In Re Butcher Shop and Deli of Miami, Inc. , 1984 Bankr. LEXIS 4385 ( 1984 )

45 B.R. 239 (1984)

In re: the BUTCHER SHOP AND DELI OF MIAMI, INC., Debtor.

Bankruptcy No. 83-02260-BKC-TCB.

United States Bankruptcy Court, S.D. Florida.

December 26, 1984.

Patricia A. Redmond, Miami, Fla., for Trustee.

Welton Merry, Trustee.

Leonardo A. Canton, Coral Gables, Fla., for debtor.

Mark J. Newman, Walters, Costanzo, Russell, Zyne & Newman, Miami, Fla., for Angel Torres.

William Manker, Miami, Fla., for K.B. Properties, Inc.

ORDER DENYING TRUSTEE'S MOTION TO ASSUME UNEXPIRED LEASE

THOMAS C. BRITTON, Bankruptcy Judge.

The trustee's motion to assume an unexpired business lease (C.P. No. 93) was heard on December 21. The trustee has found a purchaser willing to pay $14,100 for the unexpired term. The landlord has objected, arguing that the trustee's application comes too late and has been rendered moot by 11 U.S.C. § 365(d)(1):

"In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected."

This case began under chapter 11 in 1983. On August 3, 1984 the case was converted to chapter 7 and a trustee was appointed. (C.P. No. 73.) I construe the foregoing provision to be applicable 60 days after an order of conversion from chapter 11 to chapter 7. If so, the deadline for the trustee to act expired in this case on October 2. The trustee's motion to assume the lease was filed on December 11 although the motion was served on the landlord on November 30. In either event, it came well beyond the statutory deadline.

The trustee did not even advertise the business lease for sale until October 31. (C.P. No. 89.) It is quite apparent that the trustee has been dilatory in attempting to salvage the value of the debtor's unexpired lease and, as a result, the estate has suffered a substantial loss.

It is quite clear from the language of the statute, that this court has no discretion to extend the time for assumption after the deadline has passed. Collier on Bankruptcy ¶ 365.03[1] (15th ed.).

The trustee's motion is denied.