09/27/2007 219 Motion for Immediate Surrender of Nonresidential Real Property, filed by 10315 LLC. Hearing scheduled for 10/11/2007 at 03:15 PM at Lexington Courtroom, 3rd Floor. (Attachments: # 1 Continuation of Main Document Exhibit 1 - Lease# 2 Proposed Order) (Case, E.) (Entered: 09/27/2007)
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Doc 219
IN RE:
Case No. 07-50935
PRO MOLD, INC.,
Chapter 11
Debtor.
MOTION FOR IMMEDIATE SURRENDER OF NONRESIDENTIAL REAL PROPERTY
Lessor 10315 LLC files this its Motion for Immediate Surrender of Nonresidential Real Property pursuant to 11 U.S.C. Section 365(d)(4)(A) and in support thereof respectfully states the following:
1. The Court has jurisdiction in regard to this matter pursuant to 28 U.S.C. §1334 and 28 U.S.C. §157 and the Local Rules for the United States District Court for the Eastern District of Kentucky.
2. This matter is a core proceeding under 28 U.S.C. §157(b)(2) (D).
3. On May 16, 2007 Debtor Pro Mold, Inc. (“Debtor Pro Mold”), filed its Voluntary Chapter 11 Petition for Relief in the United States Bankruptcy Court for the Eastern District of Kentucky, Lexington Division (“Court”), and continues to operate its business and manage its financial affairs pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
4. 11 U.S.C. Section 365(d)(4)(A) states the following:
(A) Subject to the subparagraph (B), an unexpired lease of
nonresidential real property under which the debtor is the lessee shall be deemed rejected, and the trustee shall immediately surrender that nonresidential real property to the lessor, if the trustee does not assume or reject the unexpired lease by the earlier of –
(i) the date that is 120 days after the date of the order for relief; or
(ii) the date of the entry of an order confirming a plan.
(B) (i) The court may extend the period determined under subparagraph (A) , prior to the expiration of the 120-day period, for 90 days on the motion of the trustee or lessor cause.
(ii) If the court grants an extension under clause (i), the court may grant a subsequent extension only upon prior written consent of the lessor in such instance.
5. Attached hereto and incorporated herein as Exhibit “1” is a copy of the nonresidential real property lease between 10315 LLC (“Lessor”) and Debtor Pro Mold (“Lessee”).
6. The earlier of 120 days after the date of the Order for Relief or the date of the entry of an order confirming a plan was 120 days after the date of the Order for Relief.
7. September 13, 2007 was 120 days after the date of the Order for Relief.
8. Debtor Pro Mold did not assume or reject the nonresidential real property lease on or before September 13, 2007.
9. Debtor Pro Mold did not file a motion prior to the expiration of the 120-day period and request that the court extend the period.
10. Therefore, the lease is deemed rejected and the Debtor Pro Mold must immediately surrender the nonresidential real property to Lessor, 10315 LLC.
WHEREFORE, Lessor 10315 LLC requests that the Court order Lessee Debtor Pro Mold, Inc. to immediately surrender the nonresidential real property located at 10315 Page Industrial Blvd., St. Louis, Missouri 63132 to 10315 LLC and for such other and further relief as the Court deems just.
STONE, LEYTON & GERSHMAN
A Professional Corporation
By: /s/ E. Rebecca Case
E. Rebecca Case, EDMO #2800
Howard S. Smotkin, EDMO #4407
7733 Forsyth Boulevard, Suite 500
St. Louis, Missouri 63105
(314) 721-7011
(314) 721-8660 Facsimile
erc@stoneleyton.com
hss@stoneleyton.com
Attorneys for John P. Murphy III Revocable Trust No. 1;
Pro Plas LLC; 10315 LLC, and
John P. Murphy, III, individually
NOTICE OF HEARING
Please take notice that the foregoing shall come on for a hearing before the Bankruptcy Court for the Eastern District of Kentucky, Lexington Division on the 11th day of October 2007 at 3:15 pm EDT or as soon thereafter as may be heard, at the United States Bankruptcy Courthouse, 100 East Vine Street, 3rd Floor Courtroom, Lexington, Kentucky 40507.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served electronically in the method established under CM/ECF Administrative Procedures Manual and the Local Court Standing Order dated July 25, 2002, and to all parties listed on the Master Service List via electronic and/or first class, postage prepaid
U.S. mail on this 27th day of September 2007.
/s/ E. Rebecca Case
E. Rebecca Case |
