In re Spats Restaurant Saloon

13 Citing cases

  1. In re Food Barn Stores, Inc.

    174 B.R. 1010 (Bankr. W.D. Mo. 1994)   Cited 4 times
    Recognizing that "[t]he decisions are many which hold that even after the lease is deemed rejected, the landlord may freely accept use and occupation payments from a holdover debtor without waiving the deemed rejection."

    03[3], at 365-32 n. 28b (15th ed. 1990)), and as a provision "which often proves problematic for debtors-in-possession and trustees." In re Spats Restaurant Saloon, 64 B.R. 442, 443 (Bankr.D.Nev. 1986). In In re Lew Mark Cleaners Corp., 86 B.R. 331, 332 (Bankr.E.D.N.Y. 1988), the Honorable Conrad B. Duberstein noted that "[t]here appears to be no end in the litigation arising out of 11 U.S.C. § 365(d)(4).

  2. In re Damianopoulos

    93 B.R. 3 (Bankr. N.D.N.Y. 1988)   Cited 26 times
    Holding that a deemed rejected lease is no longer property of the estate

    See e.g. In re O.P. Held, Inc., supra, 77 B.R. at 388 (lawyer's statement that debtor would assume lease does not equal assumption); In re BDM Corp., 71 B.R. 142 (Bankr.N.D.Ill. 1987) (debtor's statement at Code § 341 meeting that he would honor all leases and the fact that he was keeping payments current does not constitute assumption); Treat Fitness Center, Inc. v. Rainbow Investment Co. (In re Treat Fitness Center, Inc.), 60 B.R. 878 (Bankr.9th Cir. 1986) (ongoing discussions between debtor and landlord with respect to assignment, sublease and purchase does not equal assumption); In re Spats Restaurant Saloon, 64 B.R. 442 (Bankr.D.Nev. 1986) (debtor's conduct in introducing to lessor new tenant and discussing with tenant and lessor past problems, future plans and lease transfer does not equal assumption); In re Re-Trac Corp., 59 B.R. 251 (Bankr.D.Minn. 1986) (debtor's telephone conversation wherein he communicated intention to continue operating out of leased premises coupled with erratic rental payments does not equal assumption).

  3. Prologis NA3 NV II, LLC v. IGT, Inc.

    3:11-cv-00346-HDM-WGC (D. Nev. Jan. 29, 2014)   Cited 1 times

    In addition, to prove waiver by conduct, which is the theory advanced by IGT, Prologis' conduct must be so manifestly consistent with an intent to relinquish voluntarily a particular right that no other reasonable explanation of one's conduct is possible. In re Spats Restaurant & Saloon, 64 B.R. 442, 446 (Bankr. D. Nev. 1986). 17.

  4. In re Duckwall-Alco Stores, Inc.

    150 B.R. 965 (D. Kan. 1993)   Cited 43 times

    The bankruptcy court below correctly held that the state law doctrine of "surrender" is preempted by the Bankruptcy Code, to the extent the two are inconsistent. See In re McLean, 105 B.R. at 932 (citing In re Spats Restaurant Saloon, 64 B.R. 442, 447 (Bankr.D.Nev. 1986)). Contrary to Inland's contention, Duckwall's rejection of the unexpired lease was not conditioned upon Inland's acceptance of the premises.

  5. In re Allegheny Intern., Inc.

    136 B.R. 396 (Bankr. W.D. Pa. 1991)   Cited 32 times   1 Legal Analyses
    Declining invitation to further reduce lessor's rejection damages claim, which had been limited by application of section 502(b)'s formula, and noting that "application of the cap provided in section 502(b) makes a reduction to present value unnecessary"

    Furthermore, Pennsylvania law provides no cases which examine the term "surrender" under bankruptcy law. "Surrender," as a term of art in landlord tenant law, may have limited application in the interpretation of the Bankruptcy Code. In re Spats Restaurant Saloon, 64 B.R. 442, 447 (Bankr.D.Nev. 1986). However, the manner in which Pennsylvania courts have interpreted "surrender" can serve as a guide to this court's consideration of an appropriate definition of the term as it is applied under the Bankruptcy Code.

