11 U.S.C. § 1328
11 U.S.C. § 1328
HISTORICAL AND REVISION NOTES
LEGISLATIVE STATEMENTSSection 1328(a) adopts a provision contained in the Senate amendment permitting the court to approve a waiver of discharge by the debtor. It is anticipated that such a waiver must be in writing executed after the order for relief in a case under chapter 13.
SENATE REPORT NO. 95-989The court is to enter a discharge, unless waived, as soon as practicable after completion of payments under the plan. The debtor is to be discharged of all debts provided for by the plan or disallowed under section 502, except a debt provided for under the plan the last payment on which was not due until after the completion of the plan, or a debt incurred for willful and malicious conversion of or injury to the property or person of another.Subsection (b) is the successor to Bankruptcy Act Section 661 [section 1061 of former title 11]. This subsection permits the bankruptcy judge to grant the debtor a discharge at any time after confirmation of a plan, if the court determines, after notice and hearing, that the failure to complete payments under the plan is due to circumstances for which the debtor should not justly be held accountable, the distributions made to each creditor under the plan equal in value the amount that would have been paid to the creditor had the estate been liquidated under chapter 7 of title 11 at the date of the hearing under this subsection, and that modification of the plan is impracticable. The discharge granted under subsection (b) relieves the debtor from all unsecured debts provided for by the plan or disallowed under section 502, except nondischargeable debts described in section 523(a) of title 11 or debts of the type covered by section 1322(b)(5).Subsection (d) excepts from any chapter 13 discharge a debt based on an allowed section 1305(a)(2) postpetition claim, if prior trustee approval of the incurring of the debt was practicable but was not obtained.A chapter 13 discharge obtained through fraud and before the moving party gained knowledge of the fraud may be revoked by the court under subsection (e), after notice and hearing, at the request of any party in interest made within 1 year after the discharge was granted.
EDITORIAL NOTES
AMENDMENTS2020-Subsec. (i). Pub. L. 116-260, §1001(b)(2), struck out subsec. (i) which read as follows: "Subject to subsection (d), after notice and a hearing, the court may grant a discharge of debts dischargeable under subsection (a) to a debtor who has not completed payments to the trustee or a creditor holding a security interest in the principal residence of the debtor if-"(1) the debtor defaults on not more than 3 monthly payments due on a residential mortgage under section 1322(b)(5) on or after March 13, 2020, to the trustee or creditor caused by a material financial hardship due, directly or indirectly, by the coronavirus disease 2019 (COVID-19) pandemic; or "(2)(A) the plan provides for the curing of a default and maintenance of payments on a residential mortgage under section 1322(b)(5); and "(B) the debtor has entered into a forbearance agreement or loan modification agreement with the holder or servicer (as defined in section 6(i) of the Real Estate Settlement Procedures Act of 1974 ( 12 U.S.C. 2605(i) ) of the mortgage described in subparagraph (A)." Pub. L. 116-260, §1001(b)(1), added subsec. (i). 2005-Subsec. (a). Pub. L. 109-8, §330(d)(1), substituted "Subject to subsection (d), as" for "As" in introductory provisions. Pub. L. 109-8, §314(b), added pars. (1) to (4) and struck out former pars. (1) to (3) which read as follows: "(1) provided for under section 1322(b)(5) of this title; "(2) of the kind specified in paragraph (5), (8), or (9) of section 523(a) of this title; or"(3) for restitution, or a criminal fine, included in a sentence on the debtor's conviction of a crime." Pub. L. 109-8, §213(11), inserted ", and in the case of a debtor who is required by a judicial or administrative order, or by statute, to pay a domestic support obligation, after such debtor certifies that all amounts payable under such order or such statute that are due on or before the date of the certification (including amounts due before the petition was filed, but only to the extent provided for by the plan) have been paid" after "completion by the debtor of all payments under the plan" in introductory provisions.Subsec. (a)(2). Pub. L. 109-8, §707, substituted "section 507(a)(8)(C) or in paragraph (1)(B), (1)(C)," for "paragraph".Subsec. (b). Pub. L. 109-8, §330(d)(2), substituted "Subject to subsection (d), at" for "At" in introductory provisions.Subsec. (f). Pub. L. 109-8, §312(2), added subsec. (f).Subsec. (g). Pub. L. 109-8, §106(c), added subsec. (g).Subsec. (h). Pub. L. 109-8, §330(d)(3), added subsec. (h).1994-Subsec. (a)(2). Pub. L. 103-394, §501(d)(38)(A), substituted "(5), (8), or (9)" for "(5) or (8)".Subsec. (a)(3). Pub. L. 103-394, §501(d)(38)(B), struck out last par. (3). See 1990 Amendment note below. Pub. L. 103-394, §302, inserted ", or a criminal fine," after "restitution".1990-Subsec. (a)(1). Pub. L. 101-581, §3(1), and Pub. L. 101-647, §3103(1), made identical amendments striking "or" at end.Subsec. (a)(2). Pub. L. 101-581, §3(2), and Pub. L. 101-647, §3103(2), made identical amendments substituting "; or" for period at end. Pub. L. 101-581, §2(b), and Pub. L. 101-647, §3102(b), which directed identical insertions of "or 523(a)(9)" after "523(a)(5)", could not be executed because of prior amendment by Pub. L. 101-508. See below. Pub. L. 101-508 substituted "paragraph (5) or (8) of section 523(a)" for "section 523(a)(5)".Subsec. (a)(3). Pub. L. 101-581, §3(3), and Pub. L. 101-647, §3103(3), made identical amendments adding par. (3).1984-Subsec. (e)(1). Pub. L. 98-353, §532(1), inserted "by the debtor" after "obtained". Subsec. (e)(2). Pub. L. 98-353, §532(2), substituted "the requesting party did not know of such fraud until" for "knowledge of such fraud came to the requesting party".
