(Id. ) HHF cites three cases to support this position: In re Bennett Enterprises, Inc. , 628 B.R. 481 (Bankr. D.N.J. 2021) ; In re Brick House Properties , 633 B.R. 410 (Bankr. D. Utah 2021) ; and In re High Country Resorts , 94 B.R. 193 (Bankr. D.N.M. 1988). Debtors argue that these cases cited by HHF are irrelevant because they involve final judgments and that the Preliminary Injunction does not render the License Agreement non-executory because the Preliminary Injunction was not a final adjudication on the merits.
., Inc.), 147 B.R. 72, 80 (E.D.N.Y. 1992); Roxse Homes, Inc. v. Roxse Homes Ltd. P'ship, 83 B.R. 185, 187 (D. Mass. 1988), aff'd 860 F.2d 1072 (1st Cir. 1988); Kendall Grove Joint Venture v. Martinez-Esteve, 59 B.R. 407, 409 (S.D. Fla. 1986); Bregman v. Meehan (In re Meehan), 59 B.R. 380, 386 (E.D.N.Y. 1986); In re Baver, No. 21-10806, 2021 WL 5815643, at *5 (Bankr. S.D. Ohio Nov. 2, 2021); In re Brick House Props., LLC, 633 B.R. 410, 417-23 (Bankr. D. Utah 2021); In re Bennett Enters., Inc., 628 B.R. 481, 488-90 (Bankr. D.N.J. 2021); Davidson v. Barstad (In re Barstad), No. 17-60586-TLM, 2019 WL 2479311, at *5-7 (Bankr. D. Mont. June 12, 2019); In re Acevedo, 441 B.R. 428, 434 (Bankr. S.D.N.Y. 2010); In re Giordano, 446 B.R. 744, 749 (Bankr. E.D. Va. 2010); In re Smith, 269 B.R. 629, 631 (Bankr. E.D. Tex. 2001); Winter v. Glaze (In re Glaze), 169 B.R. 956, 960 (Bankr. D. Ariz. 1994); In re High Country Resorts, 94 B.R. 193, 194 (Bankr. D.N.M. 1988); Brown v. Bassett (In re Bassett), 74 B.R. 361, 363 (Bankr. D. Colo. 1987); Rusiski v. Pribonic (In re Pribonic), 70 B.R. 596, 599-601 (Bankr. W.D. Pa. 1987). These courts generally reason that once specific performance is decreed, the rights and obligations of the parties become defined and governed by the decree rather than by the contract.
Id.See alsoIn re Smith , 269 B.R. 629, 632–33 (Bankr. E.D. Tex. 2001) (finding that prior judicial decree for specific performance rendered real estate contract non-executory); In re Bassett , 74 B.R. 361, 362 (Bankr. D. Colo. 1987) (finding that contract for purchase and sale of real property which is buttressed by prepetition order of specific performance is not executory); In re High Country Resorts , 94 B.R. 193, 194 (Bankr. D.N.M. 1988) ("After a judgment has been rendered on a contract it is no longer executory."); Davidson v. Barstad (In re Barstad) , 2019 Bankr. LEXIS 1803 at *12, 2019 WL 2479311, at *7 (Bankr. D. Mont. June 12, 2019) (finding that real estate buy-sell agreement was no longer executory due to pre-petition order for specific performance). Turning to the facts, the Debtor refused to resolve a variance issue with Riverton City to facilitate the subdivision of the Lots.
See, e.g., Winter v. Glaze (In re Glaze), 169 B.R. 956, 960 (Bankr. D. Ariz. 1994) ("This Court's review of the cases on the issue of what constitutes an executory contract reflects that the entry of a judgment is a critical point; thus, the contract for the sale of debtor's home is not an executory contract because of the pre-petition entry of judgment for specific performance."); Roxse Homes, 83 B.R. at 187 ("(o)nce a judgment for specific performance is entered, the parties' remaining unperformed obligations become non-material, or ‘ministerial’ acts through which the parties merely carry out the court's directive ...." and further, "[c]ourts agree that the phrase ‘executory contract’ cannot be applied to a judicial order."); In re High Country Resorts, 94 B.R. 193, 194 (Bankr. D.N.M. 1988) ("After a judgment has been rendered on a contract it is no longer executory."); Bregman v. Meehan (In re Median), 59 B.R. 380, 386 (E.D.N.Y.1986) ("state court's award (of specific performance) might be deemed to ‘execute’ the contract ... thereby removing it from the realm of executory contracts under the Bankruptcy Code"); Brown v. Bassett (In re Bassett), 74 B.R. 361, 362 (Bankr. D. Colo. 1987) (real estate sale contract which is buttressed by a pre-petition order for specific performance is not executory under section 365 ). The rationale of these decisions focuses on the fact that, under the relevant state law, the state court had the ability to enforce its own orders, in essence removing any remaining duties of the parties under the contract because, if the parties failed to perform, the court could nevertheless enforce its orders.
" and further acknowledging that "[c]ourts agree that the phrase 'executory contract' cannot be applied to a judicial order."]; In re High Country Resorts, 94 B.R. 193, 194 (Bankr. D.N.M. 1988) ["After a judgment has been rendered on a contract it is no longer executory."]Id. at 632-33.
1. Under New Mexico law, entry of a judgment is a purely ministerial act. In re High Country Resorts, 94 B.R. 193, 194 (Bankr. D.N.M. 1988) (citing De Lao v. Garcia, 96 N.M. 639, 640, 633 P.2d 1237, 1238 (Ct.App. 1981)). The automatic stay does not prohibit ministerial acts because they are clerical in nature and do not constitute a continuation of legal proceedings against a debtor.
" and further acknowledging that "[c]ourts agree that the phrase `executory contract' cannot be applied to a judicial order."]; In re High Country Resorts, 94 B.R. 193, 194 (Bankr.D.N.M. 1988) ["After a judgment has been rendered on a contract it is no longer executory."]; Pribonic, 70 B.R. at 606 [finding a sales agreement contract to be non-executory and granting relief from the automatic stay to vendees under a real estate contract so that vendees could enforce a pre-petition decree of specific performance against vendor-debtor]; Bregman v. Meehan (In re Meehan), 59 B.R. 380, 386 (E.D.N.Y. 1986) [stating that the "state court's award (of specific performance) might be deemed to `execute' the contract . . . thereby removing it from the realm of executory contracts under the Bankruptcy Code"] ; Brown v Bassett (In re Bassett), 74 B.R. 361, 362 (Bankr.D.Colo.