10/15/2007 274 Motion for Immediate Surrender of Nonresidential Real Property, filed by Eagle View One, LLC, Hearing scheduled for 11/8/2007 at 10:00 AM at Lexington Courtroom, 3rd Floor. (Attachments: # 1 "Exhibit A" Lease/part 1 of 2# 2 "Exhibit A" Lease/part 2 of 2# 3 Proposed Order) (Dean, Leslie) (Entered: 10/15/2007)
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IN RE:
PLASTICON INTERNATIONAL, INC.
Case No. 07-50934
Debtor Chapter 11
MOTION FOR IMMEDIATE SURRENDER OF REAL PROPERTY
1. Eagle View One, LLC, a Kentucky LLC, ("EVO"), hereinafter "Lessor," files this Motion for Immediate Surrender of Nonresidential Real Property pursuant to 11 U.S.C. ?365(d)(4) A). In support thereof, EVO respectfully states the following:
2. The Court has jurisdiction in regard to this matter pursuant to 28 U.S.C. ?1334 and 28 U.S.C. ?157, as well as the Local Rules for the United States District Court for the Eastern District of Kentucky.
3. This matter is a core proceeding under 28 U.S.C. ?157(b)(2) (D).
4. On May 16, 2007, Plasticon International, Inc. ("Debtor Plasticon"), 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 1008 of the Bankruptcy Code.
5. 11 U.S.C. Section 365(d)(4) states the following:
(A) Subject to paragraph (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. See also Adelphia Business Solutions, Inc. v. Abnos, 482 F.3d 602 (2nd Cir. 2007); Titus & McConomy, LLP v. TrizecHahn Gateway, LLC, 2007 Bankr. LEXIS 3204, (W.D.B.K. Pa., September 21, 2007); In re Tubular Techs, LLC, 348 B.R. 699, (District of South Carolina), (July 18, 2006).
6. Attached hereto and incorporated herewith as "Exhibit 1" is a copy of the nonresidential real property lease between Lessor Eagle View One, LLC and Debtor Plasticon.
7. 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.
8. September 13, 2007 was 120 days after the date of the Order for Relief.
9. Debtor Plasticon did not assume or reject the nonresidential real property lease on or before September 13, 2007.
10. Debtor Plasticon did not file a motion prior to the expiration of the 120 day period and request that the court extend the period.
11. Therefore, the lease is deemed rejected and the Debtor Plasticon must immediately surrender the nonresidential real property to Lessor Eagle View One, LLC.
WHEREFORE, Lessor Eagle View One, LLC requests that the Court Order Lessee Plasticon to immediately surrender the nonresidential real property located at 3288 Eagle View Lane, Lexington, Kentucky and for such other relief as the Court deems just.
Respectfully,
LESLIE DEAN
Leslie Dean, Attorney at Law, PSC
3288 Eagle View Lane, Suite 300
Lexington, Kentucky 40509
Telephone: (859) 296-4575
Facsimile: (859) 296-4577
Email: ldean@LeslieDean.com
ATTORNEY FOR EAGLE VIEW ONE, LLC
NOTICE OF HEARING
Please take notice that the foregoing shall come on for hearing before the Bankruptcy Court for the Eastern District of Kentucky, Lexington Division, on the 8th day of November, 2007 at 10:00 a.m. EST or as soon as thereafter may be heard, at the United States Bankruptcy Court, 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 and to all parties listed on the Master Service List via electronic
and/or first class, postage prepaid U.S. mail on this 15th day of October, 2007.
/s/ Leslie Dean_______________
Leslie Dean
By: /s/ Leslie Dean________________
Leslie Dean
Leslie Dean, Atty. at Law, PSC
3288 Eagle View Lane, Suite 300
Lexington, KY 40509
Telephone: (859) 296-4575
Facsimile: (859) 296-4577
Email: ldean@LeslieDean.com
Attorney for Eagle View One, LLC
Label Matrix for local noticing
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