Opinion
CASE NO. 01-02475-AJM-11
February 28, 2001
Jonathan Palmer, Thomas Eckerle, Attorneys for the Robinsons.
Michael Hile, Attorney for the Debtor.
Jay P. Kennedy, Attorney for First National Bank Trust.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON ROBINSONS' MOTION FOR RELIEF FROM AUTOMATIC STAY
Randy's Auto Sales and Imports, Inc. d/b/a Strict Auto Parts (the "Debtor') filed its voluntary petition under chapter 11 of the Bankruptcy Code on February 28, 2001. On March 16, 2001, Randall Robinson, Hilda Robinson and Randy's Auto Sales, LLC (the "Robinsons") filed a Motion for Relief from Automatic Stay (the "Robinson Motion"). The Debtor currently operates an auto salvage yard on a 19 acre parcel of commercial real estate and facilities located at 215-311 Habig Street, Shelbyville, Indiana (the "Leased Premises"), which the Debor leased from the Robinsons pursuant to a "Lease — Option to Purchase Agreement" dated March 1, 2000, as amended by letter dated March 21, 2000 (the "Lease-Option Agreement"). In their motion, the Robinsons requested that this Court terminate the automatic stay imposed under Section 362 (a) of the Bankruptcy Code in order to allow them to pursue any and all remedies and relief available to them under state law to evict and repossess from the Debtor the Leased Premises. Debtor's possession of the Leased Premises is under a claim of "ownership" deriving from the purported exercise by the Debtor of an option to purchase set forth in the Lease-Option Agreement.
The Robinson's Motion contends that the Lease-Option Agreement either (a) was terminated by default notices dated February 16 and 19, 2001, or (b) expired in accordance with its terms on February 28, 2001, the date of the filing of the Bankruptcy Petition herein. The Robinsons further contend that Debtor's efforts, prior to the termination/expiration dates, to exercise the option to purchase contained in the Lease-Option Agreement were legally ineffective. On April 17, 2001, the Debtor filed its Objection and Brief in Response to Motion for Relief from Automatic Stay ("Debtor's Objection"). The matters of the Robinsons' Motion and Debtor's Response came on for hearing before the court on Wednesday, April 25 and Thursday, May 3, 2001, at which hearings the Court received and heard extensive testimonial and documentary evidence, as well as arguments of counsel, with respect to the Robinsons' Motion and Debtor's Objection.
Having reviewed the evidence and arguments of counsel, the Court, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure ("F.R. Bankr. P."), now enters Findings of Fact, Conclusions of Law and Order on the Robinsons' Motion.
The Robinsons' Motion is a contested matter under F.R. Bankr. P. 9014 and, as such, F. R. Bankr. P. 7052 applies.
Findings of Fact
1. The Robinsons are the owners of a 32 acre parcel of real estate located in Shelbyville, Indiana. A 19 acre portion of that parcel is currently being operated by the Debtor as an auto salvage yard. The salvage yard consists of several buildings and other improvements relating to the Debtor's salvage operation. The remaining 13 acres owned by the Robinsons are not a part of the salvage operation and consist of unimproved real estate, except for two (2) single family homes which are situated on a portion of the 13 acres.
2. On March 1, 2000, the Robinsons and the Debtor entered into a Lease-Option to Purchase Agreement ("Lease-Option Agreement"). The Lease-Option Agreement was executed contemporaneously with a Settlement Agreement ("Settlement Agreement") between the parties, which resolved two Shelby County state court actions brought by the parties against each other, in which they asserted claims which arose from Robinsons' original sale of the salvage yard business and lease of the real estate to the Debtor in October, 1998. As a part of the Settlement Agreement, all complaints and counterclaims by the parties against each other were dismissed with prejudice.
3. The Settlement Agreement and Lease-Option Agreement effectively terminated two prior agreements between the parties with respect to the leased premises, specifically, the Purchase Agreement for Real Estate and the Standard Form Commercial/Industrial Lease signed October 23, 1998. Thus, the debtor has no rights under the original lease and purchase agreement, including any claim to a $200,000 equity credit for a price reduction.
4. The important terms of the March 1, 2000 Lease-Option Agreement relevant to this case are as follows:
(a) The leased premises included only the "real estate and fixtures currently used in the operation of the auto salvage business. . . ." (Art. 1), approximately 19 acres, and not the additional adjoining 13acres.
