                                                          FILED
                                                           OCT 06 2011
 1
                                                       SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
 2                                                       OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                          )    BAP No.     CC-11-1165-PaDKi
                                     )
 6   IK/S-BAR, LLC,                  )    Bk. No.     LA 10-64247-VZ
                    Debtor.          )
 7   ________________________________)
                                     )
 8   IK/S-BAR, LLC,                  )
                                     )
 9                  Appellant,       )
                                     )
10   v.                              )    M E M O R A N D U M*
                                     )
11   DIRECT CAPITAL CORPORATION,     )
                                     )
12                  Appellee.        )
     ________________________________)
13
               Argued and Submitted at Pasadena, California
14                            on September 23, 2011
15                          Filed – October 6, 2011
16            Appeal from the United States Bankruptcy Court
                  for the Central District of California
17
          Honorable Vincent Zurzolo, Bankruptcy Judge, Presiding
18                     ____________________________
19   Appearances:     Michael Sanford Kogan Esq. of Ervin, Cohen &
                      Jessup LLP appeared for appellant IK/S-Bar, LLC.
20                    No appearance for appellee Direct Capital
                      Corporation.
21                        ____________________________
22   Before: PAPPAS, DUNN and KIRSCHER, Bankruptcy Judges.
23
24
25
26        *
             This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1        Appellant, chapter 111 debtor in possession IK/S-Bar, LLC
 2   (“IK/S”), appeals the bankruptcy court’s order granting the
 3   motion of appellee Direct Capital Corporation (“Direct Capital”)
 4   for relief from the automatic stay to enforce its rights under an
 5   equipment lease.   We AFFIRM.
 6                                    FACTS
 7        IK/S filed for protection under chapter 11 of the Bankruptcy
 8   Code on December 21, 2010, and has, since then, continued to
 9   operate its business as a debtor in possession.
10        IK/S is managed by its Managing Member, Ivan Kane (“Kane”),
11   an entrepreneur who is the principal of several other restaurant-
12   related corporations and businesses.     In 2008, two of Kane’s
13   controlled corporations, Ivan Kane Enterprises, Inc. and The Gin
14   Joint, LLC (the “Original Lessees”), entered into an Equipment
15   Lease Agreement (the “Lease”) with Capital Network Leasing Corp.
16   (“Capital Network”) pertaining to certain audio and kitchen
17   equipment.   Kane signed the Lease for both of the Original
18   Lessees as their President.     The Lease required the Original
19   Lessees to make monthly lease payments, and took effect on May 1,
20   2008, with the signature of Capital Network’s authorized
21   representative.    There is no reference in the Lease to IK/S.
22        The Lease contains several provisions relevant in this
23   dispute: Paragraphs 3 and 6 deal with choice of law, and provide
24   that the Lease shall be interpreted under the laws of the State
25
          1
26           Unless specified otherwise, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
27   all “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001-9037. All “Civil Rule” references are to
28   the Federal Rules of Civil Procedure.

                                        2
 1   of New Hampshire;2 Paragraph 4 prohibits assignment of the Lease
 2   by the Original Lessees without first obtaining Capital Network’s
 3   written consent; and Paragraph 24 prohibits waiver of any of
 4   Capital Network’s rights under the Lease absent its prior written
 5   consent.
 6        Sometime in 2008, Kane purportedly assigned all rights and
 7   obligations of the Original Lessees to IK/S with an effective
 8   date of March 18, 2008.   ER at 78-80.     There is no evidence in
 9   the record that IK/S, Kane or the Original Lessees ever notified
10   Capital Network of the purported assignment of the Lease to IK/S.
11        Capital Network assigned its rights as lessor under the
12   Lease to Direct Capital on May 1, 2008; this assignment was
13   acknowledged in writing by Kane.       Direct Capital’s principal
14   place of business is 155 Commerce Way, Portsmouth, New Hampshire.
15        After IK/S’s bankruptcy filing, Direct Capital filed a
16   motion for relief from the automatic stay on February 3, 2011,
17   seeking an order authorizing it to enforce its rights under the
18   Lease and, presumably, to recover possession of the equipment
19   from IK/S.   As grounds for relief under § 362(d)(1), Direct
20   Capital alleged that its interest in the equipment was not
21
22        2
             Paragraph 3 states that the Lease is intended to be a
23   Statutory Finance Lease under the laws of New Hampshire.
     Paragraph 6 states that the parties agree that the Lease should
24   be interpreted according to the laws of the state of the Lessor’s
     principal place of business, or, if assigned, the Lessor’s
25   assignee’s principal place of business. Because the parties have
26   raised no such issue, we express no opinion concerning whether
     the Lease, under applicable state law, is indeed a “true lease”
27   which must be assumed or rejected in the bankruptcy case by IK/S
     under § 365, or whether the Lease may be treated as a financing
28   arrangement, and its terms restructured via a chapter 11 plan.

