« ПретходнаНастави »
The amendment of 1946 added the paragraph excluding the application of section 40.
Note that any compensation allowed a referee under the fourth and fifth paragraphs of 83b must be transmitted to the Treasury of the United States under section 72 as amended by the Referees' Salary Act June 28, 1946.
The second paragraph of 83c was added by the amendment of 1946.
The first two paragraphs of 83e were inserted by the amendment of 1940. Prior to the amendment of 1946 the second paragraph of 83e impractically directed the judge to dismiss the petition and tax the costs against the attorney, etc., or the petitioner "if it be found that any such practice be possible."
The amendment of 1946 inserted with reference to the six requirements for confirmation the formal condition that the judge not only be satisfied, but find that the requirements are met.
As enacted in 1937, 50 Stat. 658, 83f read: "(f) If an interlocutory decree confirming the plan is entered as herein provided, the plan and said decree of confirmation shall become and be binding upon all creditors affected by the plan, if within the time prescribed in the interlocutory decree, or such additional time as the judge may allow, the money, securities, or other consideration to be delivered to the creditors under the terms of the plan shall have been deposited with the court or such disbursing agent as the court may appoint or shall otherwise be made available for the creditors. And thereupon the court shall enter a final decree determining that the petitioner has made available for the creditors affected by the plan the consideration provided for therein and is discharged from all debts and liabilities dealt with in the plan except as provided therein, and that the plan is binding upon all creditors affected by it, whether secured or unsecured, and whether or not their claims have been filed or evidenced, and, if filed or evidenced, whether or not allowed, including creditors who have not, as well as those who have, accepted it."
The amendment of 1946 deleted the word "taxing" before "agency" in the proviso to 83h as enacted in 1937.
The amendment of 1946 added the proviso to 831 as enacted in 1937. Subdivision j was inserted by section 3 of the Chandler Act, 52 Stat. 940 (1938). The amendment of 1946 substituted "title" for "Act" after "prohibiting the effect of this."
Pub.L. 481, July 1, 1946, reenacted sections 81 to 83 inclusive with the above described amendments and repealed section 84, which had limited the time for commencing proceedings under chapter IX (formerly Chapter X, see section 3(a) of the Chandler Act, 52 Stat. 939, 1938). The first limit was June 30, 1940. This was later extended to 1942 and then to 1946.
For discussion of municipal debt problems, see Foley, "Recent Developments in Federal Municipal Relations," 86 U. of Pa.L. Rev. 488, 501 et seq. (1938); Reuschlein, "Municipal Debt Readjustment," 23 Corn.L.Q. 369 (1938); Legislation, "New Municipal Bankruptcy Act," 26 Geo.L.J. 98 (1937); “New Federal Municipal Debt Readjustment," 24 Va.L.Rev. 181 (1937); 24 Va.L. Rev. 427 (1938); Patterson "Municipal Debt Adjustments under the Bankruptcy Act," 90 U. of Pa.L. Rev. 520 (1942).
This chapter, added by the Chandler Act (1938), incorporates, with numerous changes and additions, former section 77B.
Sec. 101. (11 U.S.C. § 501.) Exclusive Application of Chapter The provisions of this chapter shall apply exclusively to proceedings under this chapter.
Sec. 102. (11 U.S.C. § 502.) Application of Other Provisions
The provisions of chapters I to VII, inclusive, of this Act shall, insofar as they are not inconsistent or in conflict with the provisions of this chapter, apply in proceedings under this chapter: Provided, however, That section 23, subdivisions h and n of section 57, section 64, and subdivision f of section 70, shall not apply in such proceedings unless an order shall be entered directing that bankruptcy be proceeded with pursuant to the provisions of chapters I to VII, inclusive. For the purposes of such application, provisions relating to "bankrupts" shall be deemed to relate also to "debtors," and "bankruptcy proceedings" or "proceedings in bankruptcy" shall be deemed to include proceedings under this chapter. For the purposes of such application the date of the filing of the petition in bankruptcy shall be taken to be the date of the filing of an original petition under section 128 of this Act, and the date of adjudication shall be taken to be the date of approval of a petition filed under section 127 or 128 of this Act except where an adjudication had previously been entered.
This section was derived from section 77B k, which read as follows: "If an order is entered directing the trustee or trustees to liquidate the estate pursuant to the provisions of clause (8) of subdivision (c) of this section: (1) The case may be referred to a referee as provided in section 22, who shall be compensated as provided in section 40; (2) the first meeting of creditors shall be held as provided in section 55, upon notice as provided in section 58; (3) a trustee or trustees shall be appointed as provided in section 44, and be compensated as provided in section 48; (4) claims which are provable under section 63 may be proved as provided in section 57, except that the time within which proof may be made shall not expire until six months after the date of the last publication of the notice of the first meeting; (5) debts shall be entitled to priority as provided in section 64; (6) sales shall be made as provided in subdivision (b) of section 70; (7) dividends may be declared and paid as provided in section 65. None of the sections enumerated in this subdivision (k), except subdivisions (g), (i), (j), and (m) of section 57, and subdivisions (a) and (e) of section 70, shall apply to proceedings instituted under this section 77B unless and until an order has been entered
directing the trustee or trustees to liquidate the estate. All other provisions of this Act, except such as are inconsistent with the provisions of this section 77B, shall apply to proceedings instituted under this section, whether or not an order to liquidate the estate has been entered. For the purposes of such application, provisions relating to 'bankrupts' shall be deemed to relate also to 'debtors'; 'bankruptcy proceedings' or 'proceedings in bankruptcy' shall be deemed to include proceedings under this section; the date of the order approving the petition or answer under this section shall be taken to be the date of adjudication, and such order shall have the same consequences and effect as an order of adjudication."
