Section 109: Who May be a Debtor

 

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

Who May be a Debtor - Section 109

11 USCS § 109


(a) Notwithstanding any other provision of this section, only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title [11 USCS §§ 101 et seq.].

(b) A person may be a debtor under chapter 7 of this title [11 USCS §§ 701 et seq.] only if such person is not--

   (1) a railroad;

   (2) a domestic insurance company, bank, savings bank, cooperative bank, savings and loan association, building and loan association, homestead association, a New Markets Venture Capital company as defined in section 351 of the Small Business Investment Act of 1958 [15 USCS § 689], a small business investment company licensed by the Small Business Administration under section 301 of the Small Business Investment Act of 1958 [15 USCS § 681], credit union, or industrial bank or similar institution which is an insured bank as defined in section 3(h) of the Federal Deposit Insurance Act [12 USCS § 1813(h)], except that an uninsured State member bank, or a corporation organized under section 25A of the Federal Reserve Act [12 USCS §§ 611 et seq.], which operates, or operates as, a multilateral clearing organization pursuant to section 409 of the Federal Deposit Insurance Corporation Improvement Act of 1991 [12 USCS § 4422] may be a debtor if a petition is filed at the direction of the Board of Governors of the Federal Reserve System; or

   (3) (A) a foreign insurance company, engaged in such business in the United States; or

      (B) a foreign bank, savings bank, cooperative bank, savings and loan association, building and loan association, or credit union, that has a branch or agency (as defined in section 1(b) of the International Banking Act of 1978 in the United States [12 USCS § 3101(b)].

(c) An entity may be a debtor under chapter 9 of this title [11 USCS §§ 901 et seq.] if and only if such entity--

   (1) is a municipality;

   (2) is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter [11 USCS §§ 901 et seq.] by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter [11 USCS §§ 901 et seq.];

   (3) is insolvent;

   (4) desires to effect a plan to adjust such debts; and

   (5) (A) has obtained the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter [11 USCS §§ 901 et seq.];

      (B) has negotiated in good faith with creditors and has failed to obtain the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter [11 USCS §§ 901 et seq.];

      (C) is unable to negotiate with creditors because such negotiation is impracticable; or

      (D) reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under section 547 of this title [11 USCS § 547].

(d) Only a railroad, a person that may be a debtor under chapter 7 of this title [11 USCS §§ 701 et seq.] (except a stockbroker or a commodity broker), and an uninsured State member bank, or a corporation organized under section 25A of the Federal Reserve Act [12 USCS §§ 611 et seq.], which operates, or operates as, a multilateral clearing organization pursuant to section 409 of the Federal Deposit Insurance Corporation Improvement Act of 1991 [12 USCS § 4422] may be a debtor under chapter 11 of this title [11 USCS §§ 1101 et seq.].

(e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $ 336,900 and noncontingent, liquidated, secured debts of less than $ 1,010,650 or an individual with regular income and such individual's spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $ 336,900 and noncontingent, liquidated, secured debts of less than $ 1,010,650 may be a debtor under chapter 13 of this title [11 USCS §§ 1301 et seq.].

(f) Only a family farmer or family fisherman with regular annual income may be a debtor under chapter 12 of this title [11 USCS §§ 1201 et seq.].

(g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if--

   (1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or

   (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title [11 USCS § 362].

(h) (1) Subject to paragraphs (2) and (3), and notwithstanding any other provision of this section, an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) [11 USCS § 111(a)] an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.

   (2) (A) Paragraph (1) shall not apply with respect to a debtor who resides in a district for which the United States trustee (or the bankruptcy administrator, if any) determines that the approved nonprofit budget and credit counseling agencies for such district are not reasonably able to provide adequate services to the additional individuals who would otherwise seek credit counseling from such agencies by reason of the requirements of paragraph (1).

      (B) The United States trustee (or the bankruptcy administrator, if any) who makes a determination described in subparagraph (A) shall review such determination not later than 1 year after the date of such determination, and not less frequently than annually thereafter. Notwithstanding the preceding sentence, a nonprofit budget and credit counseling agency may be disapproved by the United States trustee (or the bankruptcy administrator, if any) at any time.

   (3) (A) Subject to subparagraph (B), the requirements of paragraph (1) shall not apply with respect to a debtor who submits to the court a certification that--

         (i) describes exigent circumstances that merit a waiver of the requirements of paragraph (1);

         (ii) states that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services referred to in paragraph (1) during the 7-day period beginning on the date on which the debtor made that request; and

         (iii) is satisfactory to the court.

      (B) With respect to a debtor, an exemption under subparagraph (A) shall cease to apply to that debtor on the date on which the debtor meets the requirements of paragraph (1), but in no case may the exemption apply to that debtor after the date that is 30 days after the debtor files a petition, except that the court, for cause, may order an additional 15 days.

   (4) The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and 'disability' means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing required under paragraph (1).


Further Understanding Through Case Law

In General

“Neither state nor federal court has power to enjoin individual from instituting voluntary proceedings in bankruptcy on his own behalf.”

In re Yaryan Naval Stores Co. 214 F.2d 563 (1914) 

Insolvency as Prerequisite

“Even though Chapter 11 debtor was not insolvent at the time it filed its bankruptcy petition, petition was not filed in bad faith, since it had made good faith effort to restructure its business since filing, and public policy dictated need for business like debtor’s businees.”

In re Cent. Jersey Airport Servs., LLC 282 BR 176 (2002)


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