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Wilcox Legal Group - 2005 BAPCPA
(Continued)
SEC. 906. FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVEMENT ACT OF 1991.
(a) DEFINITIONS- Section 402 of the Federal Deposit Insurance
Corporation Improvement Act of 1991 (12 U.S.C. 4402) is amended--
(A) in subparagraph (A)(ii), by inserting before the semicolon `, or is
exempt from such registration by order of 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 multilateral clearing organization (as defined in
section 408 of this Act)';
(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 eligible to 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, or the foreign bank that
established the branch or agency, as those terms are defined in section
1(b) of the International Banking Act of 1978;';
(3) in
paragraph (11), by inserting before the period `and any other clearing
organization with which such clearing organization 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, or members that provides for
netting present or future payment obligations or payment entitlements
(including liquidation or close out values relating to such obligations
or entitlements) among the parties to the agreement; and'; and
(5) by adding at the end the following new paragraph:
`(15) PAYMENT- The term `payment' means a payment of United States
dollars, another currency, or a composite currency, and a noncash
delivery, including a payment or delivery to liquidate an unmatured
obligation.'.
(b) ENFORCEABILITY OF BILATERAL
NETTING CONTRACTS- Section 403 of the Federal Deposit Insurance
Corporation Improvement Act of 1991 (12 U.S.C. 4403) is amended--
(1) by striking subsection (a) and inserting the following:
`(a) GENERAL 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, paragraphs (8)(E),
(8)(F), and (10)(B) of section 207(c) of the Federal Credit Union Act,
or any order authorized under section 5(b)(2) of the Securities
Investor Protection Act of 1970), the covered contractual payment
obligations and the covered contractual payment entitlements between
any 2 financial institutions shall be netted in accordance with, and
subject to the conditions of, the terms of any applicable netting
contract (except as provided in section 561(b)(2) of title 11, United
States Code).'; and
(2) by adding at the end the following new subsection:
`(f) ENFORCEABILITY OF SECURITY AGREEMENTS- The provisions of any
security agreement or arrangement or other credit enhancement related
to one or more netting contracts between any 2 financial institutions
shall be enforceable in accordance with their terms (except as provided
in section 561(b)(2) of title 11, United States Code), and shall not be
stayed, avoided, or otherwise limited by any State or Federal law
(other than paragraphs (8)(E), (8)(F), and (10)(B) of section 11(e) of
the Federal Deposit Insurance Act, paragraphs (8)(E), (8)(F), and
(10)(B) of section 207(c) of the Federal Credit Union Act, and section
5(b)(2) of the Securities Investor Protection Act of 1970).'.
(c) ENFORCEABILITY OF CLEARING ORGANIZATION NETTING
CONTRACTS- 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) GENERAL 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, paragraphs (8)(E),
(8)(F), and (10)(B) of section 207(c) of the Federal Credit Union Act,
and any order authorized under section 5(b)(2) of the Securities
Investor Protection Act of 1970), the covered contractual payment
obligations and the covered contractual payment entitlements of a
member of a clearing organization to and from all other members of a
clearing organization shall be netted in accordance with and subject to
the conditions of any applicable netting contract (except as provided
in section 561(b)(2) of title 11, United States Code).'; and
(2) by adding at the end the following new subsection:
`(h) ENFORCEABILITY OF SECURITY AGREEMENTS- The provisions of any
security agreement or arrangement or other credit enhancement related
to one or more netting contracts between any 2 members of a clearing
organization shall be enforceable in accordance with their terms
(except as provided in section 561(b)(2) of title 11, United States
Code), and shall not be stayed, avoided, or otherwise limited by any
State or Federal law (other than paragraphs (8)(E), (8)(F), and (10)(B)
of section 11(e) of the Federal Deposit Insurance Act, paragraphs
(8)(E), (8)(F), and (10)(B) of section 207(c) of the Federal Credit
Union Act, and section 5(b)(2) of the Securities Investor Protection
Act of 1970).'.
(d) ENFORCEABILITY OF CONTRACTS WITH UNINSURED
NATIONAL BANKS, UNINSURED FEDERAL BRANCHES AND AGENCIES, CERTAIN
UNINSURED STATE MEMBER BANKS, AND EDGE ACT CORPORATIONS- 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 AGENCIES, CERTAIN UNINSURED STATE MEMBER BANKS,
AND EDGE ACT CORPORATIONS.
`(a) IN GENERAL-
Notwithstanding any other provision of law, paragraphs (8), (9), (10),
and (11) of section 11(e) of the Federal Deposit Insurance Act shall
apply to an uninsured national bank or uninsured Federal branch or
Federal agency, a corporation chartered under section 25A of the
Federal Reserve Act, or an uninsured State member bank which operates,
or operates as, a multilateral clearing organization pursuant to
section 409 of this Act, except that for such purpose--
`(1) any reference to the
`Corporation as receiver' or `the receiver or the Corporation' shall
refer to the receiver appointed by the Comptroller of the Currency in
the case of an uninsured national bank or uninsured Federal branch or
agency, or to the receiver appointed by the Board of Governors of the
Federal Reserve System in the case of a corporation chartered under
section 25A of the Federal Reserve Act or an uninsured State member
bank;
`(2) any reference to
the `Corporation' (other than in section 11(e)(8)(D) of such Act), the
`Corporation, whether acting as such or as conservator or receiver', a
`receiver', or a `conservator' shall refer to the receiver or
conservator appointed by the Comptroller of the Currency in the case of
an uninsured national bank or uninsured Federal branch or agency, or to
the receiver or conservator appointed by the Board of Governors of the
Federal Reserve System in the case of a corporation chartered under
section 25A of the Federal Reserve Act or an uninsured State member
bank; and
`(3) any reference to
an `insured depository institution' or `depository institution' shall
refer to an uninsured national bank, an uninsured Federal branch or
Federal agency, a corporation chartered under section 25A of the
Federal Reserve Act, or an uninsured State member bank which operates,
or operates as, a multilateral clearing organization pursuant to
section 409 of this Act.
`(b) LIABILITY- 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 Reserve Act, or an uninsured State member bank which
operates, or operates as, a multilateral clearing organization pursuant
to section 409 of this Act, shall be determined in the same manner and
subject to the same limitations that apply to receivers and
conservators of insured depository institutions under section 11(e) of
the Federal Deposit Insurance Act.
`(c) REGULATORY AUTHORITY-
`(1) IN GENERAL- The Comptroller of the Currency in the case of an
uninsured national bank or uninsured Federal branch or agency and the
Board of Governors of the Federal Reserve System in the case of a
corporation chartered under section 25A of the Federal Reserve Act, or
an uninsured State member bank that operates, or operates as, a
multilateral clearing organization pursuant to section 409 of this Act,
in consultation with the Federal Deposit Insurance Corporation, may
each promulgate regulations solely to implement this section.
`(2) SPECIFIC
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 Governors of the Federal Reserve System each shall ensure
that the regulations generally are consistent with the regulations and
policies of the Federal Deposit Insurance Corporation adopted pursuant
to the Federal Deposit Insurance Act.
`(d) DEFINITIONS- For purposes of
this section, the terms `Federal branch', `Federal agency', and
`foreign bank' have the same meanings as in section 1(b) of the
International Banking Act of 1978.'.
SEC. 907. BANKRUPTCY LAW AMENDMENTS.
