11 U.S.C. § 764

Voidable transfers

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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 Noteslegislative 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.

Editorial NotesAmendments

2009—Subsec. (b). Pub. L. 111–16 substituted “seven days” for “five days” in introductory provisions.

1984—Subsec. (a). Pub. L. 98–353 substituted “any transfer by the debtor” for “any transfer”.

1982—Subsec. (a). Pub. L. 97–222, § 17(a), substituted “but” for “except”, inserted “such property” after “trustee, and”, and substituted “shall be” for “is” wherever appearing.

Subsec. (b). Pub. L. 97–222, § 17(b), substituted “order for relief” for “date of the filing of the petition”.

Subsec. (c). Pub. L. 97–222, § 17(c), struck out subsec. (c) which provided that the trustee could not avoid a transfer that was a margin payment to or deposit with a commodity broker or forward contract merchant or was a settlement payment made by a clearing organization and that occurred before the commencement of the case.

Statutory Notes and Related SubsidiariesEffective Date of 2009 Amendment

Amendment by Pub. L. 111–16 effective Dec. 1, 2009, see section 7 of Pub. L. 111–16, set out as a note under section 109 of this title.

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.

Notes of Decisions

Cited in 10 cases, 1983–2018 · leading case: Merit Management Group, LP v. FTI Consulting, Inc.

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Merit Management Group, LP v. FTI Consulting, Inc. (2018) scotus · cites it 2× “” The predecessor to this securities safe harbor, formerly codified at 11 U. S. C. §764 (c), was enacted in 1978 against the backdrop of a district court decision in a case called Seligson v.”

Bodenstein v. Univ. of N. Iowa (In re Peregrine Fin. Grp., Inc.) (2018) ilnb · cites it 2× “%20%C2%A7%20764"> 11 U.S.C. § 764 (a) ; (2) the transfer was made within one year of the petition date; (3) Peregrine received nothing in exchange for the transfer so it did not receive reasonably equivalent value; and (4) Peregrine was insolvent at the time of the transfer,…”

Official Committee of Unsecured Creditors of National Forge Co. v. Clark (In Re National Forge Co.) (2006) pawd “See 11 U.S.C. § 764 (c) (repealed 1982).”

Official Committee of Unsecured Creditors v. Asea Brown Boveri, Inc. (In Re Grand Eagle Companies, Inc.) (2003) ohnb “1990), citing 11 U.S.C. § 764 (c) (repealed 1982).”

QSI Holdings, Inc. v. Alford (2007) miwd “See 11 U.S.C. § 764 (c) (repealed 1982).”

In Re Record Club of America (1983) pamd “” 11 U.S.C. § 764 . It was not necessary therefore that the appellants receive notice and a hearing on the modification, since no creditor’s interests were adversely effected.”

KSC Recovery, Inc. v. First Boston Corp. (In Re Kaiser Merger Litigation) (1994) cod “That provision, 11 U.S.C. § 764 (c) (repealed 1982), initially applied only to the commodities market, protecting margin payments to brokers and settlement payments from clearing organizations.”

Kaiser Steel Corp. v. Charles Schwab & Co. (1990) ca10 “*849 See 11 U.S.C. § 764 (c) (repealed 1982).”

Kaiser Steel Corp v. Pearl Brewing Co. (1991) ca10 “” 11 U.S.C. § 764 (c) (1978). Apparently through "inadvertence,” the provision failed to note that settlement payments to a clearing agency were also protected, so a colloquy was entered into the legislative history to clarify this.”

In Re Emergency Beacon Corp. (1988) nysd “911 (formerly codified at 11 U.S.C. § 764 (1976)).”

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