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The Bankruptcy Hotline
First Circuit Rejects holding in Claremont
Becoming the first circuit court to address the issue since the Ninth Circuit's controversial ruling in In re Claremont Acquisition Corp., 113 F.3d 1029 (9th Cir. 1997), the First Circuit rejected the Ninth Circuit's rationale and has held that non-monetary defaults of unexpired leases are not required to be cured before assumption. Eagle Insurance Company and Newark Insurance Company v. BankVest Capital Corp. (In re BankVest Capital Corp.), No. 03-9006 (March 15, 2004).
The debtor was the lessor of computer equipment. Following the filing of an involuntary bankruptcy petition, the lessees continuing using the debtor's equipment without making the lease payments and arrears of approximately $1 million accumulated. The confirmed plan provided that all leases where the debtor was the lessor would be deemed assumed under ' 365 unless specifically rejected. The lessees here sought cure costs for some undelivered loaner equipment, but the bankruptcy court dismissed the cure claims, holding that under ' 365(b)(2)(D) a debtor in possession may assume an unexpired lease without curing nonmonetary defaults. The Bankruptcy Appellate Panel affirmed and the lessee appealed.
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