.jpg)
Nonresidential Lease that trustee fails to assume or
Cannot assume in a statement of intention.
Was the case a 7?
I am having trouble wrapping my head around this. If a 7, was this some
little business a trustee could not sell for a profit, but the debtor
wanted to keep so the debtor had a job?
365 p applies only to personal property. As a result, if you want a
business lease to work its way through a chapter 7, you must make and
agreement with the landlord to enter into an new lease to the debtor,
postpetition. You will not be able to enforce a prepetition lease
postdischarge, but most landlords do not want to lose a tenant. I have had
landlords say yes, and as soon as the case is filed, become the biggest
problem in the case. Any new tenant with cash is better than your client.
Most landlords want to keep your client, but not all. Therefore you must
disclose the risk to the client before you file the case and if you make
the proper disclosures and the debtor loses the business, it will be the
result of the debtors choice. If you make no such disclosures, the debtor
will say it was your fault.
d
On Mon, Apr 1, 2013 at 7:16 PM, Stephen wrote:
> **
>
>
> Debtor assumed lease in Statement of Intention but it seems trustee did
> not assume or reject lease within 120 day period and now landlord claims
> under 11 U.S.C. 365 (4)(a) that they modify lease to a month to month. If
> that is true, has anyone figured out a way to get around this?
>
> Stephen M. Stern, Esq.
> Law Office of Stephen M. Stern, PC
>
>
>
Cannot assume in a statement of intention. Was the case a 7? I am having trouble wrapping my head around this. If a 7, was this some little business a trustee could not sell for a profit, but the debtor wanted to keep so the debtor had a job?
365 p applies only to personal property. ter 7, you must make and agreement with the landlord to enter into an new lease to the debtor, postpetition. You will not be able to enforce a prepetition lease postdischarge, but most landlords do not want to lose a tenant. I have had landlords say yes, and as soon as the case is filed, become the biggest problem in the case. Any new tenant with cash is better than your client.
Most landlords want to keep your client, but not all. Therefore you must disclose the risk to the client before you file the case and if you make the proper disclosures and the debtor loses the business, it will be the result of the debtors choice. If you make no such disclosures, the debtor will say it was your fault.
dOn Mon, Apr 1, 2013 at 7:16 PM, Stephen <
The post was migrated from Yahoo.
I don't think there is a way around it. As you are now aware, the
365(4)(a) requires the lessee debtor to "immediately surrender" the
nonresidential real property to the lessor if the lease is not assumed
within 120 days of the order for relief. If the landlord is agreeable to a
month-to-month lease then that is good for your client.
Although, the Code says "immediately surrender" I believe (but no cites to
share) that this means the landlord could file an unlawful detainer motion
without further notice. I don't believe, under California law, the lessee
could be forcibly evicted without a UD judgment.
*Link Schrader, Attorney*
Law Office of Link W. Schrader
Mail: P.O. Box 3723, Tustin, CA 92781
Office: 106 W. 4th Street, Suite #308, Santa Ana, CA 92701
Office: (714) 542-5922; Mobile/Text: (310) 413-6924
San Diego: (619) 952-8342; Fax: (310) 878-4158
www.schrader-law.com
The post was migrated from Yahoo.