(a) DEFINITIONS OF FORWARD CONTRACT, REPURCHASE AGREEMENT, SECURITIES
CLEARING AGENCY, SWAP AGREEMENT, COMMODITY CONTRACT, AND SECURITIES
CONTRACT- Title 11, United States Code, is amended--
(i) by striking `means a contract' and inserting `means--
(ii) by striking `, or any combination thereof or option thereon;' and inserting `, or any other similar agreement;'; 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 transaction referred to in subparagraph (A) or (B);
`(D) a master agreement that provides for an agreement or transaction
referred to in subparagraph (A), (B), or (C), together with all
supplements to any such master agreement, without regard to whether
such master agreement provides for an agreement or transaction that is
not a forward contract under this paragraph, except that such master
agreement shall be considered to be a forward contract under this
paragraph only with respect to each agreement or transaction under such
master agreement that is referred to in subparagraph (A), (B), or (C);
or
`(E)
any security agreement or arrangement, or other credit enhancement
related to any agreement or transaction referred to in subparagraph
(A), (B), (C), or (D), including any guarantee or reimbursement
obligation by or to a forward contract merchant or financial
participant in connection with any agreement or transaction referred to
in any such subparagraph, but not to exceed the damages in connection
with any such agreement or transaction, measured in accordance with
section 562;';
(B)
in paragraph (46), by striking `on any day during the period beginning
90 days before the date of' and inserting `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)--
`(i) an agreement, including related terms, which provides for the
transfer of one or more certificates of deposit, mortgage related
securities (as defined in section 3 of the Securities Exchange Act of
1934), mortgage loans, interests in mortgage related securities or
mortgage loans, eligible bankers' acceptances, qualified foreign
government securities (defined as a security that is a direct
obligation of, or that is fully guaranteed by, the central government
of a member of the Organization for Economic Cooperation and
Development), or securities that are direct obligations of, or that are
fully guaranteed by, the United States or any agency of the United
States against the transfer of funds by the transferee of such
certificates of deposit, eligible bankers' acceptances, securities,
mortgage loans, or interests, with a simultaneous agreement by such
transferee to transfer to the transferor thereof certificates of
deposit, eligible bankers' acceptance, securities, mortgage loans, or
interests of the kind described in this clause, at a date certain not
later than 1 year after such transfer or on demand, against the
transfer of funds;
`(ii) any combination of agreements or transactions referred to in clauses (i) and (iii);
`(iii) an option to enter into an agreement or transaction referred to in clause (i) or (ii);
`(iv) a master agreement that provides for an agreement or transaction
referred to in clause (i), (ii), or (iii), together with all
supplements to any such master agreement, without regard to whether
such master agreement provides for an agreement or transaction that is
not a repurchase agreement under this paragraph, except that such
master agreement shall be considered to be a repurchase agreement under
this paragraph only with respect to each agreement or transaction under
the master agreement that is referred to in clause (i), (ii), or (iii);
or
`(v) any security agreement or arrangement or other credit enhancement
related to any agreement or transaction referred to in clause (i),
(ii), (iii), or (iv), including any guarantee or reimbursement
obligation by or to a repo participant or financial participant in
connection with any agreement or transaction referred to in any such
clause, but not to exceed the damages in connection with any such
agreement or transaction, measured in accordance with section 562 of
this title; and
`(B) does not include a repurchase obligation under a participation in a commercial mortgage loan;';
(D) in paragraph (48), by inserting `, or exempt from such registration
under such section pursuant to an order of the Securities and Exchange
Commission,' after `1934'; and
(E) by amending paragraph (53B) to read as follows:
`(53B) `swap agreement'--
`(i) any agreement, including the terms and conditions incorporated by reference in such agreement, which is--
`(I) an interest rate swap, option, future, or forward agreement,
including a rate floor, rate cap, rate collar, cross-currency rate
swap, and basis swap;
`(II) a spot, same day-tomorrow, tomorrow-next, forward, or other foreign exchange or precious metals agreement;
`(III) a currency swap, option, future, or forward agreement;
`(IV) an equity index or equity swap, option, future, or forward agreement;
`(V) a debt index or debt swap, option, future, or forward agreement;
`(VI) a total return, credit spread or credit swap, option, future, or forward agreement;
`(VII) a commodity index or a commodity swap, option, future, or forward agreement; or
`(VIII) a weather swap, weather derivative, or weather option;
`(ii) any agreement or transaction that is similar to any other
agreement or transaction referred to in this paragraph and that--
`(I) is of a type that has been, is presently, or in the future
becomes, the subject of recurrent dealings in the swap markets
(including terms and conditions incorporated by reference therein); and
`(II) is a forward, swap, future, or option on one or more rates,
currencies, commodities, equity securities, or other equity
instruments, debt securities or other debt instruments, quantitative
measures associated with an occurrence, extent of an occurrence, or
contingency associated with a financial, commercial, or economic
consequence, or economic or financial indices or measures of economic
or financial risk or value;
`(iii) any combination of agreements or transactions referred to in this subparagraph;
`(iv) any option to enter into an agreement or transaction referred to in this subparagraph;
`(v) a master agreement that provides for an agreement or transaction
referred to in clause (i), (ii), (iii), or (iv), together with all
supplements to any such master agreement, and without regard to whether
the master agreement contains an agreement or transaction that is not a
swap agreement under this paragraph, except that the master agreement
shall be considered to be a swap agreement under this paragraph only
with respect to each agreement or transaction under the master
agreement that is referred to in clause (i), (ii), (iii), or (iv); or
`(vi) any security agreement or arrangement or other credit enhancement
related to any agreements or transactions referred to in clause (i)
through (v), including any guarantee or reimbursement obligation by or
to a swap participant or financial participant in connection with any
agreement or transaction referred to in any such clause, but not to
exceed the damages in connection with any such agreement or
transaction, measured in accordance with section 562; and
`(B) is applicable for purposes of this title only, and shall not be
construed or applied so as to challenge or affect the characterization,
definition, or treatment of any swap agreement under any other statute,
regulation, or rule, including the Securities Act of 1933, the
Securities Exchange Act of 1934, the Public Utility Holding Company Act
of 1935, the Trust Indenture Act of 1939, the Investment Company Act of
1940, the Investment Advisers Act of 1940, the Securities Investor
Protection Act of 1970, the Commodity Exchange Act, the
Gramm-Leach-Bliley Act, and the Legal Certainty for Bank Products Act
of 2000;';
(2) in section 741(7), by striking paragraph (7) and inserting the following:
`(7) `securities contract'--
`(i) a contract for the purchase, sale, or loan of a security, a
certificate of deposit, a mortgage loan or any interest in a mortgage
loan, a group or index of securities, certificates of deposit, or
mortgage loans or interests therein (including an interest therein or
based on the value thereof), or option on any of the foregoing,
including an option to purchase or sell any such security, certificate
of deposit, mortgage loan, interest, group or index, or option, and
including any repurchase or reverse repurchase transaction on any such
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, certificates of deposit, mortgage loans
or interests therein, group or index of securities, or mortgage loans
or interests therein (including any interest therein or based on the
value thereof), or option on any of the foregoing, including an option
to purchase or sell any such security, certificate of deposit, mortgage
loan, interest, group or index, or option;
`(v) any other agreement or transaction that is similar to an agreement or transaction referred to in this subparagraph;
`(vi) any combination of the agreements or transactions 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 supplements to any such master agreement,
without regard to whether the master agreement provides for an
agreement or transaction that is not a securities contract under this
subparagraph, except that such master agreement shall be considered to
be a securities contract under this subparagraph only with respect to
each agreement or transaction under such master agreement 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 agreement or transaction referred to in this
subparagraph, including any guarantee or reimbursement obligation by or
to a stockbroker, securities clearing agency, financial institution, or
financial participant in connection with any agreement or transaction
referred to in this subparagraph, but not to exceed the damages in
connection 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 mortgage loan;'; and
(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 paragraph;
`(G) any combination of the agreements or transactions referred to in this paragraph;
`(H) any option to enter into an agreement or transaction 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 supplements to such master agreement, without regard
to whether the master agreement provides for an agreement or
transaction that is not a commodity contract under this paragraph,
except that the master agreement shall be considered to be a commodity
contract under this paragraph only with respect to each agreement or
transaction under the master agreement that is referred to in
subparagraph (A), (B), (C), (D), (E), (F), (G), or (H); or
`(J)
any security agreement or arrangement or other credit enhancement
related to any agreement or transaction referred to in this paragraph,
including any guarantee or reimbursement obligation by or to a
commodity broker or financial participant in connection with any
agreement or transaction referred to in this paragraph, but not to
exceed the damages in connection with any such agreement or
transaction, measured in accordance with section 562;'.
