§ 102.1     Debtor Can Assume, Assign or Reject Executory Contracts
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 102.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Section 1322(b)(7) and Bankruptcy Rule 6006 permit the Chapter 13 debtor1 to assume, assign or reject executory contracts or unexpired leases either by motion in advance of confirmation2 or by providing for the assumption, assignment or rejection in the plan. Section 365 of the Code is applicable under either procedure.3

[2]

The filing of a Chapter 13 petition does not automatically assume or reject any executory contract. The debtor must obtain court approval and satisfy § 365, including the prompt curing of all defaults, before assumption, assignment or rejection is effective.4 There is no provision of the Code that authorizes a Chapter 13 debtor to assume, assign or reject an executory contract or unexpired lease after confirmation of the plan.5 However, it has been held that when the confirmed plan is silent with respect to assumption or rejection of a lease, the debtor can modify the plan after confirmation to reject the lease.6

[3]

To be assumed or rejected, the lease or contract must be “executory” and “unexpired” at the petition. These terms of art have been most often litigated in Chapter 13 cases in the context of residential and commercial7 real property leases. Determining whether a residential lease expired before the petition entwines bankruptcy law and state landlord-tenant law with unpredictable results. A Chapter 13 debtor was refused assumption of a month-to-month tenancy because it expired prepetition for nonpayment of rent.8 When the debtor’s rights in a residential lease have not terminated under state law, for example, because the landlord did not complete dispossession proceedings before the petition, the debtor can rehabilitate and assume the lease through the plan.9 In contrast, when state law terminated the debtor’s rights in a residential lease before the petition, the Chapter 13 filing cannot resurrect the lease, and the landlord is entitled to relief from the stay to dispossess the debtor.10 It has been held that a Chapter 13 debtor can assume a residential lease that was rejected in a prior Chapter 7 case11 or that was not dealt with in a prior Chapter 7 case.12

[4]

Other contracts sometimes fall outside the assumption or rejection rules because the relationship is not executory or the debtor no longer has sufficient rights to support rehabilitation. For example, a noncompete provision in a partnership dissolution agreement that was no longer executory could not be rejected, and the Chapter 13 debtor remained bound by the covenant.13 A Chapter 13 debtor cannot assume a car lease that expired and was terminated upon repossession by the lessor before the petition.14 The bankruptcy court in In re Street15 found that possession of rented personal property was not alone sufficient to support assumption of a rental contract when state law permitted the lessor to cancel the contract before the petition without repossessing. A Chapter 13 debtor need not assume or reject an extended service contract on a car because the contract is not executory for purposes of § 365.16

[5]

Though § 365 of the Code is consistently worded in terms of the trustee, it has been held that the Chapter 13 debtor has standing to assume, assign or reject an unexpired lease or executory contract and the Chapter 13 trustee need not participate.17 Out of an abundance of caution, it is the practice in some jurisdictions that the Chapter 13 trustee joins in motions or orders assuming or rejecting executory contracts or unexpired leases.

[6]

When assumption, assignment or rejection is in the plan, the other party to the contract must timely object to confirmation, else confirmation will bind all parties, including binding them to any plan provision for curing defaults.18 But everyone should be warned that precision in the plan with respect to a lease is prerequisite to assumption or rejection. It has been held that a plan provision for continuing payment of a lease or executory contract does not assume or reject the lease under § 365—leaving assumption or rejection for postconfirmation resolution by modification of the plan or a motion from the lessor.19

[7]

In advance of confirmation, the nondebtor party to an executory contract or unexpired lease is empowered by § 365(d)(2) to move the court to fix a time within which the debtor must act.20 Absent such a request, the debtor may assume or reject “at any time before the confirmation of a plan.”21 In jurisdictions that delay confirmation until after the claims bar date,22 compelling action by the debtor in advance of confirmation may be routine behavior for lessors, especially if the debtor is not making regular payments pending confirmation. In jurisdictions that reach confirmation soon after the meeting of creditors, the assumption or rejection of executory contracts and any objections are typically resolved in the plan confirmation process. In Chapter 13 cases filed after October 22, 1994, a lessor of personal property has the option to demand adequate protection before confirmation.23

[8]

The most common executory contract for a Chapter 13 debtor is an apartment lease. Sometimes the debtor’s apartment lease is a major asset of the estate—for example, when the debtor lives in subsidized housing and has a very favorable lease.24 All too often, debtors’ counsel do not think of an apartment lease as a necessary part of the Chapter 13 plan. Most debtors want to assume the lease of the apartment in which they live at the petition. Even if it is an oral lease, or a holdover tenancy, assumption must be included in the plan or addressed by motion before confirmation. Failure to do so invites a motion for stay relief from the landlord, administrative expense problems or other unnecessary litigation.

