In re Onecast Media, Inc., 439 F.3d 558 (9th Cir. 2006)
“While rejection of a lease prevents the debtor from obtaining future benefits of the lease. . ., it does not rescind the lease or defeat any pending claims or defenses that the debtor had in regard to that lease.” Where the landlord drew down entirely on a letter of credit purchased by the debtor and held by the landlord as security, the trustee was entitled to recover the difference between the landlord’s damages and the balance of the amount drawn down, since that amount was property of the estate.
In re At Home Corp., 392 F.3d 1064 (9th Cir. 2004)
“. . . [A] bankruptcy court has the discretion to grant a motion to reject a nonresidential lease of real property retroactively. The retroactive date of rejection need not be on or after the date on which the landlord regains possession.”
In re TreeSource Industries, Inc., 363 F.3d 994 (9th Cir. 2004)
Commercial property lessor’s claim for damages arising from debtor’s failure to remove a concrete pad were not entitled to administrative priority. The lease was breached only upon its rejection, not postpetition and pre-rejection. Thus damages were simply an unsecured claim.
In re BCE West, L.P., 319 F.3d 1166 (9th Cir. 2003)
Section 363(d)(3) does not apply to debtor lessors, only to non-debtor lessees.
In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002)
Nothing in the language of § 365(d)(3) grants a commercial landlord's administrative claim superpriority status. Rather, it simply imposes a duty on a debtor to make its rental payments in a timely manner.
In re Cukierman, 265 F.3d 846 (9th Cir. 2001)
- Obligations denominated in commercial lease as “further rent” were entitled to administrative priority under unexpired lease provision in bankruptcy code, even though obligations actually represented repayments of promissory notes.
- Because no action or proceeding had been brought to enforce the terms of the lease or to declare the parties respective rights, the attorney fees clause in the lease was not applicable. Further, lessor was not entitled to interest on the unpaid lease obligations “because it is not an obligation under the lease.”
In re George, 177 F.3d 885 (9th Cir. 1999), cert. denied, 528 U.S. 1135 (2000)
agreement in question was a “true” lease, thus §365(d)(4) applied. No waiver of automatic rejection by accepting payments
In re Building Block Child Care Centers, Inc., 234 B.R. 762 (9th Cir. B.A.P. 1999)
Commercial tenant required to cure pre-petition defaults to former landlord before assuming lease with successor landlord where first landlord expressly retained right to receive cure payments upon assumption.
In re Victoria Station, 875 F.2d 1380 (9th Cir. 1989)
60 day period for assumption of nonresidential lease may be extended more than once
In re Lomax, 194 B.R. 862 (9th Cir. B.A.P. 1996)
Landlord’s election to terminate lease was acceptance of debtor’s offer of surrender, resorting premises to landlord and limiting damages under 502(b)(6)
In re Circle K Corp, 98 F.3d 484 (9th Cir. 1996)
The term “gross sales” included only commissions debtor received for ticket sales, not total sales price of ticket sales.
In re McSheridan, 184 B.R. 91 (9th Cir. B.A.P. 1995)
1) rent reserved under §502(b)(6)(A)
for a charge to constitute rent reserved under §502(b)(6)(A), a 3-part test must be met:
(1) charge must be (a) designated as “rent” or additional rent in the lease; or (b) be provided as the tenant’s/lessee’s obligation in the lease;
(2) the charge must be related to the value of the property or the lease thereon; and
(3) the charge must be properly classifiable as rent because it is a fixed, regular or periodic charge
2) triple net lease...
- damages for breach of covenants is not a separate claim from the termination damages. In addition, the claim arising from breach of the lease conceptually encompasses all time intervals and treats the claim as if the breach occurred immediately prior to the filing of the bankruptcy case - see §502(g).
In re Westside Print Works, Inc., 180 B.R. 557 (9th Cir. B.A.P. 1995)
- Bankruptcy Code gives lessor no independent right to recover attorneys’ fees from debtor-in-possession of commercial property
- Property tax and increased security provisions found to be ambiguous or waived.
Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401 (9th Cir. 1994)
Lessor was entitled to an administrative expense claim for 60 days’ rent at the contract rate because the trustee had an affirmative duty under §365(d)(3) to “perform all the obligations of the debtor” under the lease.
In re First Alliance Corp., 140 B.R. 531 (9th Cir. B.A.P. 1992)
Post-petition rents are not credits against damages in landlord’s claim for debtor’s rejection of pre-bankruptcy lease.
In re Pollock, 139 B.R. 938 (9th Cir. B.A.P. 1992)
Severability test. Sale of business sublease assumable by debtors if severable from note obligation.
In re Standor Jewelers West, Inc., 129 B.R. 200 (9th Cir. B.A.P. 1991)
A clause in a lease providing for a substantial portion of the lease appreciation upon assignment is invalid under §365(f).
In re Windmill Farms, 841 F.2d 1467 (9th Cir. 1988)
Under Cal. law a lease terminates for nonpayment of rent at least by the time the lessor files an unlawful detainer action, provided that a proper three-days’ notice to pay rent or quit has been given, and the lessee has failed to pay the rent in default within the three-day period and further provided that the lessor’s notice contained an election to declare the lease forfeited.
In re Port Angeles Waterfront Assoc, 134 B.R. 377 (9th Cir. B.A.P. 1991)
Once 60 days ran, lease terminated (waterfront project = lease). In re Moreggia & Sons, Inc., 852 F.2d 1179 (9th Cir. 1988) distinguished.
Moreggia & Sons, Inc. 852 F.2d 1179 (9th Cir. 1988)
Lease that is more in the nature of a financing arrangement is excepted from 60 day requirement.
In re Orvco, Inc. 95 B.R. 724 (9th Cir. B.A.P. 1989)
1) While a non bankruptcy court must order the payment of rent due during 365(d)(3) 60 day period, that doesn’t mean that amount due is all an administrative priority
2) After lease is rejected, if 363(d)(3) period rent remains unpaid, landlord does not have an immediate right to payment...may be paid in administrative.
In re Texscan Corp., 107 B.R. 227 (9th Cir. B.A.P. 1989), aff’d. 976 F.2d 1269 (9th Cir. 1992)
Executory contract that expires postpetition but before motion to assume is filed cannot be assumed.