(b) DEFINITIONS OF FINANCIAL
INSTITUTION, FINANCIAL PARTICIPANT, 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, industrial savings bank, savings and loan
association, trust company, federally-insured credit union, or
receiver, liquidating agent, or conservator for such entity and, when
any such Federal reserve bank, receiver, liquidating agent, conservator
or entity is acting as agent or custodian for a customer in connection
with a securities contract (as defined in section 741) such customer;
or
`(B)
in connection with a securities contract (as defined in section 741) an
investment company registered under the Investment Company Act of
1940;';
(2) by inserting after paragraph (22) the following:
`(22A) `financial participant' means--
`(A) an entity that, at the time it enters into a securities contract,
commodity contract, swap agreement, repurchase agreement, or forward
contract, or at the time of the date of the filing of the petition, has
one or more agreements or transactions described in paragraph (1), (2),
(3), (4), (5), or (6) of section 561(a) with the debtor or any other
entity (other than an affiliate) of a total gross dollar value of not
less than $1,000,000,000 in notional or actual principal amount
outstanding on any day during the previous 15-month period, or has
gross mark-to-market positions of not less than $100,000,000
(aggregated across counterparties) in one or more such agreements or
transactions with the debtor or any other entity (other than an
affiliate) on any day during the previous 15-month period; or
`(B)
a clearing organization (as defined in section 402 of the Federal
Deposit Insurance Corporation Improvement Act of 1991);'; 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 whole or in part of entering
into forward contracts as or with merchants in a commodity (as defined
in section 761) or any similar good, article, service, right, or
interest which is presently or in the future becomes the subject of
dealing in the forward contract trade;'.
(c) DEFINITION OF MASTER NETTING
AGREEMENT AND MASTER NETTING AGREEMENT PARTICIPANT- Section 101 of
title 11, United 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 connection with one or more contracts that are
described in any one or more of paragraphs (1) through (5) of section
561(a), or any security agreement or arrangement or other credit
enhancement related to one or more of the foregoing, including any
guarantee or reimbursement obligation related to 1 or more of the
foregoing; and
`(B)
if the agreement contains provisions relating to agreements or
transactions that are not contracts described in paragraphs (1) through
(5) of section 561(a), shall be deemed to be a master netting agreement
only with respect to those agreements or transactions that are
described in any one or more of paragraphs (1) through (5) of section
561(a);
`(38B) `master
netting agreement participant' means an entity that, at any time before
the date of the filing of the petition, is a party to an outstanding
master netting agreement with the debtor;'.
(d) SWAP AGREEMENTS, SECURITIES
CONTRACTS, COMMODITY CONTRACTS, FORWARD CONTRACTS, REPURCHASE
AGREEMENTS, AND MASTER NETTING AGREEMENTS UNDER THE AUTOMATIC-STAY-
(1) IN 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 following:
`(17) under subsection (a), of the setoff by a swap participant or
financial participant of a mutual debt and claim under or in connection
with one or more swap agreements that constitutes the setoff of a claim
against the debtor for any payment or other transfer of property due
from the debtor under or in connection with any swap agreement against
any payment due to the debtor from the swap participant or financial
participant under or in connection with any swap agreement or against
cash, securities, or other property held by, pledged to, under the
control of, or due from such swap participant or 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 or in connection with one
or more master netting agreements or any contract or agreement subject
to such agreements that constitutes the setoff of a claim against the
debtor for any payment or other transfer of property due from the
debtor under or in connection with such agreements or any contract or
agreement subject to such agreements against any payment due to the
debtor from such master netting agreement participant under or in
connection with such agreements or any contract or agreement subject to
such agreements or against cash, securities, or other property held by,
pledged to, under the control of, or due from such master netting
agreement participant to margin, guarantee, secure, or settle such
agreements or any contract or agreement subject to such agreements, to
the extent that such participant is eligible to exercise such offset
rights under paragraph (6), (7), or (17) for each individual contract
covered by the master netting agreement in issue; and'.
(2) LIMITATION-
Section 362 of title 11, United States Code, as amended by sections
106, 305, 311, and 441, is amended 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 subsection (b) shall not be stayed by any
order of a court or administrative agency in any proceeding under this
title.'.
(e) LIMITATION 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 agreement'; 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 a master netting
agreement participant under or in connection with any master netting
agreement or any individual contract covered thereby that is made
before the commencement of the case, except under section 548(a)(1)(A)
and except to the extent that the trustee could otherwise avoid such a
transfer made under an individual contract covered by such master
netting agreement.'.
(f) FRAUDULENT TRANSFERS OF MASTER NETTING AGREEMENTS- 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 or any individual contract
covered thereby takes for value to the extent of such transfer, except
that, with respect to a transfer under any individual contract covered
thereby, to the extent that such master netting agreement participant
otherwise did not take (or is otherwise not deemed to have taken) such
transfer for value.'.
(g) TERMINATION OR ACCELERATION OF SECURITIES CONTRACTS- Section 555 of title 11, United States Code, is amended--
(1) by amending the section heading to read as follows:
`Sec. 555. Contractual right to liquidate, terminate, or accelerate a securities contract';
(2) in the first sentence, by striking `liquidation' and inserting `liquidation, termination, or acceleration'.
(h) TERMINATION OR ACCELERATION OF COMMODITIES OR FORWARD CONTRACTS-
Section 556 of title 11, United States Code, is amended--
(1) by amending the section heading to read as follows:
`Sec. 556. Contractual right to liquidate, terminate, or accelerate a commodities contract or forward contract';
(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 this section, the term
`contractual right' includes a right set forth in a rule or bylaw of a
derivatives clearing organization (as defined in the Commodity Exchange
Act), a multilateral clearing organization (as defined in the Federal
Deposit Insurance Corporation Improvement Act of 1991), a national
securities exchange, a national securities association, a securities
clearing agency, a contract market designated under the Commodity
Exchange Act, a derivatives transaction execution facility registered
under the Commodity Exchange Act, or a board of trade (as defined in
the Commodity Exchange Act) or in a resolution of the governing board
thereof and a right,'.
