Omnibus Bankruptcy Improvements Act of 1983

(Measure passed Senate, amended)

Omnibus Bankruptcy Improvements Act of 1983 - Title I: Bankruptcy Code Amendments - Subtitle A - Consumer Credit Amendments - Consumer Debtor Bankruptcy Amendments Act of 1983 - Amends title 11 (Bankruptcy) of the United States Code to permit an individual debtor to commence a voluntary bankruptcy case by filing with the bankruptcy court a petition which only conditionally designates a chapter under which relief is sought (thus conferring on the debtor all the rights afforded by such chapter while the debtor is counseled about which chapter to designate finally).

Permits a bankruptcy court to dismiss a case filed under chapter 7 (liquidation) if it finds that the granting of relief under such chapter would be a substantial abuse of its provisions. Grants the debtor the right to appeal such a dismissal.

Requires the trustee in bankruptcy, in an individual bankruptcy case, to counsel the debtor with: (1) an explanation of the relief available; (2) an analysis of the debtor's estimated income and expenses, and information on the possibility of repayment of debts; (3) an analysis of the debtor's position if he elects relief; and (4) a statement to the debtor that the trustee is making no recommendation as to appropriate relief.

Permits counsel for the debtor to be present during such counseling by the trustee.

Requires the bankruptcy judge to convene, and permits such judge to preside at, any meeting of creditors and to perform such additional judicial duties as may be required.

Declares that the value of the creditor's interest in the estate's interest in consumer goods property shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. Declares that the value of consumer goods which the debtor seeks to redeem in liquidation shall be presumed to be the established resale market price, if such market exists. Permits the court to utilize other methods of valuation if no such market exists or if the court determines that resale value is inappropriate in light of the property's proposed use or disposition.

Requires the debtor in bankruptcy cases to file a statement of estimated income and expenses for the year following filing of his petition. Requires the debtor, if the debtor's schedule of assets and liabilities include consumer debts secured by property of the estate, to file and serve upon each creditor holding such security and the trustee, a statement expressing the debtor's intention with respect to retention or surrender of the collateral.

Requires the debtor, before the meeting of creditors provided for by such title, to file a statement of current income and an estimate of current expenditures for the support of himself and his dependents.

Requires an individual debtor to make a final designation of the chapter under which relief is requested no later than ten days after the counseling provided for by this Act.

Requires the debtor, if the schedule of assets and liabilities includes consumer debts secured by property of the estate, to file and serve upon each creditor holding such security and the trustee a statement expressing the debtor's intention with respect to retention or surrender of the collateral.

Requires the debtor, at or before the meeting of creditors or upon such other date as the court may fix, to perform his intention with regard to such secured creditors.

Requires individuals filing for bankruptcy in joint or consolidated cases to elect either the Federal or State exemptions. Places an aggregate limit of $4,000 on the value of the exemption with regard to household goods and personal effects.

Prohibits the debtor from utilizing more than $2,000 of the unused dollar value of the homestead exemption to exempt additional property not explicitly provided for by such Act.

Repeals the provisions of such Act which currently authorize the debtor to avoid nonpurchase money security interests in property.

Presumes nondischargeable any debt incurred on or within 40 days before the date of the filing of a petition under such title. Allows for rebuttal of such presumption. Makes an exception from such presumption of reasonable expenses for the debtor's or his dependents' support.

Allows creditors to enforce liens which have not been avoided in bankruptcy.

Permits reaffirmation of consumer debts subject to the debtor's right to rescind any such agreement within 60 days or until a discharge is received, whichever occurs later.

Declares that at the meeting of creditors the court shall inform the debtor of the nature and effect of a discharge and of any reaffirmation of debt, and that any reaffirmation agreement entered into is voluntary.

Requires the court to inform the debtor of the legal effect and consequences of a default under such agreement.

Limits the trustee's power to avoid liens or recover payments made within 90 days of the filing of the petition in bankruptcy (within one year in the case of an insider) unless the creditor had reasonable cause to believe the debtor was insolvent.

Permits the court, upon notice and hearing, to require a creditor to accept payments in redemption of the value of a claim secured by a nonpossessory, nonpurchase money security interest in tangible personal property, over a reasonable period not to exceed five years, if such tangible personal property consists of specified household goods and tools of the debtor's trade.

