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Codified Statutes
- U.S. Code
- TITLE 11 — BANKRUPTCY
- CHAPTER 3 — CASE ADMINISTRATION(§§ 301 to 366)
- SUBCHAPTER IV — ADMINISTRATIVE POWERS(§§ 361 to 366)
11 U.S.C. § 362. Automatic stay
(a)
Except as provided in
subsection (b) of this section, a petition filed under section
301, 302, or 303 of this title, or an application
filed under section 5(a)(3) of the Securities
Investor Protection Act of 1970, operates as a stay,
applicable to all entities, of-
(1)
the commencement or
continuation, including the issuance or employment of process,
of a judicial, administrative, or other action or proceeding
against the debtor that was or could have been commenced before
the commencement of the case under this title, or to recover a
claim against the debtor that arose before the commencement of
the case under this title;
(2)
the enforcement, against
the debtor or against property of the estate, of a judgment
obtained before the commencement of the case under this
title;
(3)
any act to obtain
possession of property of the estate or of property from the
estate or to exercise control over property of the
estate;
(4)
any act to create,
perfect, or enforce any lien against property of the
estate;
(5)
any act to create,
perfect, or enforce against property of the debtor any lien to
the extent that such lien secures a claim that arose before the
commencement of the case under this title;
(6)
any act to collect,
assess, or recover a claim against the debtor that arose before
the commencement of the case under this title;
(7)
the setoff of any debt
owing to the debtor that arose before the commencement of the
case under this title against any claim against the debtor;
and
(8)
the commencement or
continuation of a proceeding before the United States Tax Court
concerning a tax liability of a debtor that is a corporation for
a taxable period the bankruptcy court may determine or
concerning the tax liability of a debtor who is an individual
for a taxable period ending before the date of the order for
relief under this title.
(b)
The filing of a petition under
section 301, 302, or 303 of this title, or of an application
under section 5(a)(3) of the Securities Investor
Protection Act of 1970, does not operate as a
stay-
(1)
under subsection (a) of
this section, of the commencement or continuation of a criminal
action or proceeding against the debtor;
(2)
under subsection
(a)-
(A)
of the commencement or
continuation of a civil action or proceeding-
(i)
for the
establishment of paternity;
(ii)
for the
establishment or modification of an order for domestic
support obligations;
(iii)
concerning child
custody or visitation;
(iv)
for the
dissolution of a marriage, except to the extent that
such proceeding seeks to determine the division of
property that is property of the estate; or
(v)
regarding domestic
violence;
(B)
of the collection of a
domestic support obligation from property that is not
property of the estate;
(C)
with respect to the
withholding of income that is property of the estate or
property of the debtor for payment of a domestic support
obligation under a judicial or administrative order or a
statute;
(D)
of the withholding,
suspension, or restriction of a driver's license, a
professional or occupational license, or a recreational
license, under State law, as specified in section 466(a)(16)
of the Social Security
Act;
(E)
of the reporting of
overdue support owed by a parent to any consumer reporting
agency as specified in section 466(a)(7) of the Social Security Act;
(F)
of the interception of
a tax refund, as specified in sections 464 and 466(a)(3) of
the Social Security Act
or under an analogous State law; or
(G)
of the enforcement of
a medical obligation, as specified under title IV of the
Social Security
Act;
(3)
under subsection (a) of
this section, of any act to perfect, or to maintain or continue
the perfection of, an interest in property to the extent that
the trustee's rights and powers are subject to such perfection
under section 546(b)
of this title or to the extent that such act is accomplished
within the period provided under section 547(e)(2)(A) of this title;
(4)
under paragraph (1), (2),
(3), or (6) of subsection (a) of this section, of the
commencement or continuation of an action or proceeding by a
governmental unit or any organization exercising authority under
the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature on January 13, 1993, to
enforce such governmental unit's or organization's police and
regulatory power, including the enforcement of a judgment other
than a money judgment, obtained in an action or proceeding by
the governmental unit to enforce such governmental unit's or
organization's police or regulatory power;
(5)
Repealed. Pub. L. 105-277, div.
I, title VI, Sec. 603(1), Oct. 21, 1998, 112 Stat.
2681-886;
(6)
under subsection (a) of
this section, of the exercise by a commodity broker, forward
contract merchant, stockbroker, financial institution, financial
participant, or securities clearing agency of any contractual
right (as defined in section 555 or 556) under any security agreement or arrangement
or other credit enhancement forming a part of or related to any
commodity contract, forward contract or securities contract, or
of any contractual right (as defined in section 555 or 556) to offset or net out
any termination value, payment amount, or other transfer
obligation arising under or in connection with 1 or more such
contracts, including any master agreement for such
contracts;
(7)
under subsection (a) of
this section, of the exercise by a repo participant or financial
participant of any contractual right (as defined in section
559) under any
security agreement or arrangement or other credit enhancement
forming a part of or related to any repurchase agreement, or of
any contractual right (as defined in section 559) to offset or net out any
termination value, payment amount, or other transfer obligation
arising under or in connection with 1 or more such agreements,
including any master agreement for such agreements;
(8)
under subsection (a) of
this section, of the commencement of any action by the Secretary
of Housing and Urban Development to foreclose a mortgage or deed
of trust in any case in which the mortgage or deed of trust held
by the Secretary is insured or was formerly insured under the
National Housing Act and
covers property, or combinations of property, consisting of five
or more living units;
(9)
under subsection (a),
of-
(A)
an audit by a
governmental unit to determine tax liability;
(B)
the issuance to the
debtor by a governmental unit of a notice of tax
deficiency;
(C)
a demand for tax
returns; or
(D)
the making of an
assessment for any tax and issuance of a notice and demand
for payment of such an assessment (but any tax lien that
would otherwise attach to property of the estate by reason
of such an assessment shall not take effect unless such tax
is a debt of the debtor that will not be discharged in the
case and such property or its proceeds are transferred out
of the estate to, or otherwise revested in, the
debtor).