(i) TERMINATION OR ACCELERATION OF REPURCHASE AGREEMENTS- Section 559 of title 11, United States Code, is amended--
(1) by amending the section heading to read as follows:
`Sec. 559. Contractual right to liquidate, terminate, or accelerate 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 this section, the term
`contractual right' includes a right set forth in a rule or bylaw of a
derivatives clearing organization (as defined in the Commodity Exchange
Act), a multilateral clearing organization (as defined in the Federal
Deposit Insurance Corporation Improvement Act of 1991), a national
securities exchange, a national securities association, a securities
clearing agency, a contract market designated under the Commodity
Exchange Act, a derivatives transaction execution facility registered
under the Commodity Exchange Act, or a board of trade (as defined in
the Commodity Exchange Act) or in a resolution of the governing board
thereof and a right,'.
(j) LIQUIDATION, TERMINATION, OR ACCELERATION OF SWAP AGREEMENTS- Section 560 of title 11, United States Code, is amended--
(1) by amending the section heading to read as follows:
`Sec. 560. Contractual right to liquidate, terminate, or accelerate a swap agreement';
(2) in the first sentence, by striking `termination of a swap
agreement' and inserting `liquidation, termination, or acceleration 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 this section, the term `contractual right'
includes a right set forth in a rule or bylaw of a derivatives clearing
organization (as defined in the Commodity Exchange Act), a multilateral
clearing organization (as defined in the Federal Deposit Insurance
Corporation Improvement Act of 1991), a national securities exchange, a
national securities association, a securities clearing agency, a
contract market designated under the Commodity Exchange Act, a
derivatives transaction execution facility registered under the
Commodity Exchange Act, or a board of trade (as defined in the
Commodity Exchange Act) or in a resolution of the governing board
thereof and a right,'.
(k) LIQUIDATION, TERMINATION, ACCELERATION, OR OFFSET UNDER A MASTER NETTING AGREEMENT AND ACROSS CONTRACTS-
(1) IN GENERAL- Title 11, United States Code, is amended by inserting after section 560 the following:
`Sec.
561. Contractual right to terminate, liquidate, accelerate, or offset
under a master netting agreement and across 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 offset or net termination values, payment
amounts, or other transfer obligations arising under or in connection
with one or more (or the 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);
`(4) repurchase agreements;
`(6) master netting agreements,
shall not be stayed, avoided, or otherwise limited by operation of any
provision of this title or by any order of a court or administrative
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 the extent that such party could exercise such a right under section
555, 556, 559, or 560 for each individual contract covered by the
master 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 contract traded on or subject
to the rules of a contract market designated under the Commodity
Exchange Act or a derivatives transaction execution facility registered
under the Commodity Exchange Act against any claim arising under, or in
connection with, other instruments, contracts, or agreements listed in
subsection (a) except to the extent that the party has positive net
equity in the commodity accounts at the debtor, as calculated 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 customer of the debtor and traded on or subject to the
rules of a contract market designated under the Commodity Exchange Act
or a derivatives transaction execution facility registered under the
Commodity Exchange Act against any claim 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 arise under--
`(A) a cross-margining agreement or
similar arrangement that has been approved by the Commodity Futures
Trading Commission or submitted to the Commodity Futures Trading
Commission under paragraph (1) or (2) of section 5c(c) of the Commodity
Exchange Act and has not been abrogated or rendered ineffective by the
Commodity Futures Trading Commission; or
`(B) any other netting
agreement between a clearing organization (as defined in section 761)
and another entity that has been approved by the Commodity Futures
Trading Commission.
`(c) As used in this section, the
term `contractual right' includes a right set forth in a rule or bylaw
of a derivatives clearing organization (as defined in the Commodity
Exchange Act), a multilateral clearing organization (as defined in the
Federal Deposit Insurance Corporation Improvement Act of 1991), a
national securities exchange, a national securities association, a
securities clearing agency, a contract market designated under the
Commodity Exchange Act, a derivatives transaction execution facility
registered under the Commodity Exchange Act, or a board of trade (as
defined in the Commodity Exchange Act) or in a resolution of the
governing board thereof, and a right, whether or not evidenced in
writing, arising under common law, under law merchant, or by reason of
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 in a case under chapter 15, so that enforcement of
contractual provisions of such contracts and agreements in accordance
with their terms will not be stayed or otherwise limited by operation
of any provision of this title or by order of a court in any case under
this title, and to limit avoidance powers to the same extent as in a
proceeding under chapter 7 or 11 of this title (such enforcement not to
be limited based on the presence or absence of assets of the debtor in
the United States).'.
(2) CONFORMING AMENDMENT- The table
of sections for chapter 5 of title 11, United States Code, is amended
by inserting 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) COMMODITY BROKER LIQUIDATIONS- Title 11, United States Code, is amended by inserting after section 766 the following:
`Sec.
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 agreement participants
`Notwithstanding any other provision of this title, the exercise of
rights by a forward contract merchant, commodity broker, stockbroker,
financial institution, financial participant, securities clearing
agency, swap participant, repo participant, or master netting agreement
participant under this title shall not affect the priority of any
unsecured claim it may have after the exercise of such rights.'.
(m) STOCKBROKER LIQUIDATIONS- Title 11, United States Code, is amended by inserting after section 752 the following:
`Sec.
753. Stockbroker liquidation and forward contract merchants, commodity
brokers, stockbrokers, financial institutions, financial participants,
securities clearing agencies, swap participants, repo participants, and
master netting agreement participants
`Notwithstanding
any other provision of this title, the exercise of rights by a forward
contract merchant, commodity broker, stockbroker, financial
institution, financial participant, securities clearing agency, swap
participant, repo participant, or master netting agreement participant
under this title shall not affect the priority of any unsecured claim
it may have after the exercise of such rights.'.
(n) SETOFF- Section 553 of title 11, United States Code, is amended--
(1) in subsection (a)(2)(B)(ii), by inserting before the semicolon the
following: `(except for a setoff of a kind described in 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 section 362(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) SECURITIES CONTRACTS, COMMODITY CONTRACTS, AND FORWARD 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 institution, financial
participant,';
(2) in sections
362(b)(7) and 546(f), by inserting `or financial participant' after
`repo participant' each place such term appears;
(3) in section 546(e), by inserting `financial participant,' after `financial institution,';
(4) in section 548(d)(2)(B), by inserting `financial participant,' after `financial institution,';
(5) in section 548(d)(2)(C), by inserting `or financial participant' after `repo participant';
(6) in section 548(d)(2)(D), by inserting `or financial participant' after `swap participant';
(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 `contractual right' includes a right set
forth in a rule or bylaw of a derivatives clearing organization (as
defined in the Commodity Exchange Act), a multilateral clearing
organization (as defined in the Federal Deposit Insurance Corporation
Improvement Act of 1991), a national securities exchange, a national
securities association, a securities clearing agency, a contract market
designated under the Commodity Exchange Act, a derivatives transaction
execution facility registered under the Commodity Exchange Act, or a
board of trade (as defined in the Commodity Exchange Act), or in 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 practice.';
(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) CONFORMING 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.';
(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 agreement.
`560. Contractual right to liquidate, terminate, or accelerate a swap agreement.';
(2) in the table of sections for chapter 7--
(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, securities clearing agencies, swap participants, repo
participants, and master netting agreement participants.';
(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,
securities clearing agencies, swap participants, repo participants, and
master netting agreement participants.'.
SEC. 908. RECORDKEEPING REQUIREMENTS.
