Section 101: Definitions

 

Title 11 of the United States Code - Bankruptcy GENERAL PROVISIONS – CHAPTER 1

Definitions - Section 101

11 USCS § 101


In this title the following definitions shall apply:

   (1) The term "accountant" means accountant authorized under applicable law to practice public accounting, and includes professional accounting association, corporation, or partnership, if so authorized.

   (2) The term "affiliate" means--

      (A) entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than an entity that holds such securities--

         (i) in a fiduciary or agency capacity without sole discretionary power to vote such securities; or

         (ii) solely to secure a debt, if such entity has not in fact exercised such power to vote;

      (B) corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor, or by an entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than an entity that holds such securities--

         (i) in a fiduciary or agency capacity without sole discretionary power to vote such securities; or

         (ii) solely to secure a debt, if such entity has not in fact exercised such power to vote;

      (C) person whose business is operated under a lease or operating agreement by a debtor, or person substantially all of whose property is operated under an operating agreement with the debtor; or

      (D) entity that operates the business or substantially all of the property of the debtor under a lease or operating agreement.

   (3) The term "assisted person" means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $ 164,250.

   (4) The term "attorney" means attorney, professional law association, corporation, or partnership, authorized under applicable law to practice law.

   (4A) The term "bankruptcy assistance" means any goods or services sold or otherwise provided to an assisted person with the express or implied purpose of providing information, advice, counsel, document preparation, or filing, or attendance at a creditors' meeting or appearing in a case or proceeding on behalf of another or providing legal representation with respect to a case or proceeding under this title.

   (5) The term "claim" means--

      (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or

      (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.

   (6) The term "commodity broker" means futures commission merchant, foreign futures commission merchant, clearing organization, leverage transaction merchant, or commodity options dealer, as defined in section 761 of this title [11 USCS § 761], with respect to which there is a customer, as defined in section 761 of this title [11 USCS § 761].

   (7) The term "community claim" means claim that arose before the commencement of the case concerning the debtor for which property of the kind specified in section 541(a)(2) of this title [11 USCS § 541(a)(2)] is liable, whether or not there is any such property at the time of the commencement of the case.

   (7A) The term "commercial fishing operation" means--

      (A) the catching or harvesting of fish, shrimp, lobsters, urchins, seaweed, shellfish, or other aquatic species or products of such species; or

      (B) for purposes of section 109 [11 USCS § 109] and chapter 12 [11 USCS §§ 1201 et seq.], aquaculture activities consisting of raising for market any species or product described in subparagraph (A).

   (7B) The term "commercial fishing vessel" means a vessel used by a family fisherman to carry out a commercial fishing operation.

   (8) The term "consumer debt" means debt incurred by an individual primarily for a personal, family, or household purpose.

   (9) The term "corporation"--

      (A) includes--

         (i) association having a power or privilege that a private corporation, but not an individual or a partnership, possesses;

         (ii) partnership association organized under a law that makes only the capital subscribed responsible for the debts of such association;

         (iii) joint-stock company;

         (iv) unincorporated company or association; or

         (v) business trust; but

      (B) does not include limited partnership.

   (10) The term "creditor" means--

      (A) entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor;

      (B) entity that has a claim against the estate of a kind specified in section 348(d), 502(f), 502(g), 502(h) or 502(i) of this title [11 USCS § 348(d), 502(f), 502(g), 502(h) or 502(i)]; or

      (C) entity that has a community claim.

   (10A) The term "current monthly income"--

      (A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor's spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on--

         (i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedule of current income required by section 521(a)(1)(B)(ii) [11 USCS § 521(a)(1)(B)(ii)]; or

         (ii) the date on which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii) [11 USCS § 521(a)(1)(B)(ii)]; and

      (B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor's spouse), on a regular basis for the household expenses of the debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act [42 USCS §§ 301 et seq.], payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18 [18 USCS § 2331]) or domestic terrorism (as defined in section 2331 of title 18 [18 USCS § 2331]) on account of their status as victims of such terrorism.

   (11) The term "custodian" means--

      (A) receiver or trustee of any of the property of the debtor, appointed in a case or proceeding not under this title;

      (B) assignee under a general assignment for the benefit of the debtor's creditors; or

      (C) trustee, receiver, or agent under applicable law, or under a contract, that is appointed or authorized to take charge of property of the debtor for the purpose of enforcing a lien against such property, or for the purpose of general administration of such property for the benefit of the debtor's creditors.

   (12) The term "debt" means liability on a claim.

