchange,or other disposition of any farm asset used in the debtor’sfarming operation, in which case the claim shall be treatedas an unsecured claim that is not entitled to priority undersection 507, but the debt shall be treated in such manneronly if the debtor receives a discharge; or
‘‘(B) the holder of a particular claim agrees to a dif-
ferent treatment of that claim;’’.
(b) S
PECIAL NOTICE PROVISIONS .—Section 1231(b) of title 11,
United States Code, as so designated by section 719, is amendedby striking ‘‘a State or local governmental unit’’ and inserting‘‘any governmental unit’’.
(c) E
FFECTIVE DATE; APPLICATION OF AMENDMENTS .—This sec-
tion and the amendments made by this section shall take effecton the date of the enactment of this Act and shall not applywith respect to cases commenced under title 11 of the UnitedStates Code before such date.
SEC. 1004. DEFINITION OF FAMILY FARMER.
Section 101(18) of title 11, United States Code, is amended—
(1) in subparagraph (A)—
(A) by striking ‘‘$1,500,000’’ and inserting ‘‘$3,237,000’’;
and
(B) by striking ‘‘80’’ and inserting ‘‘50’’; and
(2) in subparagraph (B)(ii)—
(A) by striking ‘‘$1,500,000’’ and inserting ‘‘$3,237,000’’;
and
(B) by striking ‘‘80’’ and inserting ‘‘50’’.
SEC. 1005. ELIMINATION OF REQUIREMENT THAT FAMILY FARMER
AND SPOUSE RECEIVE OVER 50 PERCENT OF INCOMEFROM FARMING OPERATION IN YEAR PRIOR TO BANK-RUPTCY.
Section 101(18)(A) of title 11, United States Code, is amended
by striking ‘‘for the taxable year preceding the taxable year’’ andinserting the following:
‘‘for—
‘‘(i) the taxable year preceding; or11 USC 1222note.
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‘‘(ii) each of the 2d and 3d taxable years preceding;
the taxable year’’.
SEC. 1006. PROHIBITION OF RETROACTIVE ASSESSMENT OF DISPOS-
ABLE INCOME.
(a) C ONFIRMATION OF PLAN.—Section 1225(b)(1) of title 11,
United States Code, is amended—
(1) in subparagraph (A) by striking ‘‘or’’ at the end;(2) in subparagraph (B) by striking the period at the end
and inserting ‘‘; or’’; and
(3) by adding at the end the following:‘‘(C) the value of the property to be distributed under
the plan in the 3-year period, or such longer period as thecourt may approve under section 1222(c), beginning on thedate that the first distribution is due under the plan is notless than the debtor’s projected disposable income for suchperiod.’’.(b) M
ODIFICATION OF PLAN.—Section 1229 of title 11, United
States Code, is amended by adding at the end the following:
‘‘(d) A plan may not be modified under this section—
‘‘(1) to increase the amount of any payment due before
the plan as modified becomes the plan;
‘‘(2) by anyone except the debtor, based on an increase
in the debtor’s disposable income, to increase the amount ofpayments to unsecured creditors required for a particularmonth so that the aggregate of such payments exceeds thedebtor’s disposable income for such month; or
‘‘(3) in the last year of the plan by anyone except the
debtor, to require payments that would leave the debtor withinsufficient funds to carry on the farming operation after theplan is completed.’’.
SEC. 1007. FAMILY FISHERMEN.
(a) D EFINITIONS .—Section 101 of title 11, United States Code,
is amended—
(1) by inserting after paragraph (7) the following:‘‘(7A) ‘commercial fishing operation’ means—
‘‘(A) the catching or harvesting of fish, shrimp, lobsters,
urchins, seaweed, shellfish, or other aquatic species or prod-ucts of such species; or
‘‘(B) for purposes of section 109 and chapter 12, aqua-
culture activities consisting of raising for market any spe-cies or product described in subparagraph (A);‘‘(7B) ‘commercial fishing vessel’ means a vessel used by
a family fisherman to carry out a commercial fishing oper-ation;’’; and
(2) by inserting after paragraph (19) the following:‘‘(19A) ‘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 and not less than 80 percent of whose aggre-gate noncontingent, liquidated debts (excluding a debtfor the principal residence of such individual or suchindividual and spouse, unless such debt arises outof a commercial fishing operation), on the date thecase is filed, arise out of a commercial fishing operation
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owned or operated by such individual or such indi-
vidual and spouse; and
‘‘(ii) who receive from such commercial fishing
operation more than 50 percent of such individual’sor such individual’s and spouse’s gross income for thetaxable year preceding the taxable year in which thecase concerning such individual or such individual andspouse was filed; or‘‘(B) a corporation or partnership—
‘‘(i) in which more than 50 percent of the out-
standing 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 relativesconduct the commercial fishing operation; and‘‘(ii)(I) more than 80 percent of the value of its
assets consists of assets related to the commercialfishing operation;
‘‘(II) its aggregate debts do not exceed $1,500,000
and not less than 80 percent of its aggregate noncontin-gent, liquidated debts (excluding a debt for 1 dwellingwhich is owned by such corporation or partnershipand which a shareholder or partner maintains as aprincipal residence, unless such debt arises out of acommercial fishing operation), on the date the caseis filed, arise out of a commercial fishing operationowned or operated by such corporation or such partner-ship; and
‘‘(III) if such corporation issues stock, such stock
is not publicly traded;
‘‘(19B) ‘family fisherman with regular annual income’
means a family fisherman whose annual income is sufficientlystable and regular to enable such family fisherman to makepayments under a plan under chapter 12 of this title;’’.(b) W
HOMAYBEADEBTOR .—Section 109(f) of title 11, United
States Code, is amended by inserting ‘‘or family fisherman’’ after‘‘family farmer’’.
(c) C
HAPTER 12.—Chapter 12 of title 11, United States Code,
is amended—
(1) in the chapter heading, by inserting ‘‘ OR FISHER-
MAN ’’ after ‘‘ FAMILY FARMER ’’;
(2) in section 1203, by inserting ‘‘or commercial fishing
operation’’ after ‘‘farm’’; and
(3) in section 1206, by striking ‘‘if the property is farmland
or farm equipment’’ and inserting ‘‘if the property is farmland,farm equipment, or property used to carry out a commercialfishing operation (including a commercial fishing vessel)’’.(d) C
LERICAL AMENDMENT .—In the table of chapters for title
11, United States Code, the item relating to chapter 12, is amendedto read as follows:
‘‘12. Adjustments of Debts of a Family Farmer or Family Fisherman
with Regular Annual Income …………………………………………………… 1201’’.
(e) A PPLICABILITY .—Nothing in this section shall change, affect,
or amend the Fishery Conservation and Management Act of 1976(16 U.S.C. 1801 et seq.).11 USC 101 note.
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TITLE XI—HEALTH CARE AND
EMPLOYEE BENEFITS
SEC. 1101. DEFINITIONS.
(a) H EALTH CARE BUSINESS DEFINED .—Section 101 of title 11,
United States Code, as amended by section 306, is amended—
(1) by redesignating paragraph (27A) as paragraph (27B);
and
(2) by inserting after paragraph (27) the following:‘‘(27A) ‘health care business’—
‘‘(A) means any public or private entity (without regard
to whether that entity is organized for profit or not forprofit) that is primarily engaged in offering to the generalpublic 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 sur-
gical 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 engagedin offering room, board, laundry, or personal assist-ance with activities of daily living and incidentalsto activities of daily living;’’.
(b) P
ATIENT AND PATIENT RECORDS DEFINED .—Section 101 of
title 11, United States Code, is amended by inserting after para-graph (40) the following:
‘‘(40A) ‘patient’ means any individual who obtains or
receives services from a health care business;
‘‘(40B) ‘patient records’ means any written document
relating to a patient or a record recorded in a magnetic, optical,or other form of electronic medium;’’.(c) R
ULE OF CONSTRUCTION .—The amendments made by sub-
section (a) of this section shall not affect the interpretation ofsection 109(b) of title 11, United States Code.
SEC. 1102. DISPOSAL OF PATIENT RECORDS.
(a) I NGENERAL .—Subchapter III of chapter 3 of title 11, United
States Code, is amended by adding at the end the following:11 USC 101 note.
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‘‘§ 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 amountof funds to pay for the storage of patient records in the mannerrequired under applicable Federal or State law, the followingrequirements shall apply:
‘‘(1) The trustee shall—
‘‘(A) promptly publish notice, in 1 or more appropriate
newspapers, that if patient records are not claimed bythe patient or an insurance provider (if applicable lawpermits the insurance provider to make that claim) bythe 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 notifydirectly each patient that is the subject of the patientrecords and appropriate insurance carrier concerning thepatient records by mailing to the most recent knownaddress of that patient, or a family member or contactperson for that patient, and to the appropriate insurancecarrier an appropriate notice regarding the claiming ordisposing of patient records.‘‘(2) If, after providing the notification under paragraph
(1), patient records are not claimed during the 365-day perioddescribed under that paragraph, the trustee shall mail, by
certified mail, at the end of such 365-day period a writtenrequest to each appropriate Federal agency to request permis-sion from that agency to deposit the patient records with thatagency, except that no Federal agency is required to acceptpatient 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 pro-vider, or request is not granted by a Federal agency to depositsuch records with that agency, the trustee shall destroy thoserecords by—
‘‘(A) if the records are written, shredding or burning
the records; or
‘‘(B) if the records are magnetic, optical, or other elec-
tronic records, by otherwise destroying those records sothat those records cannot be retrieved.’’.
(b) C
LERICAL AMENDMENT .—The table of sections for subchapter
III of chapter 3 of title 11, United States Code, is amended byadding at the end the following:
‘‘351. Disposal of patient records.’’.
SEC. 1103. ADMINISTRATIVE EXPENSE CLAIM FOR COSTS OF CLOSING
A HEALTH CARE BUSINESS AND OTHER ADMINISTRATIVEEXPENSES.