[9]

Union members or debtors working for a unionized employer are almost always parties to executory contracts that must be assumed or rejected in the Chapter 13 case. A Chapter 13 debtor bound by a collective bargaining agreement may face conflicts between the demands of the contract and the requirements for confirmation of the plan. For example, one debtor provided for repayment of an overpayment from the employer through the Chapter 13 plan on a basis different from the reimbursement requirements in the debtor’s collective bargaining agreement.25 It has been held that a Chapter 13 debtor can reject an employee stock investment plan notwithstanding that the investment plan is a mandatory component of the debtor’s employment contract.26 The disposable income test implications of mandatory deductions for retirement or to repay pension loans are discussed elsewhere.27

[10]

Assuming an executory contract also assumes its burdens. For example, when the state has a right of recoupment in its contract for unemployment compensation, the debtor cannot complain when the state exercises that right by making deductions from the debtor’s current unemployment benefits.28 When the debtor assumes a lease or executory contract through the Chapter 13 plan and then defaults, the balance due on the lease or contract can become an administrative priority claim and an expensive problem for the debtor.29

[11]

The Chapter 13 debtor has all the defenses to enforcement of an executory contract that would be available under nonbankruptcy law. A Chapter 13 debtor rejected a contract for home improvements by demonstrating fraud in the inducement.30 A Chapter 13 debtor rejected a merchandising contract as to both the assignor and the assignee notwithstanding a waiver of defenses clause.31


 

1  The Code is not as clear as it should be with respect to the power of a Chapter 13 debtor to assume, assign or reject executory contracts. See § 56.1 [ Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts ] § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts.

 

2  See § 56.1 [ Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts ] § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts for discussion of assumption, rejection and assignment of leases and executory contracts by motion before confirmation.

 

3  11 U.S.C. § 1322(b)(7). See § 173.1 [ Debtor Must Cure Defaults and Assure Future Performance ] § 102.2  Debtor Must Cure Defaults and Assure Future Performance.

 

4  In re Wallace, 122 B.R. 222 (Bankr. D.N.J. 1990).

 

5  As discussed in § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts, § 1322(b)(7) empowers a Chapter 13 debtor to provide for the assumption, rejection or assignment of an executory contract or unexpired lease as part of the plan or by motion under § 365 before confirmation. After confirmation, a debtor might try to deal with an executory contract or unexpired lease by modification of a confirmed plan under § 1329; however, § 1329(a) is not constructed with executory contracts or leases in mind. See discussion beginning at § 126.1  Standing, Timing and Procedure See also 11 U.S.C. § 365(d)(2) (“In a case under chapter . . . 13 . . . the trustee may assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor at any time before the confirmation of a plan . . . .”).

 

6  See In re Christian, No. 99-50632 RFH, 2000 WL 33740253 (Bankr. M.D. Ga. May 8, 2000) (unpublished) (Confirmed plan that provided for monthly lease payments on a pickup “outside of their Chapter 13 plan” did not assume or reject the lease under § 365; debtors can modify the plan after confirmation to reject the lease.).

 

7  See § 174.1 [ Nonresidential Lease of Real Property ] § 102.4  Nonresidential Lease of Real Property for discussion of nonresidential real property leases.

 

8  Kipp v. Depoy, 29 B.R. 466 (Bankr. N.D. Ind. 1983). Accord In re Moore, 290 B.R. 851 (Bankr. N.D. Ala. 2003) (Debtor cannot assume federally subsidized residential lease because leasehold terminated at expiration of notice period before the Chapter 13 petition.); In re Stoltz, 220 B.R. 552 (Bankr. D. Vt. 1998) (Federally subsidized housing lease did not “terminate” because the petition was filed before execution of a writ of possession under state law; but lease “expired” prepetition when debtor failed to pay rent to trigger month-to-month renewal.). See also In re Watts, 181 B.R. 109 (Bankr. N.D. Ala. 1994) (Although debtor can assume an apartment lease and cure the prepetition defaults, assumption of year-to-year tenancy would only entitle the debtor to two additional weeks of occupancy. Because no true benefit would result to the debtor from assumption, relief from the stay is granted to the landlord.).

