122 Banking L.J. 31 (2005)
The Bankvest Case: The Supreme Court Lets Stand First Circuit Decision Favoring Preservation of Estate Assets for All Creditors, including Institutional Lenders

handle is hein.journals/blj122 and id is 33 raw text is: THE BANKVEST CASE: THE SUPREME COURT
LETS STAND FIRST CIRCUIT DECISION
FAVORING PRESERVATION OF ESTATE ASSETS
FOR ALL CREDITORS, INCLUDING
INSTITUTIONAL LENDERS
JAY L. GOTTLIEB AND ARIANNA FRANKL
The U.S. Supreme Court recently declined to review a decision issued by the
Court ofAppeals for the First Circuit holding that bankruptcy debtors are not
required to cure non-monetary defaults prior to assuming unexpired leases or
executory contracts under Section 365 of the Bankruptcy Code. The First
Circuit decision in In re Bankvest Capital Corp. may be viewed as contrary to
a holding of the Ninth Circuit Court ofAppeals in In re Claremont
Acquisition Corp., resulting in a split in the circuits. In this article, the
authors discuss the Bankvest case and set forth their views on the consequences
of the case and practical considerations for banks and other parties in similar
circumstances.
T he Bankvest case' involved interpretation of Bankruptcy Code 
365(b)(2)(D). This subsection is part of a larger provision of the
Bankruptcy Code, Section 365, which permits a debtor to assume or
reject executory contracts or unexpired leases which the debtor had entered
Jay L. Gottlieb is a partner, and Arianna FrankI is an associate, at Brown
Raysman Millstein Felder & Steiner LLP. Mr. Gottlieb represented Bankvest in the
principle case discussed in this article, and Ms. Frankl assisted in the briefing.

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