Section 503(b) of title 11, United States Code, as amended
by section 445, is amended by adding at the end the following:
‘‘(8) the actual, necessary costs and expenses of closing
a health care business incurred by a trustee or by a Federalagency (as defined in section 551(1) of title 5) or a departmentor agency of a State or political subdivision thereof, includingany cost or expense incurred—Notices.Newspaper,publication.Applicability.
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‘‘(A) in disposing of patient records in accordance with
section 351; or
‘‘(B) in connection with transferring patients from the
health care business that is in the process of being closedto another health care business; and’’.
SEC. 1104. APPOINTMENT OF OMBUDSMAN TO ACT AS PATIENT ADVO-
CATE.
(a) O MBUDSMAN TOACT AS PATIENT ADVOCATE .—
(1) A PPOINTMENT OF OMBUDSMAN .—Title 11, United States
Code, as amended by section 232, is amended by insertingafter section 332 the following:
‘‘§ 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 30days after the commencement of the case, the appointment of anombudsman to monitor the quality of patient care and to representthe interests of the patients of the health care business unlessthe court finds that the appointment of such ombudsman is notnecessary for the protection of patients under the specific factsof the case.
‘‘(2)(A) If the court orders the appointment of an ombudsman
under paragraph (1), the United States trustee shall appoint 1disinterested person (other than the United States trustee) to serveas such ombudsman.
‘‘(B) If the debtor is a health care business that provides long-
term care, then the United States trustee may appoint the StateLong-Term Care Ombudsman appointed under the Older AmericansAct of 1965 for the State in which the case is pending to serveas 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 courtshall notify the State Long-Term Care Ombudsman appointed underthe Older Americans Act of 1965 for the State in which the caseis pending, of the name and address of the person who is appointedunder 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, ata hearing or in writing, regarding the quality of patient careprovided to patients of the debtor; and
‘‘(3) if such ombudsman determines that the quality of
patient care provided to patients of the debtor is decliningsignificantly or is otherwise being materially compromised, filewith the court a motion or a written report, with notice tothe parties in interest immediately upon making such deter-mination.‘‘(c)(1) An ombudsman appointed under subsection (a) shall
maintain any information obtained by such ombudsman under thissection that relates to patients (including information relating topatient records) as confidential information. Such ombudsman maynot review confidential patient records unless the court approves
Records.Confidentiality.Deadlines.
Reports.Notification.Deadline.
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such review in advance and imposes restrictions on such ombuds-
man 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 suchombudsman under the Older Americans Act of 1965 and undernon-Federal laws governing the State Long-Term Care Ombudsmanprogram.’’.
(2) C
LERICAL AMENDMENT .—The table of sections for sub-
chapter II of chapter 3 of title 11, United States Code, asamended by section 232, is amended by adding at the endthe following:
‘‘333. Appointment of ombudsman.’’.
(b) C OMPENSATION OF OMBUDSMAN .—Section 330(a)(1) of title
11, United States Code, is amended—
(1) in the matter preceding subparagraph (A), by inserting
‘‘an ombudsman appointed under section 333, or’’ before ‘‘aprofessional person’’; and
(2) in subparagraph (A), by inserting ‘‘ombudsman,’’ before
‘‘professional person’’.
SEC. 1105. DEBTOR IN POSSESSION; DUTY OF TRUSTEE TO TRANSFER
PATIENTS.
(a) I NGENERAL .—Section 704(a) of title 11, United States Code,
as amended by sections 102, 219, and 446, is amended by addingat the end the following:
‘‘(12) use all reasonable and best efforts to transfer patients
from a health care business that is in the process of beingclosed to an appropriate health care business that—
‘‘(A) is in the vicinity of the health care business that
is closing;
‘‘(B) provides the patient with services that are
substantially similar to those provided by the health carebusiness that is in the process of being closed; and
‘‘(C) maintains a reasonable quality of care.’’.
(b) C
ONFORMING AMENDMENT .—Section 1106(a)(1) of title 11,
United States Code, as amended by section 446, is amended bystriking ‘‘and (11)’’ and inserting ‘‘(11), and (12)’’.
SEC. 1106. EXCLUSION FROM PROGRAM PARTICIPATION NOT SUBJECT
TO AUTOMATIC STAY.
Section 362(b) of title 11, United States Code, is amended
by inserting after paragraph (27), as amended by sections 224,303, 311, 401, 718, and 907, the following:
‘‘(28) under subsection (a), of the exclusion by the Secretary
of Health and Human Services of the debtor from participationin the medicare program or any other Federal health care
program (as defined in section 1128B(f) of the Social SecurityAct pursuant to title XI or XVIII of such Act).’’.
TITLE XII—TECHNICAL AMENDMENTS
SEC. 1201. DEFINITIONS.
Section 101 of title 11, United States Code, as amended by
this Act, is further amended—
(1) by striking ‘‘In this title—’’ and inserting ‘‘In this title
the following definitions shall apply:’’;
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(2) in each paragraph (other than paragraph (54A)), by
inserting ‘‘The term’’ after the paragraph designation;
(3) in paragraph (35)(B), by striking ‘‘paragraphs (21B)
and (33)(A)’’ and inserting ‘‘paragraphs (23) and (35)’’;
(4) in each of paragraphs (35A), (38), and (54A), by striking
‘‘; and’’ at the end and inserting a period;
(5) in paragraph (51B)—
(A) by inserting ‘‘who is not a family farmer’’ after
‘‘debtor’’ the first place it appears; and
(B) by striking ‘‘thereto having aggregate’’ and all that
follows through the end of the paragraph and insertinga semicolon;(6) by striking paragraph (54) and inserting the following:‘‘(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 condi-
tional, voluntary or involuntary, of disposing of or partingwith—
‘‘(i) property; or‘‘(ii) an interest in property;’’;
(7) in paragraph (54A)—
(A) by striking ‘‘the term’’ and inserting ‘‘The term’’;
and
(B) by indenting the left margin of paragraph (54A)
2 ems to the right; and(8) in each of paragraphs (1) through (35), in each of
paragraphs (36), (37), (38A), (38B) and (39A), and in eachof paragraphs (40) through (55), by striking the semicolon atthe end and inserting a period.
SEC. 1202. ADJUSTMENT OF DOLLAR AMOUNTS.
Section 104(b) of title 11, United States Code, as amended
by this Act, is further amended—
(1) by inserting ‘‘101(19A),’’ after ‘‘101(18),’’ each place it
appears;
(2) by inserting ‘‘522(f)(3) and 522(f)(4),’’ after ‘‘522(d),’’
each place it appears;
(3) by inserting ‘‘541(b), 547(c)(9),’’ after ‘‘523(a)(2)(C),’’ each
place it appears;
(4) in paragraph (1), by striking ‘‘and 1325(b)(3)’’ and
inserting ‘‘1322(d), 1325(b), and 1326(b)(3) of this title andsection 1409(b) of title 28’’; and
(5) in paragraph (2), by striking ‘‘and 1325(b)(3) of this
title’’ and inserting ‘‘1322(d), 1325(b), and 1326(b)(3) of thistitle and section 1409(b) of title 28’’.
SEC. 1203. EXTENSION OF TIME.
Section 108(c)(2) of title 11, United States Code, is amended
by striking ‘‘922’’ and all that follows through ‘‘or’’, and inserting‘‘922, 1201, or’’.
SEC. 1204. TECHNICAL AMENDMENTS.
Title 11, United States Code, is amended—
(1) in section 109(b)(2), by striking ‘‘subsection (c) or (d)
of’’; and
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(2) in section 552(b)(1), by striking ‘‘product’’ each place
it appears and inserting ‘‘products’’.
SEC. 1205. PENALTY FOR PERSONS WHO NEGLIGENTLY OR FRAUDU-
LENTLY PREPARE BANKRUPTCY PETITIONS.
Section 110(j)(4) of title 11, United States Code, as so redesig-
nated by section 221, is amended by striking ‘‘attorney’s’’ andinserting ‘‘attorneys’ ’’.
SEC. 1206. LIMITATION ON COMPENSATION OF PROFESSIONAL PER-
SONS.
Section 328(a) of title 11, United States Code, is amended
by inserting ‘‘on a fixed or percentage fee basis,’’ after ‘‘hourlybasis,’’.
SEC. 1207. EFFECT OF CONVERSION.
Section 348(f)(2) of title 11, United States Code, is amended
by inserting ‘‘of the estate’’ after ‘‘property’’ the first place it appears.
SEC. 1208. ALLOWANCE OF ADMINISTRATIVE EXPENSES.
Section 503(b)(4) of title 11, United States Code, is amended
by inserting ‘‘subparagraph (A), (B), (C), (D), or (E) of’’ before‘‘paragraph (3)’’.
SEC. 1209. EXCEPTIONS TO DISCHARGE.
Section 523 of title 11, United States Code, as amended by
sections 215 and 314, is amended—
(1) by transferring paragraph (15), as added by section
304(e) of Public Law 103–394 (108 Stat. 4133), so as to insertsuch paragraph after subsection (a)(14A);
(2) in subsection (a)(9), by striking ‘‘motor vehicle’’ and
inserting ‘‘motor vehicle, vessel, or aircraft’’; and
(3) in subsection (e), by striking ‘‘a insured’’ and inserting
‘‘an insured’’.
SEC. 1210. EFFECT OF DISCHARGE.
Section 524(a)(3) of title 11, United States Code, is amended
by striking ‘‘section 523’’ and all that follows through ‘‘or that’’and inserting ‘‘section 523, 1228(a)(1), or 1328(a)(1), or that’’.
SEC. 1211. PROTECTION AGAINST DISCRIMINATORY TREATMENT.
Section 525(c) of title 11, United States Code, is amended—
(1) in paragraph (1), by inserting ‘‘student’’ before ‘‘grant’’
the second place it appears; and
(2) in paragraph (2), by striking ‘‘the program operated
under part B, D, or E of’’ and inserting ‘‘any program operatedunder’’.
SEC. 1212. PROPERTY OF THE ESTATE.
Section 541(b)(4)(B)(ii) of title 11, United States Code, is
amended by inserting ‘‘365 or’’ before ‘‘542’’.
