Fry Bros. Ex Rel. Official Unsecured Creditors' Committee v. Van Waters & Rogers (In Re Fry Bros.)

DECISION ON MOTIONS FOR SUMMARY JUDGMENT BY PLAINTIFF AND DEFENDANT

BURTON PERLMAN, Bankruptcy Judge.

Plaintiff, standing in the shoes of debtor-in-possession, has brought this adversary proceeding praying for a declaration that defendant’s lease is void. The first cause of action in plaintiff’s complaint alleges that defendant’s lease may be avoided by the plaintiff pursuant to 11 U.S.C. § 544(a)(3) and 11 U.S.C. § 1107. In the alternative, plaintiff asserts in the second cause of action in the complaint that the lease should be declared void because defendant has breached the lease. With its…