(a) FDIC-INSURED DEPOSITORY INSTITUTIONS- Section 11(e)(8) of the
Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)) is amended by
adding at the end the following new subparagraph:
`(H) RECORDKEEPING
REQUIREMENTS- The Corporation, in consultation with the appropriate
Federal banking agencies, may prescribe regulations requiring more
detailed recordkeeping by any insured depository institution with
respect to qualified financial contracts (including market valuations)
only if such insured depository institution is in a troubled condition
(as such term is defined by the Corporation pursuant to section 32).'.
(b) INSURED CREDIT UNIONS-
Section 207(c)(8) of the Federal Credit Union Act (12 U.S.C.
1787(c)(8)) is amended by adding at the end the following new
subparagraph:
`(H) RECORDKEEPING
REQUIREMENTS- The Board, in consultation with the appropriate Federal
banking agencies, may prescribe regulations requiring more detailed
recordkeeping by any insured credit union with respect to qualified
financial contracts (including market valuations) only if such insured
credit union is in a troubled condition (as such term is defined by the
Board pursuant to 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) EXEMPTIONS 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 depositor referred to in section
11(a)(2), including an agreement to provide 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),
shall not be deemed invalid pursuant to paragraph (1)(B) solely because
such agreement was not executed contemporaneously with the acquisition
of the collateral or because of pledges, delivery, or substitution of
the collateral made in accordance with such agreement.'.
SEC. 910. DAMAGE MEASURE.
(a) IN GENERAL- Title 11, United States Code, is amended--
(1) by inserting after section 561, as added by section 907, the following:
`Sec.
562. Timing of damage measurement in connection with swap agreements,
securities contracts, forward contracts, commodity contracts,
repurchase agreements, 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 netting
agreement pursuant to section 365(a), or if a forward contract
merchant, stockbroker, financial institution, securities clearing
agency, repo participant, financial participant, master netting
agreement participant, or swap participant liquidates, terminates, or
accelerates such contract or agreement, damages shall be measured 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) of subsection (a),
damages shall be measured as of the earliest subsequent date or dates
on which there are commercially reasonable determinants of value.
`(c) For the purposes of subsection (b), if damages
are not measured as of the date or dates of rejection, liquidation,
termination, or acceleration, and the forward contract merchant,
stockbroker, financial institution, securities clearing agency, repo
participant, financial participant, master netting agreement
participant, or swap participant or the trustee objects to the timing
of the measurement 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, master netting agreement participant, or swap participant;
or
`(2) the forward
contract merchant, stockbroker, financial institution, securities
clearing agency, repo participant, financial participant, master
netting agreement participant, or swap participant, in the case of an
objection by the trustee,
has the burden of proving that there were no commercially reasonable 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 section 907) the following new
item:
`562. Timing of damage
measure in connection with swap agreements, securities contracts,
forward contracts, commodity contracts, repurchase agreements, or
master netting agreements.'.
(b) CLAIMS ARISING FROM REJECTION- Section 502(g) of title 11, United States Code, is amended--
(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 disallowed under
subsection (d) or (e), as if such claim had arisen before the 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 following new
subparagraph:
`(C) EXCEPTION FROM STAY-
`(i) Notwithstanding section 362 of title 11, United States Code,
neither the filing of an application under subsection (a)(3) nor any
order or decree obtained by SIPC from the court shall operate as a stay
of any contractual rights of a creditor to liquidate, terminate, or
accelerate a securities contract, commodity contract, forward contract,
repurchase agreement, swap agreement, or master netting agreement, as
those terms are 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 arising under or in connection
with one or more of such contracts or agreements, or to foreclose on
any cash collateral pledged by the debtor, whether or not with respect
to one or more of such contracts or agreements.
`(ii) Notwithstanding clause (i), such application, order, or decree
may operate as a stay of the foreclosure on, or disposition of,
securities collateral pledged by the debtor, whether or not with
respect to one or more of such contracts or agreements, securities sold
by the debtor under a repurchase agreement, or securities lent under a
securities lending agreement.
`(iii) As used in this subparagraph, the term `contractual right'
includes a right set forth in a rule or bylaw of a national securities
exchange, a national securities association, or a securities clearing
agency, a right set forth in a bylaw of a clearing organization or
contract market or in 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 practice.'.
TITLE X--PROTECTION OF FAMILY FARMERS AND FAMILY FISHERMEN
SEC. 1001. PERMANENT REENACTMENT OF CHAPTER 12.
(1) IN GENERAL- Chapter 12 of title 11, United States Code, as
reenacted by section 149 of division C of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277),
and as in effect on June 30, 2005, is hereby reenacted.
(2) EFFECTIVE DATE OF REENACTMENT- Paragraph (1) shall take effect on July 1, 2005.
(b) AMENDMENTS--Chapter 12 of title 11, United States Code, as reenacted by subsection (a), is amended by this Act.
(c) CONFORMING AMENDMENT- Section 302 of the Bankruptcy Judges, United
States Trustees, and Family Farmer Bankruptcy Act 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) CONTENTS OF PLAN- Section 1222(a)(2) of title 11, United States
Code, as amended by section 213, is amended to read as follows:
`(2) provide for the full payment, in deferred cash payments, 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's farming operation, in which case the
claim shall be treated as an unsecured claim that is not entitled to
priority under section 507, but the debt shall be treated in such
manner only if the debtor receives a discharge; or
`(B) the holder of a particular claim agrees to a different treatment of that claim;'.
(b) SPECIAL NOTICE PROVISIONS- Section 1231(b) of title 11, United
States Code, as so designated by section 719, is amended by striking `a
State or local governmental unit' and inserting `any governmental
unit'.
(c) EFFECTIVE DATE; APPLICATION OF AMENDMENTS- This
section and the amendments made by this section shall take effect on
the date of the enactment of this Act and shall not apply with respect
to cases commenced under title 11 of the United States 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 INCOME FROM FARMING OPERATION IN YEAR PRIOR TO
BANKRUPTCY.
Section 101(18)(A) of title 11, United States
Code, is amended by striking `for the taxable year preceding the
taxable year' and inserting the following:
`(i) the taxable year preceding; or
`(ii) each of the 2d and 3d taxable years preceding;
SEC. 1006. PROHIBITION OF RETROACTIVE ASSESSMENT OF DISPOSABLE INCOME.
(a) CONFIRMATION 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 the court may approve under
section 1222(c), beginning on the date that the first distribution is
due under the plan is not less than the debtor's projected disposable
income for such period.'.
(b) MODIFICATION 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 of payments to unsecured
creditors required for a particular month so that the aggregate of such
payments exceeds the debtor'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 with insufficient funds to carry on the farming
operation after the plan is completed.'.
SEC. 1007. FAMILY FISHERMEN.
(a) DEFINITIONS- 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 products of such
species; or
`(B)
for purposes of section 109 and chapter 12, aquaculture activities
consisting of raising for market any species or product described in
subparagraph (A);
`(7B)
`commercial fishing vessel' means a vessel used by a family fisherman
to carry out a commercial fishing operation;'; 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 aggregate noncontingent, liquidated debts
(excluding a debt for the principal residence of such individual or
such individual and spouse, unless such debt arises out of a commercial
fishing operation), on the date the case is filed, arise out of a
commercial fishing operation owned or operated by such individual or
such individual and spouse; and
`(ii) who receive from such commercial fishing operation more than 50
percent of such individual's or such individual's and spouse's gross
income for the taxable year preceding the taxable year in which the
case concerning such individual or such individual and spouse was
filed; or
`(B) a corporation or partnership--
`(i) in which more than 50 percent of the outstanding stock or equity is held by--
`(I) 1 family that conducts the commercial fishing operation; or
`(II) 1 family and the relatives of the members of such family, and
such family or such relatives conduct the commercial fishing operation;
and
`(ii)(I) more than 80 percent of the value of its assets consists of assets related to the commercial fishing operation;
`(II) its aggregate debts do not exceed $1,500,000 and not less than 80
percent of its aggregate noncontingent, liquidated debts (excluding a
debt for 1 dwelling which is owned by such corporation or partnership
and which a shareholder or partner maintains as a principal residence,
unless such debt arises out of a commercial fishing operation), on the
date the case is filed, arise out of a commercial fishing operation
owned or operated by such corporation or such partnership; and
`(III) if such corporation issues stock, such stock is not publicly traded;
`(19B) `family fisherman with regular annual income' means a family
fisherman whose annual income is sufficiently stable and regular to
enable such family fisherman to make payments under a plan under
chapter 12 of this title;'.