(b) The term was for one year, only, and was not renewable except by agreement in writing signed by the parties before February 28, 2001 at 3:00 p.m. (Art. 2).
(c) The rent was $3,000 per month payable in advance on the first day of the month, with a five percent late fee for any payment received more than 15 days late. (Art. 3).
(d) The Debtor/Lessee could use the premises only for an auto salvage yard and any other legal business, and was specifically prohibited from using or permitting the use of the Leased Premises in violation of any state or federal law. Debtor further agreed to use the property "in a careful, safe and proper manner, and . . . not commit waste thereon." (Art. 5).
(e) The Debtor/Lessee was responsible for the payment of the Utilities, Maintenance and Repair, Real Estate Taxes and Insurance. (Art. 6-9).
(f) Debtor/Lessee could not assign the lease or sublet the salvage yard without the prior written consent of the Robinsons. (Art. 10).
(g) Article 11 specifies five events of default. None of those events requires any notice before "the event" is considered "a default." Only in the event the Lessor "claims possession" under (b) and (c) is a written notice of default required. Lessee expressly waived notice of default and an opportunity to cure under (a), (b), and (e) of Article 11.
(h) Lessor's acceptance of rent while the Debtor/Lessee was in default is not a waiver of the default. (Art. 15).
(i) Other general lease articles addressed the topics of alterations, inspection by Lessor, surrender and holding over, condition of the premises, indemnification, prior agreements (merger clause) and notice.
(j) The Debtor/Lessee was granted an exclusive option to purchase the entire 32 acre parcel during the term of the one year lease for the purchase price of $550,000, with notice required to be given by February 1, 2001 and "payment [required to be] made . . . before 3:00p.m. on February 28, 2001." (Art. 20). The right of the Debtor to exercise the option was "expressly conditioned upon the faithful performance and observance by Lessees of all the covenants, agreements, and conditions on Lessees' part contained herein and the payment to Lessors of the rent hereby reserved up to the date of the completion of such purchase." Thus, faithful performance by Lessee of the terms of the Lease/Option Agreement was a condition precedent to the Lessee's right to exercise the option.
(k) The lease contained an inspection addendum dated March 9, 2000 with items listed requiring repair within 90 days as referenced in Article 13.
(l) In addition, a letter of March 21, 2000, signed by the parties and their attorneys amended Article 6, with the parties agreeing to hold repairs in abeyance pending closing of the real estate transaction if the option to purchase was timely exercised in the ninety day repair notice period. However, lessee was "not relieved of any obligations or responsibilities under this Lease," including maintaining the premises in good condition and repair and returning same to the Lessor broom clean and in good order and condition.
5. The additional 13 acres of unimproved real estate (plus the two single family homes) which are owned by the Robinsons, were never a part of the Leased Premises. The Debtor never possessed, leased, occupied or otherwise exercised control over those 13 acres. At all times material to this action, the Robinsons paid the real estate taxes, insurance, maintenance, repair and other expenses associated with the 13 acres, leased the residential houses located thereon, collected rent with respect thereto and exercised all other aspects of ownership, dominion and control over the acres.
6. Debtor sent out three Notices of Intent to Exercise the Option (Exhibit F); the notices were dated January 30, 2001, January 31, 2001 and February 1, 2001. The Debtor's representative, Randolph Kricke, testified that Debtor did not have financing secured as of the dates any of the notices were sent and was unable to obtain financing before the option period expired on February 28, 2001 at 3:00 p.m. Nonetheless, each notice stated that the purchase payment would be delivered on or before February 28, 2001. Under the terms of the option, the full amount of the purchase price, namely, $550,000, was to be paid on or before February 28, 2001, at 3:00 p.m. The Debtor did not make any portion of the required payment and did not seek or obtain from Robinson any extension of the payment deadline. Instead, one hour and sixteen minutes before the payment deadline, the Debtor filed this Chapter 11 Bankruptcy Petition.
7. The second Notice of Intent to Exercise the Option was sent by the attorney for Debtor, Greg Garrison. The first and third notices were sent by Randolph Kricke, the President and sole owner of the Debtor. The third notice differs from the first notice in that Debtor attempted in the third notice to unilaterally change the option purchase price from $550,000 to $525,000 by claiming certain credits to which Debtor was not entitled under the terms of the Lease/Option Agreement. The language of the February 1, 2001 amended notice stated, "Please be advised that in the event of any conflict between the Notice to Exercise Option sent via certified mail on January 30, 2001 and this Amended Notice to Exercise Option, the Amended Notice to Exercise Option controls."
