IN RE LCO ENTERPRISES

No. 92-15825.

12 F.3d 938 (1993)

In re LCO ENTERPRISES, Debtor. Lincoln ALVARADO; Patrician Associates, Inc.; LPC Alvarado Phase II, Appellees, v. Edward M. WALSH, Trustee, Appellant.

United States Court of Appeals, Ninth Circuit.

Decided December 30, 1993.


Attorney(s) appearing for the Case

Melanie M. Darling, Goldberg, Stinnett & MacDonald, San Francisco, CA, for appellant.

Barry Milgrom, Michael St. James, Rosenblum, Parish & Bacigalupi, San Francisco, CA, for appellees.

Before: TANG, TROTT and FERNANDEZ, Circuit Judges.


FERNANDEZ, Circuit Judge:

This appeal concerns the mechanics of applying the "greater amount" test of 11 U.S.C. § 547(b)(5) to determine whether a prepetition payment to a landlord constitutes a preference. The question before us is whether the bankruptcy court must hypothesize whether a hypothetical chapter 7 trustee would assume a lease, or whether the court must base its analysis on the fact that the lease was actually assumed in the chapter 11 proceedings...

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