                                                        FILED
 1                         ORDERED PUBLISHED             DEC 27 2017
                                                    SUSAN M. SPRAUL, CLERK
 2                                                     U.S. BKCY. APP. PANEL
                                                       OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No.      EW-17-1131-FSTa
                                   )
 6   TERELL W. EUTSLER,            )      Bk. No.      2:15-bk-00870-FPC
                                   )
 7                   Debtor.       )
     ______________________________)
 8                                 )
     BRADY F. CARRUTH; WILLIAM     )
 9   LESLIE DOGGETT,               )
                                   )
10                   Appellants,   )
                                   )
11   v.                            )      OPINION
                                   )
12   TERELL W. EUTSLER,            )
                                   )
13                   Appellee.     )
     ______________________________)
14
                 Argued and submitted on September 27, 2017
15                         at Spokane, Washington
16                         Filed – December 27, 2017
17             Appeal from the United States Bankruptcy Court
                   for the Eastern District of Washington
18
        Honorable Frederick P. Corbit, Bankruptcy Judge, Presiding
19
20   Appearances:     Christopher L. Dodson of Bracewell LLP argued for
                      appellants Brady F. Carruth and William Leslie
21                    Doggett; Eowen S. Rosentrater argued for appellee
                      Terell W. Eutsler.
22
23   Before:   FARIS, SPRAKER, and TAYLOR, Bankruptcy Judges.
24
25
26
27
28
 1   FARIS, Bankruptcy Judge:
 2
 3                                INTRODUCTION
 4        Appellants Brady F. Carruth and William Leslie Doggett (the
 5   “Minority Shareholders”) appeal from the bankruptcy court’s
 6   denial of their motion for relief from the automatic stay and
 7   motion for reconsideration in debtor Terell W. Eutsler’s
 8   (“Debtor”) chapter 131 bankruptcy case.     They seek to enforce an
 9   option agreement to purchase certain stock from the Debtor.     We
10   AFFIRM.
11                            FACTUAL BACKGROUND
12        The facts are undisputed.    In 1995, the Debtor and Stephen
13   Dorr incorporated Softbase Development, Inc., a closely-held
14   Texas corporation.   The Debtor is the president of Softbase and a
15   member of its board of directors.
16        Initially, the Debtor and Mr. Dorr each owned half of the
17   stock.    In 1998, the Minority Shareholders purchased 49 percent
18   of the stock for $155,000.    Thus, the Debtor and Mr. Dorr each
19   owned 25.5 percent, and the Minority Shareholders each owned 24.5
20   percent.
21        When the Minority Shareholders bought their stock, the
22   parties entered into a Stock Restriction/Buy-Sell Agreement (the
23   “Buy-Sell Agreement”).    Among other things, the Buy-Sell
24   Agreement provided that, upon the occurrence of certain
25
          1
26          Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532,
27   all “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, and all “Civil Rule” references are to the Federal
28   Rules of Civil Procedure.

                                       2
 1   “terminating events,” one of which was “the filing of any
 2   proceedings for bankruptcy . . . by a Shareholder,” that
 3   shareholder was required to give written notice to the
 4   corporation and the other shareholders.      The corporation then had
 5   the option, but not the obligation, to purchase the shareholder’s
 6   stock at a price based on a formula.      If the corporation did not
 7   timely exercise the option, then the other shareholders had the
 8   same option.
 9        On March 12, 2015, the Debtor filed his chapter 13 petition
10   in the United States Bankruptcy Court for the Eastern District of
11   Washington.    He valued his interest in Softbase at $5,000.    He
12   did not schedule the Buy-Sell Agreement as an executory contract
13   in Schedule G.
14        The bankruptcy court confirmed the Debtor’s amended
15   chapter 13 plan on June 3, 2015.       The form plan provides blanks
16   for the debtor to list assumed and rejected contracts, but the
17   Debtor did not complete either space.
18        Mr. Dorr received notice of the bankruptcy filing as one of
19   the Debtor’s unsecured creditors.      The Debtor did not send notice
20   of his bankruptcy filing to Softbase or the Minority
21   Shareholders.    Neither Softbase nor the other shareholders
22   (Mr. Dorr and the Minority Shareholders) exercised an option to
23   purchase the Debtor’s stock.
24        A year and a half later, on December 16, 2016, the Minority
25   Shareholders filed a motion seeking relief from the automatic
26   stay (“Motion for Relief”).    They argued that the Debtor’s
27   bankruptcy filing was a “terminating event” that triggered the
28   purchase options in the Buy-Sell Agreement.      They claimed that

