[House Report 116-169]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-169
======================================================================
HONORING AMERICAN VETERANS IN EXTREME NEED ACT OF 2019
_______
July 23, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2938]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2938) to exempt from the calculation of monthly
income certain benefits paid by the Department of Veterans
Affairs and the Department of Defense, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 4
Duplication of Federal Programs.................................. 4
Performance Goals and Objectives................................. 4
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Changes in Existing Law Made by the Bill, as Reported............ 5
Purpose and Summary
H.R. 2938, the ``Honoring American Veterans in Extreme Need
Act of 2019'' or the ``HAVEN Act,'' would provide that certain
veterans' disability benefits should not be treated as income
for purposes of the Bankruptcy Code's means test. This
bipartisan measure was introduced by Representative Lucy McBath
(D-GA) on May 23, 2019, together with Representative W. Gregory
Steube (R-FL) as an original cosponsor. The bill is supported
by the Veterans of Foreign Affairs, the American Legion, and
the Disabled American Veterans.\1\ In addition, it is supported
by the American Bankruptcy Institute (ABI),\2\ the National
Association of Consumer Bankruptcy Attorneys (NACBA),\3\ the
National Conference of Bankruptcy Judges,\4\ and the American
College of Bankruptcy.\5\
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\1\Oversight of Bankruptcy Law and Legislative Proposals: Hearing
Before the Subcomm. on Antitrust, Commercial, & Admin. Law of the H.
Comm. on the Judiciary, 116th Cong. (2019) (statement of Rep. Lucy
McBath (D-GA)).
\2\See id (prepared statement of Robert J. Keach, Am. Bankr.
Inst.); Am. Bankr. Inst., Final Rep. of the ABI Commission on Consumer
Bankruptcy, at 134-35 (2019) [hereinafter ABI Consumer Report].
\3\Oversight of Bankruptcy Law and Legislative Proposals: Hearing
Before the Subcomm. on Antitrust, Commercial, & Admin. Law of the H.
Comm. on the Judiciary, 116th Cong. (2019) (statement of Ed Boltz,
National Association of Consumer Bankruptcy Attorneys).
\4\Letter from U.S. Bankruptcy Judge John E. Waites, Pres., Nat'l
Conf. of Bankr. Judges, to Rep. Jerrold Nadler (D-NY), Chair, H. Comm.
on the Judiciary, & Rep. Doug Collins (R-GA), Ranking Member, H. Comm.
on the Judiciary (May 31, 2019).
\5\Letter from Marc A. Levinson, Chair, Am. Coll. of Bankr., and
Mark D. Bloom, Pres., Am. Coll. of Bankr. to Rep. Jerrold Nadler (D-
NY), Chair, H. Comm. on the Judiciary, & Rep. Doug Collins (R-GA),
Ranking Member, H. Comm. on the Judiciary (June 11, 2019).
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Background and Need for the Legislation
BACKGROUND
Although the Bankruptcy Code as originally enacted in 1978
provided that a chapter 7 case could only be dismissed for
``cause,'' the Code was amended in 1984 to permit the court to
dismiss a chapter 7 case for ``substantial abuse.''\6\ This
provision, codified in section 707(b) of the Bankruptcy
Code,\7\ was added ``as part of a package of consumer credit
amendments designed to reduce perceived abuses in the use of
chapter 7.''\8\ It was intended to respond ``to concerns that
some debtors who could easily pay their creditors might resort
to chapter 7 to avoid their obligations.''\9\ In 1986, section
707(b) was further amended to allow a United States Trustee to
move for dismissal.\10\
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\6\Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L.
No. 98-353, Sec. 312, 98 Stat. 333, 335 (1984).
\7\11 U.S.C. Sec. 707(b) (2019).
\8\6 Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy Sec.
707.LH[2], at 707-61 (15th ed. rev. 2006).
\9\Id. at Sec. 707.04.
\10\Bankruptcy Judges, United States Trustees, and Family Farmer
Bankruptcy Act of 1986, Pub. L. No. 99-554, Sec. 219, 100 Stat. 3088,
3101 (1986). The United States Trustee Program is responsible for
overseeing the administration of bankruptcy cases and private trustees.