   (12A) The term "debt relief agency" means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110 [11 USCS § 110], but does not include--

      (A) any person who is an officer, director, employee, or agent of a person who provides such assistance or of the bankruptcy petition preparer;

      (B) a nonprofit organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986 [26 USCS § 501(c)(3)];

      (C) a creditor of such assisted person, to the extent that the creditor is assisting such assisted person to restructure any debt owed by such assisted person to the creditor;

      (D) a depository institution (as defined in section 3 of the Federal Deposit Insurance Act [12 USCS § 1813]) or any Federal credit union or State credit union (as those terms are defined in section 101 of the Federal Credit Union Act [12 USCS § 1752]), or any affiliate or subsidiary of such depository institution or credit union; or

      (E) an author, publisher, distributor, or seller of works subject to copyright protection under title 17 [17 USCS §§ 101 et seq.], when acting in such capacity.

   (13) The term "debtor" means person or municipality concerning which a case under this title has been commenced.

   (13A) The term "debtor's principal residence"--

      (A) means a residential structure, including incidental property, without regard to whether that structure is attached to real property; and

      (B) includes an individual condominium or cooperative unit, a mobile or manufactured home, or trailer.

   (14) The term "disinterested person" means a person that--

      (A) is not a creditor, an equity security holder, or an insider;

      (B) is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor; and

      (C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason.

   (14A) The term "domestic support obligation" means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is--

      (A) owed to or recoverable by--

         (i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or

         (ii) a governmental unit;

      (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;

      (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of--

         (i) a separation agreement, divorce decree, or property settlement agreement;

         (ii) an order of a court of record; or

         (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and

      (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.

   (15) The term "entity" includes person, estate, trust, governmental unit, and United States trustee.

   (16) The term "equity security" means--

      (A) share in a corporation, whether or not transferable or denominated "stock", or similar security;

      (B) interest of a limited partner in a limited partnership; or

      (C) warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subparagraph (A) or (B) of this paragraph.

   (17) The term "equity security holder" means holder of an equity security of the debtor.

   (18) The term "family farmer" means--

      (A) individual or individual and spouse engaged in a farming operation whose aggregate debts do not exceed $ 3,544,525 and not less than 50 percent of whose aggregate noncontingent, liquidated debts (excluding a debt for the principal residence of such individual or such individual and spouse unless such debt arises out of a farming operation), on the date the case is filed, arise out of a farming operation owned or operated by such individual or such individual and spouse, and such individual or such individual and spouse receive from such farming operation more than 50 percent of such individual's or such individual and spouse's gross income for--

         (i) the taxable year preceding; or

         (ii) each of the 2d and 3d taxable years preceding;

      the taxable year in which the case concerning such individual or such individual and spouse was filed; or

      (B) corporation or partnership in which more than 50 percent of the outstanding stock or equity is held by one family, or by one family and the relatives of the members of such family, and such family or such relatives conduct the farming operation, and

         (i) more than 80 percent of the value of its assets consists of assets related to the farming operation;

         (ii) its aggregate debts do not exceed $ 3,544,525 and not less than 50 percent of its aggregate noncontingent, liquidated debts (excluding a debt for one dwelling which is owned by such corporation or partnership and which a shareholder or partner maintains as a principal residence, unless such debt arises out of a farming operation), on the date the case is filed, arise out of the farming operation owned or operated by such corporation or such partnership; and

         (iii) if such corporation issues stock, such stock is not publicly traded.

   (19) The term "family farmer with regular annual income" means family farmer whose annual income is sufficiently stable and regular to enable such family farmer to make payments under a plan under chapter 12 of this title [11 USCS §§ 1201 et seq.].

   (19A) The term "family fisherman" means--

      (A) an individual or individual and spouse engaged in a commercial fishing operation--

         (i) whose aggregate debts do not exceed $ 1,642,500 and not less than 80 percent of whose aggregate noncontingent, liquidated debts (excluding a debt for the principal residence of such individual or such individual and spouse, unless such debt arises out of a commercial fishing operation), on the date the case is filed, arise out of a commercial fishing operation owned or operated by such individual or such individual and spouse; and

         (ii) who receive from such commercial fishing operation more than 50 percent of such individual's or such individual's and spouse's gross income for the taxable year preceding the taxable year in which the case concerning such individual or such individual and spouse was filed; or

      (B) a corporation or partnership--

         (i) in which more than 50 percent of the outstanding stock or equity is held by--

            (I) 1 family that conducts the commercial fishing operation; or

            (II) 1 family and the relatives of the members of such family, and such family or such relatives conduct the commercial fishing operation; and

         (ii)

            (I) more than 80 percent of the value of its assets consists of assets related to the commercial fishing operation;

            (II) its aggregate debts do not exceed $ 1,642,500 and not less than 80 percent of its aggregate noncontingent, liquidated debts (excluding a debt for 1 dwelling which is owned by such corporation or partnership and which a shareholder or partner maintains as a principal residence, unless such debt arises out of a commercial fishing operation), on the date the case is filed, arise out of a commercial fishing operation owned or operated by such corporation or such partnership; and

            (III) if such corporation issues stock, such stock is not publicly traded.

