11 U.S.C. § 1116 — Duties of trustee or debtor in possession

Page 254 TITLE 11—BANKRUPTCY § 1115 the court, on motion of a party in interest, and after notice and a hearing, shall issue an order reinstating as of the date the modification was made, such benefits as in effect immediately be- fore such date unless the court finds that the balance of the equities clearly favors such modi- fication. (m) This section shall not apply to any retiree, or the spouse or dependents of such retiree, if such retiree’s gross income for the twelve months preceding the filing of the bankruptcy petition equals or exceeds $250,000, unless such retiree can demonstrate to the satisfaction of the court that he is unable to obtain health, medical, life, and disability coverage for him- self, his spouse, and his dependents who would otherwise be covered by the employer’s insur- ance plan, comparable to the coverage provided by the employer on the day before the filing of a petition under this title. (Added Pub. L. 100–334, § 2(a), June 16, 1988, 102 Stat. 610; amended Pub. L. 109–8, title IV, § 447, title XIV, § 1403, Apr. 20, 2005, 119 Stat. 118, 215.) Editorial Notes AMENDMENTS 2005—Subsec. (d). Pub. L. 109–8, § 447, substituted ‘‘order the appointment of’’ for ‘‘appoint’’ and inserted ‘‘The United States trustee shall appoint any such committee.’’ at end. Subsecs. (l), (m). Pub. L. 109–8, § 1403, added subsec. (l) and redesignated former subsec. (l) as (m). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by section 1403 of Pub. L. 109–8 effective Apr. 20, 2005, and applicable only with respect to cases commenced under this title on or after Apr. 20, 2005, see section 1406 of Pub. L. 109–8, set out as a note under sec- tion 507 of this title. Amendment by section 447 of Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with re- spect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE Pub. L. 100–334, § 4, June 16, 1988, 102 Stat. 615, pro- vided that: ‘‘(a) GENERAL EFFECTIVE DATE.—Except as provided in subsection (b), this Act and the amendments made by this Act [enacting this section, amending section 1129 of this title, enacting provisions set out as a note under section 101 of this title, and amending and re- pealing provisions set out as notes under section 1106 of this title] shall take effect on the date of the enact- ment of this Act [June 16, 1988]. ‘‘(b) APPLICATION OF AMENDMENTS.—The amendments made by section 2 [enacting this section and amending section 1129 of this title] shall not apply with respect to cases commenced under title 11 of the United States Code before the date of the enactment of this Act [June 16, 1988].’’ PAYMENT OF CERTAIN BENEFITS TO RETIRED FORMER EMPLOYEES For payment of benefits by bankruptcy trustee to re- tired employees in enumerated circumstances with re- spect to cases commenced under this chapter in which a plan for reorganization had not been confirmed by the court and in which any such benefit was still being paid on October 2, 1986, and in cases that became subject to this chapter after October 2, 1986, and before June 16, 1988, see section 101(b) [title VI, § 608] of Pub. L. 99–500, and Pub. L. 99–591, as amended, set out as a note under section 1106 of this title. § 1115. Property of the estate (a) In a case in which the debtor is an indi- vidual, property of the estate includes, in addi- tion to the property specified in section 541— (1) all property of the kind specified in sec- tion 541 that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first; and (2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first. (b) Except as provided in section 1104 or a con- firmed plan or order confirming a plan, the debt- or shall remain in possession of all property of the estate. (Added Pub. L. 109–8, title III, § 321(a)(1), Apr. 20, 2005, 119 Stat. 94.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as an Effective Date of 2005 Amendment note under section 101 of this title. § 1116. Duties of trustee or debtor in possession in small business cases In a small business case, a trustee or the debt- or in possession, in addition to the duties pro- vided in this title and as otherwise required by law, shall— (1) append to the voluntary petition or, in an involuntary case, file not later than 7 days after the date of the order for relief— (A) its most recent balance sheet, state- ment of operations, cash-flow statement, and Federal income tax return; or (B) a statement made under penalty of per- jury that no balance sheet, statement of op- erations, or cash-flow statement has been prepared and no Federal tax return has been filed; (2) attend, through its senior management personnel and counsel, meetings scheduled by the court or the United States trustee, includ- ing initial debtor interviews, scheduling con- ferences, and meetings of creditors convened under section 341 unless the court, after notice and a hearing, waives that requirement upon a finding of extraordinary and compelling cir- cumstances; (3) timely file all schedules and statements of financial affairs, unless the court, after no- tice and a hearing, grants an extension, which shall not extend such time period to a date later than 30 days after the date of the order for relief, absent extraordinary and compelling circumstances; Page 255 TITLE 11—BANKRUPTCY § 1121 (4) file all postpetition financial and other reports required by the Federal Rules of Bank- ruptcy Procedure or by local rule of the dis- trict court; (5) subject to section 363(c)(2), maintain in- surance customary and appropriate to the in- dustry; (6)(A) timely file tax returns and other re- quired government filings; and (B) subject to section 363(c)(2), timely pay all taxes entitled to administrative expense priority except those being contested by ap- propriate proceedings being diligently pros- ecuted; and (7) allow the United States trustee, or a des- ignated representative of the United States trustee, to inspect the debtor’s business prem- ises, books, and records at reasonable times, after reasonable prior written notice, unless notice is waived by the debtor. (Added Pub. L. 109–8, title IV, § 436(a), Apr. 20, 2005, 119 Stat. 112.