(b) WHO MAY BE A DEBTOR- Section
109(f) of title 11, United States Code, is amended by inserting `or
family fisherman' after `family farmer'.
(c) CHAPTER 12- Chapter 12 of title 11, United States Code, is amended--
(1) in the chapter heading, by inserting `OR FISHERMAN' 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 commercial fishing operation (including
a commercial fishing vessel)'.
(d) CLERICAL AMENDMENT- In the table
of chapters for title 11, United States Code, the item relating to
chapter 12, is amended to read as follows: 1201'.
(e) APPLICABILITY- Nothing in
this section shall change, affect, or amend the Fishery Conservation
and Management Act of 1976 (16 U.S.C. 1801 et seq.).
TITLE XI--HEALTH CARE AND EMPLOYEE BENEFITS
SEC. 1101. DEFINITIONS.
(a) HEALTH 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 for profit) that is primarily
engaged in offering to the general public facilities and services for--
`(i) the diagnosis or treatment of injury, deformity, or disease; and
`(ii) surgical, drug treatment, psychiatric, or obstetric care; and
`(I) general or specialized hospital;
`(II) ancillary ambulatory, emergency, or surgical treatment facility;
`(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;
`(V) domiciliary care facility; and
`(VI) health care institution that is related to a facility referred to
in subclause (I), (II), (III), (IV), or (V), if that institution is
primarily engaged in offering room, board, laundry, or personal
assistance with activities of daily living and incidentals to
activities of daily living;'.
(b)
PATIENT AND PATIENT RECORDS DEFINED- Section 101 of title 11, United
States Code, is amended by inserting after paragraph (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) RULE OF CONSTRUCTION- The
amendments made by subsection (a) of this section shall not affect the
interpretation of section 109(b) of title 11, United States Code.
SEC. 1102. DISPOSAL OF PATIENT RECORDS.
(a) IN GENERAL- Subchapter III of chapter 3 of title 11, United States Code, is amended by adding at the end the following:
`Sec. 351. Disposal of patient records
`If a health care business commences a case under chapter 7, 9, or 11,
and the trustee does not have a sufficient amount of funds to pay for
the storage of patient records in the manner required under applicable
Federal or State law, the following requirements shall apply:
`(A) promptly publish notice, in 1 or more appropriate newspapers, that
if patient records are not claimed by the patient or an insurance
provider (if applicable law permits the insurance provider to make that
claim) by the date that is 365 days after the date of that
notification, the trustee will destroy the patient records; and
`(B)
during the first 180 days of the 365-day period described in
subparagraph (A), promptly attempt to notify directly each patient that
is the subject of the patient records and appropriate insurance carrier
concerning the patient records by mailing to the most recent known
address of that patient, or a family member or contact person for that
patient, and to the appropriate insurance carrier an appropriate notice
regarding the claiming or disposing of patient records.
`(2) If, after
providing the notification under paragraph (1), patient records are not
claimed during the 365-day period described under that paragraph, the
trustee shall mail, by certified mail, at the end of such 365-day
period a written request to each appropriate Federal agency to request
permission from that agency to deposit the patient records with that
agency, except that no Federal agency is required to accept patient
records under this paragraph.
`(3) If, following the
365-day period described in paragraph (2) and after providing the
notification under paragraph (1), patient records are not claimed by a
patient or insurance provider, or request is not granted by a Federal
agency to deposit such records with that agency, the trustee shall
destroy those records by--
`(A) if the records are written, shredding or burning the records; or
`(B) if the records are magnetic, optical, or other electronic records,
by otherwise destroying those records so that those records cannot be
retrieved.'.
(b) CLERICAL AMENDMENT- The
table of sections for subchapter III of chapter 3 of title 11, United
States Code, is amended by adding 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 ADMINISTRATIVE EXPENSES.
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 Federal agency (as defined in
section 551(1) of title 5) or a department or agency of a State or
political subdivision thereof, including any cost or expense incurred--
`(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 closed to another health care
business; and'.
SEC. 1104. APPOINTMENT OF OMBUDSMAN TO ACT AS PATIENT ADVOCATE.
(a) OMBUDSMAN TO ACT AS PATIENT ADVOCATE-
(1) APPOINTMENT OF OMBUDSMAN- Title 11, United States Code, as amended
by section 232, is amended by inserting after section 332 the
following:
`Sec. 333. Appointment of patient care ombudsman
`(a)(1) If the debtor in a case under chapter 7, 9, or 11 is a health
care business, the court shall order, not later than 30 days after the
commencement of the case, the appointment of an ombudsman to monitor
the quality of patient care and to represent the interests of the
patients of the health care business unless the court finds that the
appointment of such ombudsman is not necessary for the protection of
patients under the specific facts of the case.
`(2)(A) If the court orders the appointment of an
ombudsman under paragraph (1), the United States trustee shall appoint
1 disinterested person (other than the United States trustee) to serve
as such ombudsman.
`(B) If the debtor is a health care business that
provides long-term care, then the United States trustee may appoint the
State Long-Term Care Ombudsman appointed under the Older Americans Act
of 1965 for the State in which the case is pending to serve as the
ombudsman required by paragraph (1).
`(C) If the United States trustee does not appoint
a State Long-Term Care Ombudsman under subparagraph (B), the court
shall notify the State Long-Term Care Ombudsman appointed under the
Older Americans Act of 1965 for the State in which the case is pending,
of the name and address of the person who is appointed under
subparagraph (A).
`(b) An ombudsman appointed under subsection (a) shall--
`(1) monitor the quality of patient care provided to patients of the
debtor, to the extent necessary under the circumstances, including
interviewing patients and physicians;
`(2) not later than 60
days after the date of appointment, and not less frequently than at
60-day intervals thereafter, report to the court after notice to the
parties in interest, at a hearing or in writing, regarding the quality
of patient care provided to patients of the debtor; and
`(3) if such ombudsman
determines that the quality of patient care provided to patients of the
debtor is declining significantly or is otherwise being materially
compromised, file with the court a motion or a written report, with
notice to the parties in interest immediately upon making such
determination.
`(c)(1) An ombudsman appointed under
subsection (a) shall maintain any information obtained by such
ombudsman under this section that relates to patients (including
information relating to patient records) as confidential information.
Such ombudsman may not review confidential patient records unless the
court approves such review in advance and imposes restrictions on such
ombudsman to protect the confidentiality of such records.
`(2) An ombudsman appointed under subsection
(a)(2)(B) shall have access to patient records consistent with
authority of such ombudsman under the Older Americans Act of 1965 and
under non-Federal laws governing the State Long-Term Care Ombudsman
program.'.
