Bankruptcy Forms: Filing Bankruptcy Chapter 7 Bankruptcy Software Chapter 13

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TITLE 11–BANKRUPTCY

CHAPTER 5–CREDITORS, THE DEBTOR, AND THE ESTATE

Sub Chapter III – The Estate

Sec. 548. Fraudulent transfers and obligations

   (a)(1) The trustee may avoid any transfer of an interest of the 
debtor in property, or any obligation incurred by the debtor, that was 
made or incurred on or within one year before the date of the filing of 
the petition, if the debtor voluntarily or involuntarily--
        (A) made such transfer or incurred such obligation with actual 
    intent to hinder, delay, or defraud any entity to which the debtor 
    was or became, on or after the date that such transfer was made or 
    such obligation was incurred, indebted; or
        (B)(i) received less than a reasonably equivalent value in 
    exchange for such transfer or obligation; and
        (ii)(I) was insolvent on the date that such transfer was made or 
    such obligation was incurred, or became insolvent as a result of 
    such transfer or obligation;
        (II) was engaged in business or a transaction, or was about to 
    engage in business or a transaction, for which any property 
    remaining with the debtor was an unreasonably small capital; or
        (III) intended to incur, or believed that the debtor would 
    incur, debts that would be beyond the debtor's ability to pay as 
    such debts matured.

    (2) A transfer of a charitable contribution to a qualified religious 
or charitable entity or organization shall not be considered to be a 
transfer covered under paragraph (1)(B) in any case in which--
        (A) the amount of that contribution does not exceed 15 percent 
    of the gross annual income of the debtor for the year in which the 
    transfer of the contribution is made; or
        (B) the contribution made by a debtor exceeded the percentage 
    amount of gross annual income specified in subparagraph (A), if the 
    transfer was consistent with the practices of the debtor in making 
    charitable contributions.

    (b) The trustee of a partnership debtor may avoid any transfer of an 
interest of the debtor in property, or any obligation incurred by the 
debtor, that was made or incurred on or within one year before the date 
of the filing of the petition, to a general partner in the debtor, if 
the debtor was insolvent on the date such transfer was made or such 
obligation was incurred, or became insolvent as a result of such 
transfer or obligation.
    (c) Except to the extent that a transfer or obligation voidable 
under this section is voidable under section 544, 545, or 547 of this 
title, a transferee or obligee of such a transfer or obligation that 
takes for value and in good faith has a lien on or may retain any 
interest transferred or may enforce any obligation incurred, as the case 
may be, to the extent that such transferee or obligee gave value to the 
debtor in exchange for such transfer or obligation.
    (d)(1) For the purposes of this section, a transfer is made when 
such transfer is so perfected that a bona fide purchaser from the debtor 
against whom applicable law permits such transfer to be perfected cannot 
acquire an interest in the property transferred that is superior to the 
interest in such property of the transferee, but if such transfer is not 
so perfected before the commencement of the case, such transfer is made 
immediately before the date of the filing of the petition.
    (2) In this section--
        (A) ``value'' means property, or satisfaction or securing of a 
    present or antecedent debt of the debtor, but does not include an 
    unperformed promise to furnish support to the debtor or to a 
    relative of the debtor;
        (B) a commodity broker, forward contract merchant, stockbroker, 
    financial institution, or securities clearing agency that receives a 
    margin payment, as defined in section 101, 741, or 761 of this 
    title, or settlement payment, as defined in section 101 or 741 of 
    this title, takes for value to the extent of such payment;
        (C) a repo participant that receives a margin payment, as 
    defined in section 741 or 761 of this title, or settlement payment, 
    as defined in section 741 of this title, in connection with a 
    repurchase agreement, takes for value to the extent of such payment; 
    and
        (D) a swap participant that receives a transfer in connection 
    with a swap agreement takes for value to the extent of such 
    transfer.

    (3) In this section, the term ``charitable contribution'' means a 
charitable contribution, as that term is defined in section 170(c) of 
the Internal Revenue Code of 1986, if that contribution--
        (A) is made by a natural person; and
        (B) consists of--
            (i) a financial instrument (as that term is defined in 
        section 731(c)(2)(C) of the Internal Revenue Code of 1986); or
            (ii) cash.

    (4) In this section, the term ``qualified religious or charitable 
entity or organization'' means--
        (A) an entity described in section 170(c)(1) of the Internal 
    Revenue Code of 1986; or
        (B) an entity or organization described in section 170(c)(2) of 
    the Internal Revenue Code of 1986.

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2600; Pub. L. 97-222, Sec. 5, 
July 27, 1982, 96 Stat. 236; Pub. L. 98-353, title III, Secs. 394, 463, 
July 10, 1984, 98 Stat. 365, 378; Pub. L. 99-554, title II, Sec. 283(n), 
Oct. 27, 1986, 100 Stat. 3117; Pub. L. 101-311, title I, Sec. 104, title 
II, Sec. 204, June 25, 1990, 104 Stat. 268, 269; Pub. L. 103-394, title 
V, Sec. 501(b)(5), Oct. 22, 1994, 108 Stat. 4142; Pub. L. 105-183, 
Secs. 2, 3(a), June 19, 1998, 112 Stat. 517.)


                      Historical and Revision Notes

                         legislative statements

    Section 548(d)(2) is modified to reflect general application of a 
provision contained in section 766 of the Senate amendment with respect 
to commodity brokers. In particular, section 548(d)(2)(B) of the House 
amendment makes clear that a commodity broker who receives a margin 
payment is considered to receive the margin payment in return for 
``value'' for purposes of section 548.