SEC. 1213. PREFERENCES.
(a) I NGENERAL .—Section 547 of title 11, United States Code,
as amended by section 201, is amended—
(1) in subsection (b), by striking ‘‘subsection (c)’’ and
inserting ‘‘subsections (c) and (i)’’; and
(2) by adding at the end the following:
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‘‘(i) If the trustee avoids under subsection (b) a transfer made
between 90 days and 1 year before the date of the filing of thepetition, by the debtor to an entity that is not an insider forthe benefit of a creditor that is an insider, such transfer shallbe considered to be avoided under this section only with respectto the creditor that is an insider.’’.
(b) A
PPLICABILITY .—The amendments made by this section shall
apply to any case that is pending or commenced on or after thedate of enactment of this Act.
SEC. 1214. POSTPETITION TRANSACTIONS.
Section 549(c) of title 11, United States Code, is amended—
(1) by inserting ‘‘an interest in’’ after ‘‘transfer of’’ each
place it appears;
(2) by striking ‘‘such property’’ and inserting ‘‘such real
property’’; and
(3) by striking ‘‘the interest’’ and inserting ‘‘such interest’’.
SEC. 1215. DISPOSITION OF PROPERTY OF THE ESTATE.
Section 726(b) of title 11, United States Code, is amended
by striking ‘‘1009,’’.
SEC. 1216. GENERAL PROVISIONS.
Section 901(a) of title 11, United States Code, is amended
by inserting ‘‘1123(d),’’ after ‘‘1123(b),’’.
SEC. 1217. ABANDONMENT OF RAILROAD LINE.
Section 1170(e)(1) of title 11, United States Code, is amended
by striking ‘‘section 11347’’ and inserting ‘‘section 11326(a)’’.
SEC. 1218. CONTENTS OF PLAN.
Section 1172(c)(1) of title 11, United States Code, is amended
by striking ‘‘section 11347’’ and inserting ‘‘section 11326(a)’’.
SEC. 1219. BANKRUPTCY CASES AND PROCEEDINGS.
Section 1334(d) of title 28, United States Code, is amended—
(1) by striking ‘‘made under this subsection’’ and inserting
‘‘made under subsection (c)’’; and
(2) by striking ‘‘This subsection’’ and inserting ‘‘Subsection
(c) and this subsection’’.
SEC. 1220. KNOWING DISREGARD OF BANKRUPTCY LAW OR RULE.
Section 156(a) of title 18, United States Code, is amended—
(1) in the first undesignated paragraph—
(A) by inserting ‘‘(1) the term’’ before ‘‘ ‘bankruptcy’’;
and
(B) by striking the period at the end and inserting
‘‘; and’’; and(2) in the second undesignated paragraph—
(A) by inserting ‘‘(2) the term’’ before ‘‘ ‘document’’;
and
(B) by striking ‘‘this title’’ and inserting ‘‘title 11’’.
SEC. 1221. TRANSFERS MADE BY NONPROFIT CHARITABLE CORPORA-
TIONS.
(a) S ALE OF PROPERTY OF ESTATE .—Section 363(d) of title 11,
United States Code, is amended by striking ‘‘only’’ and all thatfollows through the end of the subsection and inserting ‘‘only—11 USC 547 note.
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‘‘(1) in accordance with applicable nonbankruptcy law that
governs the transfer of property by a corporation or trust thatis not a moneyed, business, or commercial corporation or trust;and
‘‘(2) to the extent not inconsistent with any relief granted
under subsection (c), (d), (e), or (f) of section 362.’’.(b) C
ONFIRMATION OF PLAN OF REORGANIZATION .—Section
1129(a) of title 11, United States Code, as amended by sections213 and 321, is amended by adding at the end the following:
‘‘(16) All transfers of property of the plan shall be made
in accordance with any applicable provisions of nonbankruptcylaw that govern the transfer of property by a corporation ortrust that is not a moneyed, business, or commercial corporationor trust.’’.(c) T
RANSFER OF PROPERTY .—Section 541 of title 11, United
States Code, as amended by section 225, is amended by addingat the end the following:
‘‘(f) Notwithstanding any other provision of this title, property
that is held by a debtor that is a corporation described in section501(c)(3) of the Internal Revenue Code of 1986 and exempt fromtax under section 501(a) of such Code may be transferred to anentity that is not such a corporation, but only under the sameconditions as would apply if the debtor had not filed a case underthis title.’’.
(d) A
PPLICABILITY .—The amendments made by this section shall
apply to a case pending under title 11, United States Code, onthe date of enactment of this Act, or filed under that title onor after that date of enactment, except that the court shall notconfirm a plan under chapter 11 of title 11, United States Code,without considering whether this section would substantially affectthe rights of a party in interest who first acquired rights withrespect to the debtor after the date of the filing of the petition.The parties who may appear and be heard in a proceeding underthis section include the attorney general of the State in whichthe debtor is incorporated, was formed, or does business.
(e) R
ULE OF CONSTRUCTION .—Nothing in this section shall be
construed to require the court in which a case under chapter 11of title 11, United States Code, is pending to remand or referany proceeding, issue, or controversy to any other court or to requirethe approval of any other court for the transfer of property.
SEC. 1222. PROTECTION OF VALID PURCHASE MONEY SECURITY
INTERESTS.
Section 547(c)(3)(B) of title 11, United States Code, is amended
by striking ‘‘20’’ and inserting ‘‘30’’.
SEC. 1223. BANKRUPTCY JUDGESHIPS.
(a) S HORT TITLE.—This section may be cited as the ‘‘Bankruptcy
Judgeship Act of 2005’’.
(b) T EMPORARY JUDGESHIPS .—
(1) A PPOINTMENTS .—The following bankruptcy judges shall
be appointed in the manner prescribed in section 152(a)(1)of title 28, United States Code, for the appointment of bank-ruptcy judges provided for in section 152(a)(2) of such title:
(A) One additional bankruptcy judge for the eastern
district of California.
(B) Three additional bankruptcy judges for the central
district of California.28 USC 152 note.Bankruptcy
Judgeship Actof 2005.28 USC 1 note.11 USC 363 note.
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(C) Four additional bankruptcy judges for the district
of Delaware.
(D) Two additional bankruptcy judges for the southern
district of Florida.
(E) One additional bankruptcy judge for the southern
district of Georgia.
(F) Three additional bankruptcy judges for the district
of Maryland.
(G) One additional bankruptcy judge for the eastern
district of Michigan.
(H) One additional bankruptcy judge for the southern
district of Mississippi.
(I) One additional bankruptcy judge for the district
of New Jersey.
(J) One additional bankruptcy judge for the eastern
district of New York.
(K) One additional bankruptcy judge for the northern
district of New York.
(L) One additional bankruptcy judge for the southern
district of New York.
(M) One additional bankruptcy judge for the eastern
district of North Carolina.
(N) One additional bankruptcy judge for the eastern
district of Pennsylvania.
(O) One additional bankruptcy judge for the middle
district of Pennsylvania.
(P) One additional bankruptcy judge for the district
of Puerto Rico.
(Q) One additional bankruptcy judge for the western
district of Tennessee.
(R) One additional bankruptcy judge for the eastern
district of Virginia.
(S) One additional bankruptcy judge for the district
of South Carolina.
(T) One additional bankruptcy judge for the district
of Nevada.(2) V
ACANCIES .—
(A) D ISTRICTS WITH SINGLE APPOINTMENTS .—Except as
provided in subparagraphs (B), (C), (D), and (E), the firstvacancy occurring in the office of bankruptcy judge in eachof the judicial districts set forth in paragraph (1)—
(i) occurring 5 years or more after the appointment
date of the bankruptcy judge appointed under para-graph (1) to such office; and
(ii) resulting from the death, retirement, resigna-
tion, or removal of a bankruptcy judge;
shall not be filled.
(B) C
ENTRAL DISTRICT OF CALIFORNIA .—The 1st, 2d,
and 3d vacancies in the office of bankruptcy judge in thecentral district of California—
(i) occurring 5 years or more after the respective
1st, 2d, and 3d appointment dates of the bankruptcyjudges appointed under paragraph (1)(B); and
(ii) resulting from the death, retirement, resigna-
tion, or removal of a bankruptcy judge;
shall not be filled.
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(C) D ISTRICT OF DELAWARE .—The 1st, 2d, 3d, and 4th
vacancies in the office of bankruptcy judge in the districtof Delaware—
(i) occurring 5 years or more after the respective
1st, 2d, 3d, and 4th appointment dates of the bank-ruptcy judges appointed under paragraph (1)(F); and
(ii) resulting from the death, retirement, resigna-
tion, or removal of a bankruptcy judge;
shall not be filled.
(D) S
OUTHERN DISTRICT OF FLORIDA .—The 1st and 2d
vacancies in the office of bankruptcy judge in the southerndistrict of Florida—
(i) occurring 5 years or more after the respective
1st and 2d appointment dates of the bankruptcy judgesappointed under paragraph (1)(D); and
(ii) resulting from the death, retirement, resigna-
tion, or removal of a bankruptcy judge;
shall not be filled.
(E) D
ISTRICT OF MARYLAND .—The 1st, 2d, and 3d
vacancies in the office of bankruptcy judge in the districtof Maryland—
(i) occurring 5 years or more after the respective
1st, 2d, and 3d appointment dates of the bankruptcyjudges appointed under paragraph (1)(F); and
(ii) resulting from the death, retirement, resigna-
tion, or removal of a bankruptcy judge;
shall not be filled.
(c) E
XTENSIONS .—
(1) I N GENERAL .—The temporary office of bankruptcy judges
authorized for the northern district of Alabama, the districtof Delaware, the district of Puerto Rico, and the eastern districtof Tennessee under paragraphs (1), (3), (7), and (9) of section3(a) of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152note) are extended until the first vacancy occurring in theoffice of a bankruptcy judge in the applicable district resultingfrom the death, retirement, resignation, or removal of a bank-ruptcy judge and occurring 5 years after the date of the enact-ment of this Act.
