Jim Slemons Hawaii, Inc. v. UST-United States Trustee

MEMORANDUM

1. The bankruptcy court properly granted Continental’s motion to terminate the lease. To avoid termination, debtor had to assume the lease, which it could do only by filing a formal motion requesting court approval, stating particular grounds, and providing Continental with adequate notice and opportunity for a hearing. See Sea Harvest Corp. v. Riviera Land Co., 868 F.2d 1077, 1079 (9th Cir.1989); Fed. R. Bankr.P. 9014. Debtor did not file such a motion. It did file a motion to pay only a certain portion of rent due, but as a matter of law that motion did not suffice to effectuate an assumption of the lease. See Sea Harvest, 868 F.2d at 1079 . The bankruptcy court did not abuse its discretion by denying debtor’s set-aside motion. Debtor filed the motion thirty-three days after entry of judgment, well after the fourteen-day deadline set by Federal Rule of Bankruptcy Procedure 9028.

2. The bankruptcy court properly granted Continental’s administrative rent motion. Even though debtor failed to assume the lease, it was required to pay rent until the lease was formally terminated. See 11 U.S.C. § 365 (d)(8); In re At Home Corp., 392 F.3d 1064, 1068 (9th Cir.2004). The…