   (19B) The term "family fisherman with regular annual income" means a family fisherman whose annual income is sufficiently stable and regular to enable such family fisherman to make payments under a plan under chapter 12 of this title [11 USCS §§ 1201 et seq.].

   (20) The term "farmer" means (except when such term appears in the term "family farmer") person that received more than 80 percent of such person's gross income during the taxable year of such person immediately preceding the taxable year of such person during which the case under this title concerning such person was commenced from a farming operation owned or operated by such person.

   (21) The term "farming operation" includes farming, tillage of the soil, dairy farming, ranching, production or raising of crops, poultry, or livestock, and production of poultry or livestock products in an unmanufactured state.

   (21A) The term "farmout agreement" means a written agreement in which--

      (A) the owner of a right to drill, produce, or operate liquid or gaseous hydrocarbons on property agrees or has agreed to transfer or assign all or a part of such right to another entity; and

      (B) such other entity (either directly or through its agents or its assigns), as consideration, agrees to perform drilling, reworking, recompleting, testing, or similar or related operations, to develop or produce liquid or gaseous hydrocarbons on the property.

   (21B) The term "Federal depository institutions regulatory agency" means--

      (A) with respect to an insured depository institution (as defined in section 3(c)(2) of the Federal Deposit Insurance Act [12 USCS § 1813(c)(2)]) for which no conservator or receiver has been appointed, the appropriate Federal banking agency (as defined in section 3(q) of such Act [12 USCS § 1813(q)]);

      (B) with respect to an insured credit union (including an insured credit union for which the National Credit Union Administration has been appointed conservator or liquidating agent), the National Credit Union Administration;

      (C) with respect to any insured depository institution for which the Resolution Trust Corporation has been appointed conservator or receiver, the Resolution Trust Corporation; and

      (D) with respect to any insured depository institution for which the Federal Deposit Insurance Corporation has been appointed conservator or receiver, the Federal Deposit Insurance Corporation.

   (22) The term "financial institution" means--

      (A) a Federal reserve bank, or an entity that is a commercial or savings bank, industrial savings bank, savings and loan association, trust company, federally-insured credit union, or receiver, liquidating agent, or conservator for such entity and, when any such Federal reserve bank, receiver, liquidating agent, conservator or entity is acting as agent or custodian for a customer (whether or not a "customer", as defined in section 741 [11 USCS § 741]) in connection with a securities contract (as defined in section 741 [11 USCS § 741]) such customer; or

      (B) in connection with a securities contract (as defined in section 741 [11 USCS § 741]) an investment company registered under the Investment Company Act of 1940.

   (22A) The term "financial participant" means--

      (A) an entity that, at the time it enters into a securities contract, commodity contract, swap agreement, repurchase agreement, or forward contract, or at the time of the date of the filing of the petition, has one or more agreements or transactions described in paragraph (1), (2), (3), (4), (5), or (6) of section 561(a) [11 USCS § 561(a)] with the debtor or any other entity (other than an affiliate) of a total gross dollar value of not less than $ 1,000,000,000 in notional or actual principal amount outstanding (aggregated across counterparties) at such time or on any day during the 15-month period preceding the date of the filing of the petition, or has gross mark-to-market positions of not less than $ 100,000,000 (aggregated across counterparties) in one or more such agreements or transactions with the debtor or any other entity (other than an affiliate) at such time or on any day during the 15-month period preceding the date of the filing of the petition; or

      (B) a clearing organization (as defined in section 402 of the Federal Deposit Insurance Corporation Improvement Act of 1991 [12 USCS § 4402]).

   (23) The term "foreign proceeding" means a collective judicial or administrative proceeding in a foreign country, including an interim proceeding, under a law relating to insolvency or adjustment of debt in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.

   (24) The term "foreign representative" means a person or body, including a person or body appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor's assets or affairs or to act as a representative of such foreign proceeding.

   (25) The term "forward contract" means--

      (A) a contract (other than a commodity contract, as defined in section 761 [11 USCS § 761]) for the purchase, sale, or transfer of a commodity, as defined in section 761(8) of this title [11 USCS § 761(8)], or any similar good, article, service, right, or interest which is presently or in the future becomes the subject of dealing in the forward contract trade, or product or byproduct thereof, with a maturity date more than two days after the date the contract is entered into, including, but not limited to, a repurchase or reverse repurchase transaction (whether or not such repurchase or reverse repurchase transaction is a "repurchase agreement", as defined in this section)[,] consignment, lease, swap, hedge transaction, deposit, loan, option, allocated transaction, unallocated transaction, or any other similar agreement;

      (B) any combination of agreements or transactions referred to in subparagraphs (A) and (C);

      (C) any option to enter into an agreement or transaction referred to in subparagraph (A) or (B);

      (D) a master agreement that provides for an agreement or transaction referred to in subparagraph (A), (B), or (C), together with all supplements to any such master agreement, without regard to whether such master agreement provides for an agreement or transaction that is not a forward contract under this paragraph, except that such master agreement shall be considered to be a forward contract under this paragraph only with respect to each agreement or transaction under such master agreement that is referred to in subparagraph (A), (B), or (C); or

      (E) any security agreement or arrangement, or other credit enhancement related to any agreement or transaction referred to in subparagraph (A), (B), (C), or (D), including any guarantee or reimbursement obligation by or to a forward contract merchant or financial participant in connection with any agreement or transaction referred to in any such subparagraph, but not to exceed the damages in connection with any such agreement or transaction, measured in accordance with section 562 [11 USCS § 562].