8. At the time the three Notices of Intent to Exercise were given by the Debtor and at all times thereafter, the Debtor was not in compliance with material terms of the Lease/Option Agreement, specifically Debtor's obligations under Articles 7 and 8 to maintain required insurance, and under Article 3, to pay rental payments on and after February 1, 2001. Also, at other times during the lease term, Debtor was not in compliance with the Debtor's duty to make required repairs within 90 days of notice being given.
9. (a) With respect to Debtor's default under Article 7 and 8 by failing to maintain required insurance, Randolph Kricke, as President of the Debtor, testified that the insurance on the Leased Premises lapsed and was cancelled for non-payment after receiving notice of termination from Debtors insurance company. The polices were cancelled, effective November 16, 2000, for non-payment of the premium. (Exhibit D)
(b) While Kricke claimed in his testimony that the Debtor was "self insured," there was no evidence to support this claim. Kricke's personal assets (primarily his retirement account containing no more than $500,000) were never pledged to the Debtor or otherwise set aside for the benefit of the Debtor, and, those assets never exceeded more than $500,000, far short of the $1,000,000 requirement. There was testimony that Kricke's mother was to contribute the balance of the $1,000,000 requirement, but there was no evidence that this in fact happened. The Debtor also testified that the business was capitalized initially with $180,000 and that the Debtor's liquid cash reserves never reached more than $300,000 of which most was spent for operations, not insurance.
(c) Insurance was not again placed in force on the Leased Premises until March 27, 2001, more than four months after the effective date of cancellation. (Exhibit E). Robinson had no knowledge of this lapse until he received a copy of the Termination Notice in late March, 2001, when he made inquiry to the previous insurance company after becoming concerned about the status of the coverage following Debtor's bankruptcy. Kricke testified that he informed his attorney of the lapse, but that he intentionally decided not to inform the Robinsons or their attorney, claiming that he had no obligation to do so under the lease. The Robinsons also did not receive any timely notice of cancellation from the insurance company.
(d) Debtor was to "furnish the Lessor a certificate of such insurance" under Article 7 at the signing of the lease and at all times "carry, maintain and deposit proof with Lessor of public liability insurance . . . in amounts not less than $1,000,000 per person and $1,000,000 per occurrence." This section placed an affirmative duty on Debtor to notify Robinson if the insurance lapsed so Robinson could otherwise secure insurance and be protected.
10. In addition to the defaults described in paragraph number 9 above, Debtor defaulted by failing to pay the rent for February 2001. (Article 11(a)). The Robinsons sent two notices of default to Debtor (Exhibits G) concerning the rent payment default, neither of which were complied with by the Debtor. That failure provided the Robinsons with the right to pursue all their remedies under the Lease/Option Agreement, including a claim of possession, without the necessity of providing notice to the Debtor.
11. The Debtor was not in compliance with other obligations under the Lease-Option Agreement, including its obligations under Article 6 and the Article 13 Inspection Addendum dealing with repairs and maintenance of the premises. The Debtor violated Article 6 and the Article 13 addendum by failing to make required repairs, as specified thereunder.
Conclusions of Law
Based upon the foregoing findings of fact, the Court hereby makes the following conclusions of law:
1. To the extent that any finding of fact set forth above or that any conclusion of law set forth below constitutes, in whole or in part, a conclusion of law or a finding of fact, such shall be deemed to be restated and incorporated in the findings or conclusions, wherever appropriate, as if fully set out therein.
2. This Court has jurisdiction over the Robinsons' Motion and Debtor's Response pursuant to 28 U.S.C. § 157 and 1334.
3. This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2)(G).
4. State law generally determines the nature of a bankruptcy debtor's interest in property and the nature, extent, scope, interpretation and application of a bankruptcy debtor's rights and obligations under its contracts with third parties. In re Jones, 768 F.2d 923,927-28 (7th Cir. 1985).
5. This Court's interpretation and application of the provisions of the Lease-Option Agreement between the Robinsons and the Debtor is to be governed by Indiana law because Indiana is the domicile of all parties, and the Lease-Option Agreement (a) was executed in Indiana, (b) related to Indiana real estate and (c) was to be performed in all respects in Indiana. In addition, the Lease-Option Agreement, itself, provides that it shall be governed in accordance with the laws of the State of Indiana. Lease-Option Agreement, Article 19 C.