(2) CLERICAL AMENDMENT- The table of
sections for subchapter II of chapter 3 of title 11, United States
Code, as amended by section 232, is amended by adding at the end the
following:
`333. Appointment of ombudsman.'.
(b) COMPENSATION 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 `a professional
person'; and
(2) in subparagraph (A), by inserting `ombudsman,' before `professional person'.
SEC. 1105. DEBTOR IN POSSESSION; DUTY OF TRUSTEE TO TRANSFER PATIENTS.
(a) IN GENERAL- Section 704(a) of title 11, United States Code, as
amended by sections 102, 219, and 446, is amended by adding at 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 being closed 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 care business that is in the process of
being closed; and
`(C) maintains a reasonable quality of care.'.
(b) CONFORMING AMENDMENT- Section 1106(a)(1) of title 11, United States
Code, as amended by section 446, is amended by striking `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 participation in the medicare program or any other Federal health
care program (as defined in section 1128B(f) of the Social Security Act
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:';
(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;
(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 inserting a 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 conditional, voluntary or involuntary, of disposing of or parting with--
`(ii) an interest in property;';
(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 each of paragraphs (40) through
(55), by striking the semicolon at the 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 and section 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 this title 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
(2) in section 552(b)(1), by striking `product' each place it appears and inserting `products'.
SEC. 1205. PENALTY FOR PERSONS WHO NEGLIGENTLY OR FRAUDULENTLY PREPARE BANKRUPTCY PETITIONS.
Section 110(j)(4) of title 11, United States Code, as so redesignated
by section 221, is amended by striking `attorney's' and inserting
`attorneys'.
SEC. 1206. LIMITATION ON COMPENSATION OF PROFESSIONAL PERSONS.
Section 328(a) of title 11, United States Code, is amended by inserting
`on a fixed or percentage fee basis,' after `hourly basis,'.
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 insert such 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 operated under'.
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) IN GENERAL- 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:
`(i) If the trustee avoids under subsection (b) a transfer made between
90 days and 1 year before the date of the filing of the petition, by
the debtor to an entity that is not an insider for the benefit of a
creditor that is an insider, such transfer shall be considered to be
avoided under this section only with respect to the creditor that is an
insider.'.
(b) APPLICABILITY- The amendments made by this
section shall apply to any case that is pending or commenced on or
after the date 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 CORPORATIONS.
(a) SALE OF PROPERTY OF ESTATE- Section 363(d) of title 11, United
States Code, is amended by striking `only' and all that follows through
the end of the subsection and inserting `only--
`(1) in accordance with applicable
nonbankruptcy law that governs the transfer of property by a
corporation or trust that is not a moneyed, business, or commercial
corporation or trust; and
`(2) to the extent not inconsistent with any relief granted under subsection (c), (d), (e), or (f) of section 362.'.
(b) CONFIRMATION OF PLAN OF REORGANIZATION- Section 1129(a) of title
11, United States Code, as amended by sections 213 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
nonbankruptcy law that govern the transfer of property by a corporation
or trust that is not a moneyed, business, or commercial corporation or
trust.'.
(c) TRANSFER OF PROPERTY- Section
541 of title 11, United States Code, as amended by section 225, is
amended by adding at 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 section 501(c)(3) of the Internal Revenue Code of 1986 and
exempt from tax under section 501(a) of such Code may be transferred to
an entity that is not such a corporation, but only under the same
conditions as would apply if the debtor had not filed a case under this
title.'.
(d) APPLICABILITY- The amendments made by this
section shall apply to a case pending under title 11, United States
Code, on the date of enactment of this Act, or filed under that title
on or after that date of enactment, except that the court shall not
confirm a plan under chapter 11 of title 11, United States Code,
without considering whether this section would substantially affect the
rights of a party in interest who first acquired rights with respect to
the debtor after the date of the filing of the petition. The parties
who may appear and be heard in a proceeding under this section include
the attorney general of the State in which the debtor is incorporated,
was formed, or does business.
(e) RULE OF CONSTRUCTION- Nothing in this section
shall be construed to require the court in which a case under chapter
11 of title 11, United States Code, is pending to remand or refer any
proceeding, issue, or controversy to any other court or to require the
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) SHORT TITLE- This section may be cited as the `Bankruptcy Judgeship Act of 2005'.
(b) TEMPORARY JUDGESHIPS-
(1) APPOINTMENTS- 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 bankruptcy 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.
(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.
(A) DISTRICTS WITH SINGLE APPOINTMENTS- Except as provided in
subparagraphs (B), (C), (D), and (E), the first vacancy occurring in
the office of bankruptcy judge in each of the judicial districts set
forth in paragraph (1)--
(i) occurring 5 years or more after the appointment date of the
bankruptcy judge appointed under paragraph (1) to such office; and
(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;
(B) CENTRAL DISTRICT OF CALIFORNIA- The 1st, 2d, and 3d vacancies in
the office of bankruptcy judge in the central district of California--
(i) occurring 5 years or more after the respective 1st, 2d, and 3d
appointment dates of the bankruptcy judges appointed under paragraph
(1)(B); and
(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;
(C) DISTRICT OF DELAWARE- The 1st, 2d, 3d, and 4th vacancies in the
office of bankruptcy judge in the district of Delaware--
(i) occurring 5 years or more after the respective 1st, 2d, 3d, and 4th
appointment dates of the bankruptcy judges appointed under paragraph
(1)(F); and
(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;
(D) SOUTHERN DISTRICT OF FLORIDA- The 1st and 2d vacancies in the
office of bankruptcy judge in the southern district of Florida--
(i) occurring 5 years or more after the respective 1st and 2d
appointment dates of the bankruptcy judges appointed under paragraph
(1)(D); and
(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;
(E) DISTRICT OF MARYLAND- The 1st, 2d, and 3d vacancies in the office of bankruptcy judge in the district of Maryland--
(i) occurring 5 years or more after the respective 1st, 2d, and 3d
appointment dates of the bankruptcy judges appointed under paragraph
(1)(F); and
(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;
(1) IN GENERAL- The temporary office of bankruptcy judges authorized
for the northern district of Alabama, the district of Delaware, the
district of Puerto Rico, and the eastern district of Tennessee under
paragraphs (1), (3), (7), and (9) of section 3(a) of the Bankruptcy
Judgeship Act of 1992 (28 U.S.C. 152 note) are extended until the first
vacancy occurring in the office of a bankruptcy judge in the applicable
district resulting from the death, retirement, resignation, or removal
of a bankruptcy judge and occurring 5 years after the date of the
enactment of this Act.
(2) APPLICABILITY OF
OTHER PROVISIONS- All other provisions of section 3 of the Bankruptcy
Judgeship Act of 1992 (28 U.S.C. 152 note) remain applicable to the
temporary office of bankruptcy judges referred to in this subsection.
(d) TECHNICAL 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 appointed for a judicial
district, as provided in paragraph (2), shall be appointed by the court
of appeals of the United States for the circuit in which such district
is located.'; and
(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 and Southern . . . . . . 1'.
(e) EFFECTIVE DATE- The amendments made by this section shall take effect on the date of the enactment of this Act.
SEC. 1224. COMPENSATING TRUSTEES.