                                        3
 1   they only discovered the Debtor’s bankruptcy case on November 18,
 2   2016, when an inspection of Softbase’s records revealed the
 3   bankruptcy.   Because Softbase did not exercise its right to
 4   purchase the Debtor’s stock, the Minority Shareholders argued
 5   that they were entitled to purchase the Debtor’s shares.
 6        The Minority Shareholders contended that cause existed to
 7   lift the stay because their rights under the Buy-Sell Agreement
 8   were unaffected by the Debtor’s bankruptcy.      They argued that the
 9   Buy-Sell Agreement was an executory contract within the meaning
10   of § 365(a) and, because the Debtor did not accept or reject the
11   Buy-Sell Agreement in his plan, “the Agreement rode-through
12   Debtor’s bankruptcy unaffected.”       They argued that the ipso facto
13   provision (that triggered the option rights upon the Debtor’s
14   bankruptcy filing) was enforceable.
15        Alternatively, the Minority Shareholders argued that the
16   shares were not property of the Debtor’s estate and were not
17   subject to the automatic stay because the confirmed chapter 13
18   plan did not address the Buy-Sell Agreement.
19        The Debtor opposed the motion.      He argued that if he lost
20   his Softbase stock, his employment would terminate and he would
21   have no income with which to fund his plan.      He also contended
22   that the thirty-day period for the Minority Shareholders to
23   exercise the purchase option had expired because Softbase had
24   notice of his bankruptcy as of April 2015.2      Finally, he argued
25   that the Buy-Sell Agreement is not an executory contract under
26
          2
27          The bankruptcy court did not address this argument because
     it decided the case on other grounds. The parties do not contend
28   that the bankruptcy court erred in that respect.

                                        4
 1   § 365 because the Minority Shareholders failed to exercise their
 2   purchase option, which is the only feature of the Buy-Sell
 3   Agreement that would give rise to a performance obligation and
 4   make it an executory contract.
 5        At the hearing on the Motion for Relief, the chapter 13
 6   trustee sided with the Debtor and expressed concern that granting
 7   the requested relief would imperil the Debtor’s ability to fund
 8   his plan.
 9        After receiving post-hearing briefing, the bankruptcy court
10   denied the Motion for Relief.    The court held that the Buy-Sell
11   Agreement was not an executory contract under the so-called
12   “Countryman” definition.    As we explain below, a contract is
13   “executory” under that definition only if, as of the petition
14   date, all parties to the contract owe duties that, if not
15   performed, would constitute a material breach excusing the other
16   parties’ duty to perform.    Applying Texas law, the court held
17   that no breach of any of the parties’ outstanding obligations as
18   of the petition date would have constituted a material breach.
19        The court also held that the Bankruptcy Code barred
20   enforcement of the ipso facto provision of the Buy-Sell
21   Agreement.   Finally, it was “concerned that Mr. Eutsler’s
22   employment may be in jeopardy if he was forced to sell his
23   interest in the company.    Mr. Eutsler’s employment income is
24   necessary to make his Chapter 13 Plan payments.”
25        The Minority Shareholders filed a timely motion to
26   reconsider the ruling on the Motion for Relief (“Motion for
27   Reconsideration”), and the bankruptcy court denied it.    The
28   Minority Shareholders then filed a timely notice of appeal from

                                       5
 1   the orders denying the Motion for Relief and the Motion for
 2   Reconsideration.
 3                               JURISDICTION
 4        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
 5   §§ 1334 and 157(b)(2)(G).   We have jurisdiction under 28 U.S.C.
 6   § 158.
 7                                  ISSUES
 8        (1) Whether the bankruptcy court abused its discretion in
 9   denying the Motion for Relief.
10        (2) Whether the bankruptcy court abused its discretion in
11   denying the Motion for Reconsideration.
12                          STANDARDS OF REVIEW
13        The question whether a particular contract is “executory”
14   under § 365 is a question of fact, Unsecured Creditors’ Comm. v.
15   Southmark Corp. (In re Robert L. Helms Constr. & Dev. Co.), 139
16   F.3d 702, 706 n.13 (9th Cir. 1998) (hereinafter “In re Helms
17   Constr.”) (en banc),3 which we review for clear error, Honkanen
18
          3
19          The case law on this point in this circuit is
     inconsistent. Helms Construction states that the question of
20   “executoriness” is a question of fact, although it does so in a
     footnote with no supporting citation. But in two prior decisions
21   which Helms Construction did not cite, the Ninth Circuit held
     that “[d]eterminations regarding the executory nature of a
22
     contract are conclusions of law that this court reviews de novo.”
23   McDonald’s Corp. v. Rincon E., Inc. (In re Rincon E., Inc.), 24
     F.3d 248, 1994 WL 140430, at *1 (9th Cir. Apr. 15, 1994) (table);
24   Aslan v. Sycamore Inv. Co. (In re Aslan), 909 F.2d 367, 369 (9th
     Cir. 1990). To compound the confusion, the Ninth Circuit
25   affirmed an unpublished decision of this Panel that cited and
26   followed Aslan’s standard of review but did not mention the
     subsequent decision in Helms Construction. Olson v. Bay Area
27   Foreclosure Invs., LLC (In re Olson), BAP No. EC-05-1368-SJB,
     2006 WL 6811004, at *4 (9th Cir. BAP Nov. 21, 2006), aff’d, 276
28                                                      (continued...)

