11 U.S.C. § 703 — Successor trustee

Page 191 TITLE 11—BANKRUPTCY § 703 (3) is not an insider. (b) At the meeting of creditors held under sec- tion 341 of this title, creditors may elect one person to serve as trustee in the case if election of a trustee is requested by creditors that may vote under subsection (a) of this section, and that hold at least 20 percent in amount of the claims specified in subsection (a)(1) of this sec- tion that are held by creditors that may vote under subsection (a) of this section. (c) A candidate for trustee is elected trustee if— (1) creditors holding at least 20 percent in amount of the claims of a kind specified in subsection (a)(1) of this section that are held by creditors that may vote under subsection (a) of this section vote; and (2) such candidate receives the votes of creditors holding a majority in amount of claims specified in subsection (a)(1) of this sec- tion that are held by creditors that vote for a trustee. (d) If a trustee is not elected under this sec- tion, then the interim trustee shall serve as trustee in the case. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2604; Pub. L. 97–222, § 7, July 27, 1982, 96 Stat. 237; Pub. L. 98–353, title III, § 472, July 10, 1984, 98 Stat. 380.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS The House amendment adopts section 702(a)(2) of the Senate amendment. An insubstantial equity interest does not disqualify a creditor from voting for a can- didate for trustee. SENATE REPORT NO. 95–989 Subsection (a) of this section specifies which credi- tors may vote for a trustee. Only a creditor that holds an allowable, undisputed, fixed, liquidated, unsecured claim that is not entitled to priority, that does not have an interest materially adverse to the interest of general unsecured creditors, and that is not an insider may vote for a trustee. The phrase ‘‘materially ad- verse’’ is currently used in the Rules of Bankruptcy Procedure, rule 207(d). The application of the standard requires a balancing of various factors, such as the na- ture of the adversity. A creditor with a very small eq- uity position would not be excluded from voting solely because he holds a small equity in the debtor. The Rules of Bankruptcy Procedure also currently provide for temporary allowance of claims, and will continue to do so for the purposes of determining who is eligible to vote under this provision. Subsection (b) permits creditors at the meeting of creditors to elect one person to serve as trustee in the case. Creditors holding at least 20 percent in amount of the claims specified in the preceding paragraph must request election before creditors may elect a trustee. Subsection (c) specifies that a candidate for trustee is elected trustee if creditors holding at least 20 percent in amount of those claims actually vote, and if the can- didate receives a majority in amount of votes actually cast. Subsection (d) specifies that if a trustee is not elect- ed, then the interim trustee becomes the permanent trustee and serves in the case permanently. Editorial Notes AMENDMENTS 1984—Subsec. (b). Pub. L. 98–353, § 472(a), inserted ‘‘held’’ after ‘‘meeting of creditors’’. Subsec. (c)(1). Pub. L. 98–353, § 472(b)(1), inserted ‘‘of a kind’’ after ‘‘claims’’. Subsec. (c)(2). Pub. L. 98–353, § 472(b)(2), substituted ‘‘for a trustee’’ for ‘‘for trustee’’. Subsec. (d). Pub. L. 98–353, § 472(c), substituted ‘‘this section’’ for ‘‘subsection (c) of this section’’. 1982—Subsec. (a)(1). Pub. L. 97–222 substituted ‘‘726(a)(4), 752(a), 766(h), or 766(i)’’ for ‘‘or 726(a)(4)’’. Statutory Notes and Related Subsidiaries 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. § 703. Successor trustee (a) If a trustee dies or resigns during a case, fails to qualify under section 322 of this title, or is removed under section 324 of this title, credi- tors may elect, in the manner specified in sec- tion 702 of this title, a person to fill the vacancy in the office of trustee. (b) Pending election of a trustee under sub- section (a) of this section, if necessary to pre- serve or prevent loss to the estate, the United States trustee may appoint an interim trustee in the manner specified in section 701(a). (c) If creditors do not elect a successor trustee under subsection (a) of this section or if a trust- ee is needed in a case reopened under section 350 of this title, then the United States trustee— (1) shall appoint one disinterested person that is a member of the panel of private trust- ees established under section 586(a)(1) of title 28 to serve as trustee in the case; or (2) may, if none of the disinterested mem- bers of such panel is willing to serve as trust- ee, serve as trustee in the case. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2605; Pub. L. 98–353, title III, § 473, July 10, 1984, 98 Stat. 381; Pub. L. 99–554, title II, § 216, Oct. 27, 1986, 100 Stat. 3100.) HISTORICAL AND REVISION NOTES SENATE REPORT NO. 95–989 If the office of trustee becomes vacant during the case, this section makes provision for the selection of a successor trustee. The office might become vacant through death, resignation, removal, failure to qualify under section 322 by posting bond, or the reopening of a case. If it does, creditors may elect a successor in the same manner as they may elect a trustee under the previous section. Pending the election of a successor, the court may appoint an interim trustee in the usual manner if necessary to preserve or prevent loss to the estate. If creditors do not elect a successor, or if a trustee is needed in a reopened case, then the court ap- points a disinterested member of the panel of private trustees to serve. Editorial Notes AMENDMENTS 1986—Subsec. (b). Pub. L. 99–554 amended subsec. (b) generally, substituting ‘‘the United States trustee may appoint’’ for ‘‘the court may appoint’’ and ‘‘manner specified in section 701(a)’’ for ‘‘manner and subject to the provisions of section 701 of this title’’. Subsec. (c). Pub. L. 99–554 amended subsec. (c) gen- erally, substituting ‘‘this section or’’ for ‘‘this section, or’’, ‘‘then the United States trustee’’ for ‘‘then the Page 192 TITLE 11—BANKRUPTCY § 704 court’’, designating part of existing provisions as par. (1), and, as so designated, substituting ‘‘586(a)(1)’’ for ‘‘604(f)’’, ‘‘in the case; or’’ for ‘‘in the case.’’, and adding par. (2). 