Permits the court, upon notice and hearing, to avoid any lien in whole or in part, if the court finds: (1) that the debtor has no reasonable ability to pay the redemption value of such property; and (2) the enforcement of such lien would impose undue hardship on the debtor.

Allows a creditor, upon 10 days notice to the debtor and codebtor, to collect any portion of a debt from the codebtor which is not being paid by the debtor through the adjustment of debts of such debtor with a regular income.

Requires payments under an adjustment of debts payment plan to commence within thirty days after the filing of the plan. Provides for the return of such funds after deducting the costs of administration if no plan is confirmed.

Provides for the separate classification of co-debtor claims and non-dischargeable claims and authorizes payment of them under an adjustment of debts payment plan.

Allows a debtor to choose such a repayment plan of up to five years.

Bases such repayment upon the debtor's ability to repay his debts, after taking into account the basic living necessities for the debtor and dependents.

Provides for an early discharge of debts where a reasonable portion of unsecured claims is paid.

Permits a hardship discharge of otherwise non-dischargeable debts to the extent the debtor attempted to pay such debts under an adjustment of debts payment plan, but was prevented from so doing by unforeseen circumstances.

Subtitle B - Agricultural Produce Bailment Amendments - Agricultural Produce Bailment Bankruptcy Amendments Act of 1983 - Requires bankruptcy courts to give priority to allowed unsecured claims of farmers arising from the sale or conversion of farm produce to or by a debtor who operates a farm produce storage facility. Specifies that such sale or conversion must have occurred within 180 days before the filing of the petition or before the cessation of the debtor's business, whichever occurs first. Limits the payment of any such claim to $2,000 per individual. Gives the same priority to allowed unsecured claims of fishermen for fish landed and delivered to a fish processing facility.

Permits a bankruptcy court to expedite the procedures for determining interests in and the disposition of grain (or fish) and proceeds held by debtors who own or operate grain storage facilities (or fish processing facilities). Requires the court to expedite such procedures if requested by a trustee or a claimant.

Sets forth factors for the court to consider before deciding whether to shorten the time periods for procedures. Lists the procedures which may be expedited.

Provides that any claimant's production to the court of a valid grain storage facility receipt held as evidence of ownership of a quantity of farm produce sold by the trustee shall be sufficient to establish a right to possession in such claimant of a share of the proceeds equal in value to the quantity, quality, and type of farm produce specified in the document.

Specifies administrative details.

Subtitle C - Leasehold Management Amendments - Leasehold Management Bankruptcy Amendments Act of 1983 - Requires a trustee in bankruptcy to perform all of the obligations of a tenant arising from an order for bankruptcy relief under an unexpired nonresidential lease (including payment of the rent and other charges specified in the lease) until such lease is assumed or rejected. Permits the court to extend the time for performance of any obligation of rent or other charges due upon an unexpired lease. Declares that acceptance of such performance shall not constitute a waiver or relinquishment of the lessor's rights under the lease or under this Act.

Imposes a 60 day limit (with additional time, if the court so orders) on a trustee's acceptance or rejection of an unexpired lease in all bankruptcy cases, after which time the lease will be deemed rejected.

Requires the trustee to assure that an assignee of such a lease has a financial standing similar to the original tenant's at the time of execution of the lease.

Revises the condition that assignment or assumption of the lease not cause a substantial disruption of any tenant mix in the center by deleting the qualifier "substantial".

Permits the lessor, if an unexpired lease is assigned pursuant to this Act, to require a deposit or other security for the performance of the obligations under the lease.

Declares that the property of the estate does not include the debtor's interest in property under a nonresidential lease which has expired by virtue of its own terms without regard to the bankruptcy proceedings.

Subtitle D - Amendments to Title II, Section 523 Relating to the Discharge of Debts Incurred by Persons Driving While Intoxicated - States that a debor shall not be discharged from a judgment debt resulting from a liability based upon driving while legally intoxicated.