                                        3
 1   adequately protected, and that the fair market value of the
 2   leased equipment was declining.      Under § 362(d)(2)(A) and (B),
 3   Direct Capital argued that IK/S had no interest in the leased
 4   equipment, and that it was not necessary for an effective
 5   reorganization.      It appears undisputed that there had been no
 6   payments made to Direct Capital on the Lease by any party in the
 7   eight months before the filing of the stay relief motion.      The
 8   motion was supported by a declaration of Direct Capital’s
 9   Collections Supervisor, Ryan Hodsdon.
10           IK/S filed an opposition to this motion on February 11,
11   2011.       In its opposition, IK/S argued that the stay relief motion
12   should be denied because IK/S had equity in the equipment; the
13   equipment was critical to IK/S’s reorganization efforts; and
14   Direct Capital was seeking to place its interests ahead of other
15   secured creditors, and that the value of IK/S’s assets would be
16   enhanced by continuing as a going concern, something it could not
17   do without the equipment.      The opposition was supported by the
18   declaration of Ivan Kane.
19           The bankruptcy court conducted a hearing on Direct Capital’s
20   motion for relief from stay on March 8, 20113 at which counsel
21   for IK/S and Direct Capital appeared.      Direct Capital’s attorney
22   argued that the Lease was not an asset of the IK/S bankruptcy
23   estate, noting that it had not been signed by IK/S, and that the
24
             3
             IK/S provided the Panel with a partial transcript of the
25   March 8, 2010 hearing, including only the bankruptcy court’s oral
26   findings and decision announced at the end of the hearing. The
     Panel has elected to review the full transcript of the hearing
27   found in the bankruptcy court’s docket. O’Rourke v. Seaboard
     Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 958 (9th Cir.
28   1989).

                                          4
 1   Lease prohibited any assignment by the Original Lessees.   Direct
 2   Capital’s lawyer next noted that no payments had been made by any
 3   party for the previous nine months.
 4          IK/S’s attorney responded that all relevant issues had been
 5   addressed in its opposition.   Counsel’s sole comment concerning
 6   Direct Capital’s argument that the Lease was not property of IK/S
 7   was:
 8          One other fact that — the issue that was raised a
            number of times about [the equipment] not being
 9          property of the estate, [§] 541 is very clear that this
            is — that a lease is property of the estate. The
10          Debtor has an equitable certainly interest in the lease
            and the use of the equipment.
11
12   Hr’g Tr. 4:16-21, March 8, 2011.
13          After considering the record and the arguments of counsel,
14   the bankruptcy judge announced his findings and decision on the
15   record.   The court focused on whether the Lease was property of
16   the bankruptcy estate:
17          The moving party has sought relief from stay on two
            grounds. The two that I find most pertinent are as
18          follows: The moving party has given me evidence which
            is not controverted by the Debtor that the property []
19          is subject to a lease and that the lease was made
            between the moving party and another entity and that
20          there is a provision in the lease that prohibits
            assignment of rights under the lease without the
21          consent of the lessor.
22          This is not contradicted by [IK/S]. And that in and of
            itself would constitute cause to grant relief from stay
23          under (d)(1).
24   Hr’g Tr. 5:24—6:10.
25          The bankruptcy court also noted, as a second reason for its
26   decision, that no lease payments had been made.   The court
27   acknowledged that if a lessor accepts payments from a party other
28   than the lessee which is in possession of the property subject to