(2) A
PPLICABILITY OF OTHER PROVISIONS .—All other provi-
sions of section 3 of the Bankruptcy Judgeship Act of 1992(28 U.S.C. 152 note) remain applicable to the temporary officeof bankruptcy judges referred to in this subsection.(d) T
ECHNICAL AMENDMENTS .—Section 152(a) of title 28, United
States Code, is amended—
(1) in paragraph (1), by striking the first sentence and
inserting the following: ‘‘Each bankruptcy judge to be appointedfor a judicial district, as provided in paragraph (2), shall beappointed by the court of appeals of the United States forthe circuit in which such district is located.’’; and
(2) in paragraph (2)—
(A) in the item relating to the middle district of
Georgia, by striking ‘‘2’’ and inserting ‘‘3’’; and
(B) in the collective item relating to the middle and
southern districts of Georgia, by striking ‘‘Middle andSouthern . . . . . . 1’’.
(e) E
FFECTIVE DATE.—The amendments made by this section
shall take effect on the date of the enactment of this Act.28 USC 152 note.
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SEC. 1224. COMPENSATING TRUSTEES.
Section 1326 of title 11, United States Code, is amended—
(1) in subsection (b)—
(A) in paragraph (1), by striking ‘‘and’’;(B) in paragraph (2), by striking the period at the
end and inserting ‘‘; and’’; and
(C) by adding at the end the following:
‘‘(3) if a chapter 7 trustee has been allowed compensation
due to the conversion or dismissal of the debtor’s prior casepursuant to section 707(b), and some portion of that compensa-tion remains unpaid in a case converted to this chapter orin the case dismissed under section 707(b) and refiled underthis chapter, the amount of any such unpaid compensation,which shall be paid monthly—
‘‘(A) by prorating such amount over the remaining
duration of the plan; and
‘‘(B) by monthly payments not to exceed the greater
of—
‘‘(i) $25; or‘‘(ii) the amount payable to unsecured nonpriority
creditors, as provided by the plan, multiplied by 5percent, and the result divided by the number ofmonths in the plan.’’; and
(2) by adding at the end the following:
‘‘(d) Notwithstanding any other provision of this title—
‘‘(1) compensation referred to in subsection (b)(3) is payable
and may be collected by the trustee under that paragraph,even if such amount has been discharged in a prior case underthis title; and
‘‘(2) such compensation is payable in a case under this
chapter only to the extent permitted by subsection (b)(3).’’.
SEC. 1225. AMENDMENT TO SECTION 362 OF TITLE 11, UNITED STATES
CODE.
Section 362(b)(18) of title 11, United States Code, is amended
to read as follows:
‘‘(18) under subsection (a) of the creation or perfection
of a statutory lien for an ad valorem property tax, or a specialtax or special assessment on real property whether or not
ad valorem, imposed by a governmental unit, if such tax orassessment comes due after the date of the filing of the peti-tion;’’.
SEC. 1226. JUDICIAL EDUCATION.
The Director of the Federal Judicial Center, in consultation
with the Director of the Executive Office for United States Trustees,shall develop materials and conduct such training as may be usefulto courts in implementing this Act and the amendments madeby this Act, including the requirements relating to the means testunder section 707(b), and reaffirmation agreements under section524, of title 11 of the United States Code, as amended by thisAct.
SEC. 1227. RECLAMATION.
(a) R IGHTS AND POWERS OF THE TRUSTEE .—Section 546(c) of
title 11, United States Code, is amended to read as follows:
‘‘(c)(1) Except as provided in subsection (d) of this section and
in section 507(c), and subject to the prior rights of a holder ofDeadlines.11 USC 101 note.
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a security interest in such goods or the proceeds thereof, the rights
and powers of the trustee under sections 544(a), 545, 547, and549 are subject to the right of a seller of goods that has soldgoods to the debtor, in the ordinary course of such seller’s business,to reclaim such goods if the debtor has received such goods whileinsolvent, within 45 days before the date of the commencementof a case under this title, but such seller may not reclaim suchgoods unless such seller demands in writing reclamation of suchgoods—
‘‘(A) not later than 45 days after the date of receipt of
such goods by the debtor; or
‘‘(B) not later than 20 days after the date of commencement
of the case, if the 45-day period expires after the commencementof the case.‘‘(2) If a seller of goods fails to provide notice in the manner
described in paragraph (1), the seller still may assert the rightscontained in section 503(b)(9).’’.
(b) A
DMINISTRATIVE EXPENSES .—Section 503(b) of title 11,
United States Code, as amended by sections 445 and 1103, isamended by adding at the end the following:
‘‘(9) the value of any goods received by the debtor within
20 days before the date of commencement of a case underthis title in which the goods have been sold to the debtorin the ordinary course of such debtor’s business.’’.
SEC. 1228. PROVIDING REQUESTED TAX DOCUMENTS TO THE COURT.
(a) C HAPTER 7 C ASES .—The court shall not grant a discharge
in the case of an individual who is a debtor in a case underchapter 7 of title 11, United States Code, unless requested taxdocuments have been provided to the court.
(b) C
HAPTER 11 AND CHAPTER 13 C ASES .—The court shall not
confirm a plan of reorganization in the case of an individual underchapter 11 or 13 of title 11, United States Code, unless requestedtax documents have been filed with the court.
(c) D
OCUMENT RETENTION .—The court shall destroy documents
submitted in support of a bankruptcy claim not sooner than 3years after the date of the conclusion of a case filed by an individualunder chapter 7, 11, or 13 of title 11, United States Code. Inthe event of a pending audit or enforcement action, the courtmay extend the time for destruction of such requested tax docu-ments.
SEC. 1229. ENCOURAGING CREDITWORTHINESS.
(a) S ENSE OF THE CONGRESS .—It is the sense of the Congress
that—
(1) certain lenders may sometimes offer credit to consumers
indiscriminately, without taking steps to ensure that consumersare capable of repaying the resulting debt, and in a mannerwhich may encourage certain consumers to accumulate addi-
tional debt; and
(2) resulting consumer debt may increasingly be a major
contributing factor to consumer insolvency.(b) S
TUDY REQUIRED .—The Board of Governors of the Federal
Reserve System (hereafter in this section referred to as the ‘‘Board’’)shall conduct a study of—
(1) consumer credit industry practices of soliciting and
extending credit—
(A) indiscriminately;Deadline.11 USC 521 note.
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(B) without taking steps to ensure that consumers
are capable of repaying the resulting debt; and
(C) in a manner that encourages consumers to accumu-
late additional debt; and(2) the effects of such practices on consumer debt and
insolvency.(c) R
EPORT AND REGULATIONS .—Not later than 12 months after
the date of enactment of this Act, the Board—
(1) shall make public a report on its findings with respect
to the indiscriminate solicitation and extension of credit bythe credit industry;
(2) may issue regulations that would require additional
disclosures to consumers; and
(3) may take any other actions, consistent with its existing
statutory authority, that the Board finds necessary to ensureresponsible industrywide practices and to prevent resultingconsumer debt and insolvency.
SEC. 1230. PROPERTY NO LONGER SUBJECT TO REDEMPTION.
Section 541(b) of title 11, United States Code, as amended
by sections 225 and 323, is amended by adding after paragraph(7), as added by section 323, the following:
‘‘(8) subject to subchapter III of chapter 5, any interest
of the debtor in property where the debtor pledged or soldtangible personal property (other than securities or writtenor printed evidences of indebtedness or title) as collateral fora loan or advance of money given by a person licensed underlaw to make such loans or advances, where—
‘‘(A) the tangible personal property is in the possession
of the pledgee or transferee;
‘‘(B) the debtor has no obligation to repay the money,
redeem the collateral, or buy back the property at a stipu-lated price; and
‘‘(C) neither the debtor nor the trustee have exercised
any right to redeem provided under the contract or Statelaw, in a timely manner as provided under State law andsection 108(b); or’’.
SEC. 1231. TRUSTEES.
(a) S USPENSION AND TERMINATION OF PANEL TRUSTEES AND
STANDING TRUSTEES .—Section 586(d) of title 28, United States
Code, is amended—
(1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and(2) by adding at the end the following:
‘‘(2) A trustee whose appointment under subsection (a)(1) or
under subsection (b) is terminated or who ceases to be assignedto cases filed under title 11, United States Code, may obtain judicialreview of the final agency decision by commencing an action inthe district court of the United States for the district for which
the panel to which the trustee is appointed under subsection (a)(1),or in the district court of the United States for the district inwhich the trustee is appointed under subsection (b) resides, afterfirst exhausting all available administrative remedies, which ifthe trustee so elects, shall also include an administrative hearingon the record. Unless the trustee elects to have an administrativehearing on the record, the trustee shall be deemed to haveexhausted all administrative remedies for purposes of this para-graph if the agency fails to make a final agency decision within
Deadline.
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90 days after the trustee requests administrative remedies. The
Attorney General shall prescribe procedures to implement this para-graph. The decision of the agency shall be affirmed by the districtcourt unless it is unreasonable and without cause based on theadministrative record before the agency.’’.
(b) E
XPENSES OF STANDING TRUSTEES .—Section 586(e) of title
28, United States Code, is amended by adding at the end thefollowing:
‘‘(3) After first exhausting all available administrative remedies,
an individual appointed under subsection (b) may obtain judicialreview of final agency action to deny a claim of actual, necessaryexpenses under this subsection by commencing an action in thedistrict court of the United States for the district where the indi-vidual resides. The decision of the agency shall be affirmed bythe district court unless it is unreasonable and without cause basedupon the administrative record before the agency.
‘‘(4) The Attorney General shall prescribe procedures to imple-
ment this subsection.’’.
SEC. 1232. BANKRUPTCY FORMS.
Section 2075 of title 28, United States Code, is amended by
adding at the end the following:
‘‘The bankruptcy rules promulgated under this section shall
prescribe a form for the statement required under section707(b)(2)(C) of title 11 and may provide general rules on the contentof such statement.’’.
SEC. 1233. DIRECT APPEALS OF BANKRUPTCY MATTERS TO COURTS
OF APPEALS.