28 U.S.C. Sec. Sec. 581-89a (2019). The Program is overseen by the
Executive Office for United States Trustees, which provides policy and
management direction to United States Trustees. The Program operates
through a system of 21 regions nationwide, except for North Carolina
and Alabama. Bankruptcy Judges, United States Trustees, and Family
Farmer Bankruptcy Act of 1986, Pub. L. No. 99-554 (1986); 28 U.S.C.
Sec. 581 n. (2019). With respect to North Carolina and Alabama, the
bankruptcy system is administered by a bankruptcy administrator
appointed by the Judicial Conference. Id.
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Among its various amendments to the Bankruptcy Code, the
Bankruptcy Abuse Prevention and Consumer Protection Act of
2005\11\ included the establishment of a means or needs-based
testing mechanism to determine a debtor's ability to repay
debts for the purpose of determining whether the filing of the
bankruptcy case should be presumed to be abusive. As amended by
that Act, section 707(b) of the Bankruptcy Code provides that
if a chapter 7 debtor has the ability to repay debts and has no
special circumstances, the filing of the debtor's case is
presumed to be an abuse and subject to dismissal or conversion
to a chapter 13 case based on the debtor's income and various
specified expenses, some of which are determined under Internal
Revenue expense standards.\12\ The debtor's income, for
purposes of this test, is typically determined by calculating
the amount of average monthly income the debtor received during
the six-month period preceding the filing of the bankruptcy
case.\13\
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\11\Pub. L. No. 109-8, 119 Stat. 23 (2005).
\12\11 U.S.C. Sec. 707(b)(2)(A) (2019).
\13\11 U.S.C. Sec. 101(10A) (2019).
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Need for the Legislation
For purposes of the Bankruptcy Code's means test, Social
Security benefit payments are excluded as income. As Senator
Edward Kennedy (D-MA) stated in support of his amendment
providing for this exclusion that was ultimately included in
the 2005 Amendments:
The bottom line is that bankruptcy shouldn't be made
more difficult for those who are depending on Social
Security for their livelihood. Social Security was
developed to ensure that seniors can live their golden
years in dignity. If we allow Social Security income to
be considered while determining whether someone is
eligible for bankruptcy, a portion of those benefits
could be used in a manner inconsistent with Congress'
intent.\14\
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\14\145 Cong. Rec. 29,929 (1999).
There are, however, various other federal retirement
benefit programs--such as programs for veterans--that take the
place of Social Security, at least for the period during which
the worker held the type of employment covered under such
program. Much like Social Security, these other federal benefit
programs almost always prevent assignment or seizure of these
benefits by creditors.\15\ Nevertheless, the Bankruptcy Code's
means test treats such payments as income.
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\15\See ABI Consumer Report at 134-35.
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H.R. 2938, the ``Honoring American Veterans in Extreme Need
Act of 2019'' or the ``HAVEN Act,'' would bring certain
veterans' disability benefits paid by the U.S. Department of
Veterans Affairs and the U.S. Department of Defense into parity
with the treatment of Social Security payments under the
Bankruptcy Code's means test. According to the NCBJ, such
treatment ``will remedy an imbalance in the Bankruptcy Code
that disproportionately steers veterans receiving such benefits
into Chapter 13 cases because they often fail the Chapter 7
means test.''\16\
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\16\Letter from John E. Waites, President, Nat'l Conf. of Bankr.
Judges, to Rep. Jerrold Nadler (D-NY), Chair, H. Comm. on the
Judiciary, & Rep. Doug Collins (R-GA), Ranking Member, H. Comm. on the
Judiciary (May 31, 2019).
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Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to consider H.R.
2938: ``Oversight of Bankruptcy Law and Legislative
Proposals,'' which was held on June 25, 2019 by the Committee's
Subcommittee on Antitrust, Commercial, and Administrative
Law.\17\ The hearing considered various legislative measures.
Of pertinence to H.R. 2938, the following witnesses testified:
Hollister K. Petraeus, former Assistant Director, Consumer
Financial Protection Bureau's Office of Servicemember Affairs;
Edward C. Boltz, on behalf of the NACBA; and Robert J. Keach,
on behalf of the ABI.\18\
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\17\Oversight of Bankruptcy Law and Legislative Proposals: Hearing
Before the Subcomm. on Antitrust, Commercial, & Admin. Law of the H.