                                        5
 1   a lease, an argument could be made “not always, but sometimes”
 2   that the lessor had waived the anti-assignment provision in the
 3   lease.    Hr’g Tr. 6:11-17.   However, the bankruptcy court did not
 4   find that such a waiver had occurred in this case.     Instead, the
 5   bankruptcy court concluded that Direct Capital had satisfied its
 6   burden under § 362(d)(1) of showing “cause” and granted relief
 7   from stay.    It did not address Direct Capital’s claim for relief
 8   under § 362(d)(2).
 9           The bankruptcy court entered its order granting Direct
10   Capital’s motion for relief from the automatic stay on April 8,
11   2011.    IK/S filed a timely appeal on April 12, 2011.
12                                 JURISDICTION
13           The bankruptcy court had jurisdiction under 28 U.S.C. § 1334
14   and 157(b)(2)(G).    We have jurisdiction under 28 U.S.C. § 158.
15                                     ISSUE
16           Whether the bankruptcy court abused its discretion in
17   granting relief from stay to Direct Capital under § 362(d)(1)?
18                             STANDARD OF REVIEW
19           An order granting relief from the automatic stay is reviewed
20   for abuse of discretion.      Kronemyer v. Am. Contractors Indem.
21   Co. (In re Kronemyer), 405 B.R. 915, 919 (9th Cir. BAP 2009).            In
22   applying the abuse of discretion standard, we first "determine de
23   novo whether the [bankruptcy] court identified the correct legal
24   rule to apply to the relief requested."      United States v.
25   Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).         If the
26   correct legal rule was applied, we then consider whether its
27   "application of the correct legal standard was (1) illogical,
28   (2) implausible, or (3) without support in inferences that may be

                                         6
 1   drawn from the facts in the record." Id.      Only in the event that
 2   one or more of these three apply are we then able to find that
 3   the bankruptcy court abused its discretion.     Id.
 4                               DISCUSSION
 5        As a preliminary matter, we note that the bankruptcy court
 6   granted Direct Capital’s motion only under § 362(d)(1), finding
 7   adequate “cause” for relief because IK/S was not a lessee under
 8   the Lease, and consequently, that the Lease was not property of
 9   the estate.   As a result, the extensive discussion in IK/S’s
10   appellate brief concerning § 362(d)(2), its “equity” in the
11   leased equipment, and its critical need for the equipment to
12   reorganize, is largely irrelevant in this appeal.4     The standards
13   for relief set forth in §§ 362(d)(1) and (d)(2) are independent
14   and alternative.   Can-Alta Props., Ltd. v.    State Sav. Mortg. Co.
15   (In re Can-Alta Props., Ltd.), 87 B.R. 89, 92 (9th Cir. BAP
16
17        4
             As discussed below, the Panel affirms the bankruptcy
     court’s decision to grant relief from stay under § 362(d)(1), and
18   did not consider in its deliberations IK/S’s arguments under
19   § 362(d)(2). Nevertheless, subsequent developments disclosed by
     counsel for IK/S at the Panel hearing undercut IK/S’s argument
20   that the Lease and equipment were necessary for reorganization.
     Counsel informed the Panel that he had filed IK/S’s disclosure
21   statement and plan of reorganization the previous day. See
     Disclosure Statement at dkt. no. 122. Page 9 of the Disclosure
22
     Statement states that the restaurant and all assets of IK/S were
23   sold and executory contracts were assigned to the new owners,
     with the sale and assignment closing on September 14, 2011, or
24   one week before the hearing before the Panel. IK/S had received
     the proceeds from the sale and filed a liquidation plan.
25   Excluded from the sale and assignment were the Lease and
26   equipment at issue in this appeal. See Asset Purchase Agreement
     ¶ 1.2(g) at dkt. no. 101. Thus, contrary to the repeated
27   arguments of IK/S that the equipment was necessary for a possible
     sale and reorganization, the sale was completed and a liquidation
28   plan filed without including the Lease or the equipment.

