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St. John's Case Blog

By: Courtney Pasquariello
St. John’s Law Student
American Bankruptcy Institute Law Review Staff


Injecting uncertainty into the claims process, the Sixth Circuit Court of Appeals held that a lessor’s lease rejection claim must be recomputed if it fails to realize the projected mitigation amount used to compute its claim.  In Giant Eagle, Inc., v. Phar-Mor, Inc., [1] Giant Eagle, Inc. and Valu Eagle Associates (“GE”) entered into long-term equipment leases with Phar-Mor.  Phar-Mor filed Chapter 11 during the lease term and rejected the equipment leases.  As a result of Phar-Mor’s rejection, GE made claims for undisputed administrative expenses as well as claims for future rent minus rent recovered from mitigation.  Upon recovering the equipment from Phar-Mor, GE attempted to fulfill its duty to mitigate damages by releasing the equipment under a new agreement with Snyder’s Drugstores, Inc.  However, during Synder’s new lease term, Snyder too sought relief under Chapter 11 and rejected the equipment leases.  After recovering the equipment, GE was unable to re-let it and sought to recover additional future rental damages in the Phar-Mor bankruptcy case.[2]  Although the lower courts sided with Phar-Mor, stating that “once a lessor mitigates its damages by re-letting the equipment, the lessor cannot claim damages from the debtor for the period covered by the new lease,”[3] the Sixth Circuit disagreed.[4]  Instead, the appellate court focused on the fact that once a lease was rejected, the debtor was liable for damages resulting from the breach regardless of mitigation or attempted mitigation.[5] 

January 30 2009

By: Vitaly Libman
St. John's Law Student
American Bankruptcy Institute Law Review Staff


In the first appellate decision on point, the Eleventh Circuit Court of Appeals held in In re Graupner[1] that the anti-bifurcation protection granted to certain purchase money security interests by BAPCPA’s “hanging paragraph” applies even though the loan includes negative equity. The Second Circuit, meanwhile, opted to defer determination of this issue by certifying the question of whether negative equity is to be included in such purchase money security interests to the New York Court of Appeals.[AA]   In Graupner, the debtor traded in a vehicle with negative equity as part of his purchase of a new car.[2]  Both the purchase price of the new car and the negative equity from the earlier loan were included in the amount financed by the dealer.[3]  Rejecting the debtor’s argument that the inclusion of negative equity meant that the security interest was not a purchase money security interest, the court held that the entire unpaid balance was deemed to be a secured claim, including the negative equity.[4]

January 30 2009