Subtitle E - Referees Salary and Expense Fund - Referees Salary and Expense Fund Act of 1983 - Amends the Federal bankruptcy laws to apply a $200,000 ceiling to fees from the referees' fund for any reorganization case pending after September 30, 1979. Sets a $100,000 ceiling to fees from the referees' fund for any such case whose plan was confirmed before September 30, 1979, but whose fees were not determined until after that date.

Requires, after September 30, 1979, that all fees collected for payment into the referees' salary and expense fund be collected and paid into the general fund of the Treasury and that any balance in the fund on such date be transferred to the Treasury and the fund closed.

Subtitle F - Amendments Regarding Repurchase Agreements - Exempts repurchase agreements from the automatic stay in bankruptcy proceedings, except where such an order is authorized under certain provisions of the Securities Investor Protection Act of 1970 or any law administered by the Securities and Exchange Commission.

Subtitle G - Amendments to Title 11, Section 365 of the United States Code to Provide Adequate Protection for Timeshare Consumers - Grants the holder of a timeshare interest a lien against the debtor's estate if the contract rights under the timeshare plan are terminated by the trustee. Allows the holder to treat a trustee's rejection of the plan as a termination of the contract.

Subtitle H - Bankruptcy Oversight - Requires the Director of the Administrative Office of the United States Courts to compile statistics which show: (1) the assets and liabilities of debtors in bankruptcy; (2) a summary of the amount of debt discharged in bankruptcy and the total amount of disbursements to creditors by the bankruptcy courts in such cases; and (3) the average amount of time elapsed between the filing of the case and payments to creditors.

Requires such statistics to be compiled for each judicial district on an annual basis.

Subtitle I - Technical Amendments to Title 11 - Makes technical amendments to the Bankruptcy Reform Act of 1978.

Amends the definition of a "security" under title 11, which includes only securities registered under the Securities Act of 1933, to include any security which should be so registered.

Specifies the time periods for assessing tax liabilities or filing a petition of bankruptcy after a stay has been imposed.

Increases the compensation payable to trustees.

States that a bankruptcy petition shall operate as a stay of the filing of a tax lien or of the presentation of a negotiable instrument.

Requires notification by the trustee if so required by the Clayton Act.

Establishes the burden of proof in having to use, sell, or lease property.

Allows a claim for tax liability arising from payment from the estate of a claim for wages, salaries, or commissions.

Sets forth limitations on the reconsideration of claims.

Permits the court to offset a claim for tax liability with any counterclaim.

Limits the amount of claims for wages, contributions to employee benefit plans, deposits, or taxes which is entitled to priority.

Requires the debtor to file a schedule of equity interests along with the assets and liabilities.

Removes the debtor's exemption of property interests held in joint tenancy. Permits the debtor to avoid a transfer or recover a setoff of property and exempt such property if such transfer is voidable or recoverable by the trustee, whether or not the trustee attempts to do so, subject to specified limitations.

Removes the permissible discharge from debt, alimony or support which has been assigned to another entity.

Prohibits a creditor from obtaining a setoff which was transferred for such a purpose.

Prohibits the avoidance of certain transfers by the debtor.

Permits the debtor to redeem property pursuant to an agreement based on a dischargeable debt.

Requires the trustee to transfer commodity contracts that are being actively traded, if feasible. Prohibits paying a customer net equity claim based on a proprietary account unless all other such claims have been paid in full.

Allows representation of more than one creditor of the same class by a committee.

Permits holders of claims secured by property to elect that such claims are secured claims, whether or not the holders of such claims had recourse against the debtor.

Gives the governmental unit concerned the burden of proof that the principal purpose of a plan is the avoidance of taxes.

States that confirmation of a plan means automatic relief from a stay of claims to the extent such plan will not pay such claim.

Requires the trustee to dispose of monies received in cases involving the debts of an individual with regular income. Authorizes the trustee to call a meeting of creditors in such cases.

Requires the trustee to file periodic reports on the operations of businesses which the trustee is authorized to operate and to transmit any statement of investigation to any entity designated by the court.

Subtitle J - Miscellaneous - Declares that if any provision of this Act or any amendment made by this Act, or the application thereof to any person or circumstance is held invalid, the provisions of every other part, and their application shall not be affected.

Makes the amendments made by this Act effective three months after the date of enactment. Exempts from application any case pending on the date of enactment.