Notes on 11 U.S.C. § 362 : US Code - Notes

Search Notes on 11 U.S.C. § 362 : US Code - Notes

(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, Secs.
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, Secs. 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, Secs. 101, 116, title II, Secs. 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.)
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
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), (5). Pub. L. 105-277 added par. (4) and
struck out former pars. (4) and (5) which read as follows:
"(4) 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;
"(5) 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
Amendment 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
Section 3007(a)(3) of Pub. L. 101-508 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]."
Section 3008 of Pub. L. 101-508, 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.
Section 5001(b) of Pub. L. 99-509 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
Section 5001(a) of Pub. L. 99-509 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.
(!1) So in original. Probably should be "nonbankruptcy".