Laserfiche WebLink
Case 1:20-bk-12043 Doc 454 Filed 10/06/20 Entered 10/06/20 15:40:33 Desc Main <br /> Document Page 4 of 7 <br /> OBJECTION <br /> 12. Columbia has no objection to the rejection of the Materials Transfer Agreement. <br /> However, Columbia does object to the Motion to the extent that it seeks to reject the Settlement <br /> Agreement, as the Real Covenant contained within the Settlement Agreement is a dedication of <br /> real property interests and not an agreement subject to section 365 of the Bankruptcy Code. <br /> Columbia reserves any and all rights to seek to enforce the Real Covenant against CAM-Kentucky <br /> and/or any of its successors or assigns. <br /> ARGUMENT <br /> 13. Under section 365 of the Bankruptcy Code, "it is not possible for a debtor to reject <br /> a covenant that `runs with the land,' since such a covenant creates a property interest that is not <br /> extinguished through bankruptcy." HPIP Gonzales Holdings, LLC v. Sabine Oil& Gas Corp. (In <br /> re Sabine Oil & Gas Corp.), 567 B.R. 869, 874 (S.D.N.Y. 2017); Midlands Midstream, LLC v. <br /> Badlands Energy, Inc. (In re Badlands Energy, Inc.), 608 B.R. 854, 875 (Bankr. D. Colo. 2019) <br /> ("Badlands");Alta Mesa Holdings, LP v. Kingfisher Midstream, LLC(In re Alta Mesa Res., Inc), <br /> 613 B.R. 90, 100 (Bankr. S.D. Tex. 2019) ("The parties (and the Court) agree that the Bankruptcy <br /> Code does not allow for the rejection of real property covenants."). <br /> 14. As the Subject Property is located in West Virginia, the question of whether the <br /> covenants,including the Easement and the Real Covenant,run with the land is determined by West <br /> Virginia law. See Butner v. United States, 440 U.S. 48, 55 (1979) ("Property interests are created <br /> and defined by state law.");Badlands, 608 B.R. at 866-67 (applying Utah law with respect to real <br /> covenants because the property in question was located in Utah). <br /> 15. Under West Virginia law, "[t]wo of the four requirements for a covenant to run <br /> with the land under West Virginia law are that the parties intended that the covenant do so and that <br /> 4 <br />