(a) A PPEALS .—Section 158 of title 28, United States Code, is
amended—
(1) in subsection (c)(1), by striking ‘‘Subject to subsection
(b),’’ and inserting ‘‘Subject to subsections (b) and (d)(2),’’; and
(2) in subsection (d)—
(A) by inserting ‘‘(1)’’ after ‘‘(d)’’; and(B) by adding at the end the following:
‘‘(2)(A) The appropriate court of appeals shall have jurisdiction
of appeals described in the first sentence of subsection (a) if thebankruptcy court, the district court, or the bankruptcy appellatepanel involved, acting on its own motion or on the request ofa party to the judgment, order, or decree described in such firstsentence, or all the appellants and appellees (if any) acting jointly,certify that—
‘‘(i) the judgment, order, or decree involves a question of
law as to which there is no controlling decision of the courtof appeals for the circuit or of the Supreme Court of the UnitedStates, or involves a matter of public importance;
‘‘(ii) the judgment, order, or decree involves a question
of law requiring resolution of conflicting decisions; or
‘‘(iii) an immediate appeal from the judgment, order, or
decree may materially advance the progress of the case orproceeding in which the appeal is taken;
and if the court of appeals authorizes the direct appeal of thejudgment, order, or decree.
‘‘(B) If the bankruptcy court, the district court, or the bank-
ruptcy appellate panel—Certification.Procedures.Procedures.
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‘‘(i) on its own motion or on the request of a party, deter-
mines that a circumstance specified in clause (i), (ii), or (iii)of subparagraph (A) exists; or
‘‘(ii) receives a request made by a majority of the appellants
and a majority of appellees (if any) to make the certificationdescribed in subparagraph (A);
then the bankruptcy court, the district court, or the bankruptcyappellate panel shall make the certification described in subpara-graph (A).
‘‘(C) The parties may supplement the certification with a short
statement of the basis for the certification.
‘‘(D) An appeal under this paragraph does not stay any pro-
ceeding of the bankruptcy court, the district court, or the bankruptcyappellate panel from which the appeal is taken, unless the respec-tive bankruptcy court, district court, or bankruptcy appellate panel,or the court of appeals in which the appeal in pending, issuesa stay of such proceeding pending the appeal.
‘‘(E) Any request under subparagraph (B) for certification shall
be made not later than 60 days after the entry of the judgment,order, or decree.’’.
(b) P
ROCEDURAL RULES .—
(1) T EMPORARY APPLICATION .—A provision of this sub-
section shall apply to appeals under section 158(d)(2) of title28, United States Code, until a rule of practice and procedurerelating to such provision and such appeals is promulgatedor amended under chapter 131 of such title.
(2) C
ERTIFICATION .—A district court, a bankruptcy court,
or a bankruptcy appellate panel may make a certification undersection 158(d)(2) of title 28, United States Code, only withrespect to matters pending in the respective bankruptcy court,district court, or bankruptcy appellate panel.
(3) P
ROCEDURE .—Subject to any other provision of this
subsection, an appeal authorized by the court of appeals undersection 158(d)(2)(A) of title 28, United States Code, shall betaken in the manner prescribed in subdivisions (a)(1), (b), (c),and (d) of rule 5 of the Federal Rules of Appellate Procedure.For purposes of subdivision (a)(1) of rule 5—
(A) a reference in such subdivision to a district court
shall be deemed to include a reference to a bankruptcycourt and a bankruptcy appellate panel, as appropriate;and
(B) a reference in such subdivision to the parties
requesting permission to appeal to be served with the peti-tion shall be deemed to include a reference to the partiesto the judgment, order, or decree from which the appealis taken.
(4) F
ILING OF PETITION WITH ATTACHMENT .—A petition
requesting permission to appeal, that is based on a certificationmade under subparagraph (A) or (B) of section 158(d)(2) shall—
(A) be filed with the circuit clerk not later than 10
days after the certification is entered on the docket ofthe bankruptcy court, the district court, or the bankruptcyappellate panel from which the appeal is taken; and
(B) have attached a copy of such certification.
(5) R
EFERENCES IN RULE 5.—For purposes of rule 5 of
the Federal Rules of Appellate Procedure—Deadline.28 USC 158 note.Deadline.
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(A) a reference in such rule to a district court shall
be deemed to include a reference to a bankruptcy courtand to a bankruptcy appellate panel; and
(B) a reference in such rule to a district clerk shall
be deemed to include a reference to a clerk of a bankruptcycourt and to a clerk of a bankruptcy appellate panel.(6) A
PPLICATION OF RULES .—The Federal Rules of Appellate
Procedure shall apply in the courts of appeals with respectto appeals authorized under section 158(d)(2)(A), to the extentrelevant and as if such appeals were taken from final judg-ments, orders, or decrees of the district courts or bankruptcyappellate panels exercising appellate jurisdiction under sub-section (a) or (b) of section 158 of title 28, United StatesCode.
SEC. 1234. INVOLUNTARY CASES.
(a) A MENDMENTS .—Section 303 of title 11, United States Code,
is amended—
(1) in subsection (b)(1), by—
(A) inserting ‘‘as to liability or amount’’ after ‘‘bona
fide dispute’’; and
(B) striking ‘‘if such claims’’ and inserting ‘‘if such
noncontingent, undisputed claims’’; and(2) in subsection (h)(1), by inserting ‘‘as to liability or
amount’’ before the semicolon at the end.(b) E
FFECTIVE DATE; APPLICATION OF AMENDMENTS .—This sec-
tion and the amendments made by this section shall take effecton the date of the enactment of this Act and shall apply withrespect to cases commenced under title 11 of the United StatesCode before, on, and after such date.
SEC. 1235. FEDERAL ELECTION LAW FINES AND PENALTIES AS NON-
DISCHARGEABLE DEBT.
Section 523(a) of title 11, United States Code, as amended
by section 314, is amended by inserting after paragraph (14A)the following:
‘‘(14B) incurred to pay fines or penalties imposed under
Federal election law;’’.
TITLE XIII—CONSUMER CREDIT
DISCLOSURE
SEC. 1301. ENHANCED DISCLOSURES UNDER AN OPEN END CREDIT
PLAN.
(a) M INIMUM PAYMENT DISCLOSURES .—Section 127(b) of the
Truth in Lending Act (15 U.S.C. 1637(b)) is amended by addingat the end the following:
‘‘(11)(A) In the case of an open end credit plan that requires
a minimum monthly payment of not more than 4 percent ofthe balance on which finance charges are accruing, the followingstatement, located on the front of the billing statement, dis-closed clearly and conspicuously: ‘Minimum Payment Warning:Making only the minimum payment will increase the interestyou pay and the time it takes to repay your balance. Forexample, making only the typical 2% minimum monthly pay-ment on a balance of $1,000 at an interest rate of 17% would11 USC 303 note.
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take 88 months to repay the balance in full. For an estimate
of the time it would take to repay your balance, making onlyminimum payments, call this toll-free number: llllll .’
(the blank space to be filled in by the creditor).
‘‘(B) In the case of an open end credit plan that requires
a minimum monthly payment of more than 4 percent of thebalance on which finance charges are accruing, the followingstatement, in a prominent location on the front of the billingstatement, disclosed clearly and conspicuously: ‘Minimum Pay-ment Warning: Making only the required minimum paymentwill increase the interest you pay and the time it takes torepay your balance. Making a typical 5% minimum monthlypayment on a balance of $300 at an interest rate of 17%would take 24 months to repay the balance in full. For anestimate of the time it would take to repay your balance,making only minimum monthly payments, call this toll-freenumber: llllll .’ (the blank space to be filled in by the
creditor).
‘‘(C) Notwithstanding subparagraphs (A) and (B), in the
case of a creditor with respect to which compliance with thistitle is enforced by the Federal Trade Commission, the followingstatement, in a prominent location on the front of the billingstatement, disclosed clearly and conspicuously: ‘Minimum Pay-ment Warning: Making only the required minimum paymentwill increase the interest you pay and the time it takes torepay your balance. For example, making only the typical 5%minimum monthly payment on a balance of $300 at an interestrate of 17% would take 24 months to repay the balance infull. For an estimate of the time it would take to repay yourbalance, making only minimum monthly payments, call theFederal Trade Commission at this toll-free number:llllll .’ (the blank space to be filled in by the creditor).
A creditor who is subject to this subparagraph shall not besubject to subparagraph (A) or (B).
‘‘(D) Notwithstanding subparagraph (A), (B), or (C), in com-
plying with any such subparagraph, a creditor may substitutean example based on an interest rate that is greater than17 percent. Any creditor that is subject to subparagraph (B)may elect to provide the disclosure required under subpara-graph (A) in lieu of the disclosure required under subparagraph(B).
‘‘(E) The Board shall, by rule, periodically recalculate, as
necessary, the interest rate and repayment period under sub-paragraphs (A), (B), and (C).
‘‘(F)(i) The toll-free telephone number disclosed by a cred-
itor or the Federal Trade Commission under subparagraph(A), (B), or (G), as appropriate, may be a toll-free telephonenumber established and maintained by the creditor or theFederal Trade Commission, as appropriate, or may be a toll-free telephone number established and maintained by a thirdparty for use by the creditor or multiple creditors or the FederalTrade Commission, as appropriate. The toll-free telephonenumber may connect consumers to an automated device throughwhich consumers may obtain information described in subpara-graph (A), (B), or (C), by inputting information using a touch-tone telephone or similar device, if consumers whose telephonesare not equipped to use such automated device are provided
Regulations.
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the opportunity to be connected to an individual from whom
the information described in subparagraph (A), (B), or (C),as applicable, may be obtained. A person that receives a requestfor information described in subparagraph (A), (B), or (C) froman obligor through the toll-free telephone number disclosedunder subparagraph (A), (B), or (C), as applicable, shall disclosein response to such request only the information set forthin the table promulgated by the Board under subparagraph(H)(i).