Comm. on the Judiciary, 116th Cong. (2019).
\18\See generally id.
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Committee Consideration
On July 11, 2019, the Committee met in open session and
ordered the bill, H.R. 2938, favorably reported without
amendment by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that no
rollcall votes occurred during the Committee's consideration of
H.R. 2938.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H.R. 2938 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2938 would extend the temporary authorization exempting certain
qualifying reserve component members of the Armed Services and
National Guard members from the Bankruptcy Code's means test
for four years.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2938 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Honoring American Veterans in Extreme Need
Act of 2019'' or the ``HAVEN Act''.
Sec. 2. Definition of Current Monthly Income. Bankruptcy
Code section 101 defines various terms. Section 2 would amend
Bankruptcy Code section 101(10A), which defines ``current
monthly income'' for purposes of the Code's means test, to
exclude compensation paid by the U.S. Department of Veterans
Affairs and the U.S. Department of Defense to an individual in
connection with a disability, combat-related injury or
disability, or death of a member of the uniformed services.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 11, UNITED STATES CODE
* * * * * * *
CHAPTER 1--GENERAL PROVISIONS
* * * * * * *
Sec. 101. Definitions
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
$150,000.
(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, with respect to which there
is a customer, as defined in section 761 of this title.
(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 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 and chapter
12, 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;
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); 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);
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, 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) or domestic terrorism (as
defined in section 2331 of title 18) on account
of their status as victims of such terrorism.]
(B)(i) 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); and
(ii) excludes--
(I) benefits received under the
Social Security Act (42 U.S.C. 301 et
seq.);
(II) payments to victims of war
crimes or crimes against humanity on
account of their status as victims of
such crimes;
(III) payments to victims of
international terrorism or domestic
terrorism, as those terms are defined
in section 2331 of title 18, on account
of their status as victims of such
terrorism; and
(IV) any monthly compensation,
pension, pay, annuity, or allowance
paid under title 10, 37, or 38 in
connection with a disability, combat-
related injury or disability, or death
of a member of the uniformed services,
except that any retired pay excluded
under this subclause shall include
retired pay paid under chapter 61 of
title 10 only to the extent that such
retired pay exceeds the amount of
retired pay to which the debtor would
otherwise be entitled if retired under
any provision of title 10 other than
chapter 61 of that title.
(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, 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;
(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)
or any Federal credit union or State credit
union (as those terms are defined in section
101 of the Federal Credit Union Act), 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, 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 if used as
the principal residence by the debtor,
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 if used as the principal
residence by the debtor.
(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 $3,237,000 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 $3,237,000 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.
(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 $1,500,000 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 $1,500,000 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.
(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) for which no
conservator or receiver has been appointed, the
appropriate Federal banking agency (as defined
in section 3(q) of such Act);
(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) in
connection with a securities contract (as
defined in section 741) such customer; or
(B) in connection with a securities contract
(as defined in section 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) 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).
(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) for the
purchase, sale, or transfer of a commodity, as
defined in section 761(8) of this title, 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.
(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) 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, 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;
(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.
(33) The term ``institution-affiliated party''--
(A) with respect to an insured depository
institution (as defined in section 3(c)(2) of
the Federal Deposit Insurance Act), has the
meaning given it in section 3(u) of the Federal
Deposit Insurance Act; and
(B) with respect to an insured credit union,
has the meaning given it in section 206(r) of
the Federal Credit Union Act.
(34) The term ``insured credit union'' has the
meaning given it in section 101(7) of the Federal
Credit Union Act.
(35) The term ``insured depository institution''--
(A) has the meaning given it in section
3(c)(2) of the Federal Deposit Insurance Act;
and
(B) includes an insured credit union (except
in the case of paragraphs (21B) and (33)(A) of
this subsection).
(35A) The term ``intellectual property'' means--
(A) trade secret;
(B) invention, process, design, or plant
protected under title 35;
(C) patent application;
(D) plant variety;
(E) work of authorship protected under title
17; or
(F) mask work protected under chapter 9 of
title 17;
to the extent protected by applicable nonbankruptcy
law.
