Williamson v. Burnham Motors, Inc. (In re Williamson), No. A10-04002-TLS, 2010 WL 3369384 (Bankr. D. Neb. August 23, 2010) (unpublished) (Saladino) (Under Nebraska law, the contract created a security right and not a car lease; there was no right of termination by the tenant and the purchase price option at the end of the term was nominal.). In re Jack, No. 9:16-bk-08007-FMD, 2017 WL 3225977, at *2 (Bankr.M.D.
Fla. July 31, 2017) (Delano) (Under applicable Florida law, a contract for the use of furniture with an initial term of less than four months is a genuine lease, not a security agreement; the debtor may be forced to accept or reject the lease in accordance with Section 365 and cannot confirm a plan that treats the contract as a secured claim. “In Florida, the Rental-Purchase Agreement Act expressly provides that certain hire-purchase agreements do not constitute security features. In this case, the agreement meets the statutory definition of a “hire-purchase agreement”. Therefore, the court concludes that the agreement is a genuine lease and not a disguised security agreement. In accordance with article 365 (d) (2). . . . the court may order a debtor under Chapter 13 to accept or refuse such a lease. »).
It is important to understand that the tenant has the opportunity to buy the property and is not contractually obligated to do so. However, in most cases, the tenant will opt for the purchase because they have likely paid increased rent, option fees, utilities, and maintenance. These investments are lost at the end of the lease term if the purchase is not completed. Referring to Johnson, 587 B.R. 195, 200 (Bankr.M.D. Ga. 13. June 2018) (Laney) (the contract for the use of the portable storage shed was an actual lease, not a security agreement, and the landlord has the right to suspend the leave despite confirmation of a plan that treated the relationship as a security agreement. The plan was not binding on the landlord since the confirmation notice was sent to the wrong location. “[T]he agreement between the debtor and the Movant was a `hire purchase agreement` under Tennessee law …
Tennessee law prohibits the court from calling it a security right. »). A lease agreement with an option to purchase in Alabama is a form used by landlords to rent their properties to tenants and give them the opportunity to purchase the property. The agreement effectively combines a lease agreement with a purchase agreement so that the parties can negotiate a rental amount, the duration of the lease, the purchase price of the house and any other rental/purchase conditions. With regard to Parker, 363 B.R. 769 (Bankr. D.S.C September 14, 2006) (Leases with Rent Way and Colortyme for living room furniture, sofas, televisions and other household items were actual leases under the 2001 version of the South Carolina Uniform Commercial Code, since debtors were not required to continue their payments and would not incur a penalty in the event of early termination, with the exception of the loss of rental property and the consideration previously paid – natural consequences of the termination of a lease. In re Lash, No. 10-51171, 2010 WL 5141760 (Bankr.M.D.N.C. December 9, 2010) (Waldrep) (Under Utah law, the Freightliner agreement was a security right, not a lease.
Clear line test by U.C.C. § 1-203 (b) and the economic reality test were taken into account. The creditor retained no significant reversible interest in the collateral and the assets would be sold after the end of the contractual period. The debtor would be liable for defaults and would be entitled to any excess.). In re Lucash, No. 07-10729-SSM, 2007 WL 1855529, at *4 (Bankr. E.D. Va.
June 25, 2007) (Although failure to accept an unexpired lease in the plan normally constitutes a rejection, “this presupposes that the contract is a genuine lease”; The “lease” that transferred ownership to the land trust under the Law Enforcement Prevention Program is not an actual lease because “the economic effect … consisted of pledging the debtor`s domicile to ensure the repayment of funds that had been advanced to prevent enforcement. »). Gutierrez v. Popular Auto, Inc. (In re Gutierrez), 526 B.R. 449 (Bankr. D.P.R. 13 March 2015) (Lamoutte) (Legal conclusions confirmed with additional and clarifying findings of fact.
The waiver of the right to challenge the nature of the lease did not violate the law or the public interest and would be enforced.), after review of No. 13-00089 (ESL), 2014 WL 3888277 (Bankr. D.P.R. 8 August 2014) (Lamoutte) (The lease of automobiles was a genuine lease and not a disguised security agreement; under the terms of the lease, the debtor waived any right to have a lease processed under the UCC of Puerto Rico, which did not repeal the relevant provisions of the Personal Property Lease Contract Act.). In re Bell, No. 07-50003-JDW, 2007 WL 1455967 (Bankr.M.D. Ga. May 15, 2007) (The lease/purchase agreement for a metal building is a true lease under tennessee`s Lease-to-Purchase Act.) In re Warne, No. 09-13941, 2011 WL 1303425 (Bankr. D. Kan. 4 April 2011) (unpublished) (Nugent) (Applying EU Article 1-203.C.C.
of California, the semi-tractor was the subject of a real lease and not a disguised security agreement. By discussing the clear line test, but applying the economic reality test, the lessor maintained significant reverse interest rates and the debtor had no equity. The landlord`s request to force acceptance or rejection was granted – the debtor had 30 days to accept or refuse, otherwise the stay would be cancelled.). 2 See Rent-A-Center, Inc.c Mahoney (In re Mahoney), 153 B.R. 174 (E.D. Mich. 1992) (The hire-purchase agreements between the debtor and Rent-A-Center, Inc., were actual leases, not security rights, and therefore the debtor could retain and use possession only in accordance with section 365. The debtor was not required to renew the contracts, it could terminate at will, and the Michigan legislature amended the Michigan Retail Installment Act to clarify that hire-purchase agreements were not retail instalment contracts.); In re Rembert, 293 B.R. 664 (Bankr.M.D.