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116-260 div. FF, title X, §1001(b)(2), Dec. 27, 2020, 134 Stat. 3217, provided that the amendment made by section 1001(b)(2) is effective on the date that is 1 year after Dec. 27, 2020.
EFFECTIVE DATE OF 2005 AMENDMENT Amendments by Pub. L. 109-8 effective 180 days after Apr. 20, 2005, with amendments by sections 106(c), 213(11), 312(2), 314(b), and 707 of Pub. L. 109-8 not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, and amendment by section 330(d) of Pub. L. 109-8 applicable with respect to cases commenced under this title on or after Apr. 20, 2005, see section 1501 of Pub. L. 109-8 set out as a note under section 101 of this title.
EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Pub. L. 103-394 set out as a note under section 101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101-647 effective Nov. 29, 1990, but not applicable with respect to cases commenced under this title before Nov. 29, 1990, see section 3104 of Pub. L. 101-647 set out as a note under section 523 of this title.Amendment by Pub. L. 101-581 effective Nov. 15, 1990, but not applicable with respect to cases commenced under this title before Nov. 15, 1990, see section 4 of Pub. L. 101-581 set out as a note under section 523 of this title. Pub. L. 101-508, title III, §3007(b)(2), Nov. 5, 1990, 104 Stat. 1388-29, provided that: "The amendment made by paragraph (1) [amending this section] shall not apply to any case under the provisions of title 11, United States Code, commenced before the date of the enactment of this Act [Nov. 5, 1990]."
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.
- claim
- The term "claim" means-(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
- debt
- The term "debt" means liability on a claim.(12A) The term "debt relief agency" means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110, but does not include-(A) any person who is an officer, director, employee, or agent of a person who provides such assistance or of the bankruptcy petition preparer;(B) a nonprofit organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986;(C) a creditor of such assisted person, to the extent that the creditor is assisting such assisted person to restructure any debt owed by such assisted person to the creditor;(D) a depository institution (as defined in section 3 of the Federal Deposit Insurance Act) or any Federal credit union or State credit union (as those terms are defined in section 101 of the Federal Credit Union Act), or any affiliate or subsidiary of such depository institution or credit union; or(E) an author, publisher, distributor, or seller of works subject to copyright protection under title 17, when acting in such capacity.
- debtor
- The term "debtor" means person or municipality concerning which a case under this title has been commenced.(13A) The term "debtor's principal residence"-(A) means a residential structure if used as the principal residence by the debtor, including incidental property, without regard to whether that structure is attached to real property; and(B) includes an individual condominium or cooperative unit, a mobile or manufactured home, or trailer if used as the principal residence by the debtor.
- domestic support obligation
- The term "domestic support obligation" means a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is-(A) owed to or recoverable by-(i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or(ii) a governmental unit;(B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;(C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of-(i) a separation agreement, divorce decree, or property settlement agreement;(ii) an order of a court of record; or(iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.
- petition
- The term "petition" means petition filed under section 301, 302, 303 and 3 1504 of this title, as the case may be, commencing a case under this title.(42A) The term "production payment" means a term overriding royalty satisfiable in cash or in kind-(A) contingent on the production of a liquid or gaseous hydrocarbon from particular real property; and(B) from a specified volume, or a specified value, from the liquid or gaseous hydrocarbon produced from such property, and determined without regard to production costs.
- security interest
- The term "security interest" means lien created by an agreement.(51A) The term "settlement payment" means, for purposes of the forward contract provisions of this title, a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, a net settlement payment, or any other similar payment commonly used in the forward contract trade.(51B) The term "single asset real estate" means real property constituting a single property or project, other than residential real property with fewer than 4 residential units, which generates substantially all of the gross income of a debtor who is not a family farmer and on which no substantial business is being conducted by a debtor other than the business of operating the real property and activities incidental thereto.(51C) The term "small business case" means a case filed under chapter 11 of this title in which the debtor is a small business debtor and has not elected that subchapter V of chapter 11 of this title shall apply.(51D) The term "small business debtor"-(A) subject to subparagraph (B), means a person engaged in commercial or business activities (including any affiliate of such person that is also a debtor under this title and excluding a person whose primary activity is the business of owning single asset real estate) that has aggregate noncontingent liquidated secured and unsecured debts as of the date of the filing of the petition or the date of the order for relief in an amount not more than $2,000,000 1 (excluding debts owed to 1 or more affiliates or insiders) not less than 50 percent of which arose from the commercial or business activities of the debtor; and(B) does not include-(i) any member of a group of affiliated debtors under this title that has aggregate noncontingent liquidated secured and unsecured debts in an amount greater than $2,000,000 1 (excluding debt owed to 1 or more affiliates or insiders);(ii) any debtor that is a corporation subject to the reporting requirements under section 13 or 15(d) of the Securities Exchange Act of 1934 ( 15 U.S.C. 78m, 78o(d) ); or(iii) any debtor that is an affiliate of a corporation described in clause (ii).