 

9  See Bennett v. St. Stephen Terrace Apts. (In re Bennett), 211 B.R. 265, 265–68 (N.D. Ill. 1997) (On reconsideration, adopting Williams v. Chicago Housing Authority (In re Williams), 207 B.R. 874 (N.D. Ill. 1997), “[t]his court adopts the view that a lease terminates when a judgment is entered in the forcible proceeding . . . . A tenant has legal recourse to revive a lease until the issue of possession is resolved. Illinois law provides the forcible proceeding forum to resolve any dispute about whether a tenancy has terminated. . . . [T]he debtor continues to have an “interest” in the lease until there is an adverse ruling by the forcible court. Thus, for bankruptcy purposes, a lease is unexpired until the forcible proceeding is ended. As a result, a landlord cannot obtain relief from the automatic stay while the forcible proceeding is pending.” Bankruptcy court’s decision granting relief from the stay is reversed.), rev’d, No. 97-3311, 1998 WL 756838 (7th Cir. Sept. 22, 1998) (Table decision at 165 F.3d 31) (Bankruptcy court did not abuse its discretion in granting relief from the stay for state court to determine whether the least terminated.); Williams v. Chicago Hous. Auth. (In re Williams), 207 B.R. 874, 875 (N.D. Ill. 1997) (Bankruptcy court should not have granted relief from the stay to Chicago Housing Authority where Chapter 13 petition was filed after CHA filed a forcible entry and detainer action but before dispositive order in state court. “In [Robinson v. Chicago Housing Authority, 54 F.3d 316 (7th Cir. 1995),] the Seventh Circuit found ‘the conclusion in Maxwell [40 B.R. 231 (N.D. Ill. 1984)] that a lease is ended prior to a judgment of possession [is] questionable’ . . . . Robinson, merely states that before a lease is terminated: (1) a landlord must undertake all necessary procedural steps to repossess the premises, and (2) the tenant must not have any legal recourse to revive the lease. . . . The courts have not yet come to a consensus on the effect of the Robinson test in the situation presented here. . . . The Seventh Circuit’s suggestion in Robinson, and the holdings in [Herring v. Chicago Housing Authority, 850 F. Supp. 694 (N.D. Ill. 1994), In re Brown, 1995 WL 904913 (Bankr. N.D. Ill. Dec. 19, 1995),] and [Thomas v. Chicago Housing Authority, 919 F. Supp. 1159 (N.D. Ill. 1996),] are persuasive. Namely, a lease is not terminated until the issue of possession is resolved. . . . Thus, Williams’ lease was not terminated at the time she filed her Chapter 13 petition.”), rev’d, 144 F.3d 544 (7th Cir. 1998) (Modifying automatic stay to permit housing authority to continue forceable entry action is not an abuse of discretion.); In re Ross, 142 B.R. 1013 (S.D. Fla. 1992) (Residential lease is not “expired” under Florida law until after execution of writ of possession. When debtor filed petition after entry of judgment for possession, but before execution of the writ, debtor can cure defaults and assume the lease.); Buckner v. Colonial House Apts., 64 B.R. 90 (W.D. Tenn. 1986) (Chapter 13 debtor may cure the default in a residential lease and assume the contract notwithstanding prepetition judgment for possession in favor of landlord.); In re Atkins, 237 B.R. 816, 819–20 (Bankr. M.D. Fla. 1999) (Government subsidized residential lease can be assumed through Chapter 13 plan because lease was not expired; debtor must satisfy assumption requirements in § 365. “The eviction proceedings instituted by WPHA concluded with the entry of a Judgement of Possession against Debtors. A Writ of Execution was not issued prior to Debtors filing for Chapter 13 bankruptcy protection. The termination of the lease was reversed according to Florida’s anti-forfeiture doctrine. The lease was not terminated for purposes of section 365 of the Bankruptcy Code.”); In re DiCamillo, 206 B.R. 64, 69–71 (Bankr. D.N.J. 1997) (Residential lease is not “expired” for purposes of § 365 where judgment for possession was entered before the Chapter 13 petition but a warrant for removal of the debtor had not yet issued. Declining to follow Robinson v. Chicago Housing Authority, 54 F.3d 316 (7th Cir. 1995), “a residential tenant/debtor may assume an unexpired lease in the context of a Chapter 13 plan, even if the lease may be deemed ‘terminated’ pre-petition under state law. . . . [T]ermination of a residential lease under state law does not preclude assumption of the lease under § 365(a). . . . [W]hen a debtor’s leasehold interest is totally and completely extinguished, including his or her possessory interest, . . . there is nothing to assume within the bankruptcy