6. Under applicable Indiana case authorities, in contract cases such as here, the intention of the parties controls the Court's decision with respect to the substance of the parties' agreements. The parties' intention is to be determined, first of all, by the expressed, clear and unambiguous language of the contract. If the parties' intention is discernible from within the "four corners" of the written contract, and the terms of the contract are clear, an Indiana Court will not construe the contract, but rather it will merely apply its provisions. The unambiguous terms of the contract are conclusive. Romain v. Howard Wholesale Co., 506 N.E.2d 1124,1126 (Ind.App. 1987).
7. As a general rule, language in a contract is given its plain and ordinary meaning, that is, that meaning given to the language by the community and ordinary reader. Romain, supra, at 1126.
8. Under Indiana law, an option to purchase real estate is a contract by which the owner of the realty agrees with another person that the later shall have the power to purchase such property at a fixed price within a certain period of time. By an option, the owner subjects himself to the liability of having to convey the property if the option is exercised within the time and in the manner stipulated. Romain, supra, at 1127.
9. Where the parties have so specified, as in this case (Art. 9), time is of the essence of the contract, in the broadest sense of the rule. Where a contract leaves it optional with one party to do a certain thing at a specified time, the option giver subjects the option holder to a definite time for acceptance, i.e. performance of the condition specified in the option. When that time expires, the option holder has received the full, agreed equivalent of the price he paid for his option. He cannot complain when the Courts refuse to give effect to an acceptance that is a minute late because there is no forfeiture. The failure of the option holder to comply with the option's terms deprives him of the right to demand the enforcement of the contract. The option holder loses the right to enforce the contract because the parties have, by expressed intention, provided so. Romain, supra, at 1127; Brokaw v. Roe, 669 N.E.2d 1039, 1043 (Ind.App. 1997).
10. To exercise an option to purchase, the decision to purchase must be made by the optionee under the terms of the option and the decision must be communicated within the life of the option. Since the optionee is the party exercising the option, Courts require strict adherence to the options terms. Lafayette Expo Center, Inc. v. Owens, 531 N.E.2d 508, 510 (Ind.App. 1988); Brokaw v. Roe, supra, at 1041.
11. Indiana Courts hold that an option to purchase gives no right of property in and to the subject of the option. It is not a sale. It is not even an agreement for a sale. At most it is but a right of election in the party receiving the same to exercise a privilege, and only when that privilege has been exercised by an acceptance does it become a contract to sell. Lafayette Expo, supra, at 511.
12. Under Indiana law, "[a] condition precedent is either a condition which must be performed before the agreement of the parties shall become a binding contract, or it may be a condition which must be fulfilled before the duty to perform an existing contract arises." Dvorak v. Christ, 692 N.E.2d 920, 924 (Ind.App. 1998); Harrison v. Thomas, 744 N.E.2d 977 (Ind.App. 2001).
13. In the instant case before this Court, the Lease-Option Agreement provided in clear and unambiguous terms that the right of the Debtor to exercise the option to purchase was "expressly conditioned upon the faithful performance and observance by Lessee [the Debtor] of all of the covenants, agreements and conditions on Lessee's [the Debtor's] part contained [t]herein and the payment to Lessors [the Robinsons] of the rent [t]hereby reserved up to the date of the completion of such purchase." Lease Option Agreement, Article 20, 3d paragraph. The foregoing provision of Article 20 constitutes a condition precedent under Indiana law. Dvorak, supra; Harrison, supra.
14. Because Debtor was not in compliance with all of the contract terms at the time the Debtor attempted to give notice of its intent to exercise the option to purchase, Debtor's three notices (Exhibit F) were ineffective to validly exercise the option.
15. Furthermore, the Debtor's purported written exercises of the option were defective and not in conformance with the terms of the Lease-Option Agreement for the following reasons:
(a) The February 1, 2001 Notice of Exercise (which, according to its own terms and Kricke's own testimony, replaced the prior notices) stated a Purchase Price of $525,000 which was substantially different from and at variance with the Purchase Price required under Article 20 of the Lease-Option Agreement, namely, $550,000.