                                      6
 1   v. Hopper (In re Honkanen), 446 B.R. 373, 378 (9th Cir. BAP
 2   2011).    A finding of fact is clearly erroneous if it is
 3   illogical, implausible, or without support in the record.    Retz
 4   v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010).    “To
 5   be clearly erroneous, a decision must strike us as more than just
 6   maybe or probably wrong; it must . . . strike us as wrong with
 7   the force of a five-week-old, unrefrigerated dead fish.”    Papio
 8   Keno Club, Inc. v. City of Papillion (In re Papio Keno Club,
 9   Inc.), 262 F.3d 725, 729 (8th Cir. 2001) (quoting Parts & Elec.
10   Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.
11   1988)).    The bankruptcy court’s choice among multiple plausible
12   views of the evidence cannot be clear error.    United States v.
13   Elliott, 322 F.3d 710, 715 (9th Cir. 2003).
14        “A bankruptcy court’s determinations regarding stay relief
15   are reviewed for an abuse of discretion.”    Veal v. Am. Home
16   Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897, 915 (9th Cir.
17   BAP 2011) (citing Kronemyer v. Am. Contractors Indem. Co. (In re
18   Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009)).
19        Similarly, we review for abuse of discretion a bankruptcy
20   court’s denial of a motion for reconsideration.    See Ahanchian v.
21   Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010);
22   Tennant v. Rojas (In re Tennant), 318 B.R. 860, 866 (9th Cir. BAP
23   2004).
24        To determine whether the bankruptcy court has abused its
25
          3
26         (...continued)
     F. App’x 641 (9th Cir. 2008). In this decision, we are compelled
27   to follow Helms Construction, the Ninth Circuit’s most recent en
     banc pronouncement on this issue, and to treat as a question of
28   fact the determination whether a contract is executory.

                                       7
 1   discretion, we conduct a two-step inquiry: (1) we review de novo
 2   whether the bankruptcy court “identified the correct legal rule
 3   to apply to the relief requested” and (2) if it did, whether the
 4   bankruptcy court’s application of the legal standard was
 5   illogical, implausible, or without support in inferences that may
 6   be drawn from the facts in the record.     United States v. Hinkson,
 7   585 F.3d 1247, 1262–63 & n.21 (9th Cir. 2009) (en banc).    “If the
 8   bankruptcy court did not identify the correct legal rule, or its
 9   application of the correct legal standard to the facts was
10   illogical, implausible, or without support in inferences that may
11   be drawn from the facts in the record, then the bankruptcy court
12   has abused its discretion.”    USAA Fed. Sav. Bank v. Thacker
13   (In re Taylor), 599 F.3d 880, 887–88 (9th Cir. 2010) (citing
14   Hinkson, 585 F.3d at 1262).
15                                 DISCUSSION
16        The Minority Shareholders’ argument has three steps: first,
17   the Buy-Sell Agreement was an executory contract; second, because
18   the Debtor neither assumed nor rejected it, the Buy-Sell
19   Agreement “rode through” the bankruptcy unaffected; and third,
20   the automatic stay no longer precluded the Minority Shareholders
21   from enforcing it.   Neither party disputes the second point.
22   With respect to the third point, the Minority Shareholders argued
23   that cause existed to lift the stay solely because the Buy-Sell
24   Agreement rode through the bankruptcy unaffected; conversely,
25   they conceded that, if the Buy-Sell Agreement was not an
26   executory contract and therefore could not “ride through,” cause
27   to lift the stay did not exist.    Thus, our analysis turns on
28   whether the Buy-Sell Agreement is an executory contract.    We hold

