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2114 11 U.S.C§ 307 (1994). The only limit for a U.S. trustee under this Section is the inability to file a plan under Section 1121(c). Back to text 2139 The programme was managed by Pub until 30 September 1984. L. No. 98-166, 97 Stat. 1081 (1983). It was then managed by pub until 30 September 1986. L. No. 98-353, § 323, 98 Stat. 333 (1984).

Back to text The Bankruptcy Code provides that the trustee(2182) is the representative of the estate and can bring a lawsuit. (2183) A trustee must “manage and operate” real estate under applicable law, as must an owner of the property. (2184) Some jurisdictions require compliance with applicable non-insolvency law where a trustee manages assets of the estate, but not where the liquidator liquidates assets of the estate. (2185) Despite this distinction, the courts have struggled to find Chapter 7 or 11 trustees to act in cases “where there are environmental problems under federal or state law that were to impose personal liability on `owners or operators` and dismiss such matters.” (2186) It is therefore uncertain whether the current strict standard governing the relationship between the debtor`s lawyer and third parties is based on the `altruism` requirement of Article 327 (including Article 101(14)(E)) or on the prohibition in Article 327 of having `interests contrary to the estate`. Despite this ambiguity in the source, however, one thing is clear: to serve as an advisor to a self-administered debtor or trustee, a lawyer must demonstrate a lack of prejudicial interest in the estate, regardless of the importance. The recommendation provides that personal liability for a breach of the duty of loyalty is bound only to the extent that a trustee has acted through gross negligence outside the scope of the Trustee Bankruptcy Code or the authority ordered by the court. Actions for simple negligence could continue to be brought against the trustee as the estate`s representative, but not in a personal capacity. In order to hold a trustee personally liable, it would be necessary to prove that (1) the trustee`s conduct was outside the scope of judicial authorization or the legal obligation to administer the estate or carry on the debtor`s activities; and (2) the impugned conduct breached the fiduciary duties of the trustee through gross negligence. Gross negligence is defined as negligent indifference or intentional disregard for fiduciary duties. 2206 Mosser v.

Darrow, 71 p. Ct. 680, 683 (1951) (“It is generally accepted that trustees, after notifying creditors and interested parties, seek directions from the court on matters concerning difficult decision-making issues … It is unlikely that open disclosure to creditors, courts and interested parties has led to instructions to follow this path; However, if it had been approved, at least the willing creditors could have questioned the transaction. »). However, other legal provisions are liable notwithstanding the exception provided for in § 3713(b). For example, personal liability for administrative tax penalties is imposed on “responsible persons who do not withhold and pay federal taxes on labour.” (2220) Similarly, the trustees were held liable for capital gains tax on the sale of immovable property. (2221) 2203 In a recommendation to the Commission, “the `militia movement` and similar anti-government groups” were created as “an environment that fosters litigation when a person is disappointed with the outcome of a case”.

Henry C. Seals, Trustees Need Relief, Suggestions for the National Bankruptcy Review Board, 4 a.m. Banker. Inst. L. REV. 548 (1995) (recommends that trustees be exempted from such acts of harassment with “a law determining the scope and scope of their immunity”). Judicial immunity requires full disclosure of all relevant facts to the court and interested parties to cover measures taken to promote a court order. One court described the scope of immunity as “dependent on the full circumstances in which an order was made.” (2207) Where the authorised representative applies for judicial leave in fully disclosed and informed proceedings, with notice and hearing, the derived immunity from justice is attached. (2208) The absence of “an analysis of the risks associated with the various known options and the examination of the risks leads to the absence of immunity. (2209) In these circumstances, an agent should defend an action on the basis of whether it falls within the scope of a reasonable commercial judgment.

(2210) In major Chapter 11 cases, auditors are appointed because judges feel that they do not have the time and sometimes do not wish to carry out the arduous task of examining fee applications. Regardless of these reasons, bankruptcy judges should not be able to delegate this part of their independent obligation under the Code to review claims for fees and supervise fees in a case. In addition, fee auditors are appointed by the judge, which arguably perpetuates the same problems of nepotism that existed under the previous bankruptcy law. The Bankruptcy Act intentionally removed any appointing authority from the court and placed it in the office of the U.S. trustee. The tribunal cannot appoint a trustee under any chapter of the Code and cannot appoint the members of a formal committee. The judicial appointment of an honorary examiner directly violates established congressional policy. 2300 28.C United States Section 586(a)(3)(A) (1994) (requires a uniform review of claims for fees in accordance with guidelines adopted by the U.S. trustee and, where appropriate, the submission of comments to the court). Return to text 2158 Amendment No. 1844, 132 CONG.

REC. S5628 (Daily Edition, May 8, 1986) (introduced by Senator Thurmond) This amendment added the text of P. 1961, with an amendment by Senator Heflin that allowed each district to “unsubscribe” from the U.S. Trustee Program. Return to text According to the recommendation, trustees (including Chapter 11 trustees) would not be charged individually for actions taken within their statutory powers or ordered by a court, provided that the applicable court order is made after notification to interested parties and after full disclosure to the court. Outside this scope of authorization, trustees would be personally liable for gross negligence in the performance of their fiduciary duties. Thus, to hold a trustee personally liable for a breach of a fiduciary duty, a claimant would have to prove that (1) the trustee did not act within the limits of the powers conferred by the Bankruptcy Code or by court order; and (2) that the trustee acted with gross negligence in the performance of his or her fiduciary duties. The Recommendation defines gross negligence as reckless indifference or intentional disregard for fiduciary duty. (2198) This definition is in line with the definition of gross negligence in other civil liability contexts. .

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