11 U.S.C. § 363 : US Code - Section 363: Use, sale, or lease of property

Search 11 U.S.C. § 363 : US Code - Section 363: Use, sale, or lease of property

(a) In this section, "cash collateral" means cash, negotiable
instruments, documents of title, securities, deposit accounts, or
other cash equivalents whenever acquired in which the estate and an
entity other than the estate have an interest and includes the
proceeds, products, offspring, rents, or profits of property and
the fees, charges, accounts or other payments for the use or
occupancy of rooms and other public facilities in hotels, motels,
or other lodging properties subject to a security interest as
provided in section 552(b) of this title, whether existing before
or after the commencement of a case under this title.
(b)(1) The trustee, after notice and a hearing, may use, sell, or
lease, other than in the ordinary course of business, property of
the estate, except that if the debtor in connection with offering a
product or a service discloses to an individual a policy
prohibiting the transfer of personally identifiable information
about individuals to persons that are not affiliated with the
debtor and if such policy is in effect on the date of the
commencement of the case, then the trustee may not sell or lease
personally identifiable information to any person unless -
(A) such sale or such lease is consistent with such policy; or
(B) after appointment of a consumer privacy ombudsman in
accordance with section 332, and after notice and a hearing, the
court approves such sale or such lease -
(i) giving due consideration to the facts, circumstances, and
conditions of such sale or such lease; and
(ii) finding that no showing was made that such sale or such
lease would violate applicable nonbankruptcy law.
(2) If notification is required under subsection (a) of section
7A of the Clayton Act in the case of a transaction under this
subsection, then -
(A) notwithstanding subsection (a) of such section, the
notification required by such subsection to be given by the
debtor shall be given by the trustee; and
(B) notwithstanding subsection (b) of such section, the
required waiting period shall end on the 15th day after the date
of the receipt, by the Federal Trade Commission and the Assistant
Attorney General in charge of the Antitrust Division of the
Department of Justice, of the notification required under such
subsection (a), unless such waiting period is extended -
(i) pursuant to subsection (e)(2) of such section, in the
same manner as such subsection (e)(2) applies to a cash tender
offer;
(ii) pursuant to subsection (g)(2) of such section; or
(iii) by the court after notice and a hearing.
(c)(1) If the business of the debtor is authorized to be operated
under section 721, 1108, 1203, 1204, or 1304 of this title and
unless the court orders otherwise, the trustee may enter into
transactions, including the sale or lease of property of the
estate, in the ordinary course of business, without notice or a
hearing, and may use property of the estate in the ordinary course
of business without notice or a hearing.
(2) The trustee may not use, sell, or lease cash collateral under
paragraph (1) of this subsection unless -
(A) each entity that has an interest in such cash collateral
consents; or
(B) the court, after notice and a hearing, authorizes such use,
sale, or lease in accordance with the provisions of this section.
(3) Any hearing under paragraph (2)(B) of this subsection may be
a preliminary hearing or may be consolidated with a hearing under
subsection (e) of this section, but shall be scheduled in
accordance with the needs of the debtor. If the hearing under
paragraph (2)(B) of this subsection is a preliminary hearing, the
court may authorize such use, sale, or lease only if there is a
reasonable likelihood that the trustee will prevail at the final
hearing under subsection (e) of this section. The court shall act
promptly on any request for authorization under paragraph (2)(B) of
this subsection.
(4) Except as provided in paragraph (2) of this subsection, the
trustee shall segregate and account for any cash collateral in the
trustee's possession, custody, or control.
(d) The trustee may use, sell, or lease property under subsection
(b) or (c) of this section only -
(1) in accordance with applicable nonbankruptcy law that
governs the transfer of property by a corporation or trust that
is not a moneyed, business, or commercial corporation or trust;
and
(2) to the extent not inconsistent with any relief granted
under subsection (c), (d), (e), or (f) of section 362.
(e) Notwithstanding any other provision of this section, at any
time, on request of an entity that has an interest in property
used, sold, or leased, or proposed to be used, sold, or leased, by
the trustee, the court, with or without a hearing, shall prohibit
or condition such use, sale, or lease as is necessary to provide
adequate protection of such interest. This subsection also applies
to property that is subject to any unexpired lease of personal
property (to the exclusion of such property being subject to an
order to grant relief from the stay under section 362).
