11-U.S.C.-764
§764 – Voidable Transfers
Pathway
Title 11 > Chapter 7 > Subchapter IV > Section 764
Details
- Reference: Section 764
- Legend: §764 – Voidable Transfers
- USCode Year: 2013
Provision Content
(a) Except as otherwise provided in this section, any transfer by the debtor of property that, but for such transfer, would have been customer property, may be avoided by the trustee, and such property shall be treated as customer property, if and to the extent that the trustee avoids such transfer under section 544, 545, 547, 548, 549, or 724(a) of this title. For the purpose of such sections, the property so transferred shall be deemed to have been property of the debtor, and, if such transfer was made to a customer or for a customers benefit, such customer shall be deemed, for the purposes of this section, to have been a creditor.
(b) Notwithstanding sections 544, 545, 547, 548, 549, and 724(a) of this title, the trustee may not avoid a transfer made before seven days after the order for relief, if such transfer is approved by the Commission by rule or order, either before or after such transfer, and if such transfer is—
(1) a transfer of a commodity contract entered into or carried by or through the debtor on behalf of a customer, and of any cash, securities, or other property margining or securing such commodity contract; or
(2) the liquidation of a commodity contract entered into or carried by or through the debtor on behalf of a customer.
(Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2618; Pub. L. 97–222, §17, July 27, 1982, 96 Stat. 240; Pub. L. 98–353, title III, §487, July 10, 1984, 98 Stat. 383; Pub. L. 111–16, §2(9), May 7, 2009, 123 Stat. 1607.)
Historical and Revision Notes
legislative statements
Section 764 of the House amendment is derived from the House bill.
senate report no. 95–989
Section 764 permits the trustee to void any transfer of property that, except for such transfer, would have been customer property, to the extent permitted under section 544, 545, 547, 548, 549, or 724(a).
house report no. 95–595
Section 764 indicates the extent to which the avoiding powers may be used by the trustee under subchapter IV of chapter 7. If property recovered would have been customer property if never transferred, then subsection (a) indicates that it will be so treated when recovered.
Subsection (b) prohibits avoiding any transaction that occurs before or within five days after the petition if the transaction is approved by the Commission and concerns an open contractual commitment. This enables the Commission to exercise its discretion to protect the integrity of the market by insuring that transactions cleared with other brokers will not be undone on a preference or a fraudulent transfer theory.
Subsection (c) insulates variation margin payments and other deposits from the avoiding powers except to the extent of actual fraud under section 548(a)(1). This facilitates prepetition transfers and protects the ordinary course of business in the market.
Amendments
2009—Subsec. (b). Pub. L. 111–16 substituted seven days for five days in introductory provisions.
1984—Subsec. (a). Pub. L. 98–353 substituted any transfer by the debtor for any transfer.
1982—Subsec. (a). Pub. L. 97–222, §17(a), substituted but for except, inserted such property after trustee, and, and substituted shall be for is wherever appearing.
Subsec. (b). Pub. L. 97–222, §17(b), substituted order for relief for date of the filing of the petition.
Subsec. (c). Pub. L. 97–222, §17(c), struck out subsec. (c) which provided that the trustee could not avoid a transfer that was a margin payment to or deposit with a commodity broker or forward contract merchant or was a settlement payment made by a clearing organization and that occurred before the commencement of the case.
Effective Date of 2009 Amendment
Amendment by Pub. L. 111–16 effective Dec. 1, 2009, see section 7 of Pub. L. 111–16, set out as a note under section 109 of this title.
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.
U.S. Encyclopedia of Law Coverage
Subchapter III – Stockbroker Liquidation in the Legal Encyclopedia: Bankruptcy
In this entry about Subchapter III – Stockbroker Liquidation, find legal reference material, bibliographies and premiere content related to bankruptcy in the American Encyclopedia of Law, presenting a comprehensive view of the United States bankruptcy-specific issues, written by authorities in the field.
11-U.S.C.-741 in the Legal Encyclopedia: Liquidation
In this entry about 11-U.S.C.-741, find legal reference material, bibliographies and premiere content related to liquidation in the American Encyclopedia of Law, presenting a comprehensive view of the United States liquidation-specific issues, written by authorities in the field.
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