                                      7
 1   1988).   In other words, relief from stay may be granted for
 2   “cause" under subsection (d)(1) despite the existence of debtor’s
 3   equity in the property, or its need for the property in its
 4   reorganization.   Id.
 5        Similarly, IK/S’s discussion of adequate protection in this
 6   context is also less than helpful.     While a “cause” for stay
 7   relief explicitly referenced in § 362(d)(1) is a lack of adequate
 8   protection, it is but one example of cause, rather than the
 9   exclusive ground for relief under § 362(d)(1).    Ellis v. Parr
10   (In re Ellis), 60 B.R. 432, 435 (9th Cir. BAP 1985).     Instead,
11   what constitutes cause to terminate the stay is determined on a
12   case by case basis.     Delaney-Morin v. Day (In re Delaney-Morin),
13   304 B.R. 365, 369 (9th Cir. BAP 2003) (citing MacDonald v.
14   MacDonald (In re MacDonald), 755 F.2d 715, 717 (9th Cir. 1985)).
15        Finally, under § 362(g)(2), the party seeking to preserve
16   the stay, in this case IK/S, had the ultimate burden of proof on
17   whether good cause existed to justify relief from the stay.       In
18   re Ellis, 60 B.R. at 435.5
19
          5
20           At oral argument, counsel for IK/S insisted that Direct
     Capital had not sought relief under § 362(d)(1) in that it had
21   not “checked that box” on the form motion for relief from stay
     used in the Central District of California bankruptcy court.
22
     Consequently, counsel argued, IK/S was not required and had no
23   reason to make an offer of adequate protection to Direct Capital
     before the motion hearing. After review of the record, it
24   appears counsel’s representation is incorrect. On its form
     motion, Direct Capital checked the boxes marked “3. Grounds for
25   Relief from Stay: (a) Pursuant to 11 U.S.C. § 362(d)(1), cause
26   exists to grant Movant the requested relief from stay as follows:
     (1) Movant’s interest in the Property is not adequately
27   protected.” IK/S Excerpts of Record at p. 7; see also dkt. no.
     43 at p. 3. Counsel’s argument is also not consistent with
28                                                      (continued...)

                                        8
 1        After its review of the record, the bankruptcy court found
 2   that the only relevant evidence submitted showed that the Lease
 3   had been entered into by entities other than IK/S as lessee, and
 4   that the Lease expressly prohibited assignment of “rights under
 5   the lease or the lessee’s interest in the Lease without the
 6   consent of the lessor.”   Hr’g Tr. 6:1-7.   Since insufficient
 7   evidence was presented by IK/S to prove that Direct Capital had
 8   consented to any assignment, the bankruptcy court concluded that
 9   IK/S had no cognizable interest in the Lease.   The bankruptcy
10   court did not err in its decision.
11        If a chapter 11 debtor has no interest in a leased property,
12   it is not property of the bankruptcy estate.    Arizona Appetito’s
13   Stores, Inc. v. Paradise Vill. Investment Co. (In re Arizona
14   Appetito’s Stores, Inc.), 893 F.2d 216, 218 (9th Cir. 1990).6
15   Because IK/S was not a party to the Lease, the enforcement of the
16   Lease is a matter between Direct Capital and the Original
17   Lessees, Ivan Kane Enterprises, Inc. and The Gin Joint, LLC.
18   Since these are all nondebtor parties, that contest must be
19
20        5
           (...continued)
     IK/S’s opposition to the stay relief motion it filed in the
21   bankruptcy court, where IK/S devoted most of three pages to
22   responding to Direct Capital’s § 362(d)(1) arguments. IK/S
     Excerpts of Record at pp. 63-65; see also dkt. no. 56 at 9-11.
23
          6
             In a brief comment at the hearing in the bankruptcy
24   court, IK/S argues that “the issue that was raised by counsel a
     number of times about it not being property of the estate, [§]
25   541 is very clear that this is — that a lease is property of the
26   estate. The Debtor has an equitable certainly interest in the
     lease and the use of the equipment.” Hr’g Tr. 4:17-21. Although
27   IK/S is correct that “a” lease may be property of the estate
     under § 541(a), IK/S has not shown through the facts of this case
28   that “this” Lease was property of its bankruptcy estate.