(10)
under subsection (a) of
this section, of any act by a lessor to the debtor under a lease
of nonresidential real property that has terminated by the
expiration of the stated term of the lease before the
commencement of or during a case under this title to obtain
possession of such property;
(11)
under subsection (a) of
this section, of the presentment of a negotiable instrument and
the giving of notice of and protesting dishonor of such an
instrument;
(12)
under subsection (a) of
this section, after the date which is 90 days after the filing
of such petition, of the commencement or continuation, and
conclusion to the entry of final judgment, of an action which
involves a debtor subject to reorganization pursuant to chapter
11 of this title and which was brought by the Secretary of
Transportation under section 31325 of title 46 (including distribution of any
proceeds of sale) to foreclose a preferred ship or fleet
mortgage, or a security interest in or relating to a vessel or
vessel under construction, held by the Secretary of
Transportation under chapter 537 of title 46 or section 109(h) of title 49, or
under applicable State law;
(13)
under subsection (a) of
this section, after the date which is 90 days after the filing
of such petition, of the commencement or continuation, and
conclusion to the entry of final judgment, of an action which
involves a debtor subject to reorganization pursuant to chapter
11 of this title and which was brought by the Secretary of
Commerce under section 31325 of title 46 (including distribution of any
proceeds of sale) to foreclose a preferred ship or fleet
mortgage in a vessel or a mortgage, deed of trust, or other
security interest in a fishing facility held by the Secretary of
Commerce under chapter 537 of title 46;
(14)
under subsection (a) of
this section, of any action by an accrediting agency regarding
the accreditation status of the debtor as an educational
institution;
(15)
under subsection (a) of
this section, of any action by a State licensing body regarding
the licensure of the debtor as an educational
institution;
(16)
under subsection (a) of
this section, of any action by a guaranty agency, as defined in
section 435(j) of the Higher Education Act of
1965 or the Secretary of Education regarding the
eligibility of the debtor to participate in programs authorized
under such Act;
(17)
under subsection (a) of
this section, of the exercise by a swap participant or financial
participant of any contractual right (as defined in section
560) under any
security agreement or arrangement or other credit enhancement
forming a part of or related to any swap agreement, or of any
contractual right (as defined in section 560) to offset or net out any
termination value, payment amount, or other transfer obligation
arising under or in connection with 1 or more such agreements,
including any master agreement for such agreements;
(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;
(19)
under subsection (a), of
withholding of income from a debtor's wages and collection of
amounts withheld, under the debtor's agreement authorizing that
withholding and collection for the benefit of a pension,
profit-sharing, stock bonus, or other plan established under
section 401,
403, 408, 408A, 414, 457, or 501(c) of the Internal Revenue Code
of 1986, that is sponsored by the employer of the debtor, or an
affiliate, successor, or predecessor of such employer-
(A)
to the extent that the
amounts withheld and collected are used solely for payments
relating to a loan from a plan under section 408(b)(1) of
the Employee Retirement Income
Security Act of 1974 or is subject to section
72(p) of the
Internal Revenue Code of 1986; or
(B)
a loan from a thrift
savings plan permitted under subchapter III of chapter 84 of
title 5, that satisfies the requirements of section 8433(g) of such
title;
but nothing in this paragraph may be
construed to provide that any loan made under a governmental
plan under section 414(d), or a contract or account under section
403(b), of the
Internal Revenue Code of 1986 constitutes a claim or a debt
under this title;
(20)
under subsection (a), of
any act to enforce any lien against or security interest in real
property following entry of the order under subsection (d)(4) as
to such real property in any prior case under this title, for a
period of 2 years after the date of the entry of such an order,
except that the debtor, in a subsequent case under this title,
may move for relief from such order based upon changed
circumstances or for other good cause shown, after notice and a
hearing;
(21)
under subsection (a), of
any act to enforce any lien against or security interest in real
property-
(A)
if the debtor is
ineligible under section 109(g) to be a debtor in a case
under this title; or
(B)
if the case under this
title was filed in violation of a bankruptcy court order in
a prior case under this title prohibiting the debtor from
being a debtor in another case under this title;
(22)
subject to subsection (l),
under subsection (a)(3), of the continuation of any eviction,
unlawful detainer action, or similar proceeding by a lessor
against a debtor involving residential property in which the
debtor resides as a tenant under a lease or rental agreement and
with respect to which the lessor has obtained before the date of
the filing of the bankruptcy petition, a judgment for possession
of such property against the debtor;
(23)
subject to subsection (m),
under subsection (a)(3), of an eviction action that seeks
possession of the residential property in which the debtor
resides as a tenant under a lease or rental agreement based on
endangerment of such property or the illegal use of controlled
substances on such property, but only if the lessor files with
the court, and serves upon the debtor, a certification under
penalty of perjury that such an eviction action has been filed,
or that the debtor, during the 30-day period preceding the date
of the filing of the certification, has endangered property or
illegally used or allowed to be used a controlled substance on
the property;
(25)
under subsection (a),
of-
(A)
the commencement or
continuation of an investigation or action by a securities
self regulatory organization to enforce such organization's
regulatory power;
(B)
the enforcement of an
order or decision, other than for monetary sanctions,
obtained in an action by such securities self regulatory
organization to enforce such organization's regulatory
power; or
(C)
any act taken by such
securities self regulatory organization to delist, delete,
or refuse to permit quotation of any stock that does not
meet applicable regulatory requirements;
(26)
under subsection (a), of
the setoff under applicable nonbankruptcy law of an income tax
refund, by a governmental unit, with respect to a taxable period
that ended before the date of the order for relief against an
income tax liability for a taxable period that also ended before
the date of the order for relief, except that in any case in
which the setoff of an income tax refund is not permitted under
applicable nonbankruptcy law because of a pending action to
determine the amount or legality of a tax liability, the
governmental unit may hold the refund pending the resolution of
the action, unless the court, on the motion of the trustee and
after notice and a hearing, grants the taxing authority adequate
protection (within the meaning of section 361) for the secured claim of such
authority in the setoff under section 506(a);
(27)
under subsection (a) of
this section, of the exercise by a master netting agreement
participant of any contractual right (as defined in section
555, 556, 559, or 560) under any security agreement or
arrangement or other credit enhancement forming a part of or
related to any master netting agreement, or of any contractual
right (as defined in section 555, 556, 559, or 560) to offset or net out any termination value,
payment amount, or other transfer obligation arising under or in
connection with 1 or more such master netting agreements to the
extent that such participant is eligible to exercise such rights
under paragraph (6), (7), or (17) for each individual contract
covered by the master netting agreement in issue;
(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);
and
(29)
under subsection (a)(1) of this section, of any action
by-
(A)
an amateur sports organization, as defined in section
220501(b) of title 36, to replace a national governing body,
as defined in that section, under section 220528 of that
title; or
(B)
the corporation, as defined in section 220501(b) of title
36, to revoke the certification of a national governing
body, as defined in that section, under section 220521 of
that title.
The provisions of paragraphs (12) and (13) of
this subsection shall apply with respect to any such petition filed
on or before December 31, 1989.
(c)
Except as provided in
subsections (d), (e), (f), and (h) of this section-
(1)
the stay of an act against
property of the estate under subsection (a) of this section
continues until such property is no longer property of the
estate;
(2)
the stay of any other act
under subsection (a) of this section continues until the
earliest of-
(A)
the time the case is
closed;
(B)
the time the case is
dismissed; or
(C)
if the case is a case
under chapter 7 of this title concerning an individual or a
case under chapter 9, 11, 12, or 13 of this title, the time
a discharge is granted or denied;
(3)
if a single or joint case
is filed by or against a debtor who is an individual in a case
under chapter 7, 11, or 13, and if a single or joint case of the
debtor was pending within the preceding 1-year period but was
dismissed, other than a case refiled under a chapter other than
chapter 7 after dismissal under section 707(b)-
(A)
the stay under
subsection (a) with respect to any action taken with respect
to a debt or property securing such debt or with respect to
any lease shall terminate with respect to the debtor on the
30th day after the filing of the later case;
(B)
on the motion of a
party in interest for continuation of the automatic stay and
upon notice and a hearing, the court may extend the stay in
particular cases as to any or all creditors (subject to such
conditions or limitations as the court may then impose)
after notice and a hearing completed before the expiration
of the 30-day period only if the party in interest
demonstrates that the filing of the later case is in good
faith as to the creditors to be stayed; and
(C)
for purposes of
subparagraph (B), a case is presumptively filed not in good
faith (but such presumption may be rebutted by clear and
convincing evidence to the contrary)-
(i)
as to all
creditors, if-
(I)
more than 1
previous case under any of chapters 7, 11, and 13 in
which the individual was a debtor was pending within
the preceding 1-year period;
(II)
a previous
case under any of chapters 7, 11, and 13 in which
the individual was a debtor was dismissed within
such 1-year period, after the debtor failed
to-
(aa)
file or
amend the petition or other documents as required
by this title or the court without substantial
excuse (but mere inadvertence or negligence shall
not be a substantial excuse unless the dismissal
was caused by the negligence of the debtor's
attorney);
(bb)
provide
adequate protection as ordered by the court;
or
(cc)
perform
the terms of a plan confirmed by the court;
or
(III)
there has not
been a substantial change in the financial or
personal affairs of the debtor since the dismissal
of the next most previous case under chapter 7, 11,
or 13 or any other reason to conclude that the later
case will be concluded-
(aa)
if a case
under chapter 7, with a discharge; or
(bb)
if a case
under chapter 11 or 13, with a confirmed plan that
will be fully performed; and
(ii)
as to any creditor
that commenced an action under subsection (d) in a
previous case in which the individual was a debtor if,
as of the date of dismissal of such case, that action
was still pending or had been resolved by terminating,
conditioning, or limiting the stay as to actions of such
creditor; and
(4)
(A)
(i)
if a single or
joint case is filed by or against a debtor who is an
individual under this title, and if 2 or more single or
joint cases of the debtor were pending within the
previous year but were dismissed, other than a case
refiled under a chapter other than chapter 7 after
dismissal under section 707(b), the stay under
subsection (a) shall not go into effect upon the filing
of the later case; and
(ii)
on request of a
party in interest, the court shall promptly enter an
order confirming that no stay is in effect;
(B)
if, within 30 days
after the filing of the later case, a party in interest
requests the court may order the stay to take effect in the
case as to any or all creditors (subject to such conditions
or limitations as the court may impose), after notice and a
hearing, only if the party in interest demonstrates that the
filing of the later case is in good faith as to the
creditors to be stayed;
(C)
a stay imposed under
subparagraph (B) shall be effective on the date of the entry
of the order allowing the stay to go into effect; and
(D)
for purposes of
subparagraph (B), a case is presumptively filed not in good
faith (but such presumption may be rebutted by clear and
convincing evidence to the contrary)-
(i)
as to all
creditors if-
(I)
2 or more
previous cases under this title in which the
individual was a debtor were pending within the
1-year period;
(II)
a previous
case under this title in which the individual was a
debtor was dismissed within the time period stated
in this paragraph after the debtor failed to file or
amend the petition or other documents as required by
this title or the court without substantial excuse
(but mere inadvertence or negligence shall not be
substantial excuse unless the dismissal was caused
by the negligence of the debtor's attorney), failed
to provide adequate protection as ordered by the
court, or failed to perform the terms of a plan
confirmed by the court; or
(III)
there has not
been a substantial change in the financial or
personal affairs of the debtor since the dismissal
of the next most previous case under this title, or
any other reason to conclude that the later case
will not be concluded, if a case under chapter 7,
with a discharge, and if a case under chapter 11 or
13, with a confirmed plan that will be fully
performed; or
(ii)
as to any creditor
that commenced an action under subsection (d) in a
previous case in which the individual was a debtor if,
as of the date of dismissal of such case, such action
was still pending or had been resolved by terminating,
conditioning, or limiting the stay as to such action of
such creditor.