(36) The term ``judicial lien'' means lien obtained
by judgment, levy, sequestration, or other legal or
equitable process or proceeding.
(37) The term ``lien'' means charge against or
interest in property to secure payment of a debt or
performance of an obligation.
(38) The term ``margin payment'' means, for purposes
of the forward contract provisions of this title,
payment or deposit of cash, a security or other
property, that is commonly known in the forward
contract trade as original margin, initial margin,
maintenance margin, or variation margin, including
mark-to-market payments, or variation payments.
(38A) The term ``master netting agreement''--
(A) means an agreement providing for the
exercise of rights, including rights of
netting, setoff, liquidation, termination,
acceleration, or close out, under or in
connection with one or more contracts that are
described in any one or more of paragraphs (1)
through (5) of section 561(a), or any security
agreement or arrangement or other credit
enhancement related to one or more of the
foregoing, including any guarantee or
reimbursement obligation related to 1 or more
of the foregoing; and
(B) if the agreement contains provisions
relating to agreements or transactions that are
not contracts described in paragraphs (1)
through (5) of section 561(a), shall be deemed
to be a master netting agreement only with
respect to those agreements or transactions
that are described in any one or more of
paragraphs (1) through (5) of section 561(a).
(38B) The term ``master netting agreement
participant'' means an entity that, at any time before
the date of the filing of the petition, is a party to
an outstanding master netting agreement with the
debtor.
(39) The term ``mask work'' has the meaning given it
in section 901(a)(2) of title 17.
(39A) The term ``median family income'' means for any
year--
(A) the median family income both calculated
and reported by the Bureau of the Census in the
then most recent year; and
(B) if not so calculated and reported in the
then current year, adjusted annually after such
most recent year until the next year in which
median family income is both calculated and
reported by the Bureau of the Census, to
reflect the percentage change in the Consumer
Price Index for All Urban Consumers during the
period of years occurring after such most
recent year and before such current year.
(40) The term ``municipality'' means political
subdivision or public agency or instrumentality of a
State.
(40A) The term ``patient'' means any individual who
obtains or receives services from a health care
business.
(40B) The term ``patient records'' means any record
relating to a patient, including a written document or
a record recorded in a magnetic, optical, or other form
of electronic medium.
(41) The term ``person'' includes individual,
partnership, and corporation, but does not include
governmental unit, except that a governmental unit
that--
(A) acquires an asset from a person--
(i) as a result of the operation of a
loan guarantee agreement; or
(ii) as receiver or liquidating agent
of a person;
(B) is a guarantor of a pension benefit
payable by or on behalf of the debtor or an
affiliate of the debtor; or
(C) is the legal or beneficial owner of an
asset of--
(i) an employee pension benefit plan
that is a governmental plan, as defined
in section 414(d) of the Internal
Revenue Code of 1986; or
(ii) an eligible deferred
compensation plan, as defined in
section 457(b) of the Internal Revenue
Code of 1986;
shall be considered, for purposes of section 1102 of
this title, to be a person with respect to such asset
or such benefit.
(41A) The term ``personally identifiable
information'' means--
(A) if provided by an individual to the
debtor in connection with obtaining a product
or a service from the debtor primarily for
personal, family, or household purposes--
(i) the first name (or initial) and
last name of such individual, whether
given at birth or time of adoption, or
resulting from a lawful change of name;
(ii) the geographical address of a
physical place of residence of such
individual;
(iii) an electronic address
(including an e-mail address) of such
individual;
(iv) a telephone number dedicated to
contacting such individual at such
physical place of residence;
(v) a social security account number
issued to such individual; or
(vi) the account number of a credit
card issued to such individual; or
(B) if identified in connection with 1 or
more of the items of information specified in
subparagraph (A)--
(i) a birth date, the number of a
certificate of birth or adoption, or a
place of birth; or
(ii) any other information concerning
an identified individual that, if
disclosed, will result in contacting or
identifying such individual physically
or electronically.
(42) The term ``petition'' means petition filed under
section 301, 302, 303 and 1504 of this title, as the
case may be, commencing a case under this title.