  6. In re McLean Enterprises, Inc.

    105 B.R. 928 (Bankr. W.D. Mo. 1989)   Cited 25 times
    Using "the rent due under the lease for the year following the petition"

    Article VI, clause 2, United States Constitution. In re Spats Restaurant Saloon, 64 B.R. 442, 447 (Bankr.D.Nev. 1986) (Doctrine of surrender preempted by section 365(d)(4)); In re Southwest Aircraft Services, Inc., 53 B.R. 805 (Bankr.C.D.Cal. 1985) (holding that rejection of a lease under section 365(d)(4) cannot be modified or made to comply with California law). This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  7. In re Gillis

    92 B.R. 461 (Bankr. D. Haw. 1988)   Cited 39 times

    5. The termination of the Lease pursuant to Section 365(d)(4) is absolute and, based upon the Supremacy Clause and the doctrine of federal preemption, cannot be affected or impaired by Hawaii state law. See, In re Spats Restaurant Saloon, 64 B.R. 442, 447 (Bkrtcy.D.Nev. 1986); In re Southwest Aircraft Services, 53 B.R. 805, 810 (Bkrtcy.C.D.Calif. 1985).

  8. In re Lew Mark Cleaners Corp.

    86 B.R. 331 (Bankr. E.D.N.Y. 1988)   Cited 17 times

    In re Las Margaritas, Inc., 54 B.R. 98 (Bkrtcy.Nev. 1985), concluded that § 365(d)(3) extended to payments accepted after the 60 day period and mere acceptance of rental payments cannot estop lessors from claiming rejection and termination of a lease pursuant to § 365(d)(4) regardless of the lessor's knowledge of the bankruptcy. See In re BDM Corp., 71 B.R. 142, 145 (Bkrtcy.N.D.Ill. 1987); In re Spats Restaurant Saloon, 64 B.R. 442, 445 (Bkrtcy.Nev. 1986). In re Re-Trac Corp., 59 B.R. 251, 14 B.C.D. 339 (Bkrtcy.Minn.

  9. In re New York Deli, Ltd.

    75 B.R. 797 (Bankr. D. Haw. 1987)   Cited 3 times

    It should be noted that debtor should have instituted an adversary action; however, the Lessor did not object to the failure to file an adversary complaint and thus is deemed to have consented to hearing the matter by way of motion. See e.g. Lewis v. Wilson, 151 U.S. 551, 14 S.Ct. 419, 38 L.Ed. 267 (1894); Gill v. United States, 160 U.S. 426, 16 S.Ct. 322, 40 L.Ed. 480 (1895); Divide Canal Reservoir Co. v. Fenney, 57 Colo. 14, 139 P. 1110 (1914); In re Spats Restaurant Saloon, 64 B.R. 442 (Bankr.Nev. 1986). The Court thus concludes that the debtor is entitled to an award of attorney fees as the prevailing party in an action for damages. Since the Court finds that debtor is entitled to attorney fees under the terms of the Lease, it need not, and does not decide whether an award of attorney fees under any other theories would have been permissible.

  10. In re Gamma Fishing Co., Inc.

    70 B.R. 949 (B.A.P. 9th Cir. 1987)

    The cases which have considered the application of § 365 to an executory contract or lease have consistently decided that § 365(a) means what it says, i.e., that an express order of the judge approving an assumption or rejection is required. In re Treat Fitness Center, Inc., 60 B.R. 878 (9th Cir. BAP 1986); In re Spats Restaurant & Saloon, 64 B.R. 442 (Bankr.D.Nev.1986); In re Speed Fab-Crete of Nevada, supra at 723; In re Marple Publishing Co., 20 B.R. 933, 935 (Bankr.E.D.Pa.1982); In re Price Chopper Supermarkets, Inc., 19 B.R. 462 (Bankr.S.D.Cal.1982).