process. . . . [W]e conclude that the entry of a judgment of possession in favor of the landlord under New Jersey law does not preclude the debtor from seeking to assume his unexpired lease under § 365(a).”); In re Gant, 201 B.R. 216, 223 (Bankr. N.D. Ill. 1996) (Rejecting In re Brown, No. 95 B 16825 (Bankr. N.D. Ill. Dec. 19, 1995), under Illinois Forcible Entry and Detainer Act, “a lease can be properly terminated . . . at the point in time when the specified time period in a landlord’s notice of delinquency has passed without tender of payment by the tenant.” However, Chicago Housing Authority’s acceptance of a late payment from the debtor is an act “inconsistent with CHA’s declaration of forfeiture in its notice”; therefore, lease did not terminate or expire before the petition and can be rehabilitated in a Chapter 13 case under § 1322(b)(7).); In re Mims, 195 B.R. 472, 475 (Bankr. W.D. Okla. 1996) (Applying Oklahoma law, residential lease is not “expired” until writ of assistance is served on the debtor. “[E]xecution of a writ of assistance by serving it upon the debtor is the step in the eviction process under [Oklahoma] law which finally extinguishes a debtor’s rights for purposes of § 365(a). In the instant matter, because the writ of assistance had not been served upon debtor prior to the commencement of the case, this court finds that § 365(a) and § 1322(b)(7) remain available to the debtor.”); In re Morgan, 181 B.R. 579, 583–88 (Bankr. N.D. Ala. 1994) (Debtor can cure defaults and assume apartment lease notwithstanding “termination” under the contract and state law if the lease has not “expired” at the petition. Prior to the petition, the landlord gave written notice of termination and demanded possession. The debtor filed Chapter 13 before the lessor obtained a writ of execution for possession. The petition was filed on July 22, 1994; the term of the lease ended on April 30, 1995. “The only qualification on the right of a Chapter 13 debtor to assume a residential real property lease, other than prompt cure and adequate assurance of future performance, . . . is that the lease be ‘unexpired.’ If a lease has not expired, it may be assumed upon satisfaction of the conditions contained in section 365(b)(1). . . . [T]he word ‘expired’ denotes the natural or inevitable end to a contract or lease by lapse of time, while the word ‘terminated’ denotes the unnatural or premature end to a contract or lease as a result of breach or forfeiture. . . . [T]his Court holds that a lease which has been terminated under nonbankruptcy law may, despite that fact, be an ‘unexpired lease’ under section 365. . . . [T]he right to cure does not extend beyond the term of the lease. Also, the right to assume the lease presupposes some possessory nexus or toehold in the property. . . . In order to assume a residential lease, . . . the debtor must pay the rent arrearage in full. . . . [T]he debtor must pay any accrued costs of collection provided for under the lease in full. . . . [T]he debtor must propose to pay the rent arrearage and lessor’s collection costs promptly. . . . [A]ny rent arrearage and the lessor’s collection costs must be paid prior to the renewal date of the lease. . . . As a rule of thumb, this Court adopts a time period of six months, absent evidence that a different period should be required. If the debtor cannot pay the arrearage and costs in six months, then it may be that curing the lease is not in the debtor’s best interest. . . . [A]dequate assurance of future performance requirement will be met if a debtor’s proposal contains three basic safeguards. First of all, the debtor must earn sufficient disposable income to allow him to pay the arrearage and costs within the time period specified. . . . Second, the debtor must make current rent payments as they fall due. Third, the lessor must be given a quick and relatively inexpensive avenue for obtaining relief from the stay if the debtor either defaults on any of the current rent payments or any prompt cure payment.”); Gallatin Hous. Auth. v. Talley (In re Talley), 69 B.R. 219 (Bankr. M.D. Tenn. 1986) (Applying Tennessee law, a Chapter 13 debtor can cure the default and rehabilitate a residential lease until the tenant has been dispossessed by execution of a writ of possession.). But see Cunningham v. Lifelink Corp. (In re Cunningham), 159 B.R. 230 (N.D. Ill. 1993) (Landlord’s notice of termination was effective under Illinois law to end debtor’s rights in federally subsidized apartment notwithstanding that debtor remained in possession of apartment at the filing of the Chapter 13 petition.).