                                       8
 1   that the bankruptcy court was correct under controlling Ninth
 2   Circuit law.4
 3   A.   The bankruptcy court did not clearly err in finding, as a
          matter of fact, that the Buy-Sell Agreement is not an
 4        executory contract.
 5        The bankruptcy court found that the Buy-Sell Agreement was
 6   not an executory contract.    This factual determination was not
 7   clearly erroneous.5
 8        The bankruptcy court correctly held that the Ninth Circuit
 9   has adopted Professor Countryman’s definition of an executory
10   contract: “a contract under which the obligation of both the
11   bankrupt and the other party to the contract are so far
12   unperformed that the failure of either to complete performance
13   would constitute a material breach excusing the performance of
14   the other.”     Vern Countryman, Executory Contracts in Bankruptcy:
15   Part I, 57 Minn. L. Rev. 439, 460 (1973); see In re Helms
16   Constr., 139 F.3d at 705 (“An executory contract is one ‘on which
17
18
          4
19          We explain in footnotes why we think the court of appeals
     should revisit some of those issues, including the definition of
20   “executory contract” in general and specifically whether an
     option contract such as the Buy-Sell Agreement is an executory
21   contract.
22        5
            The bankruptcy court made this decision in ruling on a
23   stay relief motion. Ordinarily, bankruptcy courts refrain from
     making merits decisions in that procedural context. In re Veal,
24   450 B.R. at 914 (“[A] creditor’s claim or security is not finally
     determined in the relief from stay proceeding.”) (citing Johnson
25   v. Righetti (In re Johnson), 756 F.2d 738, 740-41 (9th Cir. 1985)
26   (“Hearings on relief from the automatic stay are thus handled in
     a summary fashion. The validity of the claim or contract
27   underlying the claim is not litigated during the hearing.”)).
     But any challenge on this ground is waived because no party
28   raised it.

                                        9
 1   performance remains due to some extent on both sides.’”).6
 2        The bankruptcy court correctly held that the materiality of
 3   the parties’ remaining obligations depends on whether, under
 4   applicable state law, one party’s nonperformance would excuse the
 5   other party’s obligation to perform.   Hall v. Perry (In re
 6   Cochise Coll. Park, Inc.), 703 F.2d 1339, 1348 n.4 (9th Cir.
 7   1983).   The bankruptcy court properly looked to Texas law,
 8   because the Buy-Sell Agreement specified that it was “made
 9   pursuant to and shall be construed under the laws of the state of
10   Texas” and was predominately signed in Texas, see Ulrich v.
11   Schian Walker, P.L.C. (In re Boates), 551 B.R. 428, 434 (9th Cir.
12   BAP 2016), and the court accurately recited the Texas law of
13   materiality.
14
15        6
            Most courts follow the Countryman definition, but some
16   decisions adopt a more flexible approach. See, e.g., Chattanooga
     Mem’l Park v. Still (In re Jolly), 574 F.2d 349, 351 (6th Cir.
17   1978) (“[D]efinitions [such as Countryman’s] are helpful, but do
     not resolve this problem. The key, it seems, to deciphering the
18   meaning of the executory contract rejection provisions, is to
19   work backward, proceeding from an examination of the purposes
     rejection is expected to accomplish. If those objectives have
20   already been accomplished, or if they can’t be accomplished
     through rejection, then the contract is not executory within the
21   meaning of the Bankruptcy Act.”). A very recent law review
     article makes a powerful argument in favor of a “modern contract
22
     approach” to executory contracts. Under that approach, all
23   contracts with any unperformed obligation on either side,
     material or not, are “executory contracts” under § 365. Jay
24   Lawrence Westbrook & Kelsi Stayart White, The Demystification of
     Contracts in Bankruptcy, 91 Am. Bankr. L.J. 481 (2017). The
25   alternative approaches have much to recommend them; the
26   Countryman definition turns on factors that have little if
     anything to do with the underlying policies of bankruptcy law and
27   produce anomalous results in some cases. But neither party to
     this appeal challenges Helms Construction, and we could not
28   disregard or overrule it even if they asked us to do so.