Dad. 2003) (The agreement with Aaron`s Rentals was a lease, not a loan sale, within the meaning of the Pennsylvania Rental Purchase Agreement Act.); In re Pittman, 289 B.R. 448, 451-52 (Bankr.M.D. Fla. 2003) (Since car leasing was an actual lease, the call option could not be exercised in instalments under the Chapter 13 plan, although the debtor had filed a secured claim on behalf of the car rental company. “The deposit of a claim secured by the debtor on behalf of GE does not unilaterally transform GE from a lessor into a secured creditor. Since GE is a lessor rather than a secured claimant, Section 1322(b)(2) does not allow the debtor to alter GE`s rights, including the right to receive a lump sum payment for the purchase price of the vehicle when exercising the debtor`s call option. [Article] 1322(b)(2) applies only to secured creditors and therefore does not permit a debtor under Chapter 13 to modify the rights of a lessor … [Article] 1322(b)(7) does not permit a Chapter 13 debtor to finance the residual purchase price of a leased vehicle during the term of the Chapter 13 plan. With regard to Damron, 275 B.R.
266 (Bankr. E.D. Tenn. 2002) (The 1997 commercial truck transportation lease was a real lease under Tennessee law; Plan, which treated the lessor as a secured creditor, did not meet the confirmation requirement of article 1325 (a) (1) because it did not provide for acceptance of the contract in accordance with article 1322 (b) (7); With regard to Minton, 271 B.R. 335 (Bankr. W.D. Arche. 2001) (Contracts with Rent-A-Center are actual leases, not disguised security features, under the Arkansas Rental Purchase Act.); Ford Motor Credit Co.c. Hoskins (In re Hoskins), 266 B.R. 154 (Bankr.
W.D. Mo. 2001) (Applying the 1992 version of Missouri UCC, the contract with Ford Motor Credit was a genuine lease; therefore, FMCC did not violate UCC when it disposed of the returned car.); With regard to Smith, 259 B.R. 561 (Bankr. D.S.C. 2000) (GMAC SmartLease was a real lease, not a security agreement; therefore, the debtor could not alter the payments due under the contract); In re Knowles, 253 B.R. 412 (Bankr. E.D. Ky. 2000) (Hire-purchase contracts for furniture “are neither genuine rental instruments nor security instruments, but […] they are “sufficiently enforceable to fall within the scope of section 365”. Debtors must therefore accept or reject the leases in question. Lamar v.
Mitsubishi Motors Credit of Am., Inc. (In re Lamar), 249 B.R. 822 (Bankr. S.D. Ga. 2000) (the car rental was an actual lease under Georgian law, and the lease ended before the application when the car was taken back and the lessor sent a notice of termination to the debtor.); In re Copeland, 238 B.R. 801 (Bankr. E.D. Arche. 1999) (The portable building lease agreement was an actual lease under Arkansas law; Chapter 13 The debtor cannot treat the seller as an unsecured creditor.); In re Stellman, 237 B.R. 759, 761–64 (Bankr.
D. Idaho 1999) (Enactment of the Idaho Lease-Purchase Agreement Act of 1993 annulled In re Goin, 141 B.R. 730 (Bankr. D. Idaho, 1992). A consumer goods hire-purchase agreement is an enforceable contract that can only be administered under sections 1322(b)(7) and 365. “Under the [Idaho Lease-Purchase Agreement] law, the Idaho Legislature has decreed that a lease-purchase agreement is not subject to security laws … If the contract is a “hire purchase agreement”, it does not have to be more or less.
This creature of consumer credit is now recognized. »). In re Street, 214 B.R. 779, 781–82 (Bankr. W.D. Pa. 1997) (Weekly rental of personal property is a true lease subject to the Pennsylvania Rental-Purchase Agreement Act, not a security right; since the debtor is not a signatory to the lease, but only has a right of ownership, the debtor cannot accept or reject the lease and cannot treat the lease as a contract of guarantee by plan. `[T]he agreements at issue fall directly within the scope of the Law on hire-purchase agreements. They are intended for the use of personality by a person for domestic purposes. The initial period was a week or a month.
Renewal is automatic. and the tenant can acquire ownership of the property… If a hire-purchase law applies that classifies the security right as the subject of a lease, no security right is created. In re Rigg, 198 BC.