   (26) The term "forward contract merchant" means a Federal reserve bank, or an entity the business of which consists in whole or in part of entering into forward contracts as or with merchants in a commodity (as defined in section 761 [11 USCS § 761]) or any similar good, article, service, right, or interest which is presently or in the future becomes the subject of dealing in the forward contract trade.

   (27) The term "governmental unit" means United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.

   (27A) The term "health care business"--

      (A) means any public or private entity (without regard to whether that entity is organized for profit or not for profit) that is primarily engaged in offering to the general public facilities and services for--

         (i) the diagnosis or treatment of injury, deformity, or disease; and

         (ii) surgical, drug treatment, psychiatric, or obstetric care; and

      (B) includes--

         (i) any--

            (I) general or specialized hospital;

            (II) ancillary ambulatory, emergency, or surgical treatment facility;

            (III) hospice;

            (IV) home health agency; and

            (V) other health care institution that is similar to an entity referred to in subclause (I), (II), (III), or (IV); and

         (ii) any long-term care facility, including any--

            (I) skilled nursing facility;

            (II) intermediate care facility;

            (III) assisted living facility;

            (IV) home for the aged;

            (V) domiciliary care facility; and

            (VI) health care institution that is related to a facility referred to in subclause (I), (II), (III), (IV), or (V), if that institution is primarily engaged in offering room, board, laundry, or personal assistance with activities of daily living and incidentals to activities of daily living.

   (27B) The term "incidental property" means, with respect to a debtor's principal residence--

      (A) property commonly conveyed with a principal residence in the area where the real property is located;

      (B) all easements, rights, appurtenances, fixtures, rents, royalties, mineral rights, oil or gas rights or profits, water rights, escrow funds, or insurance proceeds; and

      (C) all replacements or additions.

   (28) The term "indenture" means mortgage, deed of trust, or indenture, under which there is outstanding a security, other than a voting-trust certificate, constituting a claim against the debtor, a claim secured by a lien on any of the debtor's property, or an equity security of the debtor.

   (29) The term "indenture trustee" means trustee under an indenture.

   (30) The term "individual with regular income" means individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13 of this title [11 USCS §§ 1301 et seq.], other than a stockbroker or a commodity broker.

   (31) The term "insider" includes--

      (A) if the debtor is an individual--

         (i) relative of the debtor or of a general partner of the debtor;

         (ii) partnership in which the debtor is a general partner;

         (iii) general partner of the debtor; or

         (iv) corporation of which the debtor is a director, officer, or person in control;

      (B) if the debtor is a corporation--

         (i) director of the debtor;

         (ii) officer of the debtor;

         (iii) person in control of the debtor;

         (iv) partnership in which the debtor is a general partner;

         (v) general partner of the debtor; or

         (vi) relative of a general partner, director, officer, or person in control of the debtor;

      (C) if the debtor is a partnership--

         (i) general partner in the debtor;

         (ii) relative of a general partner in, general partner of, or person in control of the debtor;

         (iii) partnership in which the debtor is a general partner;

         (iv) general partner of the debtor; or

         (v) person in control of the debtor;

      (D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor;

      (E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and

      (F) managing agent of the debtor.

   (32) The term "insolvent" means--

      (A) with reference to an entity other than a partnership and a municipality, financial condition such that the sum of such entity's debts is greater than all of such entity's property, at a fair valuation, exclusive of--

         (i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity's creditors; and

         (ii) property that may be exempted from property of the estate under section 522 of this title [11 USCS § 522];

      (B) with reference to a partnership, financial condition such that the sum of such partnership's debts is greater than the aggregate of, at a fair valuation--

         (i) all of such partnership's property, exclusive of property of the kind specified in subparagraph (A)(i) of this paragraph; and

         (ii) the sum of the excess of the value of each general partner's nonpartnership property, exclusive of property of the kind specified in subparagraph (A) of this paragraph, over such partner's nonpartnership debts; and

      (C) with reference to a municipality, financial condition such that the municipality is--

         (i) generally not paying its debts as they become due unless such debts are the subject of a bona fide dispute; or

         (ii) unable to pay its debts as they become due.

   ...

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