 

10  See Robinson v. Chicago Hous. Auth. (In re Robinson), 54 F.3d 316, 320–21 (7th Cir. 1995) (“Expired” and “terminated” mean the same thing under § 365; applying Illinois law, public housing lease terminated and could not be assumed by Chapter 13 debtor because a judgment for possession had been entered before the petition. Section 525 was not implicated because Housing Authority took the steps necessary to terminate the lease before the petition. “[W]e conclude that federal bankruptcy law draws no meaningful distinction between ‘expired’ and ‘terminated’ residential leases and does not provide greater federal protection for lessees under residential leases, the stated terms of which have not run, even though they have been otherwise terminated. Instead the federal law allowing ‘unexpired’ leases to be assumed calls for a determination whether a lease has ended under state law. . . . [T]he landlord must have taken all the necessary procedural steps to repossess the premises. . . . [T]he lease may not be considered ended until the tenant herself no longer has legal recourse to revive the lease. . . . The complete process of evicting a tenant in Illinois involves five distinct steps. However, the occurrence or execution of all the five steps may not be necessary for the tenant to lose her right to possession.”). Accord Floyd v. Clark, 266 B.R. 61 (E.D. Pa. 2001) (Bankruptcy court appropriately granted relief from the stay to landlord because lease terminated before Chapter 13 petition when state court entered a judgment for possession notwithstanding that landlord did not technically satisfy the lease requirement for 60 days’ notice of nonrenewal.); 48-50 Enters., Ltd. v. Rimmeir (In re Bradstreet), Nos. 01-18357DWS, 01-30953DWS, 01-775, 2002 WL 1349588 (Bankr. E.D. Pa. June 3, 2002) (unpublished) (Debtor failed to timely exercise option to purchase real property, and the lease linked to that option cannot be assumed in a manner that would rejuvenate the option.); In re Finkley, 203 B.R. 95, 102 (Bankr. N.D. Ill. 1996) (Applying Robinson v. Chicago Housing Authority, 54 F.3d 316 (7th Cir. 1995), “under Illinois law, the right of a tenant to possession of leased property terminates if (1) the tenant defaults in the payment of rent under the lease, (2) the landlord serves the required notice of default, (3) the tenant does not pay the defaulted rent within the required time, and (4) the landlord files an action to obtain possession. At any point in this process or even after the termination, the landlord can waive the default.” On landlord’s motion for relief from stay, bankruptcy court abstains to permit state court presiding over landlord’s forcible action to decide whether lease terminated prior to petition.).

 

11  Westgate Village Apts. v. Sims (In re Sims), 213 B.R. 641, 643–45 (Bankr. W.D. Pa. 1997) (Chapter 13 debtor can assume a residential lease notwithstanding that same lease was rejected in a prior Chapter 7 case. “A lease is not terminated by the granting of relief from the automatic stay. It also is not terminated by rejection of the lease; whether the rejection occurs by way of a motion or by operation of law under § 365. Rejection merely constitutes a breach of the lease and entitles the landlord to damages. . . . [R]ejection is final for purposes of § 1322(b)(7) only with respect to the particular case in which the contract was rejected. . . . Because the lease was rejected by the estate in the chapter 7, it reverted to Debtor. When she later filed this chapter 13 case, her property and possessory interests in the lease became property of this chapter 13 estate. The rejection in the chapter 7 did not affect Debtor’s ability to assume or reject the lease under § 1322(b)(7) in the second case. . . . Debtor may assume the lease in the plan if she can establish that she has the ability to cure defaults and pay current rents. . . . Debtor will have to pay all rental arrearages from the date she filed her chapter 7 case, rents prior to that date having been discharged in the chapter 7.”).

 

12  In re Day, 208 B.R. 358, 360–68 (Bankr. E.D. Pa. 1997) (“[W]e reject the CHA’s argument that the Debtors are obliged to assume their leases to retain their public housing tenancies, reaffirming our holdings in In re Sudler, 71 B.R. 780, 786–87 (Bankr. E.D. Pa. 1987), that public housing tenants are protected by 11 U.S.C. § 525(a) and that a public housing tenant can generally retain a premises despite the failure of the case trustee to assume the lease or, except where a prior Chapter 7 discharge was obtained in a previous case instituted within six years of a refiling, paying dischargeable rent. . . . [A]n executory contract that is neither assumed nor rejected continues in place between the parties, passing through the bankruptcy to the reorganized debtor.”).