                                     10
 1        Further, the bankruptcy court correctly ruled that whether a
 2   contract is “executory” is a question of fact, both under the
 3   Bankruptcy Code, In re Helms Constr., 139 F.3d at 706 n.13, and
 4   under Texas law, Hudson v. Wakefield, 645 S.W.2d 427, 430 (Tex.
 5   1983).7
 6        The bankruptcy court correctly applied these principles to
 7   the Buy-Sell Agreement.    The Ninth Circuit has held that “a paid-
 8   for but unexercised option” is typically not an executory
 9   contract, but that other kinds of options may be executory.    In
10   re Helms Constr., 139 F.3d at 705.
11        [W]e look to outstanding obligations at the time the
          petition for relief is filed and ask whether both sides
12        must still perform. Performance due only if the
          optionee chooses at his discretion to exercise the
13        option doesn’t count unless he has chosen to exercise
          it. An option may on occasion be an executory
14        contract, for instance, where the optionee has
          announced that he is exercising the option, but not yet
15        followed through with the purchase at the option price.
16        The question thus becomes: At the time of filing, does
          each party have something it must do to avoid
17        materially breaching the contract? Typically, the
          answer is no; the optionee commits no breach by doing
18        nothing.
19   Id. at 706 (emphasis added).8
20        In the present case, the Debtor’s obligation to sell the
21   stock and the Minority Shareholders’ obligation to pay for it
22
23
          7
               See n.3 supra.
24
          8
            The advocates of the modern contract approach would treat
25   LLC operating agreements (which are similar in many respects to
26   the Buy-Sell Agreement in this case) and options in general as
     executory contracts. Westbrook & White, supra n.6, at 503-06,
27   511-13. This approach has substantial appeal, but we are not
     writing on a blank slate. Instead, we must follow Helms
28   Construction, which holds otherwise.

                                      11
 1   were (when the Debtor filed his bankruptcy petition) contingent
 2   on the Minority Shareholders’ future decision to exercise the
 3   option.   Therefore, under Helms Construction, those obligations
 4   don’t count.   The only obligations which the parties owed to each
 5   other at the petition date were the obligation to give notice of
 6   the bankruptcy filing and any voluntary or involuntary
 7   assignment, and obligations not to compete with or disparage
 8   Softbase or encumber the stock.    The bankruptcy court held that a
 9   breach of these provisions might justify an award of damages or
10   injunctive relief but would not defeat the purpose of the Buy-
11   Sell Agreement or justify the other party’s suspension of
12   performance.   See Mustang Pipeline Co. v. Driver Pipeline Co.,
13   134 S.W.3d 195, 199 (Tex. 2004); Hernandez v. Gulf Grp. Lloyds,
14   875 S.W.2d 691, 692 (Tex. 1994).
15        Under binding Ninth Circuit precedent, we review this aspect
16   of the court’s decision for clear error.   In re Helms Constr.,
17   139 F.3d at 706 n.13.   Neither party argued that the facts were
18   in dispute or requested an evidentiary hearing.   Although other
19   judges might reach the opposite conclusion on the same or similar
20   facts,9 we cannot say that the bankruptcy court clearly erred.
21
22        9
            The Buy-Sell Agreement prohibited the Debtor from selling
23   any of his shares to a third party without first offering them to
     Softbase and the Minority Shareholders. If the Debtor breached
24   that obligation and secretly sold half of his shares to a third
     party without giving notice to his fellow shareholders, and one
25   of the other shareholders later tried to sell his stock, some
26   judges might find that the Debtor’s prior breach of the Buy-Sell
     Agreement excused the other shareholder’s obligation to sell to
27   the Debtor. But, although it is a close question, we cannot say
     that the bankruptcy court’s contrary finding rises to the level
28   of clear error.

                                       12
 1        The Minority Shareholders urge us to follow In re Parkwood
 2   Realty Corp., 157 B.R. 687, 690 (Bankr. W.D. Wash. 1993), in
 3   which the bankruptcy court held that a shareholders agreement
 4   including the option to repurchase stock was an executory
 5   contract because “at the very least, upon Parkwood Lakes’
 6   decision to exercise its repurchase rights under the Shareholders
 7   Agreement, the debtor is required to turn over its stock, and
 8   Lakes is required to pay the purchase price.”    However, Parkwood
 9   was decided before the Ninth Circuit held, in Helms Construction,
10   that performance obligations contingent on the exercise of an
11   option “do not count.”
12        The Minority Shareholders also argue that this case is
13   similar to In re RoomStore, Inc., 473 B.R. 107 (Bankr. E.D. Va.
14   2012), which held that a buyback option and negative and
15   affirmative covenants rendered the subject agreement executory.
16   However, RoomStore explicitly rejected the Ninth Circuit
17   authority by which we are bound: “I decline to follow the line of
18   authority of the Helms Construction decision of the Ninth Circuit
19   and cases following it.”   Id. at 114.   Moreover, RoomStore did
20   not consider the materiality of the ongoing obligations, nor did
21   it apply Texas law.
22        Accordingly, the bankruptcy court did not clearly err in
23   holding that the Buy-Sell Agreement was not an executory
24   contract.
25   B.   We do not decide whether the Buy-Sell Agreement has “ridden
          through” the bankruptcy case.
26
27        The second step of the Minority Shareholders’ argument is
28   that, because the Debtor’s confirmed chapter 13 plan neither

