§ 365(b)

In re Jacobsen

The chapter 11 debtor-in-possession moved to assume six leases and license agreements for franchises he owned for drive in restaurants located in Mississippi. The creditor franchisor filed a motion to dismiss or for summary judgment on the motions to assume.
Ruling: 
Debtor franchisee was required to cure existing defaults or provide adequate assurance of cure prior to assuming license agreements and leases.
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Consumer case opionion summary, case decided on February 07,2011, LexisNexis #0311-008

In re Jennifer Convertibles Inc.

Bankruptcy debtors sought approval of their joint plan of reorganization which provided for substantive consolidation of the debtors, which consisted of debtors operating furniture stores and one debtor which operated several stores, and the debtors sought to assume trademark usage licenses entered into by the one debtor and a licensor which was also the one debtor's primary supplier. The licensor objected to the plan and the assumption.
Ruling: 
Assumption of licenses by debtor furniture store operator approved where licensor was adequately protected.
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Commercial case opionion summary, case decided on February 04,2011, LexisNexis #0211-112

In re Moore

Debtors' chapter 13 case came before the court on a creditor's motion for relief from the 11 U.S.C.S. 362 automatic stay. The creditor asserted that he was owed $ 180,000 on a promissory note.
Ruling: 
Creditor landlord entitled to administrative expense claim for lease payments not paid into confirmed plan.
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Consumer case opionion summary, case decided on January 12,2010, LexisNexis #0310-139

In re DSBC Invs. LLC

In this chapter 11 case, an oversecured creditor whose debt had been fully paid pursuant to a confirmed plan, sought prepetition and postpetition late charges and default interest. The creditor also sought attorneys' fees under 11 U.S.C.S. § 506(b).
Ruling: 
Creditor that received full payment pursuant to chapter 11 plan was not entitled to default rate of interest.
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Commercial case opionion summary, case decided on September 11,2009, LexisNexis #1009-112

In re DBSI Inc.

Pursuant to 11 U.S.C.S. § 365(b)(1), a chapter 11 debtor moved to assume and assign the lease of a commercial office building to the group of tenant-in-common owners. The sublessee objected to the assumption and assignment.
Ruling: 
Assumption and assignment of commercial sublease denied absent adequate assurance of future performance.
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Commercial case opionion summary, case decided on May 28,2009, LexisNexis #0709-048

In re Heights Subdivision LLC

A debtor filed a motion to assume an executory contract with a developer, pursuant to 11 U.S.C.S. § 365.
Ruling: 
Debtor that owned subdivision could not assume contract with developer that it had breached.
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Commercial case opionion summary, case decided on February 12,2009, LexisNexis #0409-114

In re Bachrach Clothing Inc.

Appellant debtor sought review of a decision of the United States Bankruptcy Court for the Northern District of Illinois, which held, pursuant to 11 U.S.C.S. § 365(b)(1), that the debtor was required to pay accrued real estate tax obligations under a nonresidential property lease in order to cure a default before appellee, a limited liability company (LLC) assumed a lease.
Ruling: 
Bankruptcy court properly required debtors to pay accrued real estate taxes on a nonresidential lease before LLC could assume lease.
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Commercial case opionion summary, case decided on September 30,2008, LexisNexis #1008-113

In re Coffman

A creditor objected to the confirmation of debtors'chapter 13 plan on the ground that the plan proposed a disparate treatment of claimants receiving conduit payments and that the plan did not provide for full payment of the creditor's arrearage claim by the lease termination date.
Ruling: 
Confirmation denied due to failure of plan to cure prepetition arrearages by lease termination date.
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Consumer case opionion summary, case decided on September 24,2008, LexisNexis #1008-075

In re Bachrach Clothing Inc.

Movant, the vendee of certain of debtor's operating assets, sought an order requiring debtor to pay certain real estate taxes in connection with a lease that vendee was assuming. The taxes at issue related to a period of time during which debtor was in possession of the leasehold, raising the question of whether debtor's failure to pay those taxes constituted a default under 11 U.S.C. § 365(b)(1).
Ruling: 
Debtor's failure to pay real estate taxes for period of tenancy was a default.
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Abovenet Inc. v. SBC Telecom Inc.

Appellant debtor challenged an order of the United States Bankruptcy Judge sitting in a United States Bankruptcy Court, which denied its motion to assume a so-called Dark Fiber Agreement with appellee corporation. At issue was whether there was a default pursuant to 11 U.S.C. § 365(b)(1) under an agreement whereby appellant had agreed to build and appellee had agreed to lease a minimum commitment of fiber miles.
Ruling: 
Simple default, rather than default as defined in agreement, is sufficient to require cure by debtor as prerequisite to assumption.
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