(d)
On request of a party in
interest and after notice and a hearing, the court shall grant
relief from the stay provided under subsection (a) of this section,
such as by terminating, annulling, modifying, or conditioning such
stay-
(1)
for cause, including the
lack of adequate protection of an interest in property of such
party in interest;
(2)
with respect to a stay of
an act against property under subsection (a) of this section,
if-
(A)
the debtor does not
have an equity in such property; and
(B)
such property is not
necessary to an effective reorganization;
(3)
with respect to a stay of
an act against single asset real estate under subsection (a), by
a creditor whose claim is secured by an interest in such real
estate, unless, not later than the date that is 90 days after
the entry of the order for relief (or such later date as the
court may determine for cause by order entered within that
90-day period) or 30 days after the court determines that the
debtor is subject to this paragraph, whichever is later-
(A)
the debtor has filed a
plan of reorganization that has a reasonable possibility of
being confirmed within a reasonable time; or
(B)
the debtor has
commenced monthly payments that-
(i)
may, in the
debtor's sole discretion, notwithstanding section
363(c)(2), be made from rents or other income
generated before, on, or after the date of the
commencement of the case by or from the property to each
creditor whose claim is secured by such real estate
(other than a claim secured by a judgment lien or by an
unmatured statutory lien); and
(ii)
are in an amount
equal to interest at the then applicable nondefault
contract rate of interest on the value of the creditor's
interest in the real estate; or
(4)
with respect to a stay of
an act against real property under subsection (a), by a creditor
whose claim is secured by an interest in such real property, if
the court finds that the filing of the petition was part of a
scheme to delay, hinder, or defraud creditors that involved
either-
(A)
transfer of all or
part ownership of, or other interest in, such real property
without the consent of the secured creditor or court
approval; or
(B)
multiple bankruptcy
filings affecting such real property.
If recorded in compliance with applicable
State laws governing notices of interests or liens in real property,
an order entered under paragraph (4) shall be binding in any other
case under this title purporting to affect such real property filed
not later than 2 years after the date of the entry of such order by
the court, except that a debtor in a subsequent case under this
title may move for relief from such order based upon changed
circumstances or for good cause shown, after notice and a hearing.
Any Federal, State, or local governmental unit that accepts notices
of interests or liens in real property shall accept any certified
copy of an order described in this subsection for indexing and
recording.
(e)
(1)
Thirty days after a
request under subsection (d) of this section for relief from the
stay of any act against property of the estate under subsection
(a) of this section, such stay is terminated with respect to the
party in interest making such request, unless the court, after
notice and a hearing, orders such stay continued in effect
pending the conclusion of, or as a result of, a final hearing
and determination under subsection (d) of this section. A
hearing under this subsection may be a preliminary hearing, or
may be consolidated with the final hearing under subsection (d)
of this section. The court shall order such stay continued in
effect pending the conclusion of the final hearing under
subsection (d) of this section if there is a reasonable
likelihood that the party opposing relief from such stay will
prevail at the conclusion of such final hearing. If the hearing
under this subsection is a preliminary hearing, then such final
hearing shall be concluded not later than thirty days after the
conclusion of such preliminary hearing, unless the 30-day period
is extended with the consent of the parties in interest or for a
specific time which the court finds is required by compelling
circumstances.
(2)
Notwithstanding paragraph
(1), in a case under chapter 7, 11, or 13 in which the debtor is
an individual, the stay under subsection (a) shall terminate on
the date that is 60 days after a request is made by a party in
interest under subsection (d), unless-
(A)
a final decision is
rendered by the court during the 60-day period beginning on
the date of the request; or
(f)
Upon request of a party in
interest, the court, with or without a hearing, shall grant such
relief from the stay provided under subsection (a) of this section
as is necessary to prevent irreparable damage to the interest of an
entity in property, if such interest will suffer such damage before
there is an opportunity for notice and a hearing under subsection
(d) or (e) of this section.
(g)
In any hearing under
subsection (d) or (e) of this section concerning relief from the
stay of any act under subsection (a) of this section-
(1)
the party requesting such
relief has the burden of proof on the issue of the debtor's
equity in property; and
(2)
the party opposing such
relief has the burden of proof on all other issues.
(h)
(1)
In a case in which the
debtor is an individual, the stay provided by subsection (a) is
terminated with respect to personal property of the estate or of
the debtor securing in whole or in part a claim, or subject to
an unexpired lease, and such personal property shall no longer
be property of the estate if the debtor fails within the
applicable time set by section 521(a)(2)-
(A)
to file timely any
statement of intention required under section 521(a)(2) with
respect to such personal property or to indicate in such
statement that the debtor will either surrender such
personal property or retain it and, if retaining such
personal property, either redeem such personal property
pursuant to section 722, enter into an agreement of the kind
specified in section 524(c) applicable to the debt secured by such
personal property, or assume such unexpired lease pursuant
to section 365(p) if the trustee does not do so, as
applicable; and
(B)
to take timely the
action specified in such statement, as it may be amended
before expiration of the period for taking action, unless
such statement specifies the debtor's intention to reaffirm
such debt on the original contract terms and the creditor
refuses to agree to the reaffirmation on such terms.
(2)
Paragraph (1) does not
apply if the court determines, on the motion of the trustee
filed before the expiration of the applicable time set by
section 521(a)(2),
after notice and a hearing, that such personal property is of
consequential value or benefit to the estate, and orders
appropriate adequate protection of the creditor's interest, and
orders the debtor to deliver any collateral in the debtor's
possession to the trustee. If the court does not so determine,
the stay provided by subsection (a) shall terminate upon the
conclusion of the hearing on the motion.
(i)
If a case commenced under
chapter 7, 11, or 13 is dismissed due to the creation of a debt
repayment plan, for purposes of subsection (c)(3), any subsequent
case commenced by the debtor under any such chapter shall not be
presumed to be filed not in good faith.
(j)
On request of a party in
interest, the court shall issue an order under subsection (c)
confirming that the automatic stay has been terminated.
(k)
(1)
Except as provided in
paragraph (2), an individual injured by any willful violation of
a stay provided by this section shall recover actual damages,
including costs and attorneys' fees, and, in appropriate
circumstances, may recover punitive damages.
(2)
If such violation is based
on an action taken by an entity in the good faith belief that
subsection (h) applies to the debtor, the recovery under
paragraph (1) of this subsection against such entity shall be
limited to actual damages.
(l)
(1)
Except as otherwise
provided in this subsection, subsection (b)(22) shall apply on
the date that is 30 days after the date on which the bankruptcy
petition is filed, if the debtor files with the petition and
serves upon the lessor a certification under penalty of perjury
that-
(A)
under nonbankruptcy
law applicable in the jurisdiction, there are circumstances
under which the debtor would be permitted to cure the entire
monetary default that gave rise to the judgment for
possession, after that judgment for possession was entered;
and
(B)
the debtor (or an
adult dependent of the debtor) has deposited with the clerk
of the court, any rent that would become due during the
30-day period after the filing of the bankruptcy
petition.