1984—Subsec. (b). Pub. L. 98–353 substituted ‘‘and sub- ject to the provisions of section 701 of this title’’ for ‘‘specified in section 701(a) of this title. Sections 701(b) and 701(c) of this title apply to such interim trustee’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Effective date and applicability of amendment by Pub. L. 99–554 dependent upon the judicial district in- volved, see section 302(d), (e) 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. § 704. Duties of trustee (a) The trustee shall— (1) collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest; (2) be accountable for all property received; (3) ensure that the debtor shall perform his intention as specified in section 521(a)(2)(B) of this title; (4) investigate the financial affairs of the debtor; (5) if a purpose would be served, examine proofs of claims and object to the allowance of any claim that is improper; (6) if advisable, oppose the discharge of the debtor; (7) unless the court orders otherwise, furnish such information concerning the estate and the estate’s administration as is requested by a party in interest; (8) if the business of the debtor is authorized to be operated, file with the court, with the United States trustee, and with any govern- mental unit charged with responsibility for collection or determination of any tax arising out of such operation, periodic reports and summaries of the operation of such business, including a statement of receipts and disburse- ments, and such other information as the United States trustee or the court requires; (9) make a final report and file a final ac- count of the administration of the estate with the court and with the United States trustee; (10) if with respect to the debtor there is a claim for a domestic support obligation, pro- vide the applicable notice specified in sub- section (c); (11) if, at the time of the commencement of the case, the debtor (or any entity designated by the debtor) served as the administrator (as defined in section 3 of the Employee Retire- ment Income Security Act of 1974) of an em- ployee benefit plan, continue to perform the obligations required of the administrator; and (12) use all reasonable and best efforts to transfer patients from a health care business that is in the process of being closed to an ap- propriate health care business that— (A) is in the vicinity of the health care business that is closing; (B) provides the patient with services that are substantially similar to those provided by the health care business that is in the process of being closed; and (C) maintains a reasonable quality of care. (b)(1) With respect to a debtor who is an indi- vidual in a case under this chapter— (A) the United States trustee (or the bank- ruptcy administrator, if any) shall review all materials filed by the debtor and, not later than 10 days after the date of the first meeting of creditors, file with the court a statement as to whether the debtor’s case would be pre- sumed to be an abuse under section 707(b); and (B) not later than 7 days after receiving a statement under subparagraph (A), the court shall provide a copy of the statement to all creditors. (2) The United States trustee (or bankruptcy administrator, if any) shall, not later than 30 days after the date of filing a statement under paragraph (1), either file a motion to dismiss or convert under section 707(b) or file a statement setting forth the reasons the United States trustee (or the bankruptcy administrator, if any) does not consider such a motion to be ap- propriate, if the United States trustee (or the bankruptcy administrator, if any) determines that the debtor’s case should be presumed to be an abuse under section 707(b) and the product of the debtor’s current monthly income, multiplied by 12 is not less than— (A) in the case of a debtor in a household of 1 person, the median family income of the ap- plicable State for 1 earner; or (B) in the case of a debtor in a household of 2 or more individuals, the highest median fam- ily income of the applicable State for a family of the same number or fewer individuals. (c)(1) In a case described in subsection (a)(10) to which subsection (a)(10) applies, the trustee shall— (A)(i) provide written notice to the holder of the claim described in subsection (a)(10) of such claim and of the right of such holder to use the services of the State child support en- forcement agency established under sections 464 and 466 of the Social Security Act for the State in which such holder resides, for assist- ance in collecting child support during and after the case under this title; (ii) include in the notice provided under clause (i) the address and telephone number of such State child support enforcement agency; and (iii) include in the notice provided under clause (i) an explanation of the rights of such holder to payment of such claim under this chapter; (B)(i) provide written notice to such State child support enforcement agency of such claim; and (ii) include in the notice provided under clause (i) the name, address, and telephone number of such holder; and (C) at such time as the debtor is granted a discharge under section 727, provide written notice to such holder and to such State child support enforcement agency of—