‘‘(ii)(I) The Board shall establish and maintain for a period
not to exceed 24 months following the effective date of theBankruptcy Abuse Prevention and Consumer Protection Actof 2005, a toll-free telephone number, or provide a toll-freetelephone number established and maintained by a third party,for use by creditors that are depository institutions (as definedin section 3 of the Federal Deposit Insurance Act), includinga Federal credit union or State credit union (as defined insection 101 of the Federal Credit Union Act), with total assetsnot exceeding $250,000,000. The toll-free telephone numbermay connect consumers to an automated device through whichconsumers may obtain information described in subparagraph(A) or (B), as applicable, by inputting information using atouch-tone telephone or similar device, if consumers whosetelephones are not equipped to use such automated deviceare provided the opportunity to be connected to an individualfrom whom the information described in subparagraph (A) or(B), as applicable, may be obtained. A person that receivesa request for information described in subparagraph (A) or(B) from an obligor through the toll-free telephone numberdisclosed under subparagraph (A) or (B), as applicable, shalldisclose in response to such request only the information setforth in the table promulgated by the Board under subpara-graph (H)(i). The dollar amount contained in this subclauseshall be adjusted according to an indexing mechanism estab-lished by the Board.
‘‘(II) Not later than 6 months prior to the expiration of
the 24-month period referenced in subclause (I), the Boardshall submit to the Committee on Banking, Housing, and UrbanAffairs of the Senate and the Committee on Financial Servicesof the House of Representatives a report on the programdescribed in subclause (I).
‘‘(G) The Federal Trade Commission shall establish and
maintain a toll-free number for the purpose of providing toconsumers the information required to be disclosed undersubparagraph (C).
‘‘(H) The Board shall—
‘‘(i) establish a detailed table illustrating the approxi-
mate number of months that it would take to repay anoutstanding balance if a consumer pays only the requiredminimum monthly payments and if no other advances aremade, which table shall clearly present standardizedinformation to be used to disclose the information requiredto be disclosed under subparagraph (A), (B), or (C), asapplicable;
‘‘(ii) establish the table required under clause (i) by
assuming—
Communications
and tele-communications.Deadline.
Reports.Communications
and tele-communications.Expiration date.
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‘‘(I) a significant number of different annual
percentage rates;
‘‘(II) a significant number of different account bal-
ances;
‘‘(III) a significant number of different minimum
payment amounts; and
‘‘(IV) that only minimum monthly payments are
made and no additional extensions of credit areobtained; and‘‘(iii) promulgate regulations that provide instructional
guidance regarding the manner in which the informationcontained in the table established under clause (i) shouldbe used in responding to the request of an obligor forany information required to be disclosed under subpara-graph (A), (B), or (C).‘‘(I) The disclosure requirements of this paragraph do not
apply to any charge card account, the primary purpose of whichis to require payment of charges in full each month.
‘‘(J) A creditor that maintains a toll-free telephone number
for the purpose of providing customers with the actual numberof months that it will take to repay the customer’s outstandingbalance is not subject to the requirements of subparagraph(A) or (B).
‘‘(K) A creditor that maintains a toll-free telephone number
for the purpose of providing customers with the actual numberof months that it will take to repay an outstanding balanceshall include the following statement on each billing statement:‘Making only the minimum payment will increase the interestyou pay and the time it takes to repay your balance. Formore information, call this toll-free number: llll .’ (the
blank space to be filled in by the creditor).’’.(b) R
EGULATORY IMPLEMENTATION .—
(1) I N GENERAL .—The Board of Governors of the Federal
Reserve System (hereafter in this title referred to as the‘‘Board’’) shall promulgate regulations implementing therequirements of section 127(b)(11) of the Truth in LendingAct, as added by subsection (a) of this section.
(2) E
FFECTIVE DATE .—Section 127(b)(11) of the Truth in
Lending Act, as added by subsection (a) of this section, andthe regulations issued under paragraph (1) of this subsectionshall not take effect until the later of—
(A) 18 months after the date of enactment of this
Act; or
(B) 12 months after the publication of such final regula-
tions by the Board.
(c) S
TUDY OF FINANCIAL DISCLOSURES .—
(1) I N GENERAL .—The Board may conduct a study to deter-
mine the types of information available to potential borrowersfrom consumer credit lending institutions regarding factorsqualifying potential borrowers for credit, repayment require-ments, and the consequences of default.
(2) F
ACTORS FOR CONSIDERATION .—In conducting a study
under paragraph (1), the Board should, in consultation withthe other Federal banking agencies (as defined in section 3of the Federal Deposit Insurance Act), the National CreditUnion Administration, and the Federal Trade Commission, con-sider the extent to which—15 USC 1637note.15 USC 1637
note.Regulations.
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(A) consumers, in establishing new credit arrange-
ments, are aware of their existing payment obligations,the need to consider those obligations in deciding to takeon new credit, and how taking on excessive credit canresult in financial difficulty;
(B) minimum periodic payment features offered in
connection with open end credit plans impact consumerdefault rates;
(C) consumers make only the required minimum pay-
ment under open end credit plans;
(D) consumers are aware that making only required
minimum payments will increase the cost and repaymentperiod of an open end credit obligation; and
(E) the availability of low minimum payment options
is a cause of consumers experiencing financial difficulty.(3) R
EPORT TO CONGRESS .—Findings of the Board in connec-
tion with any study conducted under this subsection shall besubmitted to Congress. Such report shall also include rec-ommendations for legislative initiatives, if any, of the Board,based on its findings.
SEC. 1302. ENHANCED DISCLOSURE FOR CREDIT EXTENSIONS
SECURED BY A DWELLING.
(a) O PENENDCREDIT EXTENSIONS .—
(1) C REDIT APPLICATIONS .—Section 127A(a)(13) of the Truth
in Lending Act (15 U.S.C. 1637a(a)(13)) is amended—
(A) by striking ‘‘ CONSULTATION OF TAX ADVISER .—A
statement that the’’ and inserting the following: ‘‘ TAX
DEDUCTIBILITY .—A statement that—
‘‘(A) the’’; and(B) by striking the period at the end and inserting
the following: ‘‘; and
‘‘(B) in any case in which the extension of credit exceeds
the fair market value (as defined under the Internal Rev-enue Code of 1986) of the dwelling, the interest on theportion of the credit extension that is greater than thefair market value of the dwelling is not tax deductiblefor Federal income tax purposes.’’.(2) C
REDIT ADVERTISEMENTS .—Section 147(b) of the Truth
in Lending Act (15 U.S.C. 1665b(b)) is amended—
(A) by striking ‘‘If any’’ and inserting the following:
‘‘(1) I N GENERAL .—If any’’; and
(B) by adding at the end the following:
‘‘(2) C REDIT IN EXCESS OF FAIR MARKET VALUE .—Each
advertisement described in subsection (a) that relates to anextension of credit that may exceed the fair market valueof the dwelling, and which advertisement is disseminated inpaper form to the public or through the Internet, as opposedto by radio or television, shall include a clear and conspicuousstatement that—
‘‘(A) the interest on the portion of the credit extension
that is greater than the fair market value of the dwellingis not tax deductible for Federal income tax purposes; and
‘‘(B) the consumer should consult a tax adviser for
further information regarding the deductibility of interestand charges.’’.
(b) N
ON-OPENENDCREDIT EXTENSIONS .—
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(1) C REDIT APPLICATIONS .—Section 128 of the Truth in
Lending Act (15 U.S.C. 1638) is amended—
(A) in subsection (a), by adding at the end the following:
‘‘(15) In the case of a consumer credit transaction that
is secured by the principal dwelling of the consumer, in whichthe extension of credit may exceed the fair market value ofthe dwelling, a clear and conspicuous statement that—
‘‘(A) the interest on the portion of the credit extension
that is greater than the fair market value of the dwellingis not tax deductible for Federal income tax purposes; and
‘‘(B) the consumer should consult a tax adviser for
further information regarding the deductibility of interestand charges.’’; and
(B) in subsection (b), by adding at the end the following:
‘‘(3) In the case of a credit transaction described in paragraph
(15) of subsection (a), disclosures required by that paragraph shallbe made to the consumer at the time of application for such exten-sion of credit.’’.
(2) C
REDIT ADVERTISEMENTS .—Section 144 of the Truth
in Lending Act (15 U.S.C. 1664) is amended by adding atthe end the following:‘‘(e) Each advertisement to which this section applies that
relates to a consumer credit transaction that is secured by theprincipal dwelling of a consumer in which the extension of creditmay exceed the fair market value of the dwelling, and whichadvertisement is disseminated in paper form to the public orthrough the Internet, as opposed to by radio or television, shallclearly and conspicuously state that—
‘‘(1) the interest on the portion of the credit extension
that is greater than the fair market value of the dwellingis not tax deductible for Federal income tax purposes; and
‘‘(2) the consumer should consult a tax adviser for further
information regarding the deductibility of interest andcharges.’’.(c) R
EGULATORY IMPLEMENTATION .—
(1) I N GENERAL .—The Board shall promulgate regulations
implementing the amendments made by this section.
(2) E FFECTIVE DATE .—Regulations issued under paragraph
(1) shall not take effect until the later of—
(A) 12 months after the date of enactment of this
Act; or
(B) 12 months after the date of publication of such
final regulations by the Board.
SEC. 1303. DISCLOSURES RELATED TO ‘‘INTRODUCTORY RATES’’.
(a) I NTRODUCTORY RATE DISCLOSURES .—Section 127(c) of the
Truth in Lending Act (15 U.S.C. 1637(c)) is amended by addingat the end the following:
‘‘(6) A
DDITIONAL NOTICE CONCERNING ‘INTRODUCTORY
RATES ’.—
‘‘(A) I N GENERAL .—Except as provided in subparagraph
(B), an application or solicitation to open a credit cardaccount and all promotional materials accompanying suchapplication or solicitation for which a disclosure is requiredunder paragraph (1), and that offers a temporary annualpercentage rate of interest, shall—15 USC 1637a
note.