(2)
If, within the 30-day
period after the filing of the bankruptcy petition, the debtor
(or an adult dependent of the debtor) complies with paragraph
(1) and files with the court and serves upon the lessor a
further certification under penalty of perjury that the debtor
(or an adult dependent of the debtor) has cured, under
nonbankruptcy law applicable in the jurisdiction, the entire
monetary default that gave rise to the judgment under which
possession is sought by the lessor, subsection (b)(22) shall not
apply, unless ordered to apply by the court under paragraph
(3).
(3)
(A)
If the lessor files an
objection to any certification filed by the debtor under
paragraph (1) or (2), and serves such objection upon the
debtor, the court shall hold a hearing within 10 days after
the filing and service of such objection to determine if the
certification filed by the debtor under paragraph (1) or (2)
is true.
(B)
If the court upholds
the objection of the lessor filed under subparagraph
(A)-
(i)
subsection (b)(22)
shall apply immediately and relief from the stay
provided under subsection (a)(3) shall not be required
to enable the lessor to complete the process to recover
full possession of the property; and
(ii)
the clerk of the
court shall immediately serve upon the lessor and the
debtor a certified copy of the court's order upholding
the lessor's objection.
(4)
If a debtor, in accordance
with paragraph (5), indicates on the petition that there was a
judgment for possession of the residential rental property in
which the debtor resides and does not file a certification under
paragraph (1) or (2)-
(A)
subsection (b)(22)
shall apply immediately upon failure to file such
certification, and relief from the stay provided under
subsection (a)(3) shall not be required to enable the lessor
to complete the process to recover full possession of the
property; and
(B)
the clerk of the court
shall immediately serve upon the lessor and the debtor a
certified copy of the docket indicating the absence of a
filed certification and the applicability of the exception
to the stay under subsection (b)(22).
(5)
(A)
Where a judgment for
possession of residential property in which the debtor
resides as a tenant under a lease or rental agreement has
been obtained by the lessor, the debtor shall so indicate on
the bankruptcy petition and shall provide the name and
address of the lessor that obtained that pre-petition
judgment on the petition and on any certification filed
under this subsection.
(B)
The form of
certification filed with the petition, as specified in this
subsection, shall provide for the debtor to certify, and the
debtor shall certify-
(i)
whether a judgment
for possession of residential rental housing in which
the debtor resides has been obtained against the debtor
before the date of the filing of the petition;
and
(ii)
whether the debtor
is claiming under paragraph (1) that under nonbankruptcy
law applicable in the jurisdiction, there are
circumstances under which the debtor would be permitted
to cure the entire monetary default that gave rise to
the judgment for possession, after that judgment of
possession was entered, and has made the appropriate
deposit with the court.
(C)
The standard forms
(electronic and otherwise) used in a bankruptcy proceeding
shall be amended to reflect the requirements of this
subsection.
(D)
The clerk of the court
shall arrange for the prompt transmittal of the rent
deposited in accordance with paragraph (1)(B) to the
lessor.
(m)
(1)
Except as otherwise
provided in this subsection, subsection (b)(23) shall apply on
the date that is 15 days after the date on which the lessor
files and serves a certification described in subsection
(b)(23).
(2)
(A)
If the debtor files
with the court an objection to the truth or legal
sufficiency of the certification described in subsection
(b)(23) and serves such objection upon the lessor,
subsection (b)(23) shall not apply, unless ordered to apply
by the court under this subsection.
(B)
If the debtor files
and serves the objection under subparagraph (A), the court
shall hold a hearing within 10 days after the filing and
service of such objection to determine if the situation
giving rise to the lessor's certification under paragraph
(1) existed or has been remedied.
(C)
If the debtor can
demonstrate to the satisfaction of the court that the
situation giving rise to the lessor's certification under
paragraph (1) did not exist or has been remedied, the stay
provided under subsection (a)(3) shall remain in effect
until the termination of the stay under this section.
(D)
If the debtor cannot
demonstrate to the satisfaction of the court that the
situation giving rise to the lessor's certification under
paragraph (1) did not exist or has been remedied-
(i)
relief from the
stay provided under subsection (a)(3) shall not be
required to enable the lessor to proceed with the
eviction; and
(ii)
the clerk of the
court shall immediately serve upon the lessor and the
debtor a certified copy of the court's order upholding
the lessor's certification.
(3)
If the debtor fails to
file, within 15 days, an objection under paragraph
(2)(A)-
(A)
subsection (b)(23)
shall apply immediately upon such failure and relief from
the stay provided under subsection (a)(3) shall not be
required to enable the lessor to complete the process to
recover full possession of the property; and
(B)
the clerk of the court
shall immediately serve upon the lessor and the debtor a
certified copy of the docket indicating such failure.
(n)
(1)
Except as provided in
paragraph (2), subsection (a) does not apply in a case in which
the debtor-
(A)
is a debtor in a small
business case pending at the time the petition is
filed;
(B)
was a debtor in a
small business case that was dismissed for any reason by an
order that became final in the 2-year period ending on the
date of the order for relief entered with respect to the
petition;
(C)
was a debtor in a
small business case in which a plan was confirmed in the
2-year period ending on the date of the order for relief
entered with respect to the petition; or
(D)
is an entity that has
acquired substantially all of the assets or business of a
small business debtor described in subparagraph (A), (B), or
(C), unless such entity establishes by a preponderance of
the evidence that such entity acquired substantially all of
the assets or business of such small business debtor in good
faith and not for the purpose of evading this
paragraph.
(2)
Paragraph (1) does not
apply-
(A)
to an involuntary case
involving no collusion by the debtor with creditors;
or
(B)
to the filing of a
petition if-
(i)
the debtor proves
by a preponderance of the evidence that the filing of
the petition resulted from circumstances beyond the
control of the debtor not foreseeable at the time the
case then pending was filed; and
(ii)
it is more likely
than not that the court will confirm a feasible plan,
but not a liquidating plan, within a reasonable period
of time.
(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.
Pub. L.
95-598, Nov. 6, 1978, 92 Stat.
2570; Pub. L.
97-222, Sec. 3, July 27, 1982, 96 Stat.
235; Pub. L.
98-353, title III, Sec. 304, 363(b), 392, 441, July
10, 1984, 98
Stat. 352, 363, 365, 371; Pub. L.
99-509, title V, Sec. 5001(a), Oct. 21, 1986,
100 Stat.
1911; Pub. L.
99-554, title II, Sec. 257(j), 283(d), Oct. 27,
1986, 100
Stat. 3115, 3116; Pub. L.
101-311, title I, Sec. 102, title II, Sec. 202,
June 25, 1990, 104 Stat. 267, 269; Pub. L.
101-508, title III, Sec. 3007(a)(1), Nov. 5, 1990,
104
Stat. 1388-28; Pub. L.
103-394, title I, Sec. 101, 116, title II, Sec.
204(a), 218(b), title III, Sec. 304(b), title IV, Sec. 401,
title V, Sec. 501(b)(2), (d)(7), Oct. 22, 1994, 108 Stat.
4107, 4119, 4122, 4128,
4132, 4141, 4142, 4144; Pub. L.
105-277, div. I, title VI, Sec. 603, Oct. 21, 1998,
112
Stat. 2681-886; Pub. L.
109-8, title I, Sec. 106(f), title II, Secs. 214,
224(b), title III, Secs. 302, 303, 305(1), 311, 320, title IV,
Secs. 401(b), 441, 444, title VII, Secs. 709, 718, title IX,
Sec. 907(d), (o)(1), (2), title XI, Sec. 1106, title XII, Sec.
1225, Apr. 20, 2005, 119 Stat.
41, 54, 64, 75, 77, 79, 84, 94, 104, 114, 117, 127, 131, 176, 181, 182, 192, 199; Pub. L.
109-304, Sec. 17(b)(1), Oct. 6, 2006, 120 Stat.
1706; Pub. L.
109-390, Sec. 5(a)(2), Dec. 12, 2006, 120 Stat.
2696; Pub. L.
111-327, Sec. 2(a)(12), Dec. 22, 2010, 124 Stat.
3558. Pub. L.
116-189, Sec. 9, Oct. 30, 2020, 134 Stat.
970.
HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS
Section 362(a)(1) of the House amendment adopts
the provision contained in the Senate amendment enjoining the
commencement or continuation of a judicial, administrative, or
other proceeding to recover a claim against the debtor that
arose before the commencement of the case. The provision is
beneficial and interacts with section 362(a)(6), which also
covers assessment, to prevent harassment of the debtor with
respect to pre-petition claims.
Section 362(a)(7) contains a provision
contained in H.R. 8200 as passed by the House. The differing
provision in the Senate amendment was rejected. It is not
possible that a debt owing to the debtor may be offset against
an interest in the debtor.
Section 362(a)(8) is new. The provision stays
the commencement or continuation of any proceeding concerning
the debtor before the U.S. Tax Court.
Section 362(b)(4) indicates that the stay under
section 362(a)(1) does not apply to affect the commencement or
continuation of an action or proceeding by a governmental unit
to enforce the governmental unit's police or regulatory power.
This section is intended to be given a narrow construction in
order to permit governmental units to pursue actions to protect
the public health and safety and not to apply to actions by a
governmental unit to protect a pecuniary interest in property of
the debtor or property of the estate.
Section 362(b)(6) of the House amendment adopts
a provision contained in the Senate amendment restricting the
exception to the automatic stay with respect to setoffs to
permit only the setoff of mutual debts and claims.
Traditionally, the right of setoff has been limited to mutual
debts and claims and the lack of the clarifying term "mutual" in H.R. 8200 as
passed by the House created an unintentional ambiguity. Section
362(b)(7) of the House amendment permits the issuance of a
notice of tax deficiency. The House amendment rejects section
362(b)(7) in the Senate amendment. It would have permitted a
particular governmental unit to obtain a pecuniary advantage
without a hearing on the merits contrary to the exceptions
contained in sections 362(b)(4) and (5).
Section 362(d) of the House amendment
represents a compromise between comparable provisions in the
House bill and Senate amendment. Under section 362(d)(1) of the
House amendment, the court may terminate, annul, modify, or
condition the automatic stay for cause, including lack of
adequate protection of an interest in property of a secured
party. It is anticipated that the Rules of Bankruptcy Procedure
will provide that those hearings will receive priority on the
calendar. Under section 362(d)(2) the court may alternatively
terminate, annul, modify, or condition the automatic stay for
cause including inadequate protection for the creditor. The
court shall grant relief from the stay if there is no equity and
it is not necessary to an effective reorganization of the
debtor.
The latter requirement is contained in section
362(d)(2). This section is intended to solve the problem of real
property mortgage foreclosures of property where the bankruptcy
petition is filed on the eve of foreclosure. The section is not
intended to apply if the business of the debtor is managing or
leasing real property, such as a hotel operation, even though
the debtor has no equity if the property is necessary to an
effective reorganization of the debtor. Similarly, if the debtor
does have an equity in the property, there is no requirement
that the property be sold under section 363 of title 11 as would
have been required by the Senate amendment.
Section 362(e) of the House amendment
represents a modification of provisions in H.R. 8200 as passed
by the House and the Senate amendment to make clear that a final
hearing must be commenced within 30 days after a preliminary
hearing is held to determine whether a creditor will be entitled
to relief from the automatic stay. In order to insure that those
hearings will in fact occur within such 30-day period, it is
anticipated that the rules of bankruptcy procedure provide that
such final hearings receive priority on the court
calendar.
Section 362(g) places the burden of proof on
the issue of the debtor's equity in collateral on the party
requesting relief from the automatic stay and the burden on
other issues on the debtor.
An amendment has been made to section 362(b) to
permit the Secretary of the Department of Housing and Urban
Development to commence an action to foreclose a mortgage or
deed of trust. The commencement of such an action is necessary
for tax purposes. The section is not intended to permit the
continuation of such an action after it is commenced nor is the
section to be construed to entitle the Secretary to take
possession in lieu of foreclosure.
Automatic stay: Sections 362(b)(8) and (9)
contained in the Senate amendment are largely deleted in the
House amendment. Those provisions add to the list of actions not
stayed (a) jeopardy assessments, (b) other assessments, and (c)
the issuance of deficiency notices. In the House amendment,
jeopardy assessments against property which ceases to be
property of the estate is already authorized by section
362(c)(1). Other assessments are specifically stayed under
section 362(a)(6), while the issuance of a deficiency notice is
specifically permitted. Stay of the assessment and the
permission to issue a statutory notice of a tax deficiency will
permit the debtor to take his personal tax case to the Tax
Court, if the bankruptcy judge authorizes him to do so (as
explained more fully in the discussion of section 505).
SENATE REPORT NO. 95-989
The automatic stay is one of the fundamental
debtor protections provided by the bankruptcy laws. It gives the
debtor a breathing spell from his creditors. It stops all
collection efforts, all harassment, and all foreclosure actions.
It permits the debtor to attempt a repayment or reorganization
plan, or simply to be relieved of the financial pressures that
drove him into bankruptcy.
The action commenced by the party seeking
relief from the stay is referred to as a motion to make it clear
that at the expedited hearing under subsection (e), and at
hearings on relief from the stay, the only issue will be the
lack of adequate protection, the debtor's equity in the
property, and the necessity of the property to an effective
reorganization of the debtor, or the existence of other cause
for relief from the stay. This hearing will not be the
appropriate time at which to bring in other issues, such as
counterclaims against the creditor, which, although relevant to
the question of the amount of the debt, concern largely
collateral or unrelated matters. This approach is consistent
with that taken in cases such as In re Essex Properties, Ltd.,
430 F.Supp. 1112 (N.D.Cal.1977), that an action seeking relief
from the stay is not the assertion of a claim which would give
rise to the right or obligation to assert counterclaims. Those
counterclaims are not to be handled in the summary fashion that
the preliminary hearing under this provision will be. Rather,
they will be the subject of more complete proceedings by the
trustee to recover property of the estate or to object to the
allowance of a claim. However, this would not preclude the party
seeking continuance of the stay from presenting evidence on the
existence of claims which the court may consider in exercising
its discretion. What is precluded is a determination of such
collateral claims on the merits at the hearing.
HOUSE REPORT NO. 95-595
Paragraph (7) [of subsec.
(a)] stays setoffs of mutual debts and
credits between the debtor and creditors. As with all other
paragraphs of subsection (a), this paragraph does not affect the
right of creditors. It simply stays its enforcement pending an
orderly examination of the debtor's and creditors'
rights.
Subsection (c) governs automatic termination of
the stay. Subsections (d) through (g) govern termination of the
stay by the court on the request of a party in interest.
Subsection (d) requires the court, on request of a party in
interest, to grant relief from the stay, such as by terminating,
annulling, modifying, or conditioning the stay, for cause. The
lack of adequate protection of an interest in property of the
party requesting relief from the stay is one cause for relief,
but is not the only cause. As noted above, a desire to permit an
action to proceed to completion in another tribunal may provide
another cause. Other causes might include the lack of any
connection with or interference with the pending bankruptcy
case. For example, a divorce or child custody proceeding
involving the debtor may bear no relation to the bankruptcy
case. In that case, it should not be stayed. A probate
proceeding in which the debtor is the executor or administrator
of another's estate usually will not be related to the
bankruptcy case, and should not be stayed. Generally,
proceedings in which the debtor is a fiduciary, or involving
postpetition activities of the debtor, need not be stayed
because they bear no relationship to the purpose of the
automatic stay, which is debtor protection from his creditors.
The facts of each request will determine whether relief is
appropriate under the circumstances.
Subsection (e) provides a protection for
secured creditors that is not available under present law. The
subsection sets a time certain within which the bankruptcy court
must rule on the adequacy of protection provided of the secured
creditor's interest. If the court does not rule within 30 days
from a request for relief from the stay, the stay is
automatically terminated with respect to the property in
question. In order to accommodate more complex cases, the
subsection permits the court to make a preliminary ruling after
a preliminary hearing. After a preliminary hearing, the court
may continue the stay only if there is a reasonable likelihood
that the party opposing relief from the stay will prevail at the
final hearing. Because the stay is essentially an injunction,
the three stages of the stay may be analogized to the three
stages of an injunction. The filing of the petition which gives
rise to the automatic stay is similar to a temporary restraining
order. The preliminary hearing is similar to the hearing on a
preliminary injunction, and the final hearing and order is
similar to a permanent injunction. The main difference lies in
which party must bring the issue before the court. While in the
injunction setting, the party seeking the injunction must
prosecute the action, in proceedings for relief from the
automatic stay, the enjoined party must move. The difference
does not, however, shift the burden of proof. Subsection (g)
leaves that burden on the party opposing relief from the stay
(that is, on the party seeking continuance of the injunction) on
the issue of adequate protection.