                                      9
 1   adjudicated in state court.   As the Ninth Circuit has long held,
 2   “cause” exists for relief from stay under § 362(d)(1) where the
 3   issues are more appropriately adjudicated in a state court.
 4   Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.),
 5   912 F.2d 1162, 1169 (9th Cir. 1990); Piombo Corp. v. Castlerock
 6   Props. (In re Castlerock Props.), 781 F.2d 159, 163 (9th Cir.
 7   1986).
 8        The commencement of a bankruptcy case creates an estate
 9   comprised of all legal or equitable interests of the debtor in
10   property, wherever located and by whomever held, as of the
11   commencement of the case.   § 541(a)(1).   Although § 541 provides
12   the framework for determining the scope of the bankruptcy estate,
13   it does not provide the rules for determining whether the debtor
14   has an interest in property in the first place.   Instead, the
15   bankruptcy court must look to state law to determine whether, and
16   to what extent, the debtor has any legal or equitable interests
17   in property as of the commencement of the case.   Butner v. United
18   States, 440 U.S. 48, 54-55 (1979) ("Congress has generally left
19   the determination of property rights in the assets of a
20   bankrupt's estate to state law. . . . Unless some federal
21   interest requires a different result, there is no reason why such
22   interests should be analyzed differently simply because an
23   interested party is involved in a bankruptcy proceeding.");
24   Gaughan v. Edward Dittlof Rev. Tr. (In re Costas), 555 F.3d 790,
25   794 (9th Cir. 2009).
26        The bankruptcy court’s analysis in this case is consistent
27   with the law of New Hampshire.   The Lease contains two choice of
28   law clauses governing its interpretation, both instructing that

                                      10
 1   its terms are to be interpreted using New Hampshire law.    A forum
 2   selection clause in a contract is presumptively valid.    Doe 1 v.
 3   AOL LLC, 552 F.3d 1077, 1083 (9th Cir. 2009) (citing     M/S Bremen
 4   v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972)).
 5           As a general rule, the courts of New Hampshire will enforce
 6   a contract according to the plain meaning of its terms, and when
 7   interpreting a contract, the “inquiry focuses on the intent of
 8   the contracting parties at the time of the agreement.”    R. Zoppo
 9   Co. v. City of Dover, 124 N.H. 666, 671, 475 A.2d 12, 16 (N.H.
10   1984).    “In the absence of ambiguity, the parties' intent will be
11   determined from the plain meaning of the language used.    The
12   words and phrases used by the parties will be assigned their
13   common meaning, and we will ascertain the intended purpose of the
14   contract based upon the meaning that would be given to it by a
15   reasonable person.”    Greenhalgh v. Presstek, 152 N.H. 695, 698,
16   886 A.2d 1000, 1003 (N.H. 2005).
17           IK/S has not suggested that terms of the Lease are in any
18   fashion ambiguous.    Specifically, it has not questioned the
19   meaning of the provisions of the Lease prohibiting an assignment
20   of lessee rights by the Original Lessees absent the written
21   consent of the lessor, and prescribing that no waiver of the
22   Lease’s terms is permitted without written approval of the
23   lessor.    IK/S has not argued, nor submitted any evidence to show,
24   that Direct Capital was notified and consented to the assignment
25   of the Lease from the Original Lessees to IK/S.    Instead, IK/S
26   argues that Direct Capital impliedly waived the anti-assignment
27   provisions in the Lease by accepting lease payments directly from
28   IK/S.

                                       11
 1        Assuming IK/S did indeed make direct lease payments at some
 2   time to Direct Capital, the New Hampshire Supreme Court has
 3   considered a similar case of an equipment lease agreement and its
 4   purported assignment.   As in this appeal, in Prime Fin. Group v.
 5   Masters, 676 A.2d 528 (N.H. 1996), the lease agreement precluded
 6   the assignment of the lessee’s rights without the written consent
 7   of the lessor.    Id. at 529.   The lease agreement also contained a
 8   provision forbidding a waiver of any of the lessor’s rights under
 9   the lease unless the waiver was in writing.      Id.   Despite these
10   provisions, the lessee in Masters assigned its rights to another
11   party without the lessor’s consent.      Id.   However, unlike the
12   facts here, the original lessee notified the lessor of the
13   assignment, and sought its consent.      While the lessor did not
14   grant consent, it thereafter accepted payments from the assignee.
15   A jury in the trial court determined, based on the facts, that
16   the parties to the lease had agreed to waive the contractual
17   provision requiring assignments of the lease to be in writing,
18   and that the lessor had effectively agreed to the assignment, as
19   indicated by its conduct.   The New Hampshire Supreme Court found
20   no error in the trial court proceedings, concluding that a waiver
21   of the anti-assignment provisions could be implied by the conduct
22   of the parties.   Id.
23        We believe a fair view of Masters would require that the
24   bankruptcy court enforce an anti-assignment clause in a lease
25   unless, as the trier of fact, it finds that the parties had
26   agreed to modify that provision.       However, the lessor in Masters
27   had not only accepted payments from the assignee, he had been
28   notified earlier of the assignment, and requested to consent

