In re Jeans.Com

491 B.R. 16, 2013 WL 1536990, 2013 Bankr. LEXIS 1548
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedApril 12, 2013
DocketNo. 12-01777 (ESL)
StatusPublished
Cited by1 cases

This text of 491 B.R. 16 (In re Jeans.Com) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jeans.Com, 491 B.R. 16, 2013 WL 1536990, 2013 Bankr. LEXIS 1548 (prb 2013).

Opinion

OPINION AND ORDER

ENRIQUE S. LAMOUTTE, Bankruptcy Judge.

This case is before the court upon the Motion for Order under Section 365(d)(8) Directing Debtor in Possession to Pay Nonresidential Lease Post-Petition Obligations and for Payment of Administrative Expenses filed by DDR Norte LLC S.E., DDR Atlántico LLC S.E., DDR Pal-ma Real LLC S.E., and DDR Rio Hondo LLC S.E. (collectively “DDR”, the “Motion for Payment and Administrative Expenses ”, Docket No. 172) and the Opposition thereto filed by the Debtor (Docket No. 196). Also before the court is a Motion for Reconsideration of Orders and Request that the Motions to Assume Exec-utory Contracts are Held in Abeyance until Further Disclosure by the Debtor filed by the Unsecured Creditors Committee (“UCC”) (Docket No. 236). For the reasons stated below, DDR’s Motion for Payment and Administrative Expenses is denied in part and granted in part and the UCC’s Motion for Reconsideration (Docket No. 236) is denied.

[19]*19 Procedural Background

The Debtor filed a voluntary Chapter 11 bankruptcy petition on March 9, 2012 (the “Petition”, Docket No. 1) and has since then been managing its affairs and operating its business as a debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

On July 3, 5, and 9, 2012, the Debtor filed several Motions Assuming Executory Contracts (Docket Nos. 130, 133, 135, 137 and 147) in regards to the lease agreements of commercial properties located in # 036 Yauco Plaza, San Lorenzo, Plaza Rio Hondo Shopping Center, Cidra Shopping Center and Plaza San Sebastian. The Debtor alleged that, in its best business judgment, assuming those lease agreements would result in the benefit of the bankruptcy estate. On July 31, 2012, the court entered an Order (Docket No. 160) scheduling a hearing for October 9, 2012 to consider, inter alia, the Motions Assuming Executory Contracts filed by the Debt- or.

On August 27, 2012, DDR filed the Motion for Payment and Administrative Expenses (Docket No. 172) seeking an order for the Debtor to pay the post-petition rents for the use and occupancy1 of certain commercial spaces. DDR contends that part of the bankruptcy estate’s assets at the time of the Petition were the unexpired leases of certain nonresidential real property between Debtor, as tenant, and DDR, as landlord, for commercial spaces at Plaza del Atlántico in Arecibo and Plaza Rio Hondo in Bayamon (the “Debtor Premises”). DDR avers that the Debtor currently uses those premises for its retail operations and maintains a “Jeans.com” store in each of them. DDR contends that post-petition charges under the leases, as of August 17, 2012, amount to $45,263.35 ($26,442.21 for Plaza del Atlántico and $18,821.14 for Plaza Rio Hondo). DDR also sustains that the Debtor has also been using and deriving benefit from DDR’s Plaza del Norte property, located in Hatil-lo, P.R., as well as the Plaza Palma Real property in Humacao, P.R. DDR acknowledges that these commercial spaces are currently leased to third-party, non-debtor entities, which are related and/or affiliated to the Debtor (the “Related Premises”) but that the Debtor has been using them for the operation, storage, and/or maintenance of certain “Jeans.com” stores. The Debtor claims that post-petition charges as of August 17, 2012 for these Related Premises amount to $70,051.99 ($29,597.45 for Plaza Palma Real and $40,454.54 for Plaza del Norte). DDR seeks payment for post-petition rent for the Debtor’s use of DDR’s premises pursuant to Section 365(d)(3) of the Bankruptcy Code and claims administrative expense treatment of these post-petition rents under Section 503(b).

On September 14, 2012, the Debtor filed its Opposition to DDR’s Motion for Payment and Administrative Expenses (Docket No. 196), acknowledging the imposition of post-petition rent and administrative expenses for DDR’s premises at Plaza Rio Hondo, but arguing that DDR’s premises at Plaza del Atlántico, Plaza Palma [20]*20Real and Plaza del Norte are leased to a third-party, non-debtor corporation named Felix Fanti and Michael Silva Enterprises, Inc. (“FFMSE”). The Debtor concludes that post-petition rents and administrative expenses may only be allowed to DDR Rio Hondo LLC S.E. in regards to the premise at Plaza Rio Hondo, but must be denied to DDR Norte LLC S.E., DDR Atlántico LLC S.E. and DDR Palma Real LLC S.E. in regards to the premises at Plaza del Atlántico, Plaza Palma Real and Plaza del Norte.

On September 18, 2012, the court entered an Order (Docket No. 199) scheduling a hearing for October 9, 2012 to consider DDR’s Motion for Payment and Administrative Expenses (Docket No. 172) and the Debtor’s Opposition thereto (Docket No. 196). On October 4, 2012, the court entered several Orders Granting Unopposed Motions (Docket No. 206, 209, 210, 212 and 214) in regards to the Debtor’s Motions Assuming Executory Contracts (Docket Nos. 130, 133, 135, 137 and 147).

On October 4, 2012, the UCC filed a Motion for Reconsideration of Orders and to Request that the Motions to Assume Executory Contracts are Held in Abeyance until Further Disclosure by the Debt- or (Docket No. 215) sustaining that FFMSE was the party that appeared in some of the assumed lease agreements, not the Debtor, and as such the information provided to assume the contracts needed to be clarified in order to determine if they were assumable or not, and that the same was true in other commercial properties. In addition, the UCC claims that no evidence of sub leases or assignment of the leases between FFMSE and the Debtor has been provided and that without that evidence, Section 365 of the Bankruptcy Code is inapplicable. The UCC also requested that the court set aside the Orders granting the assumption of executory contracts entered at Docket Nos. 206, 210, 212 and 214.

On October 4, 2012, DDR Rio Hondo LLC, S.E. filed a Motion to Vacate or Alter Order Authorizing Assumption of Lease, Opposition to Dkt. 133 and Request to be Heard at Scheduled Hearing (Docket No. 216) alleging that although it had entered into negotiations with the Debtor for the assumption of the lease agreement for the Plaza Rio Hondo premises, the Debtor owed over $35,000.00 in post-petition rent alone, and that under 11 U.S.C. § 365, the Debtor is required to pay all pre-petition and post-petition rents outstanding as a condition to assume the ex-ecutory contract. DDR Rio Hondo LLC, S.E. requested that the Order granting assumption (Docket No. 209) be vacated, or altered to conform to whatever stipulation is filed at or before hearing on October 9, 2012, and that DDR be heard at hearing as scheduled.

On October 8, 2012, DDR filed a Response to [the UCC]’s Position (Docket No. 215) and Tender of Evidence Showing Debtor’s Use and Occupancy of Leased Spaces (Docket No 229) alleging that since the Petition date, the Debtor has been utilizing and deriving a direct and immediate benefit from the use and occupancy of DDR’s Plaza del Norte property, the Plaza Palma Real property, the premises located at Plaza Atlántico, a space subject to an expired leased but which Debtor continued to use thereafter, as well as the Plaza Rio Hondo property.

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Bluebook (online)
491 B.R. 16, 2013 WL 1536990, 2013 Bankr. LEXIS 1548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jeanscom-prb-2013.