At the expedited hearing under subsection (e),
and at all hearings on relief from the stay, the only issue will
be the claim of the creditor and the lack of adequate protection
or existence of other cause for relief from the stay. This
hearing will not be the appropriate time at which to bring in
other issues, such as counterclaims against the creditor on
largely unrelated matters. Those counterclaims are not to be
handled in the summary fashion that the preliminary hearing
under this provision will be. Rather, they will be the subject
of more complete proceedings by the trustees to recover property
of the estate or to object to the allowance of a claim.
REFERENCES IN TEXT
Section 5(a)(3) of the Securities
Investor Protection Act of 1970, referred to in
subsecs. (a) and (b), is classified to section 78eee(a)(3) of Title
15, Commerce and Trade.
The Social Security
Act, referred to in subsec. (b)(2)(D) to (G),
(28), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended.
Titles IV, XI, and XVIII of the Act are classified generally to
subchapters IV (Sec. 601 et seq.), XI (Sec. 1301 et seq.), and XVIII (Sec.
1395 et seq.),
respectively, of chapter 7 of Title 42, The Public Health and
Welfare. Sections 464, 466, and 1128B of the Act are classified
to sections 664,
666, and
1320a-7b,
respectively, of Title 42. For complete classification of this
Act to the Code, see section 1305 of Title 42 and Tables.
The National Housing
Act, referred in subsec. (b)(8), is act June 27,
1934, ch. 847, 48 Stat. 1246, as amended, which is classified
principally to chapter 13 (Sec. 1701 et seq.) of Title 12, Banks
and Banking. For complete classification of this Act to the
Code, see section 1701 of Title 12 and Tables.
The Higher Education Act of
1965, referred to in subsec. (b)(16), is Pub. L. 89-329, Nov. 8,
1965, 79 Stat.
1219, as amended, which is classified
principally to chapter 28 (Sec. 1001 et seq.) of Title 20,
Education. Section 435(j) of the Act is classified to section
1085(j) of
Title 20. For complete classification of this Act to the Code,
see Short Title note set out under section 1001 of Title 20 and Tables.
The Internal Revenue Code of 1986, referred to
in subsec. (b)(19), is classified generally to Title 26,
Internal Revenue Code.
Section 408(b)(1) of the Employee Retirement Income Security Act of
1974, referred to in subsec. (b)(19)(A), is
classified to section 1108(b)(1) of Title 29, Labor.
AMENDMENTS
2020-Pub. L. 116-189Sec. 9(1), amended Par.
(b)(27) by removing "and" at the end.
Pub. L. 116-189Sec. 9(2), amended Par.
(b)(28) by replacing "." with "; and" at the end.
Pub. L. 116-189Sec. 9(3), amended
Subsec. (b) by inserting Par. (29)
2010-Subsec. (a)(8). Pub. L. 111-327, Sec.
2(a)(12)(A), substituted "tax liability of
a debtor that is a corporation" for "corporate debtor's tax
liability".
Subsec. (c)(3). Pub. L. 111-327, Sec.
2(a)(12)(B)(i), inserted "a" after
"against" in introductory
provisions.
Subsec. (c)(4)(A)(i). Pub. L. 111-327, Sec.
2(a)(12)(B)(ii), inserted "under a chapter
other than chapter 7 after dismissal" after "refiled".
Subsec. (d)(4). Pub. L. 111-327, Sec.
2(a)(12)(C), substituted "hinder,
or" for "hinder,
and" in introductory provisions.
Subsec. (l)(2). Pub. L. 111-327, Sec.
2(a)(12)(D), substituted "nonbankruptcy" for "nonbankrupcty".
2006-Subsec. (b)(6), (7). Pub. L. 109-390, Sec.
5(a)(2)(A), added pars. (6) and (7) and struck out former pars.
(6) and (7) which read as follows:
"(6)
under subsection
(a) of this section, of the setoff by a commodity
broker, forward contract merchant, stockbroker,
financial institution, financial participant, or
securities clearing agency of any mutual debt and claim
under or in connection with commodity contracts, as
defined in section 761 of this title, forward contracts,
or securities contracts, as defined in section 741 of
this title, that constitutes the setoff of a claim
against the debtor for a margin payment, as defined in
section 101, 741, or 761 of this title, or settlement
payment, as defined in section 101 or 741 of this title,
arising out of commodity contracts, forward contracts,
or securities contracts against cash, securities, or
other property held by, pledged to, under the control
of, or due from such commodity broker, forward contract
merchant, stockbroker, financial institution, financial
participant, or securities clearing agency to margin,
guarantee, secure, or settle commodity contracts,
forward contracts, or securities contracts;
"(7)
under subsection
(a) of this section, of the setoff by a repo participant
or financial participant, of any mutual debt and claim
under or in connection with repurchase agreements that
constitutes the setoff of a claim against the debtor for
a margin payment, as defined in section 741 or 761 of
this title, or settlement payment, as defined in section
741 of this title, arising out of repurchase agreements
against cash, securities, or other property held by,
pledged to, under the control of, or due from such repo
participant or financial participant to margin,
guarantee, secure or settle repurchase
agreements; "
Subsec. (b)(12). Pub. L. 109-304, Sec.
17(b)(1)(A), substituted "chapter 537 of
title 46 or section 109(h) of title 49" for "section 207 or title XI of the Merchant Marine Act,
1936".
Subsec. (b)(13). Pub. L. 109-304, Sec.
17(b)(1)(B), substituted "chapter 537 of
title 46" for "section 207 or
title XI of the Merchant Marine
Act, 1936".
Subsec. (b)(17). Pub. L. 109-390, Sec.
5(a)(2)(B), added par. (17) and struck out former par. (17)
which read as follows: "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;".
Subsec. (b)(27). Pub. L. 109-390, Sec.
5(a)(2)(C), added par. (27) and struck out former par. (27)
which read as follows: "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".
2005-Subsec. (a)(8). Pub. L. 109-8, Sec. 709,
substituted "a corporate
debtor's tax liability for a taxable period the bankruptcy
court may determine or concerning the tax liability of a
debtor who is an individual for a taxable period ending
before the date of the order for relief under this
title" for "the
debtor".
Subsec. (b)(2). Pub. L. 109-8, Sec. 214,
added par. (2) and struck out former par. (2) which read as
follows:
"under
subsection (a) of this section-
"(A)
of the
commencement or continuation of an action or
proceeding for-
"(i)
the
establishment of paternity; or
"(ii)
the
establishment or modification of an order for
alimony, maintenance, or support; or
"(B)
of the
collection of alimony, maintenance, or support from
property that is not property of the estate; "
Subsec. (b)(6). Pub. L. 109-8, Sec.
907(d)(1)(A), (o)(1), substituted "financial institution, financial
participant," for "financial
institutions," in two places and inserted ", pledged to, under the control
of," after "held
by".
Subsec. (b)(7). Pub. L. 109-8, Sec.
907(d)(1)(B), (o)(2), inserted "or financial
participant" after "repo
participant" in two places and ", pledged to, under the control
of," after "held
by".
Subsec. (b)(17). Pub. L. 109-8, Sec.
907(d)(1)(C), added par. (17) and struck out former par. (17)
which read as follows: "under subsection
(a) of this section, of the setoff by a swap participant, of
any mutual debt and claim under or in connection with any
swap agreement that constitutes the setoff of a claim
against the debtor for any payment due from the debtor under
or in connection with any swap agreement against any payment
due to the debtor from the swap participant under or in
connection with any swap agreement or against cash,
securities, or other property of the debtor held by or due
from such swap participant to guarantee, secure or settle
any swap agreement;".
Subsec. (b)(18). Pub. L. 109-8, Sec. 1225,
amended par. (18) generally. Prior to amendment, par. (18) read
as follows: "under subsection
(a) of the creation or perfection of a statutory lien for an
ad valorem property tax imposed by the District of Columbia,
or a political subdivision of a State, if such tax comes due
after the filing of the petition;".