(42A) The term ``production payment'' means a term
overriding royalty satisfiable in cash or in kind--
(A) contingent on the production of a liquid
or gaseous hydrocarbon from particular real
property; and
(B) from a specified volume, or a specified
value, from the liquid or gaseous hydrocarbon
produced from such property, and determined
without regard to production costs.
(43) The term ``purchaser'' means transferee of a
voluntary transfer, and includes immediate or mediate
transferee of such a transferee.
(44) The term ``railroad'' means common carrier by
railroad engaged in the transportation of individuals
or property or owner of trackage facilities leased by
such a common carrier.
(45) The term ``relative'' means individual related
by affinity or consanguinity within the third degree as
determined by the common law, or individual in a step
or adoptive relationship within such third degree.
(46) The term ``repo participant'' means an entity
that, at any time before the filing of the petition,
has an outstanding repurchase agreement with the
debtor.
(47) The term ``repurchase agreement'' (which
definition also applies to a reverse repurchase
agreement)--
(A) means--
(i) an agreement, including related
terms, which provides for the transfer
of one or more certificates of deposit,
mortgage related securities (as defined
in section 3 of the Securities Exchange
Act of 1934), mortgage loans, interests
in mortgage related securities or
mortgage loans, eligible bankers'
acceptances, qualified foreign
government securities (defined as a
security that is a direct obligation
of, or that is fully guaranteed by, the
central government of a member of the
Organization for Economic Cooperation
and Development), or securities that
are direct obligations of, or that are
fully guaranteed by, the United States
or any agency of the United States
against the transfer of funds by the
transferee of such certificates of
deposit, eligible bankers' acceptances,
securities, mortgage loans, or
interests, with a simultaneous
agreement by such transferee to
transfer to the transferor thereof
certificates of deposit, eligible
bankers' acceptance, securities,
mortgage loans, or interests of the
kind described in this clause, at a
date certain not later than 1 year
after such transfer or on demand,
against the transfer of funds;
(ii) any combination of agreements or
transactions referred to in clauses (i)
and (iii);
(iii) an option to enter into an
agreement or transaction referred to in
clause (i) or (ii);
(iv) a master agreement that provides
for an agreement or transaction
referred to in clause (i), (ii), or
(iii), 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 repurchase
agreement under this paragraph, except
that such master agreement shall be
considered to be a repurchase agreement
under this paragraph only with respect
to each agreement or transaction under
the master agreement that is referred
to in clause (i), (ii), or (iii); or
(v) any security agreement or
arrangement or other credit enhancement
related to any agreement or transaction
referred to in clause (i), (ii), (iii),
or (iv), including any guarantee or
reimbursement obligation by or to a
repo participant or financial
participant in connection with any
agreement or transaction referred to in
any such clause, but not to exceed the
damages in connection with any such
agreement or transaction, measured in
accordance with section 562 of this
title; and
(B) does not include a repurchase obligation
under a participation in a commercial mortgage
loan.
(48) The term ``securities clearing agency'' means
person that is registered as a clearing agency under
section 17A of the Securities Exchange Act of 1934, or
exempt from such registration under such section
pursuant to an order of the Securities and Exchange
Commission, or whose business is confined to the
performance of functions of a clearing agency with
respect to exempted securities, as defined in section
3(a)(12) of such Act for the purposes of such section
17A.
(48A) The term ``securities self regulatory
organization'' means either a securities association
registered with the Securities and Exchange Commission
under section 15A of the Securities Exchange Act of
1934 or a national securities exchange registered with
the Securities and Exchange Commission under section 6
of the Securities Exchange Act of 1934.