 

13  Oseen v. Walker (In re Oseen), 133 B.R. 527 (Bankr. D. Idaho 1991). See In re Hughes, 166 B.R. 103 (Bankr. S.D. Ohio 1994) (Debtor’s former employer is entitled to relief from the stay to pursue an injunction to enforce a covenant not to compete where the debtor terminated the debtor’s employment contract before filing Chapter 13 case and no executory contract remains to be assumed or rejected. State courts are the appropriate forum in which to determine whether the covenant not to compete contained in the terminated employment contract is enforceable, whether the debtor has breached that covenant, and whether an injunction is the appropriate remedy.); In re Kilpatrick, 160 B.R. 560 (Bankr. E.D. Mich. 1993) (Beneficiary of prepetition covenant not to compete is not entitled to relief from the stay to enforce prepetition state court injunction against the debtor. Debtors’ rejection of underlying executory contract as part of Chapter 13 plan did not defeat the covenant not to compete. Beneficiary of the covenant has a claim in the Chapter 13 case. Enforcement of the covenant depends upon whether the covenant is nondischargeable—a question appropriately determined in the bankruptcy court.); In re Udell, 149 B.R. 898 (Bankr. N.D. Ind. 1992) (Debtor’s former employer is entitled to relief from the stay to enforce preliminary injunction with respect to a noncompete provision in its employment contract with the debtor. Applying Indiana law, the obligation that the injunction is designed to enforce does not constitute a debt or a claim in a bankruptcy case, notwithstanding the debtor’s argument that the debtor can reject the employment agreement and its noncompete provisions.), aff’d in part, 18 F.3d 403 (7th Cir. 1994) (Bankruptcy court correctly determined that covenant not to compete and preliminary injunction issued by state court before the filing of the Chapter 13 case were not “claims” in the Chapter 13 case. Bankruptcy court’s decision to grant relief from the stay to the party in whose favor the noncompete ran was remanded to district court for further consideration.).

 

14  Lamar v. Mitsubishi Motors Credit of Am., Inc. (In re Lamar), 249 B.R. 822 (Bankr. S.D. Ga. 2000) (Chapter 13 debtor cannot assume car lease because lease terminated before the petition when lessor repossessed the car and mailed notice of termination to the debtor.); Mayhall v. Ford Motor Credit Co. (In re Mayhall), 200 B.R. 241, 242 (Bankr. N.D. Ala. 1996) (“[T]he debtors’ lease terminated according to the terms of the lease agreement prior to the petition date. . . . It is undisputed that the debtors were in default in accordance with paragraph twenty-one (21) of the lease agreement pursuant to which Ford was entitled to repossess the vehicle. Upon Ford’s lawful repossession of the vehicle, the lease terminated pursuant to paragraph sixteen (16) of the lease agreement. Accordingly, the debtors no longer have an interest in the vehicle, and the lease cannot be assumed because it is not property of the bankruptcy estate.”).

 

15  214 B.R. 779 (Bankr. W.D. Pa. 1997).

 

16  See In re Sharon, 200 B.R. 181, 195 (Bankr. S.D. Ohio 1996) (Extended service contract on a car is not an executory contract because the contract “requires no future performance by the Debtor except to make payments under the Agreement.”), aff’d on other grounds, 234 B.R. 676 (B.A.P. 6th Cir. 1999).

 

17  See § 56.1 [ Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts ] § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts. See, e.g., In re Jennings, 204 B.R. 41, 43 (Bankr. W.D. Mo. 1997) (“In a Chapter 13 case, absent any limitations or conditions that the Court imposes, a debtor has all the rights and powers of a trustee. 11 U.S.C. § 1303. Therefore, debtor has the authority to assume the [nonresidential] lease if he does so within sixty days of the petition.”); In re Hall, 202 B.R. 929 (Bankr. W.D. Tenn. 1996) (Chapter 13 debtor can assume unexpired residential lease by making provision in plan for assumption and payment of prepetition arrearage.); In re Steffen, 181 B.R. 981, 984 (Bankr. W.D. Wash. 1995) (Although Code is not altogether clear, Chapter 13 debtors are proper parties to assume or reject an executory contract. “After all, § 365(a) gives the assume/reject determination to the trustee, not debtors, and nothing in Chapter 13 directly authorizes debtors to exercise that power. However, the outcome of that decision, at least if it is to assume, must of necessity be implemented in a plan, and only debtors may propose a plan. . . . Since the debtors’ plans may provide for the assumption or rejection of the executory contracts, § 1322(b)(2), the Steffens are proper parties.”); In re Bruce, 80 B.R. 927 (Bankr. C.D. Ill. 1987).