Subsec. (b)(19). Pub. L. 109-8, Sec.
224(b), added par. (19).
Subsec. (b)(20), (21). Pub. L. 109-8, Sec.
303(b), added pars. (20) and (21).
Subsec. (b)(22) to (24). Pub. L. 109-8, Sec.
311(a), added pars. (22) to (24).
Subsec. (b)(25). Pub. L. 109-8, Sec.
401(b), added par. (25).
Subsec. (b)(26). Pub. L. 109-8, Sec. 718,
added par. (26).
Subsec. (b)(27). Pub. L. 109-8, Sec.
907(d)(1)(D), added par. (27).
Subsec. (b)(28). Pub. L. 109-8, Sec. 1106,
added par. (28).
Subsec. (c). Pub. L. 109-8, Sec.
305(1)(A), substituted "(e), (f), and
(h)" for "(e), and
(f)" in introductory provisions.
Subsec. (c)(3), (4). Pub. L. 109-8, Sec. 302,
added pars. (3) and (4).
Subsec. (d). Pub. L. 109-8, Sec.
303(a), added par. (4) and concluding provisions.
Subsec. (d)(3). Pub. L. 109-8, Sec.
444(1), inserted "or 30 days after
the court determines that the debtor is subject to this
paragraph, whichever is later" after "90-day period)" in introductory
provisions.
Subsec. (d)(3)(B). Pub. L. 109-8, Sec.
444(2), added subpar. (B) and struck out former subpar. (B)
which read as follows: "the debtor has
commenced monthly payments to each creditor whose claim is
secured by such real estate (other than a claim secured by a
judgment lien or by an unmatured statutory lien), which
payments are in an amount equal to interest at a current
fair market rate on the value of the creditor's interest in
the real estate; or".
Subsec. (e). Pub. L. 109-8, Sec. 320,
designated existing provisions as par. (1) and added par.
(2).
Subsec. (h). Pub. L. 109-8, Sec.
305(1)(C), added subsec. (h). Former subsec. (h) redesignated
(k).
Subsecs. (i), (j). Pub. L. 109-8, Sec.
106(f), added subsecs. (i) and (j).
Subsec. (k). Pub. L. 109-8, Sec.
441(1), designated existing provisions as par. (1), substituted
"Except as provided in paragraph (2),
an" for "An", and
added par. (2).
Pub. L. 109-8, Sec. 305(1)(B), redesignated
subsec. (h) as (k).
Subsecs. (l), (m). Pub. L. 109-8, Sec.
311(b), added subsecs. (l) and (m).
Subsec. (n). Pub. L. 109-8, Sec.
441(2), added subsec. (n).
Subsec. (o). Pub. L. 109-8, Sec.
907(d)(2), added subsec. (o).
1998-Subsec. (b)(4). Pub. L. 105-277, div.
I, Sec. 603(1), added par. (4) and struck out former par. (4)
which read as follows: "under subsection
(a)(1) of this section, of the commencement or continuation
of an action or proceeding by a governmental unit to enforce
such governmental unit's police or regulatory
power;".
Subsec. (b)(5). Pub. L. 105-277, div.
I, Sec. 603(1), struck out par. (5) which read as follows:
"under subsection (a)(2) of this section,
of the enforcement of a judgment, other than a money
judgment, obtained in an action or proceeding by a
governmental unit to enforce such governmental unit's police
or regulatory power;".
1994-Subsecs. (a), (b). Pub. L. 103-394, Sec.
501(d)(7)(A), (B)(i), struck out "(15 U.S.C. 78eee(a)(3))" after
"Act of 1970" in introductory
provisions.
Subsec. (b)(2). Pub. L. 103-394, Sec.
304(b), amended par. (2) generally. Prior to amendment, par. (2)
read as follows: "under subsection
(a) of this section, of the collection of alimony,
maintenance, or support from property that is not property
of the estate;".
Subsec. (b)(3). Pub. L. 103-394, Sec.
204(a), inserted ", or to maintain
or continue the perfection of," after "to perfect".
Subsec. (b)(6). Pub. L. 103-394, Sec.
501(b)(2)(A), substituted "section
761" for "section
761(4)", "section
741" for "section
741(7)", "section 101, 741,
or 761" for "section 101(34),
741(5), or 761(15)", and "section 101 or 741" for "section 101(35) or 741(8)".
Subsec. (b)(7). Pub. L. 103-394, Sec.
501(b)(2)(B), substituted "section 741 or
761" for "section 741(5) or
761(15)" and "section
741" for "section
741(8)".
Subsec. (b)(9). Pub. L. 103-394, Sec.
116, amended par. (9) generally. Prior to amendment, par. (9)
read as follows: "under subsection
(a) of this section, of the issuance to the debtor by a
governmental unit of a notice of tax
deficiency;".
Subsec. (b)(10). Pub. L. 103-394, Sec.
501(d)(7)(B)(ii), struck out "or" at
end.
Subsec. (b)(12). Pub. L. 103-394, Sec.
501(d)(7)(B)(iii), substituted "section 31325 of
title 46" for "the Ship Mortgage Act, 1920 (46 App.
U.S.C. 911 et seq.)" and struck out "(46 App. U.S.C. 1117 and 1271 et seq.,
respectively)" after "Act, 1936".
Subsec. (b)(13). Pub. L. 103-394, Sec.
501(d)(7)(B)(iv), substituted "section 31325 of
title 46" for "the Ship Mortgage Act, 1920 (46 App.
U.S.C. 911 et seq.)" and struck out "(46 App. U.S.C. 1117 and 1271 et seq.,
respectively)" after "Act, 1936" and "or" at end.
Subsec. (b)(14). Pub. L. 103-394, Sec.
501(d)(7)(B)(vii), amended par. (14) relating to the setoff by a
swap participant of any mutual debt and claim under or in
connection with a swap agreement by substituting "; or" for period at end,
redesignating par. (14) as (17), and inserting it after par.
(16).
Subsec. (b)(15). Pub. L. 103-394, Sec.
501(d)(7)(B)(v), struck out "or" at
end.
Subsec. (b)(16). Pub. L. 103-394, Sec.
501(d)(7)(B)(vi), struck out "(20 U.S.C. 1001
et seq.)" after "Act of
1965" and substituted semicolon for period at
end.
Subsec. (b)(17). Pub. L. 103-394, Sec.
501(d)(7)(B)(vii)(II), (III), redesignated par. (14) relating to
the setoff by a swap participant of any mutual debt and claim
under or in connection with a swap agreement as (17) and
inserted it after par. (16).
Subsec. (b)(18). Pub. L. 103-394, Sec.
401, added par. (18).
Subsec. (d)(3). Pub. L. 103-394, Sec.
218(b), added par. (3).
Subsec. (e). Pub. L. 103-394, Sec.
101, in last sentence substituted "concluded" for "commenced" and inserted before
period at end ", unless the
30-day period is extended with the consent of the parties in
interest or for a specific time which the court finds is
required by compelling circumstances".
1990-Subsec. (b)(6). Pub. L. 101-311, Sec.
202, inserted reference to sections 101(34) and 101(35) of this
title.
Subsec. (b)(12). Pub. L. 101-508, Sec.
3007(a)(1)(A), which directed the striking of "or" after "State law;", could not be
executed
because of a prior amendment by Pub. L. 101-311. See below.
Pub. L. 101-311, Sec. 102(1), struck
out "or" after "State law;".
Subsec. (b)(13). Pub. L. 101-508, Sec.
3007(a)(1)(B), which directed the substitution of a semicolon
for period at end, could not be executed because of a prior
amendment by Pub. L.
101-311. See below.
Pub. L. 101-311, Sec. 102(2),
substituted "; or" for
period at end.
Subsec. (b)(14) to (16). Pub. L. 101-508, Sec.
3007(a)(1)(C), added pars. (14) to (16). Notwithstanding
directory language adding pars. (14) to (16) immediately
following par. (13), pars. (14) to (16) were added after par.
(14), as added by Pub. L.
101-311, to reflect the probable intent of
Congress.
Pub. L. 101-311, Sec. 102(3), added
par. (14) relating to the setoff by a swap participant of any
mutual debt and claim under or in connection with a swap
agreement. Notwithstanding directory language adding par. (14)
at end of subsec. (b), par. (14) was added after par. (13) to
reflect the probable intent of Congress.