(b) The Debtor's February 1, 2001 Notice of Exercise claimed a $14,619 credit against the Purchase Price based on a payment by the insurance company to the Robinsons on a claim. However, Article 9 of the Lease-Option Agreement allowed credits for insurance payments only in circumstances where there were "excess proceeds over and above the cost of repairs" or in concert with the proper exercise of the option to purchase by giving notice and making payment. The evidence plainly showed that the $14,619 could not be claimed as a credit because that amount reflected costs of repairs, only.
(c) In addition, the February 1, 2001 Notice of Exercise claimed "other outstanding credits," which Mr. Kricke testified meant credits of $1,000 per month based upon an alleged verbal agreement between the parties' legal counsel, which verbal agreement was unsubstantiated by any written agreement, modification or memorandum or other credible evidence at the hearing and was contradicted by the merger clause in Article 19 E. The merger clause provided that the lease contained "all agreements of the parties . . . with respect to any matter covered or mentioned in this lease . . . and [that]no prior agreement, understanding or representation, either verbal or written, pertaining to any such matter shall be effective for any purpose."
(d) There was no written or oral agreement to give Debtor credit toward the purchase price for any portion of the lease payment including the $1000 per month increase. Further, there are no letters or writings to indicate any side agreement of counsel on this point. All previous negotiated agreements between the parties were reduced to writing, Article 19(E), and merged into and included in the original agreement. Any modifications were to be in writing. The letter dated March 21, 2000 demonstrates the parties understanding and ability to modify certain terms by written agreement.
16. The Debtor's change in the option purchase price puts this case squarely within the holding of the Indiana Appellate Court in Lafayette Expo, supra. In the Lafayette Expo case, the court held that the optionee's incorrect assertions of its payment obligations, as incorporated in the optionee's notice of exercise, made such notice fatally defective, stating:
Lafayette Expo's construction of the option to purchase deviated from the bargained-for method of achieving full purchase of the property in an attempt to economically disadvantage the Optionor. Lafayette Expo's effort to exercise the option to purchase failed to strictly and unequivocally adhere to the lease's option to purchase provision. The trial court correctly ruled that Lafayette Expo failed to exercise the option according to the agreed upon purchase terms prior to expiration of the option lease. Lafayette Expo, 531 N.E.2d, at 511.
17. Debtor has made no payments toward the real estate's purchase price. Expenditures for monthly rent, taxes, insurance and improvements did not create purchase equity in the Leased Premises. There was no agreement to credit $1000 per month to the option purchase price. There was no $200,000 credit for settlement of the lawsuit. Debtor is not entitled under the contract to receive any credit for the $14,619 insurance payment received by Robinson.
18. The Lease-Option Agreement was effectively terminated on February 16 by the Robinsons' first "Legal Notice of Termination of Lease, Option to Purchase and to Surrender the Premises" (Exhibit G), as amended by the February 19, 2001 "Amended Legal Notice." Even if the Lease-Option Agreement had not been terminated effectively by the Robinsons on February 16 or 19, 2001, the Lease-Option Agreement, nonetheless, expired in accordance with its terms on February 28, 2001, the date on which the Debtor filed its bankruptcy petition.
19. The "lease" and "option" in the Lease/Option Agreement were not separate and divisible from one another. They are one agreement. The "option" does not independently survive the termination of the "lease". No separate consideration was paid outside the lease for a separate option to purchase. The option and lease are contained in the same instrument and executed by the parties on the same date. The obligations of the contract are mutually binding on the parties as to all items of the contract as to the lease and option. The Lease/Option Agreement sets out the total obligations, rights and liabilities of the parties as to the lease and option. Although the option and the lease are not divisible, it does not follow that the Debtor need be in "default" under the lease to be unable to exercise the option; Article 20 merely conditions exercise of the option on the Debtor's faithful performance and observance of all covenants, agreements and conditions contained in the Lease-Option Agreement.
20. Time is of the essence under the lease-option to purchase. (Article 9).
21. The Court finds that at no point did Debtor exercise the option pursuant to the terms of the Lease/Option Agreement. The time for the exercise of the option has expired. The Debtor's attempted acceptance did not comply with the option terms, and Debtor failed to timely make the option payment.
22. The Debtor has no legal right or claim of possession to the Leased Premises as either an "owner" or as a "tenant". Debtor has no property interest, whatsoever, in the Leased Premises and should be required to surrender the premises to the Robinsons, who are entitled to immediate possession thereof.