 

18  See § 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors.

 

19  See In re Christian, No. 99-50632 RFH, 2000 WL 33740253, at *2 (Bankr. M.D. Ga. May 8, 2000) (unpublished) (Confirmed plan that required continuation of monthly lease payments on a pickup “outside” Chapter 13 plan did not assume or reject the lease, and the lease could be rejected by modification of the plan after confirmation. “The Court is not persuaded that the lease on Mr. Christian’s truck was assumed by Movants. Movants did not move the Court to approve an assumption of the lease. . . . Movants’ confirmed plan simply provides that their lease payments would be made outside of their Chapter 13 plan.”).

 

20  See §§ 56.1 [ Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts ] § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts and 174.4 [ Lessor Can Accelerate Assumption or Rejection ] § 102.7  Lessor Can Accelerate Assumption or Rejection.

 

21  11 U.S.C. § 365(d)(2).

 

22  See § 216.1 [ Timing of Hearing on Confirmation ] § 115.1  Timing of Hearing on Confirmation before BAPCPA.

 

23  See 11 U.S.C. § 363(e), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 219, 108 Stat. 4106 (1994), discussed in §§ 48.1 [ Adequate Protection of Lienholders prior to Confirmation ] § 47.1  Adequate Protection of Lienholders before Confirmation, 56.1 [ Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts ] § 51.3  Assume, Reject or Assign Leases, Rental Agreements and Executory Contracts and 174.3 [ Lessor Can Demand Adequate Protection ] § 102.6  Lessor Can Demand Adequate Protection.

 

24  See, e.g., Cunningham v. Lifelink Corp. (In re Cunningham), 159 B.R. 230 (N.D. Ill. 1993); In re Atkins, 237 B.R. 816 (Bankr. M.D. Fla. 1999) (Government-subsidized residential lease can be assumed through Chapter 13 plan.); In re Day, 208 B.R. 358 (Bankr. E.D. Pa. 1997) (Public housing tenants are protected by 11 U.S.C. § 525(a) and can retain the tenancy notwithstanding a prior Chapter 7 case in which the lease was neither assumed nor rejected.); In re Adams, 94 B.R. 838 (Bankr. E.D. Pa. 1989) (Chapter 13 debtor may be able to assume public housing lease if debtor is a “remaining member of a tenant family” within the meaning of 24 C.F.R. § 912.2.); Madisonview Towers v. Yardley (In re Yardley), 77 B.R. 643 (Bankr. M.D. Tenn. 1987).

 

25  In re Kopfstein, 35 B.R. 656 (Bankr. N.D. Ohio 1983).

 

26  In re Bruce, 80 B.R. 927 (Bankr. C.D. Ill. 1987) (Employee stock investment plan is an executory contract that can be rejected in a Chapter 13 case notwithstanding employer’s argument that rejection will jeopardize status of entire plan under ERISA.).

 

27  See §§ 164.1 [ Projected (Disposable) Income ] § 91.2  Projected (Disposable) Income and 165.1 [ Reasonably Necessary for Maintenance or Support ] § 91.3  Reasonably Necessary for Maintenance or Support.

 

28  In re Maine, 32 B.R. 452 (Bankr. W.D.N.Y. 1983).

 

29  See § 296.1 [ Leases and Executory Contracts ] § 136.10  Leases and Executory Contracts before BAPCPA. See, e.g., In re Masek, 301 B.R. 336, 342 (Bankr. D. Neb. 2003) (Debtors and counsel are cautioned that the balance of all lease payments becomes an administrative priority claim if the debtor defaults after assumption. “[I]f the debtors’ economic situation is precarious enough that a post-petition default on the lease is a real possibility, then they should consider . . . rejecting the lease, and dealing with the lessor’s general unsecured claim rather than an administrative claim.”).

 

30  Gray v. Atlantic Permanent Sav. & Loan Ass’n, 49 B.R. 540 (Bankr. E.D. Va. 1985).

 

31  See In re Reardon, 51 B.R. 182 (Bankr. S.D. Ohio 1985).