Form 35-19

Warning:      The local rules of the Bankruptcy Courts for the four districts in Texas have specific requirements for the content of the captions of pleadings and orders, and they are all different. The practitioner should consult the local rules of the bankruptcy court for the district in which he intends to file for the specific requirements as to the content of captions. See section 35.1:2 in this chapter.

[Caption. See form 35-3 in this chapter.]

Motion to Compel Assumption or Rejection of Lease and Payment of Administrative Claim

1.Parties.       [Name of creditor], Creditor, files this Motion to Compel Assumption or Rejection of Leases and Payment of Administrative Claim.

2.Jurisdiction.      The Court has jurisdiction of this motion pursuant to 28 U.S.C. §§ 157 and 1334 and 11 U.S.C. §§ 365, 503, and 507.

3.Facts.

a.Debtor filed for protection under Chapter [11/13] of the Bankruptcy Code on [date]. The first meeting of creditors was held on or about [date]. [Include if applicable: Debtor filed a Chapter 13 plan on or about [date].]

b.Debtor entered into a lease with Creditor (the “Lease”) on or about [date]. The effective date of the Lease was [date]. The Lease was a [term of lease, e.g., twelve-month] lease for [list lease items]. Debtor was to make monthly payments pursuant to the Lease in the sum of $[amount] per month. The Lease is attached as Exhibit [exhibit number/letter].

c.At the time this case was filed, Debtor was [number] month[s] in arrears or $[amount] (payment plus tax and late charges) in arrears on the Lease. No payments have been received by Creditor since this case was filed on [date], and postpetition arrearages total $[amount].

4.Grounds.

a.Section 365(d)(2) of the Bankruptcy Code provides:

In a case under chapter 9, 11, 12 or 13 of this title, the trustee may assume or reject an executory contract or unexpired lease of resi­dential real property or of personal property of the debtor at any time before the confirmation of a plan but the court, on the request of any party to such contract or lease, may order the trustee to determine within a specified period of time whether to assume or reject such contract or lease.

Creditor requests that the Court require the Debtor to assume or reject the Lease within [number, e.g., thirty] days of the entry of an order by this Court.

b.Debtor has effectively failed to make at least [number] of the [number] pay­ments due to date. Moreover, the property leased to Debtor by Creditor is equipment that will depreciate in value with the passage of time and develop­ment of new technology. To the best of Creditor’s knowledge, Debtor is still using the property, and the depreciation of the property is accelerated by use.

5.Assumption of Lease.      Section 365(b)(1) of the Bankruptcy Code provides that, if there has been a default in an executory contract or unexpired lease, the contract or lease may not be assumed unless the trustee, at the time of the assumption, cures or provides adequate assurance that the trustee will promptly cure such default and provides adequate assurance of future performance under the contract or lease. Creditor therefore requests Debtor, should [he/she] elect to assume the Lease with Creditor, tender payment of the arrearages in full within [number, e.g., thirty] days of Debtor’s filing to assume the Lease, including the attorney’s fees incurred by Creditor. Should Debtor fail to cure the arrearages as required by 11 U.S.C. § 365(b)(1), Creditor requests that the order entered in response to this motion include a pro­vision that Debtor surrender Creditor’s equipment at a place to be designated by Creditor.

6.Assurances of Future Performance.      Creditor also requests, pursuant to 11 U.S.C. § 365(b)(1), that should Debtor be required, in any motion to assume the Lease, to pro­vide adequate assurance of future performance, that such adequate assurances may be by way of Debtor providing a request for automatic bank drafts to Creditor or some similar evidence.

7.Administrative Expenses.      At least [number] lease payments have accrued post­petition and at least [number] additional payments will come due by the time this matter is heard. Even assuming that Debtor elects to reject the Lease with Creditor, Creditor requests that the Court find that the payments that have become due postpetition and before rejection are administrative expenses as defined in 11 U.S.C. § 503(b)(1) and require Debtor to pay the same within [number, e.g., thirty] days of a motion rejecting the Lease as provided in 11 U.S.C. § 503(a).

8.Prayer.      Creditor prays that—

a.this Court enter an order compelling Debtor to assume or reject the Lease within [number, e.g., thirty] days of the entry of the order;

b.the order require Debtor, should Debtor file a motion to assume the Lease, to cure all arrearages, including late charges and attorney’s fees, within [num­ber, e.g., thirty] days after filing the motion or to surrender the property within the same period;

c.if Debtor elects to reject the Lease, this Court find that all postpetition pay­ments that came due prior to the entry of the Order rejecting the Lease be deemed to be administrative expenses and paid within [number, e.g., thirty] days of the entry of the Court’s order; and

d.Creditor be granted all other relief to which it may be entitled.

Dated: ________________________________.

   
[Name]
Attorney for [name of client]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]