In Re Garfinckels, Inc., 118 B.R. 154 (D.D.C. 1990)

Stephen E. Leach, Washington, D.C., for debtor.

S. MARTIN TEEL, Jr., Bankruptcy Judge.

By an order (Docket Entry ("DE") 94) entered July 30, 1990, the Court granted the debtor-in-possession's motion (DE 78) to reject the debtor's lease with Lanham Property Investors Limited Partnership ("Lanham") but took under advisement whether that rejection would be effective as of July 27, 1990, when the Court rendered its oral decision or as of July 21, 1990, the date set by the debtor's letter delivered to Lanham on July 20, 1990. The Court is of the view that In re National Oil Co., 80 B.R. 525 (Bankr.D.Colo.1987), and In re Revco D.S., Inc., 109 B.R. 264 (Bankr.N.D.Ohio 1989), represent the better view and that Court approval is necessary before rejection of a lease may be effective. Nevertheless, the Court's order entered July 30, 1990 approving rejection might be made nunc pro tunc to an earlier date after the date of the filing of the motion if there would be no prejudice to Lanham. The Court has already made the order nunc pro tunc to July 27, 1990, the date the Court rendered its oral decision approving rejection. The Court declines to make the order effective to any earlier date. The Court has required service of motions to reject on the creditors' committee in this case. Until the hearing of July 27, 1990, Lanham was in the dark regarding the views of the creditors' committee concerning rejection. Until then Lanham could not be reasonably certain that the Court was presented with an uncontested matter. That type of uncertainty was identified in National Oil, 80 B.R. at 526, as a basis of requiring bankruptcy court approval before rejection is effective. The uncertainty having still existed in this case prior to July 27, 1990, it would be improper under the standards of Weil v. Markowitz, 898 F.2d 198 (D.C.Cir.1990), to make the order approving rejection effective earlier.

An appropriate order follows.