- Case Type:
- Case Status:
- AZ-17-1291-LKuB (9th Circuit, Mar 14,2018) Not Published
- The BAP affirmed the bankruptcy court's orders (1) ruling that the debtor had failed to timely make an oral motion to assume a lease, (2) denying the use of its powers under section 105(a) to grant the debtor relief after the debtor failed to move to assume, or to extend the deadline for assuming, a lease within the section 365(d)(4) deadline, and (3) granting the landlord relief from the automatic stay in order to compel the debtor to vacate the leased premises.
- Procedural context:
- On cross motions from the debtor and the landlord, the bankruptcy court (1) denied the debtor's motion to assume a lease, nunc pro tunc, after the 120-day deadline of section 365(d)(4) had expired and (2) granted the landlord's motion for relief from the automatic stay to compel the debtor to vacate the leased premises.
- The debtor failed to assume or move for an extension of the deadline to assume a lease for commercial real property within the section 365(d)(4) 120-day deadline. The landlord filed a motion for relief from the automatic stay to compel the debtor to vacate the premises. The debtor then moved to accept the lease nunc pro tunc, citing "chaos" as the cause of the debtor missing the 120-day deadline. The bankruptcy court conducted an evidentiary hearing as to whether there had been an oral motion to assume or whether a de facto assumption of the lease had occurred. Following the hearing, the bankruptcy court ruled that (1) the debtor had not made an oral motion to assume the lease and (2) the landlord had not waived its section 365(d)(4) rights and was not estopped from enforcing the rights.
- LAFFERTY, KURTZ, and BRAND, Bankruptcy Judges
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