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Bankruptcy Procedure, referred to in par. (4), are set out in the Appendix to this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as an Effective Date of 2005 Amendment note under section 101 of this title. SUBCHAPTER II—THE PLAN § 1121. Who may file a plan (a) The debtor may file a plan with a petition commencing a voluntary case, or at any time in a voluntary case or an involuntary case. (b) Except as otherwise provided in this sec- tion, only the debtor may file a plan until after 120 days after the date of the order for relief under this chapter. (c) Any party in interest, including the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an eq- uity security holder, or any indenture trustee, may file a plan if and only if— (1) a trustee has been appointed under this chapter; (2) the debtor has not filed a plan before 120 days after the date of the order for relief under this chapter; or (3) the debtor has not filed a plan that has been accepted, before 180 days after the date of the order for relief under this chapter, by each class of claims or interests that is impaired under the plan. (d)(1) Subject to paragraph (2), on request of a party in interest made within the respective pe- riods specified in subsections (b) and (c) of this section and after notice and a hearing, the court may for cause reduce or increase the 120-day pe- riod or the 180-day period referred to in this sec- tion. (2)(A) The 120-day period specified in para- graph (1) may not be extended beyond a date that is 18 months after the date of the order for relief under this chapter. (B) The 180-day period specified in paragraph (1) may not be extended beyond a date that is 20 months after the date of the order for relief under this chapter. (e) In a small business case— (1) only the debtor may file a plan until after 180 days after the date of the order for re- lief, unless that period is— (A) extended as provided by this sub- section, after notice and a hearing; or (B) the court, for cause, orders otherwise; (2) the plan and a disclosure statement (if any) shall be filed not later than 300 days after the date of the order for relief; and (3) the time periods specified in paragraphs (1) and (2), and the time fixed in section 1129(e) within which the plan shall be confirmed, may be extended only if— (A) the debtor, after providing notice to parties in interest (including the United States trustee), demonstrates by a prepon- derance of the evidence that it is more like- ly than not that the court will confirm a plan within a reasonable period of time; (B) a new deadline is imposed at the time the extension is granted; and (C) the order extending time is signed be- fore the existing deadline has expired. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2631; Pub. L. 98–353, title III, § 506, July 10, 1984, 98 Stat. 385; Pub. L. 99–554, title II, § 283(u), Oct. 27, 1986, 100 Stat. 3118; Pub. L. 103–394, title II, § 217(d), Oct. 22, 1994, 108 Stat. 4127; Pub. L. 109–8, title IV, §§ 411, 437, Apr. 20, 2005, 119 Stat. 106, 113.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 1121 of the House amendment is derived from section 1121 of the House bill; section 1121(c)(1) will be satisfied automatically in a case under subchapter IV of title 11. SENATE REPORT NO. 95–989 Subsection (a) permits the debtor to file a reorganiza- tion plan with a petition commencing a voluntary case or at any time during a voluntary or involuntary case. Subsection (b) gives the debtor the exclusive right to file a plan during the first 120 days of the case. There are exceptions, however, enumerated in subsection (c). If a trustee has been appointed, if the debtor does not meet the 120-day deadline, or if the debtor fails to ob- tain the required consent within 180 days after the fil- ing of the petition, any party in interest may propose a plan. This includes the debtor, the trustee, a credi- tors’ committee, an equity security holders’ com- mittee, a creditor, an equity security holder, and an in- denture trustee. The list is not exhaustive. In the case of a public company, a trustee is appointed within 10 days of the petition. In such a case, for all practical purposes, any party in interest may file a plan. Subsection (d) permits the court, for cause, to in- crease or reduce the 120-day and 180-day periods speci- fied. Since, the debtor has an exclusive privilege for 6 months during which others may not file a plan, the granted extension should be based on a showing of some promise of probable success. An extension should not be employed as a tactical device to put pressure on parties in interest to yield to a plan they consider unsatisfac- tory.