(49) The term ``security''--
(A) includes--
(i) note;
(ii) stock;
(iii) treasury stock;
(iv) bond;
(v) debenture;
(vi) collateral trust certificate;
(vii) pre-organization certificate or
subscription;
(viii) transferable share;
(ix) voting-trust certificate;
(x) certificate of deposit;
(xi) certificate of deposit for
security;
(xii) investment contract or
certificate of interest or
participation in a profit-sharing
agreement or in an oil, gas, or mineral
royalty or lease, if such contract or
interest is required to be the subject
of a registration statement filed with
the Securities and Exchange Commission
under the provisions of the Securities
Act of 1933, or is exempt under section
3(b) of such Act from the requirement
to file such a statement;
(xiii) interest of a limited partner
in a limited partnership;
(xiv) other claim or interest
commonly known as ``security''; and
(xv) certificate of interest or
participation in, temporary or interim
certificate for, receipt for, or
warrant or right to subscribe to or
purchase or sell, a security; but
(B) does not include--
(i) currency, check, draft, bill of
exchange, or bank letter of credit;
(ii) leverage transaction, as defined
in section 761 of this title;
(iii) commodity futures contract or
forward contract;
(iv) option, warrant, or right to
subscribe to or purchase or sell a
commodity futures contract;
(v) option to purchase or sell a
commodity;
(vi) contract or certificate of a
kind specified in subparagraph (A)(xii)
of this paragraph that is not required
to be the subject of a registration
statement filed with the Securities and
Exchange Commission and is not exempt
under section 3(b) of the Securities
Act of 1933 from the requirement to
file such a statement; or
(vii) debt or evidence of
indebtedness for goods sold and
delivered or services rendered.
(50) The term ``security agreement'' means agreement
that creates or provides for a security interest.
(51) The term ``security interest'' means lien
created by an agreement.
(51A) The term ``settlement payment'' means, for
purposes of the forward contract provisions of this
title, a preliminary settlement payment, a partial
settlement payment, an interim settlement payment, a
settlement payment on account, a final settlement
payment, a net settlement payment, or any other similar
payment commonly used in the forward contract trade.
(51B) The term ``single asset real estate'' means
real property constituting a single property or
project, other than residential real property with
fewer than 4 residential units, which generates
substantially all of the gross income of a debtor who
is not a family farmer and on which no substantial
business is being conducted by a debtor other than the
business of operating the real property and activities
incidental thereto.
(51C) The term ``small business case'' means a case
filed under chapter 11 of this title in which the
debtor is a small business debtor.
(51D) The term ``small business debtor''--
(A) subject to subparagraph (B), means a
person engaged in commercial or business
activities (including any affiliate of such
person that is also a debtor under this title
and excluding a person whose primary activity
is the business of owning or operating real
property or activities incidental thereto) that
has aggregate noncontingent liquidated secured
and unsecured debts as of the date of the
filing of the petition or the date of the order
for relief in an amount not more than
$2,000,000 (excluding debts owed to 1 or more
affiliates or insiders) for a case in which the
United States trustee has not appointed under
section 1102(a)(1) a committee of unsecured
creditors or where the court has determined
that the committee of unsecured creditors is
not sufficiently active and representative to
provide effective oversight of the debtor; and
(B) does not include any member of a group of
affiliated debtors that has aggregate
noncontingent liquidated secured and unsecured
debts in an amount greater than $2,000,000
(excluding debt owed to 1 or more affiliates or
insiders).
(52) The term ``State'' includes the District of
Columbia and Puerto Rico, except for the purpose of
defining who may be a debtor under chapter 9 of this
title.
(53) The term ``statutory lien'' means lien arising
solely by force of a statute on specified circumstances
or conditions, or lien of distress for rent, whether or
not statutory, but does not include security interest
or judicial lien, whether or not such interest or lien
is provided by or is dependent on a statute and whether
or not such interest or lien is made fully effective by
statute.
(53A) The term ``stockbroker'' means person--
(A) with respect to which there is a
customer, as defined in section 741 of this
title; and
(B) that is engaged in the business of
effecting transactions in securities--
(i) for the account of others; or
(ii) with members of the general
public, from or for such person's own
account.
