J. Philip Klingeberger
ORDER FOR HEARING CONCERNING MOTION TO APPROVE
ACCEPTANCE OF EXECUTORY CONTRACT (RECORD #50)
The debtor's attempts to assume an executory contract in this case have been long and thus far unsuccessful. The first attempt (record #23) was with respect to an apparent executory contract between the debtor and American Honda Finance Corporation; this attempt was denied by the court's record #30 order. The second attempt (record #32) was denied by the court's record #46 order, again with respect to an apparent executory contract between the debtor and American Honda Finance Corporation. Record #50 was a motion with respect to an entity designated as American Home Finance Corporation (emphasis supplied); there is no creditor by this designation in this case, and it is assumed that the debtor's counsel intended to refer to American Honda Finance Corporation, but unfortunately that didn't happen. Moreover, a motion of this nature initiates a contested matter, which requires service on the creditor involved in the executory contract pursuant to Fed.R.Bankr.P. 7004, which was not accomplished here. Additionally, the record #50 motion was filed subsequent to the entry of an order confirming the debtor's Chapter 13 plan on June 1, 2012 (record #48). There thus may be issues concerning the applicability of 11 U.S.C. § 365(p)(3) if what is presumably a motor vehicle lease with American Honda Finance Corporation is not deemed to have been assumed prior to the date of confirmation of the plan. In this latter context, the court knows that while there is nothing in the plan which specifically assumes a lease with American Honda Finance Corporation, the provisions of the plan utilized by the debtor which would have rejected this lease did not reject it. The court also notes that paragraph 6 of the plan specifically provides for the making of direct payments to American Honda Finance Corporation, which may implicitly have assumed the lease.
IT IS ORDERED that a hearing will be held on August 13, 2012, at 2:00 P.M. to sort all of the foregoing out.
Dated at Hammond, Indiana on July 18, 2012.
________________________
J. Philip Klingeberger, Judge
United States Bankruptcy Court
Distribution:
Debtor, Attorney for Debtor
Trustee, US Trustee
American Honda Finance Corporation