§ 749. Voidable transfers

Statutory text

Except as otherwise provided in this section, any transfer 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, or 549 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 customer’s benefit, such customer shall be deemed, for the purposes of this section, to have been a creditor.

Notwithstanding sections 544, 545, 547, 548, and 549 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—

a transfer of a securities contract entered into or carried by or through the debtor on behalf of a customer, and of any cash, security, or other property margining or securing such securities contract; or

the liquidation of a securities contract entered into or carried by or through the debtor on behalf of a customer.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1978
Pub. L. 95–598 · 92 Stat. 2549
Enacted · 11 U.S.C. § 749
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2614
Source evidence
Code source credit
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2614
1982
Pub. L. 97–222 § 14 · 96 Stat. 235
1. Substituted · 11 U.S.C. § 749
  Pub. L. 97–222 substituted “(a) Except as otherwise provided in this section, any” for “Any”
2. Substituted · 11 U.S.C. § 749
  Pub. L. 97–222 substituted “but” for “except”
3. Inserted · 11 U.S.C. § 749
  Pub. L. 97–222 inserted “such property”
4. Substituted · 11 U.S.C. § 749
  Pub. L. 97–222 substituted “or 549” for “549, or 724(a)”
5. Added · 11 U.S.C. § 749
  Pub. L. 97–222 added subsec. (b)
Source evidence
Code amendment note
Pub. L. 97–222 substituted “(a) Except as otherwise provided in this section, any” for “Any”, and “but” for “except”, inserted “such property”, substituted “or 549” for “549, or 724(a)”, and added subsec. (b).
Enacted provision · exact public law section
Sec. 14. Section 749 of title 11, United States Code, is amended— (1) by striking out “Any” and inserting in lieu thereof “(a) Except as otherwise provided in this section, any”, (2) by striking out “except” and inserting in lieu thereof “but”, (3) by inserting “such property” after “trustee, and”, (4) by striking out “549, or 724(a)” and inserting in lieu thereof “or 549”, and (5) by adding at the end thereof the following new subsection: “(b) Notwithstanding sections 544, 545, 547, 548, and 549 of this title, the trustee may not avoid a transfer made before five days 11 USC 544, 545, 547–549. 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 securities contract entered into or carried by or through the debtor on behalf of a customer, and of any cash, security, or other property margining or securing such securities contract; or “(2) the liquidation of a securities contract entered into or carried by or through the debtor on behalf of a customer.”.
2009
Statutory Time-Periods Technical Amendments Act of 2009
Pub. L. 111–16 § 2(8) · 123 Stat. 1607
Substituted · 11 U.S.C. § 749(b)
Pub. L. 111–16 substituted “seven days” for “five days” in introductory provisions
Source evidence
Code amendment note
Subsec. (b). Pub. L. 111–16 substituted “seven days” for “five days” in introductory provisions.
Enacted provision · exact public law section
(8) in section 749(b), by striking “five days” and inserting “seven days”; and
Effective date note
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.

6 of 7 references resolved to an enrolled provision · 1 partial

Notes

Historical and Revision Notes

senate report no. 95–989

Section 749 indicates that if the trustee avoids a transfer, property recovered is customer property to any extent it would have been customer property but for the transfer. The section clarifies that a customer who receives a transfer of property of the debtor is a creditor and that property in a customer’s account is property of a creditor for purposes of the avoiding powers.

Editorial Notes

Amendments1982–2009 · 2 rounds

2009

Subsec. (b). Pub. L. 111–16 substituted “seven days” for “five days” in introductory provisions.

1982

Pub. L. 97–222 substituted “(a) Except as otherwise provided in this section, any” for “Any”, and “but” for “except”, inserted “such property”, substituted “or 549” for “549, or 724(a)”, and added subsec. (b).

Statutory Notes and Related Subsidiaries

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.

Credits

1978–2009 · 3 acts

1978Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2614
1982Pub. L. 97–222, § 14, July 27, 1982, 96 Stat. 238
2009Pub. L. 111–16, § 2(8), May 7, 2009, 123 Stat. 1607.

Show as published

(Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2614; Pub. L. 97–222, § 14, July 27, 1982, 96 Stat. 238; Pub. L. 111–16, § 2(8), May 7, 2009, 123 Stat. 1607.)