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‘‘(i) use the term ‘introductory’ in immediate prox-
imity to each listing of the temporary annual percent-age rate applicable to such account, which term shallappear clearly and conspicuously;
‘‘(ii) if the annual percentage rate of interest that
will apply after the end of the temporary rate periodwill be a fixed rate, state in a clear and conspicuousmanner in a prominent location closely proximate tothe first listing of the temporary annual percentagerate (other than a listing of the temporary annualpercentage rate in the tabular format described insection 122(c)), the time period in which the introduc-tory period will end and the annual percentage ratethat will apply after the end of the introductory period;and
‘‘(iii) if the annual percentage rate that will apply
after the end of the temporary rate period will varyin accordance with an index, state in a clear and con-spicuous manner in a prominent location closely proxi-mate to the first listing of the temporary annualpercentage rate (other than a listing in the tabularformat prescribed by section 122(c)), the time periodin which the introductory period will end and the ratethat will apply after that, based on an annual percent-age rate that was in effect within 60 days before thedate of mailing the application or solicitation.‘‘(B) E
XCEPTION .—Clauses (ii) and (iii) of subparagraph
(A) do not apply with respect to any listing of a temporaryannual percentage rate on an envelope or other enclosurein which an application or solicitation to open a creditcard account is mailed.
‘‘(C) C
ONDITIONS FOR INTRODUCTORY RATES .—An
application or solicitation to open a credit card accountfor which a disclosure is required under paragraph (1),and that offers a temporary annual percentage rate ofinterest shall, if that rate of interest is revocable underany circumstance or upon any event, clearly and conspicu-ously disclose, in a prominent manner on or with suchapplication or solicitation—
‘‘(i) a general description of the circumstances that
may result in the revocation of the temporary annualpercentage rate; and
‘‘(ii) if the annual percentage rate that will apply
upon the revocation of the temporary annual percent-age rate—
‘‘(I) will be a fixed rate, the annual percentage
rate that will apply upon the revocation of thetemporary annual percentage rate; or
‘‘(II) will vary in accordance with an index,
the rate that will apply after the temporary rate,based on an annual percentage rate that was ineffect within 60 days before the date of mailingthe application or solicitation.
‘‘(D) D
EFINITIONS .—In this paragraph—
‘‘(i) the terms ‘temporary annual percentage rate
of interest’ and ‘temporary annual percentage rate’mean any rate of interest applicable to a credit card
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account for an introductory period of less than 1 year,
if that rate is less than an annual percentage ratethat was in effect within 60 days before the date ofmailing the application or solicitation; and
‘‘(ii) the term ‘introductory period’ means the max-
imum time period for which the temporary annualpercentage rate may be applicable.‘‘(E) R
ELATION TO OTHER DISCLOSURE REQUIREMENTS .—
Nothing in this paragraph may be construed to supersedesubsection (a) of section 122, or any disclosure requiredby paragraph (1) or any other provision of this subsection.’’.
(b) R
EGULATORY IMPLEMENTATION .—
(1) I N GENERAL .—The Board shall promulgate regulations
implementing the requirements of section 127(c)(6) of the Truthin Lending Act, as added by this section.
(2) E
FFECTIVE DATE .—Section 127(c)(6) of the Truth in
Lending Act, as added by this section, and regulations issuedunder paragraph (1) of this subsection shall not take effectuntil the later of—
(A) 12 months after the date of enactment of this
Act; or
(B) 12 months after the date of publication of such
final regulations by the Board.
SEC. 1304. INTERNET-BASED CREDIT CARD SOLICITATIONS.
(a) I NTERNET -BASED SOLICITATIONS .—Section 127(c) of the
Truth in Lending Act (15 U.S.C. 1637(c)) is amended by addingat the end the following:
‘‘(7) I
NTERNET -BASED SOLICITATIONS .—
‘‘(A) I N GENERAL .—In any solicitation to open a credit
card account for any person under an open end consumercredit plan using the Internet or other interactive computerservice, the person making the solicitation shall clearlyand conspicuously disclose—
‘‘(i) the information described in subparagraphs
(A) and (B) of paragraph (1); and
‘‘(ii) the information described in paragraph (6).
‘‘(B) F
ORM OF DISCLOSURE .—The disclosures required
by subparagraph (A) shall be—
‘‘(i) readily accessible to consumers in close prox-
imity to the solicitation to open a credit card account;and
‘‘(ii) updated regularly to reflect the current poli-
cies, terms, and fee amounts applicable to the creditcard account.‘‘(C) D
EFINITIONS .—For purposes of this paragraph—
‘‘(i) the term ‘Internet’ means the international
computer network of both Federal and non-Federalinteroperable packet switched data networks; and
‘‘(ii) the term ‘interactive computer service’ means
any information service, system, or access softwareprovider that provides or enables computer access bymultiple users to a computer server, including specifi-cally a service or system that provides access to theInternet and such systems operated or services offeredby libraries or educational institutions.’’.
(b) R
EGULATORY IMPLEMENTATION .—15 USC 1637note.15 USC 1637
note.
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(1) I N GENERAL .—The Board shall promulgate regulations
implementing the requirements of section 127(c)(7) of the Truthin Lending Act, as added by this section.
(2) E
FFECTIVE DATE .—The amendment made by subsection
(a) and the regulations issued under paragraph (1) of thissubsection shall not take effect until the later of—
(A) 12 months after the date of enactment of this
Act; or
(B) 12 months after the date of publication of such
final regulations by the Board.
SEC. 1305. DISCLOSURES RELATED TO LATE PAYMENT DEADLINES AND
PENALTIES.
(a) D ISCLOSURES RELATED TO LATE PAYMENT DEADLINES AND
PENALTIES .—Section 127(b) of the Truth in Lending Act (15 U.S.C.
1637(b)) is amended by adding at the end the following:
‘‘(12) If a late payment fee is to be imposed due to the
failure of the obligor to make payment on or before a requiredpayment due date, the following shall be stated clearly andconspicuously on the billing statement:
‘‘(A) The date on which that payment is due or, if
different, the earliest date on which a late payment feemay be charged.
‘‘(B) The amount of the late payment fee to be imposed
if payment is made after such date.’’.
(b) R
EGULATORY IMPLEMENTATION .—
(1) I N GENERAL .—The Board shall promulgate regulations
implementing the requirements of section 127(b)(12) of theTruth in Lending Act, as added by this section.
(2) E
FFECTIVE DATE .—The amendment made by subsection
(a) and regulations issued under paragraph (1) of this sub-section shall not take effect until the later of—
(A) 12 months after the date of enactment of this
Act; or
(B) 12 months after the date of publication of such
final regulations by the Board.
SEC. 1306. PROHIBITION ON CERTAIN ACTIONS FOR FAILURE TO
INCUR FINANCE CHARGES.
(a) P ROHIBITION ON CERTAIN ACTIONS FOR FAILURE TOINCUR
FINANCE CHARGES .—Section 127 of the Truth in Lending Act (15
U.S.C. 1637) is amended by adding at the end the following:
‘‘(h) P ROHIBITION ON CERTAIN ACTIONS FOR FAILURE TOINCUR
FINANCE CHARGES .—A creditor of an account under an open end
consumer credit plan may not terminate an account prior to itsexpiration date solely because the consumer has not incurredfinance charges on the account. Nothing in this subsection shallprohibit a creditor from terminating an account for inactivity in3 or more consecutive months.’’.
(b) R
EGULATORY IMPLEMENTATION .—
(1) I N GENERAL .—The Board shall promulgate regulations
implementing the requirements of section 127(h) of the Truthin Lending Act, as added by this section.
(2) E
FFECTIVE DATE .—The amendment made by subsection
(a) and regulations issued under paragraph (1) of this sub-section shall not take effect until the later of—
(A) 12 months after the date of enactment of this
Act; or15 USC 1637note.15 USC 1637
note.15 USC 1637
note.15 USC 1637
note.15 USC 1637
note.15 USC 1637
note.
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(B) 12 months after the date of publication of such
final regulations by the Board.
SEC. 1307. DUAL USE DEBIT CARD.
(a) R EPORT .—The Board may conduct a study of, and present
to Congress a report containing its analysis of, consumer protectionsunder existing law to limit the liability of consumers for unauthor-ized use of a debit card or similar access device. Such report,if submitted, shall include recommendations for legislative initia-tives, if any, of the Board, based on its findings.
(b) C
ONSIDERATIONS .—In preparing a report under subsection
(a), the Board may include—
(1) the extent to which section 909 of the Electronic Fund
Transfer Act (15 U.S.C. 1693g), as in effect at the time ofthe report, and the implementing regulations promulgated bythe Board to carry out that section provide adequate unauthor-ized use liability protection for consumers;
(2) the extent to which any voluntary industry rules have
enhanced or may enhance the level of protection afforded con-
sumers in connection with such unauthorized use liability; and
(3) whether amendments to the Electronic Fund Transfer
Act (15 U.S.C. 1693 et seq.), or revisions to regulations promul-gated by the Board to carry out that Act, are necessary tofurther address adequate protection for consumers concerningunauthorized use liability.
SEC. 1308. STUDY OF BANKRUPTCY IMPACT OF CREDIT EXTENDED
TO DEPENDENT STUDENTS.
(a) S TUDY .—
(1) I N GENERAL .—The Board shall conduct a study
regarding the impact that the extension of credit describedin paragraph (2) has on the rate of cases filed under title11 of the United States Code.
(2) E
XTENSION OF CREDIT .—The extension of credit
described in this paragraph is the extension of credit to individ-uals who are—
(A) claimed as dependents for purposes of the Internal
Revenue Code of 1986; and
(B) enrolled within 1 year of successfully completing
all required secondary education requirements and on afull-time basis, in postsecondary educational institutions.
(b) R
EPORT .—Not later than 1 year after the date of enactment
of this Act, the Board shall submit to the Senate and the Houseof Representatives a report summarizing the results of the studyconducted under subsection (a).
SEC. 1309. CLARIFICATION OF CLEAR AND CONSPICUOUS.