                                     13
 1   assumed nor rejected the Buy-Sell Agreement, it has “ridden
 2   though” the bankruptcy case such that the Minority Shareholders
 3   could enforce it.    This is consistent with our precedents.
 4   Diamond Z Trailer, Inc. v. JZ L.L.C. (In re JZ L.L.C.), 371 B.R.
 5   412, 424 (9th Cir. BAP 2007) (holding that, “where there is no
 6   breach or default in an executory contract as of the commencement
 7   of the case, the contract remains in force unless it is rejected
 8   and, if not rejected, ‘passes with other property to the
 9   reorganized’ debtor”) (quoting Consol. Gas Elec. Light & Power
10   Co. v. United Rys. & Elec. Co., 85 F.2d 799, 805 (4th Cir.
11   1936)).    The Debtor did not challenge this assertion and the
12   bankruptcy court accepted it without discussion.    Therefore, any
13   argument to the contrary has been waived.10
14   ///
15   ///
16   ///
17
           10
            We express no opinion on the question whether a debtor
18   may modify a chapter 13 plan to provide for the assumption or
19   rejection of a previously omitted executory contract. Section
     365(d)(2) provides that, in a chapter 13 case, “the trustee may
20   assume or reject an executory contract or unexpired lease of
     residential real property or of personal property of the debtor
21   at any time before the confirmation of a plan” or an earlier date
     set by the court. But this must be read in conjunction with
22
     § 1329, which broadly authorizes post-confirmation modifications
23   of chapter 13 plans. That section does not specifically mention
     the assumption or rejection of executory contracts. See Oseen v.
24   Walker (In re Oseen), 133 B.R. 527, 529 n.1 (Bankr. D. Idaho
     1991). It does, however, permit amendments to “increase or
25   reduce the amount of payments on claims of a particular class
26   provided for by the plan,” § 1329(a)(1), and assumption or
     rejection of a contract often changes the amount distributed to
27   the other party to the contract. (In fact, if assumption or
     rejection did not change the creditors’ distributive rights,
28   assumption or rejection would probably be a meaningless gesture.)

                                      14
 1   C.    The Minority Shareholders concede that, if the Buy-Sell
           Agreement is not executory, cause to lift the automatic stay
 2         did not exist.
 3         The third step of the Minority Shareholders’ argument is
 4   that the bankruptcy court should have lifted the automatic stay
 5   to permit them to enforce the Buy-Sell Agreement.   But they take
 6   the position that, if the Agreement is not an executory contract,
 7   the ipso facto provision is not enforceable and there is no
 8   reason to lift the automatic stay: “Appellants do not dispute
 9   that § 541 would preclude enforcement of the Agreement if it were
10   non-executory because the ‘ride-through’ doctrine only applies to
11   executory contracts.”   Given our determination that the Buy-Sell
12   Agreement is not an executory contract, we need not reach the
13   question whether the bankruptcy court should have lifted the
14   stay.
15   D.    The bankruptcy court did not abuse its discretion in denying
           the Motion for Reconsideration.
16
17         The bankruptcy court did not err when it denied the Minority
18   Shareholders’ Motion for Reconsideration.   There were no
19   “extraordinary circumstances,” Buck v. Davis, 137 S. Ct. 759, 777
20   (2017), that would warrant relief under Civil Rule 60(b)(6), made
21   applicable in bankruptcy by Rule 9024.    Nor was there any newly
22   discovered evidence, clear error, intervening change in the
23   applicable law, or other circumstance that would justify relief
24   under Civil Rule 59(e), made applicable in bankruptcy by Rule
25   9023.   Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
26   (9th Cir. 2000).   The bankruptcy court did not abuse its
27   discretion under either of these rules.
28   ///

                                     15
 1                              CONCLUSION
 2        The bankruptcy court did not err in denying the Motion for
 3   Relief and Motion for Reconsideration.   Accordingly, we AFFIRM.
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