§ 764. Voidable transfers

681 words·~3 min read·/usc/title-11/section-764

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(a)Except as otherwise provided in this section, any transfer by the debtor of property that, but for such transfer, would have been customer property, may be avoided by the trustee, and such property shall be treated as customer property, if and to the extent that the trustee avoids such transfer under section 544, 545, 547, 548, 549, or 724(a) of this title. For the purpose of such sections, the property so transferred shall be deemed to have been property of the debtor, and, if such transfer was made to a customer or for a customer’s benefit, such customer shall be deemed, for the purposes of this section, to have been a creditor.

(b)Notwithstanding sections 544, 545, 547, 548, 549, and 724(a) of this title, the trustee may not avoid a transfer made before seven days after the order for relief, if such transfer is approved by the Commission by rule or order, either before or after such transfer, and if such transfer is—

(1)a transfer of a commodity contract entered into or carried by or through the debtor on behalf of a customer, and of any cash, securities, or other property margining or securing such commodity contract; or

(2)the liquidation of a commodity contract entered into or carried by or through the debtor on behalf of a customer.

(Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2618; Pub. L. 97–222, § 17, July 27, 1982, 96 Stat. 240; Pub. L. 98–353, title III, § 487, July 10, 1984, 98 Stat. 383; Pub. L. 111–16, § 2(9), May 7, 2009, 123 Stat. 1607.)

Historical and Revision Notes

legislative statements

Section 764 of the House amendment is derived from the House bill.

senate report no. 95–989

Section 764 permits the trustee to void any transfer of property that, except for such transfer, would have been customer property, to the extent permitted under section 544, 545, 547, 548, 549, or 724(a).

house report no. 95–595

Section 764 indicates the extent to which the avoiding powers may be used by the trustee under subchapter IV of chapter 7. If property recovered would have been customer property if never transferred, then subsection

(a)indicates that it will be so treated when recovered.

Subsection

(b)prohibits avoiding any transaction that occurs before or within five days after the petition if the transaction is approved by the Commission and concerns an open contractual commitment. This enables the Commission to exercise its discretion to protect the integrity of the market by insuring that transactions cleared with other brokers will not be undone on a preference or a fraudulent transfer theory.

Subsection

(c)insulates variation margin payments and other deposits from the avoiding powers except to the extent of actual fraud under section 548(a)(1). This facilitates prepetition transfers and protects the ordinary course of business in the market.

Connections20 cite this · traces to 2

Cited by 20 sections · top 13

statutes-at-large

Public Law 95–598
To establish a uniform Law on the Subject of Bankruptcies

Traces to 2 documents

U.S. Code

15 references not yet in our index

Pub. L. 95–598
92 Stat. 2618
Pub. L. 97–222, § 17
96 Stat. 240
Pub. L. 98–353, title III, § 487
98 Stat. 383
Pub. L. 111–16, § 2(9)
123 Stat. 1607
Pub. L. 111–16
Pub. L. 98–353
Pub. L. 97–222, § 17(a)
Pub. L. 97–222, § 17(b)
Pub. L. 97–222, § 17(c)
section 7 of Pub. L. 111–16
section 552(a) of Pub. L. 98–353

Citation graph

cites case law

§ 764

Voidable transfers

Fed. Reg.×19

Stat.×1

U.S.C.§ 109

U.S.C.§ 101

Pub. L.Pub. L. 95–598

Stat.92 Stat. 2618

Pub. L.Pub. L. 97–222, § 17

Stat.96 Stat. 240

Pub. L.Pub. L. 98–353, title III, § 487

Cites 17 · showing 7Cited by 20 across 2 sources