Even if the Court could be persuaded to find that Debtor and Sotav were basically only one entity in two forms, the Court finds that judicial estoppel precludes Debtor from claiming that there is no lease agreement between it and Sotav. "Judicial estoppel is applied to the calculated assertion of divergent sworn positions . . . and is designed to prevent parties from making a mockery of justice by inconsistent pleadings." In re Pittman, 289 B.R. 448, 451 (Bankr. M.D. Fla. 2003) (quoting Am. Nat'l Bank v. FDIC, 710 F.2d 1528, 1536 (11th Cir. 1983)). In Sotav's Schedules, it listed an "unwritten month to month lease with South Street Tavern Grill, Inc.

CompareIn re Robert L. Helms Constr. & Dev. Co., Inc., 139 F.3d 702, 705–06 (9th Cir.1998) (typical option does not require further performance by either party as of the commencement of bankruptcy case and therefore, is not executory) withIn re RoomStore, Inc., 473 B.R. 107, 111–14 (Bankr.E.D.Va.2012) (even though not yet triggered on a debtor's petition date, contingent obligation is executory because it represents a continuing duty to perform if the contingency occurs).SeeIn re Smith, 449 B.R. 35, 40–41 (Bankr.E.D.Pa.2011) ; In re Pittman, 289 B.R. 448, 450–451 (Bankr.M.D.Fla.2003) ; In re Kellstrom Indus., 286 B.R. 833, 835 (Bankr.D.Del.2002) In re Wallace, 122 B.R. 222, 233 (Bankr.D.N.J.1990) ; In re A.J. Lane & Co., 107 B.R. 435, 437 (Bankr.D.Mass.1989).

Nevertheless, Debtors argue that at the time they completed Form B22C, they had proposed a Chapter 13 plan that included a provision to exercise the lease purchase option relating to the Saturn Aura and make payments over time through their plan. Initially, the court notes that a question arose after objection by the secured creditor as to whether a debtor can force a creditor to finance the purchase of a vehicle through a Chapter 13 plan based merely upon a purchase option provided in the lease. See In re Ramirez-Arellano, 113 B.R. 796 (Bankr. S.D. Fla. 1990); In re Pittman, 289 B.R. 448 (Bankr. M.D. Fla. 2003). Debtors removed the provision in their Amended Plan and replaced it with a provision that the vehicle would be surrendered. Nevertheless, even if the ownership expense was properly contemplated at the time Debtors' Form B22C was completed, "when a bankruptcy court calculates a debtor's projected disposable income, the court may account for changes in the debtors' income or expenses that are known or virtually certain at the time of confirmation."

Furthermore, while the Bankruptcy Code permits a Chapter 13 debtor to modify the rights of certain holders of secured claims, since the Movants are parties to an unexpired lease and not a security agreement, the Debtor is not entitled to modify the terms of the Lease and force Movants to finance his purchase of the Vehicle. In re Calloway, 2010 WL 5597723 (Bankr.M.D.N.C. Oct.28, 2010) (holding that since motor vehicle contract between the debtor and Fifth Third Bank was a lease and not a security agreement, the debtor was required to treat Fifth Third Bank's claim in his Chapter 13 Plan as a lease and not as a secured debt which meant that the debtor could not obligate Fifth Third Bank to finance the purchase of his vehicle); In re Pittman, 289 B.R. 448, 450 (Bankr.M.D.Fla.2003) (ruling that § 1322(b)(2) precluded the debtor from modifying the rights of her motor vehicle lessor, including its right to be paid a lump sum payment for the vehicle's purchase price upon the debtor's exercise of the purchase option under their motor vehicle lease); In re Winston, 181 B.R. 589, 594 (Bankr.N.D.Ala.1995) (holding that the debtor could not treat a lessor as a secured creditor by paying the present value of the purchase option price of the lease through her Chapter 13 plan); In re Weske, 203 B.R. 694 (Bankr.E.D.Wis.1996) (rejecting argument that Chapter 13 debtor could “finance the residual purchase price of a vehicle lease over the life” of his or her plan). Rather, if the Debtor wants to assume the Lease and exercise his option to purchase the Vehicle, he must do so assuming the Lease in accordance with the requirements of § 365 and paying the purchase price for the Vehicle in a lump sum. As currently written, the Debtor's' Chapter 13 Plan modifies the terms between t

Furthermore, while the Bankruptcy Code permits a Chapter 13 debtor to modify the rights of certain holders of secured claims, since the Movants are parties to an unexpired lease and not a security agreement, the Debtor is not entitled to modify the terms of the Lease and force Movants to finance his purchase of the Vehicle. In re Calloway, 2010 WL 5597723 (Bankr. M.D. N.C. Oct. 28, 2010) (holding that since motor vehicle contract between the debtor and Fifth Third Bank was a lease and not a security agreement, the debtor was required to treat Fifth Third Bank's claim in his Chapter 13 Plan as a lease and not as a secured debt which meant that the debtor could not obligate Fifth Third Bank to finance the purchase of his vehicle); In re Pittman, 289 B.R. 448, 450 (Bankr. M.D. Fla. 2003) (ruling that § 1322(b)(2) precluded the debtor from modifying the rights of her motor vehicle lessor, including its right to be paid a lump sum payment for the vehicle's purchase price upon the debtor's exercise of the purchase option under their motor vehicle lease); In re Winston, 181 B.R. 589, 594 (Bankr. N.D. Ala. 1995) (holding that the debtor could not treat a lessor as a secured creditor by paying the present value of the purchase option price of the lease through her Chapter 13 plan); In re Weske, 203 B.R. 694 (Bankr. E.D. Wis. 1996) (rejecting argument that Chapter 13 debtor could "finance the residual purchase price of a vehicle lease over the life" of his or her plan). Rather, if the Debtor wants to assume the Lease and exercise his option to purchase the Vehicle, he must do so assuming the Lease in accordance with the requirements of § 365 and paying the purchase price for the Vehicle in a lump sum. As currently written, the Debtor's' Chapter 13 Plan modifies the terms b

"Judicial estoppel is applied to the calculated assertion of divergent sworn positions . . . and is designed to prevent parties from making a mockery of justice by inconsistent pleadings." In re Pittman, 289 B.R. 448, 451 (Bankr. M.D. Fla. 2003) (quotingAmerican National Bank v. Federal Deposit Ins. Corp., 710 F.2d 1528, 1536 (11th Cir. 1983). Bruce Jennings' testimony with respect to this issue is also subject to judicial estoppel.