(f) The trustee may sell property under subsection (b) or (c) of
this section free and clear of any interest in such property of an
entity other than the estate, only if -
(1) applicable nonbankruptcy law permits sale of such property
free and clear of such interest;
(2) such entity consents;
(3) such interest is a lien and the price at which such
property is to be sold is greater than the aggregate value of all
liens on such property;
(4) such interest is in bona fide dispute; or
(5) such entity could be compelled, in a legal or equitable
proceeding, to accept a money satisfaction of such interest.
(g) Notwithstanding subsection (f) of this section, the trustee
may sell property under subsection (b) or (c) of this section free
and clear of any vested or contingent right in the nature of dower
or curtesy.
(h) Notwithstanding subsection (f) of this section, the trustee
may sell both the estate's interest, under subsection (b) or (c) of
this section, and the interest of any co-owner in property in which
the debtor had, at the time of the commencement of the case, an
undivided interest as a tenant in common, joint tenant, or tenant
by the entirety, only if -
(1) partition in kind of such property among the estate and
such co-owners is impracticable;
(2) sale of the estate's undivided interest in such property
would realize significantly less for the estate than sale of such
property free of the interests of such co-owners;
(3) the benefit to the estate of a sale of such property free
of the interests of co-owners outweighs the detriment, if any, to
such co-owners; and
(4) such property is not used in the production, transmission,
or distribution, for sale, of electric energy or of natural or
synthetic gas for heat, light, or power.
(i) Before the consummation of a sale of property to which
subsection (g) or (h) of this section applies, or of property of
the estate that was community property of the debtor and the
debtor's spouse immediately before the commencement of the case,
the debtor's spouse, or a co-owner of such property, as the case
may be, may purchase such property at the price at which such sale
is to be consummated.
(j) After a sale of property to which subsection (g) or (h) of
this section applies, the trustee shall distribute to the debtor's
spouse or the co-owners of such property, as the case may be, and
to the estate, the proceeds of such sale, less the costs and
expenses, not including any compensation of the trustee, of such
sale, according to the interests of such spouse or co-owners, and
of the estate.
(k) At a sale under subsection (b) of this section of property
that is subject to a lien that secures an allowed claim, unless the
court for cause orders otherwise the holder of such claim may bid
at such sale, and, if the holder of such claim purchases such
property, such holder may offset such claim against the purchase
price of such property.
(l) Subject to the provisions of section 365, trustee may use,
sell, or lease property under subsection (b) or (c) of this
section, or a plan under chapter 11, 12, or 13 of this title may
provide for the use, sale, or lease of property, notwithstanding
any provision in a contract, a lease, or applicable law that is
conditioned on the insolvency or financial condition of the debtor,
on the commencement of a case under this title concerning the
debtor, or on the appointment of or the taking possession by a
trustee in a case under this title or a custodian, and that
effects, or gives an option to effect, a forfeiture, modification,
or termination of the debtor's interest in such property.
(m) The reversal or modification on appeal of an authorization
under subsection (b) or (c) of this section of a sale or lease of
property does not affect the validity of a sale or lease under such
authorization to an entity that purchased or leased such property
in good faith, whether or not such entity knew of the pendency of
the appeal, unless such authorization and such sale or lease were
stayed pending appeal.
(n) The trustee may avoid a sale under this section if the sale
price was controlled by an agreement among potential bidders at
such sale, or may recover from a party to such agreement any amount
by which the value of the property sold exceeds the price at which
such sale was consummated, and may recover any costs, attorneys'
fees, or expenses incurred in avoiding such sale or recovering such
amount. In addition to any recovery under the preceding sentence,
the court may grant judgment for punitive damages in favor of the
estate and against any such party that entered into such an
agreement in willful disregard of this subsection.
(o) Notwithstanding subsection (f), if a person purchases any
interest in a consumer credit transaction that is subject to the
Truth in Lending Act or any interest in a consumer credit contract
(as defined in section 433.1 of title 16 of the Code of Federal
Regulations (January 1, 2004), as amended from time to time), and
if such interest is purchased through a sale under this section,
then such person shall remain subject to all claims and defenses
that are related to such consumer credit transaction or such
consumer credit contract, to the same extent as such person would
be subject to such claims and defenses of the consumer had such
interest been purchased at a sale not under this section.
(p) In any hearing under this section -
(1) the trustee has the burden of proof on the issue of
adequate protection; and
(2) the entity asserting an interest in property has the burden
of proof on the issue of the validity, priority, or extent of
such interest.