Brian J Cook and Victoria Velasquez Cook

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ORDER NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re:
BRIAN J COOK and VICTORIA
VELASQUEZ COOK,
Debtors.
Case No. 2:15-bk-10768-RK
Chapter 11
ORDER DENYING DEBTORS’ MOTION
TO REJECT EXECUTORY CONTRACT
Date: June 9, 2015
Time: 2:30 p.m.
Place: Courtroom 1675
United States Bankruptcy Court
Roybal Federal Building
255 East Temple St.
Los Angeles, California 90012
Pending before the court is the motion of debtors Brian and Victoria Cook
(“debtors”) to reject a contract as executory between debtor Brian Cook and creditor
Edward Franowicz (“creditor”) pursuant to 11 U.S.C. §365, which is noticed for hearing
on June 9, 2015 at 2:30 p.m. Creditor has filed an opposition to the motion, and the
motion is a contested matter pursuant to Fed. R. Bankr. P. 6006 and 9014. Having
reviewed the moving, opposing, and reply papers, the court determines that oral
argument is not necessary, dispenses with it, takes the motion under submission,
vacates the scheduled hearing on June 9, 2015 and rules as follows.
FILED & ENTERED
JUN 08 2015
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	milano
Case 2:15-bk-10768-RK Doc 113 Filed 06/08/15 Entered 06/08/15 10:51:10 Desc
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As stated in In re Orion Pictures Corp., 4 F.3d 1095, 1098-1099 (2nd Cir. 1993),
cited by debtors in their moving papers, motions to assume or reject executory contracts
under 11 U.S.C. §365 should be summary proceedings focusing on whether the decision
of the trustee, or debtor-in-possession, to assume or reject an executory contract is a
good business decision or bad one. The sparse and conclusory nature of the evidentiary
showing by debtors in the moving papers has led the court to determine that the court
cannot rule upon the motion without sufficient factual development because the record is
insufficient at this time for the court to rule in favor of debtors on this motion. That is, the
evidentiary record is insufficient for the court to find that the contract is executory, that
creditor is not a purchaser-in-possession entitled to the protections of 11 U.S.C. §365(i),
or that the rejection of the contract is a reasonable exercise of the business judgment of
debtors in possession. Debtors’ evidentiary showing in support of their motion consists of
scanty (or “bare bones” as described by creditor) and conclusory statements by debtor
Brian Cook that the contract is executory, that rejection of the contract is a reasonable
exercise of debtors’ business judgment and that creditor is not entitled to protection as a
purchaser-in-possession under 11 U.S.C. §365(i), to which statements creditor has
interposed evidentiary objections, which the court now sustains because the statements
are conclusory and lacking in foundation. Fed. R. Evid. 602, 701 and 702. Moreover,
creditor has offered contrary evidence which raises disputed issues of material fact which
the court must resolve in deciding this contested matter of a motion to reject a contract as
executory. While motions to reject executory contracts should be summary proceedings,
they are also contested matters under Fed. R. Bankr. P. 6006 and 9014 and therefore
sometimes they may require more extensive proceedings than summary.
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For the foregoing reasons, the court denies the motion without prejudice. That is,
debtors may file an amended motion that remedies the deficiencies in proof described in
this order. No appearances are required on June 9, 2015.
IT IS SO ORDERED
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Date: June 8, 2015
Case 2:15-bk-10768-RK Doc 113 Filed 06/08/15 Entered 06/08/15 10:51:10 Desc
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