In Re Windmill Farms, Inc., Debtor. Vanderpark Properties, Inc. v. David L. Buchbinder, Trustee of Windmill Farms Management Company, Inc.

Vanderpark Properties, Inc. (“Vander-park”), the lessor of commercial real property in San Diego County, California, appeals from a judgment of the Ninth Circuit Bankruptcy Appellate Panel (“BAP”). The BAP affirmed an order of the bankruptcy court permitting the Chapter 7 bankruptcy trustee for Windmill Farms, Inc. (“WFI”) to assume and assign the lessee’s interest in a lease of commercial property from Vanderpark. Vanderpark argues that this lease had been terminated under California law before WFI filed its bankruptcy petition and, consequently, there was nothing for the trustee to assume and assign. Van-derpark also contends the bankruptcy court erred in holding an ex parte hearing on the issue of assumption of the lease, and in allowing assumption of the lease in the face of outstanding, uncured defaults by the lessee. Furthermore, Vanderpark contends the lease term has now expired because notice of exercise of a renewal option was not timely given.

We have jurisdiction pursuant to 28 U.S.C. § 158 (d). We reverse the BAP and remand this case to the bankruptcy court for further proceedings.

I

FACTS

On July 30, 1975, Vanderpark leased commercial real property in California…