                                       12
 1   prior to acceptance of lease payments from the purported
 2   assignee.      In other words, it was the lessor’s acceptance of
 3   lease payments with both the knowledge of their source, and that
 4   there had been an assignment of the lease, that constituted
 5   evidence of an implied, mutual agreement to modify the anti-
 6   assignment clause which was accepted by the trial jury and
 7   ultimately approved by the New Hampshire Supreme Court.
 8           In this appeal, IK/S offered no evidence to the bankruptcy
 9   court to show that the Original Lessees or IK/S had notified
10   Capital Network or Direct Capital of the assignment of the
11   lessee’s interest to IK/S, nor was the lessor’s consent to an
12   assignment ever sought or obtained.      Instead, IK/S bases its
13   argument that there was waiver on the Kane declaration in the
14   bankruptcy case by alleging, merely, that “[IK/S] has made all of
15   the payments in the amount of $40,579.55 on the Lease.” IK/S
16   repeats this precise claim in its appellate brief.      IK/S Op. Br.
17   at 2.       While these words appear to be carefully selected, and
18   imply that IK/S made all payments required under the Lease, as
19   confirmed by IK/S’s attorney at oral argument, a more precise
20   statement, according to the supporting documentation provided by
21   IK/S in the record, would be that “All payments that were made on
22   the Lease were made by IK/S.”      Indeed, it is undisputed that no
23   payments on the Lease were made in the nine months prior to the
24   hearing on the stay relief motion.7
25
             7
26           The supporting documentation for IK/S’s claim that it was
     the source of payments made on the Lease is a one-page list,
27   headed “IK/S BAR, LLC Equipment Leasing Expense Record.” It is a
     simple three column chart that includes the date, vendor (all
28                                                      (continued...)

                                         13
 1        Given the evidence submitted by IK/S, the bankruptcy court
 2   did not err in its finding that “no payments have been made.”
 3   Hr’g Tr. 6:11-12.   The bankruptcy court followed this finding
 4   with an explanation that “if payments had been made consistently
 5   and they’re accepted by a lessor from someone who is in
 6   possession of property subject to a lease who is not the lessee,
 7   an argument can be made – not always, but sometimes can be made
 8   with regards to a waiver of the anti-assignment provision.   But
 9   I’ve reviewed the motion and the opposition very carefully, and
10   the moving party has carried its burden under Section 362(d)(1).
11   Based upon the foregoing findings of fact and conclusions of law,
12   the motion is granted.”   Hr’g Tr. 6:11–21.
13        The Lease included an anti-assignment clause.   Consistent
14   with the New Hampshire case law, it appears the bankruptcy court
15   considered whether the parties by their conduct had waived the
16   anti-assignment clause where the lessor purportedly accepted
17   payments from the assignee.   The bankruptcy court declined to
18   accept the evidence presented by IK/S as adequate to show that it
19   had made all of the required payments under the lease to Direct
20   Capital.
21        Whether Direct Capital had impliedly consented to the
22   Original Lessees’ assignment of the Lease to IK/S was a question
23
          7
24         (...continued)
     Direct Capital), and amount of alleged payments. No copies of
25   cancelled checks or other proof of the details of the alleged
26   payments to Direct Capital were offered. Moreover, the record
     also reflects that the business address of the Original Lessees
27   is the same as the address of IK/S, and the name of one of the
     Original Lessees, Ivan Kane Enterprises, Inc., is similar to the
28   d/b/a of IK/S, Ivan Kane’s Café.

                                     14
 1   of fact.   Masters, 676 A.2d at 531.   That IK/S made some, but not
 2   all of the required lease payments directly to Direct Capital, is
 3   some evidence that Direct Capital consented to the assignment of
 4   the Lease, but the bankruptcy court declined to so find.    Where
 5   there are two permissible views of the evidence, the fact-
 6   finder’s choice between them cannot be clearly erroneous.    United
 7   States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000)(en banc).
 8        We conclude that, on this record, the bankruptcy court did
 9   not abuse its discretion in granting relief from stay under
10   § 362(d)(1) because the Lease was assigned to IK/S in violation
11   of its terms.
12                               CONCLUSION
13        We AFFIRM the decision of the bankruptcy court.
14
15
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17
18
19
20
21
22
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27
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