23. The Court finds that the Debtor was not in compliance with the terms and conditions of the Lease — Option Agreement on January 30, January 31 and February 1, 2001 when it gave notice of its intent to exercise the Option and therefore the three "notices" tendered by the Debtor all were ineffective to validly exercise the Option. Furthermore, even had the Debtor been in compliance with the terms of the Lease — Option Agreement, and therefore eligible to exercise the Option, the Option could have been exercised only upon notice of intent to exercise and payment before 3:00 p.m. on February 28, 2001. Therefore, the Court finds that the Robinsons' Motion should be granted in all respects, and the Debtor's Response should be overruled and denied.
24. Under the expressed, unambiguous, plain language of Article 11 of the Lease-Option Agreement, Debtor's failure to maintain the insurance required under Articles 7 and 8 constituted defaults both for "failure to pay costs or expenses as provided in this lease when due," and "failure to perform any act to be performed by Lessee hereunder or to comply with any condition or covenant herein. . . ." Although notice of such defaults would have been required as a predicate to "any claim to possession" by the Robinsons, such a notification was not a requirement under Article 20, which made the Debtor's right to exercise the option conditional upon its "faithful performance and observance . . . of all covenants, agreements and conditions", regardless of whether or not any notices had been given. Further, the occurrence of any default, regardless of notice, terminated the option contract under Article 11. Debtor had not cured the default as to the lapse of insurance at the time of giving notice.
25. The option to purchase in this case required two acts, namely, (i) the delivery of the required notice of exercise prior to February 1, 2001, and (ii) payment of the $550,000 Purchase Price in full on or before February 28, 2001. As such, this case comes squarely within the holding of the Indiana Appellate Court in Romain, supra. In that case, the Court held that the language of the lease indicated that two events were necessary to exercise the option, namely, the making of the payment and the giving of the notice. As stated by the Indiana Appellate Court in Romain, supra:
The parties to this transaction have prescribed precisely how Howard, the option holder, must exercise the option in order to bind the Romains to sell the real estate . . . The language indicates, and the parties agree, that it takes two events to effectively exercise the option — the making of the payment and the giving of notice within the time specified. While the parties are in agreement that the option contract permits the requirement of notice to be fulfilled by means of mailing, the Romains insist, with regard to the payment requirement, that the parties intended "paying" to mean "delivery" of payment within the life of the option. We believe that such an interpretation is mandated by the language and grammatical construction of the provision . . . Romain, 506 N.E.2d at 1126
26. Even if this Court were to find, which it has not, that the Debtor properly exercised its option to purchase through its January 30, January 31 and February 1 Notices of Exercise, those notices would not have relieved the Debtor of its obligations to pay rent under the Lease-Option Agreement, as the Debtor argued at the hearing, since the Lease-Option Agreement, specifically Articles 11 and 20, provided for the continuation of the Debtor's obligations to pay rent even after the termination of the lease "by default or otherwise." As stated in the fourth paragraph of Article 11 of Lease-Option:
. . . .It is expressly agreed that the obligations to pay rent and all other sums herein shall survive the termination of this lease by default or otherwise. . . .
In addition, the fourth paragraph of Article 20 specifically conditioned the Debtor's right to exercise the option on the Debtor's continued payment of rent "up to the date of the completion of the purchase."
Furthermore, accepting Debtor's argument that the written notices which purportedly exercised Debtor's option to purchase terminated all of its obligations under the lease, would lead to a conclusion that the Court finds unacceptable. It must be remembered that Debtor could have notified the Robinsons of its intent to exercise the option the very moment the lease was signed in March 2000, or any time thereafter up to February 1, 2001. Therefore, if as the Debtor maintains, the lease as well as all of Debtors obligations thereunder were terminated on the giving of such notice, the Debtor would have been able to occupy the premises rent free for an entire year before ever having to pay the purchase price for the property or any taxes, maintance, repairs or other expenses incident thereto. Clearly, based on all the evidence, such was not the intent of the parties.
27. Even though the Debtor filed its bankruptcy petition a few hours before the expiration of the Lease-Option Agreement, the automatic stay under Section 362 would not help the Debtor here, since the automatic stay does not toll the mere running of time under a contract and, thus, it does not prevent automatic termination of the contract by its own terms. Moody v. Amoco Oil Co., 734 F.2d 1200, 1213 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 386, 83 L.Ed.2d 321 (1984). Hazen First State Bank v. Speight, 888 F.2d 574, 576 (8th Cir. 1989). In re Policy Realty Corp., 242 B.R. 121, 126 (S.D.N.Y. 1999); See also, § 362(d)(10) of the Bankruptcy Code.
