Title 11 — Bankruptcy
Chapter 7 — Liquidation
§ 764. Voidable transfers
Statutory text
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 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, 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—
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
the liquidation of a commodity 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.
Pub. L. 95–598 · 92 Stat. 2549
Enacted · 11 U.S.C. § 764
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2618
Source evidence
Code source credit
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2618Pub. L. 97–222 § 17(a) · 96 Stat. 235
Substituted · 11 U.S.C. § 764(a)
Pub. L. 97–222, § 17(a), substituted “but” for “except”
Inserted · 11 U.S.C. § 764(a)
Pub. L. 97–222, § 17(a), inserted “such property” after “trustee, and”
Substituted · 11 U.S.C. § 764(a)
Pub. L. 97–222, § 17(a), substituted “shall be” for “is” wherever appearing
Source evidence
Code amendment note
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.Enacted provision · exact public law section
(a) Section 764(a) of title 11, United States Code, is amended— (1) by striking out “except” and inserting in lieu thereof “but”, (2) by inserting “such property” after “trustee, and”, and (3) by striking out “is” each place it appears and inserting in lieu thereof “shall be”.Pub. L. 97–222 § 17(b) · 96 Stat. 235
Substituted · 11 U.S.C. § 764(b)
Pub. L. 97–222, § 17(b), substituted “order for relief” for “date of the filing of the petition”
Source evidence
Code amendment note
Subsec. (b). Pub. L. 97–222, § 17(b), substituted “order for relief” for “date of the filing of the petition”.Enacted provision · exact public law section
(b) Section 764(b) of title 11, United States Code, is amended by striking out “date of the filing of the petition” and inserting in lieu thereof “order for relief”.Pub. L. 97–222 § 17(c) · 96 Stat. 235
Struck · 11 U.S.C. § 764(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
Source evidence
Code amendment note
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.Enacted provision · exact public law section
(c) Section 764(c) of title 11, United States Code, is repealed.Pub. L. 98–353 title III § 487 · 98 Stat. 333
Substituted · 11 U.S.C. § 764(a)
Pub. L. 98–353 substituted “any transfer by the debtor” for “any transfer”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 98–353 substituted “any transfer by the debtor” for “any transfer”.Enacted provision · exact public law section
Sec. 487. Section 764(a) of title 11 of the United States Code is amended by inserting “by the debtor” after “any transfer”.Statutory Time-Periods Technical Amendments Act of 2009
Pub. L. 111–16 § 2(9) · 123 Stat. 1607
Substituted · 11 U.S.C. § 764(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
(9) in section 764(b), by striking “five days” and inserting “seven days”.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.
7 of 8 references resolved to an enrolled provision · 1 partial
Notes
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.
Editorial Notes
Amendments1982–2009 · 3 rounds
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.
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
Amendment by Pub. L. 111–16 effective , 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 , see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title.
Credits
1978–2009 · 4 acts
- 1978Pub. L. 95–598, , 92 Stat. 2618
- 1982Pub. L. 97–222, § 17, , 96 Stat. 240
- 1984Pub. L. 98–353, title III, § 487, , 98 Stat. 383
- 2009Pub. L. 111–16, § 2(9), , 123 Stat. 1607.
Show as published
(Pub. L. 95–598, , 92 Stat. 2618; Pub. L. 97–222, § 17, , 96 Stat. 240; Pub. L. 98–353, title III, § 487, , 98 Stat. 383; Pub. L. 111–16, § 2(9), , 123 Stat. 1607.)