(a) R EGULATIONS .—Not later than 6 months after the date
of enactment of this Act, the Board, in consultation with the otherFederal banking agencies (as defined in section 3 of the FederalDeposit Insurance Act), the National Credit Union AdministrationBoard, and the Federal Trade Commission, shall promulgate regula-tions to provide guidance regarding the meaning of the term ‘‘clearand conspicuous’’, as used in subparagraphs (A), (B), and (C) ofsection 127(b)(11) and clauses (ii) and (iii) of section 127(c)(6)(A)of the Truth in Lending Act.
(b) E
XAMPLES .—Regulations promulgated under subsection (a)
shall include examples of clear and conspicuous model disclosures15 USC 1637note.Deadline.
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for the purposes of disclosures required by the provisions of the
Truth in Lending Act referred to in subsection (a).
(c) S TANDARDS .—In promulgating regulations under this sec-
tion, the Board shall ensure that the clear and conspicuous standardrequired for disclosures made under the provisions of the Truthin Lending Act referred to in subsection (a) can be implementedin a manner which results in disclosures which are reasonablyunderstandable and designed to call attention to the nature andsignificance of the information in the notice.
TITLE XIV—PREVENTING CORPORATE
BANKRUPTCY ABUSE
SEC. 1401. EMPLOYEE WAGE AND BENEFIT PRIORITIES.
Section 507(a) of title 11, United States Code, as amended
by section 212, is amended—
(1) in paragraph (4) by striking ‘‘90’’ and inserting ‘‘180’’,
and
(2) in paragraphs (4) and (5) by striking ‘‘$4,000’’ and
inserting ‘‘$10,000’’.
SEC. 1402. FRAUDULENT TRANSFERS AND OBLIGATIONS.
Section 548 of title 11, United States Code, is amended—
(1) in subsections (a) and (b) by striking ‘‘one year’’ and
inserting ‘‘2 years’’,
(2) in subsection (a)—
(A) by inserting ‘‘(including any transfer to or for the
benefit of an insider under an employment contract)’’ after‘‘transfer’’ the 1st place it appears, and
(B) by inserting ‘‘(including any obligation to or for
the benefit of an insider under an employment contract)’’after ‘‘obligation’’ the 1st place it appears, and(3) in subsection (a)(1)(B)(ii)—
(A) in subclause (II) by striking ‘‘or’’ at the end,(B) in subclause (III) by striking the period at the
end and inserting ‘‘; or’’, and
(C) by adding at the end the following:
‘‘(IV) made such transfer to or for the benefit of an insider,
or incurred such obligation to or for the benefit of an insider,under an employment contract and not in the ordinary courseof business.’’.
(4) by adding at the end the following:
‘‘(e)(1) In addition to any transfer that the trustee may other-
wise avoid, the trustee may avoid any transfer of an interest ofthe debtor in property that was made on or within 10 years beforethe date of the filing of the petition, if—
‘‘(A) such transfer was made to a self-settled trust or similar
device;
‘‘(B) such transfer was by the debtor;‘‘(C) the debtor is a beneficiary of such trust or similar
device; and
‘‘(D) the debtor made such transfer with actual intent to
hinder, delay, or defraud any entity to which the debtor wasor became, on or after the date that such transfer was made,indebted.
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‘‘(2) For the purposes of this subsection, a transfer includes
a transfer made in anticipation of any money judgment, settlement,civil penalty, equitable order, or criminal fine incurred by, or whichthe debtor believed would be incurred by—
‘‘(A) any violation of the securities laws (as defined in
section 3(a)(47) of the Securities Exchange Act of 1934 (15U.S.C. 78c(a)(47))), any State securities laws, or any regulationor order issued under Federal securities laws or State securitieslaws; or
‘‘(B) fraud, deceit, or manipulation in a fiduciary capacity
or in connection with the purchase or sale of any securityregistered under section 12 or 15(d) of the Securities ExchangeAct of 1934 (15 U.S.C. 78l and 78o(d)) or under section 6of the Securities Act of 1933 (15 U.S.C. 77f).’’.
SEC. 1403. PAYMENT OF INSURANCE BENEFITS TO RETIRED
EMPLOYEES.
Section 1114 of title 11, United States Code, is amended—
(1) by redesignating subsection (l) as subsection (m), and(2) by inserting after subsection (k) the following:
‘‘(l) If the debtor, during the 180-day period ending on the
date of the filing of the petition—
‘‘(1) modified retiree benefits; and‘‘(2) was insolvent on the date such benefits were modified;
the court, on motion of a party in interest, and after notice anda hearing, shall issue an order reinstating as of the date themodification was made, such benefits as in effect immediately beforesuch date unless the court finds that the balance of the equitiesclearly favors such modification.’’.
SEC. 1404. DEBTS NONDISCHARGEABLE IF INCURRED IN VIOLATION
OF SECURITIES FRAUD LAWS.
(a) P REPETITION AND POSTPETITION EFFECT .—Section
523(a)(19)(B) of title 11, United States Code, is amended byinserting ‘‘, before, on, or after the date on which the petitionwas filed,’’ after ‘‘results’’.
(b) E
FFECTIVE DATE UPON ENACTMENT OF SARBANES -OXLEY
ACT.—The amendment made by subsection (a) is effective beginning
July 30, 2002.
SEC. 1405. APPOINTMENT OF TRUSTEE IN CASES OF SUSPECTED
FRAUD.
Section 1104 of title 11, United States Code, is amended by
adding at the end the following:
‘‘(e) The United States trustee shall move for the appointment
of a trustee under subsection (a) if there are reasonable groundsto suspect that current members of the governing body of thedebtor, the debtor’s chief executive or chief financial officer, ormembers of the governing body who selected the debtor’s chiefexecutive or chief financial officer, participated in actual fraud,dishonesty, or criminal conduct in the management of the debtoror the debtor’s public financial reporting.’’.
SEC. 1406. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.
(a) E FFECTIVE DATE.—Except as provided in subsection (b),
this title and the amendments made by this title shall take effecton the date of the enactment of this Act.
(b) A
PPLICATION OF AMENDMENTS .—11 USC 507 note.11 USC 523 note.
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(1) I N GENERAL .—cept as provided in paragraph (2), the
amendments made by this title shall apply only with respectto cases commenced under title 11 of the United States Codeon or after the date of the enactment of this Act.
(2) A
VOIDANCE PERIOD .—The amendment made by section
1402(1) shall apply only with respect to cases commenced undertitle 11 of the United States Code more than 1 year afterthe date of the enactment of this Act.
TITLE XV—GENERAL EFFECTIVE DATE;
APPLICATION OF AMENDMENTS
SEC. 1501. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.
(a) E FFECTIVE DATE.—Except as otherwise provided in this
Act, this Act and the amendments made by this Act shall takeeffect 180 days after the date of enactment of this Act.
(b) A
PPLICATION OF AMENDMENTS .—
(1) I N GENERAL .—Except as otherwise provided in this Act
and paragraph (2), the amendments made by this Act shallnot apply with respect to cases commenced under title 11,United States Code, before the effective date of this Act.
(2) C
ERTAIN LIMITATIONS APPLICABLE TO DEBTORS .—The
amendments made by sections 308, 322, and 330 shall applywith respect to cases commenced under title 11, United StatesCode, on or after the date of the enactment of this Act.
SEC. 1502. TECHNICAL CORRECTIONS.
(a) C ONFORMING AMENDMENTS TO TITLE 11 OF THE UNITED
STATES CODE.—Title 11 of the United States Code, as amended
by the preceding provisions of this Act, is amended—
(1) in section 507—
(A) in subsection (a)—
(i) in paragraph (5)(B)(ii) by striking ‘‘paragraph
(3)’’ and inserting ‘‘paragraph (4)’’; and
(ii) in paragraph (8)(D) by striking ‘‘paragraph (3)’’
and inserting ‘‘paragraph (4)’’;(B) in subsection (b) by striking ‘‘subsection (a)(1)’’
and inserting ‘‘subsection (a)(2)’’; and
(C) in subsection (d) by striking ‘‘subsection (a)(3)’’
and inserting ‘‘subsection (a)(1)’’;(2) in section 523(a)(1)(A) by striking ‘‘507(a)(2)’’ and
inserting ‘‘507(a)(3)’’;
(3) in section 752(a) by striking ‘‘507(a)(1)’’ and inserting
‘‘507(a)(2)’’;
(4) in section 766—
(A) in subsection (h) by striking ‘‘507(a)(1)’’ and
inserting ‘‘507(a)(2)’’; and
(B) in subsection (i) by striking ‘‘507(a)(1)’’ each place
it appears and inserting ‘‘507(a)(2)’’;(5) in section 901(a) by striking ‘‘507(a)(1)’’ and inserting
‘‘507(a)(2)’’;
(6) in section 943(b)(5) by striking ‘‘507(a)(1)’’ and inserting
‘‘507(a)(2)’’;
(7) in section 1123(a)(1) by striking ‘‘507(a)(1), 507(a)(2)’’
and inserting ‘‘507(a)(2), 507(a)(3)’’;
(8) in section 1129(a)(9)—11 USC 101 note.
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LEGISLATIVE HISTORY—S. 256:
HOUSE REPORTS: No. 109–31, Pt. 1 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 151 (2005):
Feb. 28, Mar. 1–4, 7–10, considered and passed Senate.Apr. 14, considered and passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 41 (2005):
Apr. 20, Presidential remarks.(A) in subparagraph (A) by striking ‘‘507(a)(1) or
507(a)(2)’’ and inserting ‘‘507(a)(2) or 507(a)(3)’’; and
(B) in subparagraph (B) by striking ‘‘507(a)(3)’’ and
inserting ‘‘507(a)(1)’’;(9) in section 1226(b)(1) by striking ‘‘507(a)(1)’’ and
inserting ‘‘507(a)(2)’’; and
(10) in section 1326(b)(1) by striking ‘‘507(a)(1)’’ and
inserting ‘‘507(a)(2)’’.(b) R
ELATED CONFORMING AMENDMENT .—Section 6(e) of the
Securities Investor Protection Act of 1970 (15 U.S.C. 78fff(e)) isamended by striking ‘‘507(a)(1)’’ and inserting ‘‘507(a)(2)’’.
Approved April 20, 2005.
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