                        senate report no. 95-989

    This section is derived in large part from section 67d of the 
Bankruptcy Act [section 107(d) of former title 11]. It permits the 
trustee to avoid transfers by the debtor in fraud of his creditors. Its 
history dates from the statute of 13 Eliz. c. 5 (1570).
    The trustee may avoid fraudulent transfers or obligations if made 
with actual intent to hinder, delay, or defraud a past or future 
creditor. Transfers made for less than a reasonably equivalent 
consideration are also vulnerable if the debtor was or thereby becomes 
insolvent, was engaged in business with an unreasonably small capital, 
or intended to incur debts that would be beyond his ability to repay.
    The trustee of a partnership debtor may avoid any transfer of 
partnership property to a partner in the debtor if the debtor was or 
thereby became insolvent.
    If a transferee's only liability to the trustee is under this 
section, and if he takes for value and in good faith, then subsection 
(c) grants him a lien on the property transferred, or other similar 
protection.
    Subsection (d) specifies that for the purposes of fraudulent 
transfer section, a transfer is made when it is valid against a 
subsequent bona fide purchaser. If not made before the commencement of 
the case, it is considered made immediately before then. Subsection (d) 
also defines ``value'' to mean property, or the satisfaction or securing 
of a present or antecedent debt, but does not include an unperformed 
promise to furnish support to the debtor or a relative of the debtor.

                       References in Text

    Sections 170(c) and 731(c)(2)(C) of the Internal Revenue Code of 
1986, referred to in subsec. (d)(3), (4), are classified to sections 
170(c) and 731(c)(2)(C), respectively, of Title 26, Internal Revenue 
Code.


                               Amendments

    1998--Subsec. (a). Pub. L. 105-183, Sec. 3(a), designated existing 
provisions as par. (1), redesignated former pars. (1) and (2) as par. 
(1)(A) and (B), respectively, redesignated former par. (2)(A) and (B) as 
par. (1)(B)(i) and (ii), respectively, and redesignated former par. 
(2)(B)(i) to (iii) as par. (1)(B)(ii)(I) to (III), respectively, and 
added par. (2).
    Subsec. (d)(3), (4). Pub. L. 105-183, Sec. 2, added pars. (3) and 
(4).
    1994--Subsec. (d)(2)(B). Pub. L. 103-394, Sec. 501(b)(5)(A), 
substituted ``section 101, 741, or 761'' for ``section 101(34), 741(5) 
or 761(15)'' and ``section 101 or 741'' for ``section 101(35) or 
741(8)''.
    Subsec. (d)(2)(C). Pub. L. 103-394, Sec. 501(b)(5)(B), substituted 
``section 741 or 761'' for ``section 741(5) or 761(15)'' and ``section 
741'' for ``section 741(8)''.
    1990--Subsec. (d)(2)(B). Pub. L. 101-311, Sec. 204, inserted 
reference to sections 101(34) and 101(35) of this title.
    Subsec. (d)(2)(D). Pub. L. 101-311, Sec. 104, added subpar. (D).
    1986--Subsec. (d)(2)(B). Pub. L. 99-554 substituted ``, financial 
institution'' for ``financial institution,''.
    1984--Subsec. (a). Pub. L. 98-353, Sec. 463(a)(1), substituted ``if 
the debtor voluntarily or involuntarily'' for ``if the debtor'' in 
provisions preceding par. (1).
    Subsec. (a)(1). Pub. L. 98-353, Sec. 463(a)(2), substituted ``was 
made'' for ``occurred''.
    Subsec. (a)(2)(B)(ii). Pub. L. 98-353, Sec. 463(a)(3), inserted ``or 
a transaction'' after ``engaged in business''.
    Subsec. (c). Pub. L. 98-353, Sec. 463(b), inserted ``or may retain'' 
after ``lien on'' and struck out ``, may retain any lien transferred,'' 
before ``or may enforce any obligation incurred''.
    Subsec. (d)(1). Pub. L. 98-353, Sec. 463(c)(1), substituted ``is 
so'' for ``becomes so far'', ``applicable law permits such transfer to 
be'' for ``such transfer could have been'', and ``is made'' for 
``occurs''.
    Subsec. (d)(2)(B). Pub. L. 98-353, Sec. 463(c)(2), inserted 
``financial institution,'' after ``stockbroker''.
    Subsec. (d)(2)(C). Pub. L. 98-353, Sec. 394(2), added subpar. (C).
    1982--Subsec. (d)(2)(B). Pub. L. 97-222 substituted ``a commodity 
broker, forward contract merchant, stockbroker, or securities clearing 
agency that receives a margin payment, as defined in section 741(5) or 
761(15) of this title, or settlement payment, as defined in section 
741(8) of this title, takes for value to extent of such payment'' for 
``a commodity broker or forward contract merchant that receives a margin 
payment, as defined in section 761(15) of this title, takes for value''.


                    Effective Date of 1998 Amendment

    Amendment by Pub. L. 105-183 applicable to any case brought under an 
applicable provision of this title that is pending or commenced on or 
after June 19, 1998, see section 5 of Pub. L. 105-183, set out as a note 
under section 544 of this title.


                    Effective Date of 1994 Amendment

    Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not 
applicable with respect to cases commenced under this title before Oct. 
22, 1994, see section 702 of Pub. L. 103-394, set out as a note under 
section 101 of this title.


                    Effective Date of 1986 Amendment

    Amendment by Pub. L. 99-554 effective 30 days after Oct. 27, 1986, 
see section 302(a) of Pub. L. 99-554, set out as a note under section 
581 of Title 28, Judiciary and Judicial Procedure.


                    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.

                  Section Referred to in Other Sections

    This section is referred to in sections 106, 303, 349, 502, 522, 
544, 546, 550, 551, 552, 707, 749, 764, 901, 926, 1325 of this title.

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