For the inapplicability of section 68 to a solvent debtor, see Susquehanna Chemical Corp. v. Producers' Bank and Trust Co., 174 F.2d 783 (C.C.A.3d 1949).
Sec. 106. (11 U.S.C. § 506.) In General
For the purposes of this chapter, unless inconsistent with the context
(1) "claims" shall include all claims of whatever character against a debtor or its property, except stock, whether or not such claims are provable under section 63 of this Act and whether secured or unsecured, liquidated or unliquidated, fixed or contingent;
The definition in (1) is derived from section 77B b, which stated that a claim included "debts, securities, other than stock, liens, or other interests of whatever character."
(2) "commission" shall mean any commission or public authority created by any law of the United States or of any State, having regulatory jurisdiction over a public-utility corporation; A new definition introduced for the purpose of abridged expression.
(3) "corporation" shall mean a corporation, as defined in this Act, which could be adjudged a bankrupt under this Act, and any railroad corporation excepting a railroad corporation authorized to file a petition under section 77 of this Act;
Previously it was not certain which corporations were amenable to this section. The broad definition of section 1 is here employed as in In re Poland Union, 77 F.2d 855 (C.C.A.2d, 1935).
(4) "creditor" shall mean the holder of any claim;
(4) originally read: "The term 'creditors' shall include for all purposes of this section and of the reorganization plan, its acceptance and confirmation, all holders of claims of whatever character against the debtor or its property, including claims under executory contracts, whether or not such claims would otherwise constitute provable claims under this Act."
(5) "debtor" shall mean a corporation by or against which a petition has been filed under this chapter;
(6) "debts" shall include all claims;
(6) was added in order to exclude the limitation of the definition of "debts" in section 1.
(7) "executory contracts" shall include unexpired leases of real property;
(7), (8), (9), and (10) are definitions not found in section 77B.
(8) "indenture trustee" shall mean a trustee under a mortgage, deed of trust, or indenture, pursuant to which there are securities outstanding, other than voting-trust certificates, constituting claims against a debtor or claims secured by a lien upon any of its property;
(9) "petition" shall mean a petition filed under this chapter by a debtor, creditors, or indenture trustee proposing that a plan of reorganization be effected;
(10) "plan" shall mean a plan of reorganization proposed in a proceeding under this chapter;
(11) "securities" shall include notes, bonds, and other evidences of indebtedness, either secured or unsecured, and stock;
(11), for purposes of clarification, adds "notes" and "bonds" to the definition in section 77B b.
(12) "stock" shall include membership, shares, and similar interests in a debtor, certificates and other evidences of such membership, shares or interests, and voting-trust certificates;
Section 77B b provided: "The term 'stockholders' shall include the holders of voting trust certificates." The expanded definition conforms to the enlarged scope of "corporation" in (3) supra.
(13) "subsidiary" shall mean a corporation substantially all of whose properties are operated under lease or operating agreement, or the majority of whose stock having power to vote for the election of directors, trustees, or other similar controlling bodies is owned, directly or indirectly, through an intervening corporation or other medium, by another parent corporation, a petition by or against which has been approved.
Sec. 107. (11 U.S.C. § 507.) Creditors Affected by Plan; Determination
Creditors or stockholders or any class thereof shall be deemed to be "affected" by a plan only if their or its interest shall be materially and adversely affected thereby. In the event of controversy, the court shall after hearing upon notice summarily determine whether any creditor or stockholder or class is so affected.
Derived from section 77B b(7) and a passage following 77B b(10) which, respectively, read:
"(7) shall, in case any creditor or stockholder or class thereof shall not be affected by the plan, specify the creditor or stockholder or class or classes thereof not affected and contain such provisions with respect thereto as may be appropriate, and in case any controversy shall arise as to whether any creditor or stockholder or class thereof shall or shall not be affected, the issue shall be determined by the judge after hearing upon notice to the parties interested."
"No creditor or stockholder shall, for the purposes of this section be deemed to be affected by any plan of reorganization unless the same shall affect his interests materially and adversely."
Article III-Jurisdiction and Powers of Court
Sec. 111. (11 U.S.C. § 511.) Exclusive Jurisdiction over Debtor and Property
Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.
The corresponding part of section 77B a read: "If the petition or answer is so approved an order of adjudication in bankruptcy shall not be entered and the court in which such order approving the petition or answer is entered shall, during the pendency of the proceedings under this section have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section, Section 111 relates the
date for exclusive jurisdiction to the time of the filing rather than to that of the approval of the petition. This eliminates doubts about the nature and extent of the court's jurisdiction during a period which is often of considerable length.
Sec. 112. (11 U.S.C. § 512.) Matters Prior to Approval of Petition; Jurisdiction, Powers and Duties
Prior to the approval of a petition, the jurisdiction, powers, and duties of the court and of its officers, where not inconsistent with the provisions of this chapter, shall be the same as in a bankruptcy proceeding before adjudication.
Derived from section 77B o which read: "In proceedings under this section and consistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and liabilities of creditors, and of all persons with respect to the debtor and its property, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor's petition or answer was approved." Changes were made to avoid ambiguities.
Sec. 113. (11 U.S.C. § 513.) Same; Temporary Stay of Actions
Prior to the approval of a petition, the judge may upon cause shown grant a temporary stay, until the petition is approved or dismissed, of a prior pending bankruptcy, mortgage foreclosure or equity receivership proceeding and of any act or other proceeding to enforce a lien against a debtor's property, and may upon