28. The Debtor has argued that the Lease-Option Agreement constitutes a "land contract" under Indiana law, and that the anti-forfeiture holdings of Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973), apply in this case. Debtor's arguments are unfounded. This Court already has found and concluded that the Debtor's purported exercise of the option to purchase was defective, that it failed to satisfy required preconditions and that it was legally insufficient. However, even were this Court to have found that the Debtor properly and timely exercised the option to purchase prior to the termination or expiration of the lease and option, that exercise, without more, would not have transformed the option to purchase into a "land contract." The evidence plainly showed that the Debtor has paid absolutely nothing towards the Purchase Price for the real estate and, therefore has no equity, which would be in any way subject to forfeiture. In addition, as to the 13 acre parcel of the real estate which was not leased by Debtor as a part of the salvage yard, the evidence showed that the Debtor has never been in possession or control of that property. Under Indiana law, a "land contract" presumes some form of possessory interest in the real estate subject to the contract, as well as a situation where legal title remains with the seller for the sole purpose of securing installment payments of the Purchase Price for the real estate, a substantial portion of which must have already been paid by the contract vendee. None of those circumstances are present in this case. Furthermore, as stated by the Court in Lafayette Expo, supra:
Lafayette Expo next argues that equitable principals of fairness and justice require the reviewing Court to protect its interest in the leased property. Lafayette Expo spent $200,000 and 3,000 hours of labor in improving and renovating the leased property. Lafayette Expo contends the trial court's holding imposed a forfeiture on the improvements made to the leased property. Lafayette Expo requests that the property be foreclosed and the proceeds equitably distributed to prevent forfeiture [citing Skendzel] . . . Skendzel does not apply to commercial leases with unexpired options to purchase. Lafayette Expo made no payments toward the real estate's Purchase Price. Expenditures for monthly rent and improvements do not create purchase equity in leased property with an option to buy. Since Lafayette Expo had made no purchase payments on the leased property, it forfeited no purchase equity in the leased property. Lafayette Expo,531 N.E.2d, at 511.
29. Because the option to purchase under the Lease-Option Agreement was never effectively exercised by the Debtor before the Lease-Option Agreement either terminated on February 16/19 or expired on February 28, the option to purchase did not survive the termination of the lease. The option to purchase was not, itself, separate or divisible from the lease. Under Indiana law, for an option to purchase provision in the lease to be "separate or divisible" it must have been supported by independent consideration. In circumstances such as in this case, where the option and lease were embraced in the same instrument, recited the exact same consideration and were executed by the same parties on the same date and where the language of the agreement showed interdependency, an option to purchase cannot survive termination of the lease. Tippmann Refrigeration Construction v. Erie-Haven, Inc., 459 N.E.2d 407, 410 (Ind.App. 1984).
30. The Debtor does not have any equity in the Leased Premises or the adjacent parcel of real property, and, because the Debtor has no legal or equitable interest in those parcels, the properties cannot possibly be necessary to an effective reorganization.
31. Because the Debtor does not have any equity in the Leased Premises or adjacent property and has no legal or equitable claim thereto, the Debtor will be incapable of providing any adequate protection to the Robinsons.
32. The Debtor has no legal right or claim of possession to the Leased Premises as either an "owner" or as a "tenant". Debtor has no property interest, whatsoever, in the Leased Premises and should be required to surrender the premises to the Robinsons, who are entitled to immediate possession thereof
33. For the foregoing reasons, the Robinsons are entitled to relief from the automatic stay in these proceedings and to have this Court enter an order requiring the Debtor immediately to surrender the Leased Premises to the Robinsons.
Order
The Robinsons are hereby granted relief from the automatic stay heretofore imposed under Section 363 (a) of the Bankruptcy Code, and such stay is hereby terminated and annulled in order to allow the Robinsons, immediately and without further restraint, to pursue, exercise and obtain all remedies available to them under state law to obtain possession of the Leased Premises, remove the Debtor therefrom and obtain all other just and proper relief to which they may be entitled under applicable state law. Furthermore, since Debtor is neither an "owner" nor a "lessee" of the Leased Premises and has no legal or equitable interest in those premises, the Debtor is occupying the premises as a mere trespasser, and, accordingly, this Court hereby orders Debtor to surrender possession of the Leased Premises to the Robinsons within 10 days of the entry of this order.