(53B) The term ``swap agreement''--
(A) means--
(i) any agreement, including the
terms and conditions incorporated by
reference in such agreement, which is--
(I) an interest rate swap,
option, future, or forward
agreement, including a rate
floor, rate cap, rate collar,
cross-currency rate swap, and
basis swap;
(II) a spot, same day-
tomorrow, tomorrow-next,
forward, or other foreign
exchange, precious metals, or
other commodity agreement;
(III) a currency swap,
option, future, or forward
agreement;
(IV) an equity index or
equity swap, option, future, or
forward agreement;
(V) a debt index or debt
swap, option, future, or
forward agreement;
(VI) a total return, credit
spread or credit swap, option,
future, or forward agreement;
(VII) a commodity index or a
commodity swap, option, future,
or forward agreement;
(VIII) a weather swap,
option, future, or forward
agreement;
(IX) an emissions swap,
option, future, or forward
agreement; or
(X) an inflation swap,
option, future, or forward
agreement;
(ii) any agreement or transaction
that is similar to any other agreement
or transaction referred to in this
paragraph and that--
(I) is of a type that has
been, is presently, or in the
future becomes, the subject of
recurrent dealings in the swap
or other derivatives markets
(including terms and conditions
incorporated by reference
therein); and
(II) is a forward, swap,
future, option, or spot
transaction on one or more
rates, currencies, commodities,
equity securities, or other
equity instruments, debt
securities or other debt
instruments, quantitative
measures associated with an
occurrence, extent of an
occurrence, or contingency
associated with a financial,
commercial, or economic
consequence, or economic or
financial indices or measures
of economic or financial risk
or value;
(iii) any combination of agreements
or transactions referred to in this
subparagraph;
(iv) any option to enter into an
agreement or transaction referred to in
this subparagraph;
(v) a master agreement that provides
for an agreement or transaction
referred to in clause (i), (ii), (iii),
or (iv), together with all supplements
to any such master agreement, and
without regard to whether the master
agreement contains an agreement or
transaction that is not a swap
agreement under this paragraph, except
that the master agreement shall be
considered to be a swap agreement under
this paragraph only with respect to
each agreement or transaction under the
master agreement that is referred to in
clause (i), (ii), (iii), or (iv); or
(vi) any security agreement or
arrangement or other credit enhancement
related to any agreements or
transactions referred to in clause (i)
through (v), including any guarantee or
reimbursement obligation by or to a
swap participant or financial
participant in connection with any
agreement or transaction referred to in
any such clause, but not to exceed the
damages in connection with any such
agreement or transaction, measured in
accordance with section 562; and
(B) is applicable for purposes of this title
only, and shall not be construed or applied so
as to challenge or affect the characterization,
definition, or treatment of any swap agreement
under any other statute, regulation, or rule,
including the Gramm-Leach-Bliley Act, the Legal
Certainty for Bank Products Act of 2000, the
securities laws (as such term is defined in
section 3(a)(47) of the Securities Exchange Act
of 1934) and the Commodity Exchange Act.
(53C) The term ``swap participant'' means an entity
that, at any time before the filing of the petition,
has an outstanding swap agreement with the debtor.
(56A) The term ``term overriding royalty'' means an
interest in liquid or gaseous hydrocarbons in place or
to be produced from particular real property that
entitles the owner thereof to a share of production, or
the value thereof, for a term limited by time,
quantity, or value realized.
(53D) The term ``timeshare plan'' means and shall
include that interest purchased in any arrangement,
plan, scheme, or similar device, but not including
exchange programs, whether by membership, agreement,
tenancy in common, sale, lease, deed, rental agreement,
license, right to use agreement, or by any other means,
whereby a purchaser, in exchange for consideration,
receives a right to use accommodations, facilities, or
recreational sites, whether improved or unimproved, for
a specific period of time less than a full year during
any given year, but not necessarily for consecutive
years, and which extends for a period of more than
three years. A ``timeshare interest'' is that interest
purchased in a timeshare plan which grants the
purchaser the right to use and occupy accommodations,
facilities, or recreational sites, whether improved or
unimproved, pursuant to a timeshare plan.
(54) The term ``transfer'' means--
(A) the creation of a lien;
(B) the retention of title as a security
interest;
(C) the foreclosure of a debtor's equity of
redemption; or
(D) each mode, direct or indirect, absolute
or conditional, voluntary or involuntary, of
disposing of or parting with--
(i) property; or
(ii) an interest in property.
(54A) The term ``uninsured State member bank'' means
a State member bank (as defined in section 3 of the
Federal Deposit Insurance Act) the deposits of which
are not insured by the Federal Deposit Insurance
Corporation.
(55) The term ``United States'', when used in a
geographical sense, includes all locations where the
judicial jurisdiction of the United States extends,
including territories and possessions of the United
States.
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