1986-Subsec. (b). Pub. L. 99-509 inserted
sentence at end.
Subsec. (b)(6). Pub. L. 99-554, Sec.
283(d)(1), substituted ", financial
institutions" for "financial
institution," in two places.
Subsec. (b)(9). Pub. L. 99-554, Sec.
283(d)(2), (3), struck out "or" at end
of first par. (9) and redesignated as par. (10) the second par.
(9) relating to leases of nonresidential property, which was
added by section 363(b) of Pub. L. 98-353.
Subsec. (b)(10). Pub. L. 99-554, Sec.
283(d)(3), (4), redesignated as par. (10) the second par. (9)
relating to leases of nonresidential property, added by section
363(b) of Pub. L.
99-353, and substituted "property; or" for "property.". Former par. (10)
redesignated (11).
Subsec. (b)(11). Pub. L. 99-554, Sec.
283(d)(3), redesignated former par. (10) as (11).
Subsec. (b)(12), (13). Pub. L. 99-509 added
pars. (12) and (13).
Subsec. (c)(2)(C). Pub. L. 99-554, Sec.
257(j), inserted reference to chapter 12 of this title.
1984-Subsec. (a)(1). Pub. L. 98-353, Sec.
441(a)(1), inserted "action or"
after "other".
Subsec. (a)(3). Pub. L. 98-353, Sec.
441(a)(2), inserted "or to exercise
control over property of the estate".
Subsec. (b)(3). Pub. L. 98-353, Sec.
441(b)(1), inserted "or to the extent
that such act is accomplished within the period provided
under section 547(e)(2)(A) of this title".
Subsec. (b)(6). Pub. L. 98-353, Sec.
441(b)(2), inserted "or due
from" after "held by"
and "financial institution," after
"stockbroker" in two places, and
substituted "secure, or settle
commodity contracts" for "or secure commodity
contracts".
Subsec. (b)(7) to (9). Pub. L. 98-353, Sec.
441(b)(3), (4), in par. (8) as redesignated by Pub. L. 98-353, Sec.
392, substituted "the" for
"said" and struck out "or" the last place it appeared
which probably meant "or" after
"units;" that was struck out by
Pub. L. 98-353,
Sec. 363(b)(1); and, in par. (9), relating to notices of
deficiencies, as redesignated by Pub. L. 98-353, Sec. 392, substituted
a semicolon for the period.
Pub. L. 98-353, Sec. 392, added par. (7) and
redesignated former pars. (7) and (8) as (8) and (9),
respectively.
Pub. L. 98-353, Sec. 363(b), struck out "or" at end of par. (7), substituted
"; or" for the period at end of par.
(8), and added par. (9) relating to leases of nonresidential
property.
Subsec. (b)(10). Pub. L. 98-353, Sec.
441(b)(5), added par. (10).
Subsec. (c)(2)(B). Pub. L. 98-353, Sec.
441(c), substituted "or" for
"and".
Subsec. (d)(2). Pub. L. 98-353, Sec.
441(d), inserted "under subsection
(a) of this section" after "property".
Subsec. (e). Pub. L. 98-353, Sec. 441(e), inserted
"the conclusion of" after "pending" and substituted "The court shall order such stay
continued
in effect pending the conclusion of the final hearing under
subsection (d) of this section if there is a reasonable
likelihood that the party opposing relief from such stay
will prevail at the conclusion of such final hearing. If the
hearing under this subsection is a preliminary hearing, then
such final hearing shall be commenced not later than thirty
days after the conclusion of such preliminary
hearing." for "If the hearing under this subsection
is a preliminary hearing -
"(1)
the court shall
order such stay so continued if there is a reasonable
likelihood that the party opposing relief from such stay
will prevail at the final hearing under subsection (d)
of this section; and
"(2)
such final hearing
shall be commenced within thirty days after such
preliminary hearing. "
Subsec. (f). Pub. L. 98-353, Sec. 441(f),
substituted "Upon request of a
party in interest, the court, with or" for "The court,".
Subsec. (h). Pub. L. 98-353, Sec. 304, added
subsec. (h).
1982-Subsec. (a). Pub. L. 97-222, Sec.
3(a), inserted ", or an
application filed under section 5(a)(3) of the Securities Investor Protection Act of
1970 (15 U.S.C. 78eee(a)(3))," after
"this title" in provisions preceding
par. (1).
Subsec. (b). Pub. L. 97-222, Sec. 3(b), inserted
", or of an application under section
5(a)(3) of the Securities Investor
Protection Act of 1970 (15 U.S.C.
78eee(a)(3))," after "this title" in provisions preceding
par. (1).
Subsec. (b)(6). Pub. L. 97-222, Sec.
3(c), substituted provisions that the filing of a bankruptcy
petition would not operate as a stay, under subsec. (a) of this
section, of the setoff by a commodity broker, forward contract
merchant, stockbroker, or securities clearing agency of any
mutual debt and claim under or in connection with commodity,
forward, or securities contracts that constitutes the setoff of
a claim against the debtor for a margin or settlement payment
arising out of commodity, forward, or securities contracts
against cash, securities, or other property held by any of the
above agents to margin, guarantee, or secure commodity, forward,
or securities contracts, for provisions that such filing would
not operate as a stay under subsection (a)(7) of this section,
of the setoff of any mutual debt and claim that are commodity
futures contracts, forward commodity contracts, leverage
transactions, options, warrants, rights to purchase or sell
commodity futures contracts or securities, or options to
purchase or sell commodities or securities.
EFFECTIVE DATE OF 2006 AMENDMENT
Amendments by Pub. L. 109-390 not applicable to any
cases commenced under this title or to appointments made under
any Federal or State law before Dec. 12, 2006, see section 7 of
Pub. L.
109-390, set out as a note under section 101 of this title.
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109-8 effective 180 days after Apr. 20,
2005, and not applicable with respect to cases commenced under
this title before such effective date, except as otherwise
provided, see section 1501 of Pub. L. 109-8, set out as a note under section
101 of this
title.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-394 effective Oct. 22,
1994, and not applicable with respect to cases commenced under
this title before Oct. 22, 1994, see section 702 of Pub. L. 103-394, set
out as a note under section 101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Pub. L.
101-508, title III, Sec. 3007(a)(3), Nov. 5, 1990,
104
Stat. 1388-28, provided that: "The amendments made by this subsection
[amending this section and section
541 of
this title] shall be effective upon date
of enactment of this Act [Nov. 5,
1990]."
Pub. L.
101-508, title III, Sec. 3008, Nov. 5, 1990,
104
Stat. 1388-29, provided that the amendments made
by subtitle A (Secs. 3001-3008) of title III of Pub. L. 101-508,
amending this section, sections 541 and 1328 of this title, and sections
1078, 1078-1, 1078-7, 1085, 1088, and 1091 of Title 20,
Education, and provisions set out as a note under section
1078-1 of
Title 20, were to cease to be effective Oct. 1, 1996, prior to
repeal by Pub. L.
102-325, title XV, Sec. 1558, July 23, 1992,
106 Stat.
841.
EFFECTIVE DATE OF 1986 AMENDMENTS
Amendment by section 257 of Pub. L. 99-554 effective
30 days after Oct. 27, 1986, but not applicable to cases
commenced under this title before that date, see section 302(a),
(c)(1) of Pub. L.
99-554, set out as a note under section 581 of Title 28,
Judiciary and Judicial Procedure.
Amendment by section 283 of Pub. L. 99-554 effective
30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99-554.
Pub. L.
99-509, title V, Sec. 5001(b), Oct. 21, 1986,
100 Stat.
1912, provided that: "The amendments made by subsection (a) of
this section [amending this
section] shall apply only to petitions
filed under section 362 of title 11, United States Code,
which are made after August 1, 1986."
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-353 effective with respect to cases
filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98-353, set out
as a note under section 101 of this title.
REPORT TO CONGRESSIONAL COMMITTEES
Pub. L.
99-509, title V, Sec. 5001(a), Oct. 21, 1986,
100 Stat.
1911, directed Secretary of Transportation and
Secretary of Commerce, before July 1, 1989, to submit reports to
Congress on the effects of amendments to 11 U.S.C. 362 by this
subsection.