Section 1326 of title 11, United States Code, is amended--
(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 case pursuant to section
707(b), and some portion of that compensation remains unpaid in a case
converted to this chapter or in the case dismissed under section 707(b)
and refiled under this 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--
`(ii) the amount payable to unsecured nonpriority creditors, as
provided by the plan, multiplied by 5 percent, and the result divided
by the number of months 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 under this 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 special tax or special
assessment on real property whether or not ad valorem, imposed by a
governmental unit, if such tax or assessment comes due after the date
of the filing of the petition;'.
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 useful to courts
in implementing this Act and the amendments made by this Act, including
the requirements relating to the means test under section 707(b), and
reaffirmation agreements under section 524, of title 11 of the United
States Code, as amended by this Act.
SEC. 1227. RECLAMATION.
(a) RIGHTS 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 of a
security interest in such goods or the proceeds thereof, the rights and
powers of the trustee under sections 544(a), 545, 547, and 549 are
subject to the right of a seller of goods that has sold goods to the
debtor, in the ordinary course of such seller's business, to reclaim
such goods if the debtor has received such goods while insolvent,
within 45 days before the date of the commencement of a case under this
title, but such seller may not reclaim such goods unless such seller
demands in writing reclamation of such goods--
`(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 commencement of 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 rights contained in section 503(b)(9).'.
(b) ADMINISTRATIVE EXPENSES- Section 503(b) of
title 11, United States Code, as amended by sections 445 and 1103, is
amended 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
under this title in which the goods have been sold to the debtor in the
ordinary course of such debtor's business.'.
SEC. 1228. PROVIDING REQUESTED TAX DOCUMENTS TO THE COURT.
(a) Chapter 7 Cases- The court shall not grant a discharge in the case
of an individual who is a debtor in a case under chapter 7 of title 11,
United States Code, unless requested tax documents have been provided
to the court.
(b) Chapter 11 and Chapter 13 Cases- The court
shall not confirm a plan of reorganization in the case of an individual
under chapter 11 or 13 of title 11, United States Code, unless
requested tax documents have been filed with the court.
(c) DOCUMENT RETENTION- The court shall destroy
documents submitted in support of a bankruptcy claim not sooner than 3
years after the date of the conclusion of a case filed by an individual
under chapter 7, 11, or 13 of title 11, United States Code. In the
event of a pending audit or enforcement action, the court may extend
the time for destruction of such requested tax documents.
SEC. 1229. ENCOURAGING CREDITWORTHINESS.
(a) SENSE 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 consumers are
capable of repaying the resulting debt, and in a manner which may
encourage certain consumers to accumulate additional debt; and
(2) resulting consumer debt may increasingly be a major contributing factor to consumer insolvency.
(b) STUDY 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--
(B) without taking steps to ensure that consumers are capable of repaying the resulting debt; and
(C) in a manner that encourages consumers to accumulate additional debt; and
(2) the effects of such practices on consumer debt and insolvency.
(c) REPORT 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 by the 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 ensure responsible
industrywide practices and to prevent resulting consumer 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 sold tangible personal property (other than securities or
written or printed evidences of indebtedness or title) as collateral
for a loan or advance of money given by a person licensed under law 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 stipulated price; and
`(C)
neither the debtor nor the trustee have exercised any right to redeem
provided under the contract or State law, in a timely manner as
provided under State law and section 108(b); or'.
SEC. 1231. TRUSTEES.
(a) SUSPENSION 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 assigned to cases
filed under title 11, United States Code, may obtain judicial review of
the final agency decision by commencing an action in the 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 in which the trustee is appointed
under subsection (b) resides, after first exhausting all available
administrative remedies, which if the trustee so elects, shall also
include an administrative hearing on the record. Unless the trustee
elects to have an administrative hearing on the record, the trustee
shall be deemed to have exhausted all administrative remedies for
purposes of this paragraph if the agency fails to make a final agency
decision within 90 days after the trustee requests administrative
remedies. The Attorney General shall prescribe procedures to implement
this paragraph. The decision of the agency shall be affirmed by the
district court unless it is unreasonable and without cause based on the
administrative record before the agency.'.
(b) EXPENSES OF STANDING TRUSTEES- Section 586(e)
of title 28, United States Code, is amended by adding at the end the
following:
`(3) After first exhausting all available
administrative remedies, an individual appointed under subsection (b)
may obtain judicial review of final agency action to deny a claim of
actual, necessary expenses under this subsection by commencing an
action in the district court of the United States for the district
where the individual resides. The decision of the agency shall be
affirmed by the district court unless it is unreasonable and without
cause based upon the administrative record before the agency.
`(4) The Attorney General shall prescribe procedures to implement 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 section 707(b)(2)(C) of title 11
and may provide general rules on the content of such statement.'.
SEC. 1233. DIRECT APPEALS OF BANKRUPTCY MATTERS TO COURTS OF APPEALS.
(a) APPEALS- 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
(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 the
bankruptcy court, the district court, or the bankruptcy appellate panel
involved, acting on its own motion or on the request of a party to the
judgment, order, or decree described in such first sentence, 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 court of appeals for the circuit or of the Supreme Court of the
United States, 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 or proceeding in which the
appeal is taken;
and if the court of appeals authorizes the direct appeal of the judgment, order, or decree.
`(B) If the bankruptcy court, the district court, or the bankruptcy appellate panel--
`(i) on its own motion or on the request of a party, determines 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 certification described in subparagraph
(A);
then the bankruptcy court, the
district court, or the bankruptcy appellate panel shall make the
certification described in subparagraph (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 proceeding of the
bankruptcy court, the district court, or the bankruptcy appellate panel
from which the appeal is taken, unless the respective bankruptcy court,
district court, or bankruptcy appellate panel, or the court of appeals
in which the appeal in pending, issues a 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.'.
(1) TEMPORARY APPLICATION- A provision of this subsection shall apply
to appeals under section 158(d)(2) of title 28, United States Code,
until a rule of practice and procedure relating to such provision and
such appeals is promulgated or amended under chapter 131 of such title.
(2) CERTIFICATION- A
district court, a bankruptcy court, or a bankruptcy appellate panel may
make a certification under section 158(d)(2) of title 28, United States
Code, only with respect to matters pending in the respective bankruptcy
court, district court, or bankruptcy appellate panel.
(3) PROCEDURE- Subject
to any other provision of this subsection, an appeal authorized by the
court of appeals under section 158(d)(2)(A) of title 28, United States
Code, shall be taken 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 bankruptcy court 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 petition shall be deemed to include a
reference to the parties to the judgment, order, or decree from which
the appeal is taken.
(4) FILING OF
PETITION WITH ATTACHMENT- A petition requesting permission to appeal,
that is based on a certification made 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 of the bankruptcy court, the district court,
or the bankruptcy appellate panel from which the appeal is taken; and
(B) have attached a copy of such certification.
(5) REFERENCES IN RULE 5- For purposes of rule 5 of the Federal Rules of Appellate Procedure--
(A) a reference in such rule to a district court shall be deemed to
include a reference to a bankruptcy court and 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 bankruptcy court and to a clerk of a
bankruptcy appellate panel.
(6)
APPLICATION OF RULES- The Federal Rules of Appellate Procedure shall
apply in the courts of appeals with respect to appeals authorized under
section 158(d)(2)(A), to the extent relevant and as if such appeals
were taken from final judgments, orders, or decrees of the district
courts or bankruptcy appellate panels exercising appellate jurisdiction
under subsection (a) or (b) of section 158 of title 28, United States
Code.
SEC. 1234. INVOLUNTARY CASES.
(a) AMENDMENTS- Section 303 of title 11, United States Code, is amended--
(1) in subsection (b)(1), b | |
