558 is not excepted from discharge under 11 U.S.C. 523(a)(2)(A) and is dischargeable.? 0 gm nunm 'r In re Robin E. LOVE, Debtor. Bankruptcy No. United States Bankruptcy Court, S.D. Florida. June 9, 1986. Once upon a midnight dreary, while he pon- dered weak and weary, Over cluttered Chapter seven files, to Bankruptcy Judge A. Jay Cristol While the winds of fall did whistle came the whisper of a raven, ?Sua sponte? this case dismiss, for tis one you?ll never miss. The Code said, to prevent abuse, if consumer debt relief was case?s use, The judge alone could say "No more.? But with presumption in his favor, The case with error might debtor ?avor. So quoth the good Judge, ?Nevermore.? Motion denied. Bankruptcy @348 Sua sponte dismissal would be error, Though authority in Code is there, To eschew abuse of consumer debt, As presumption for debtor must be met. Bankr.Code, 11 U.S.C.A. 707(b). ORDER DENYING SUA SPONTE MOTION TO DISMISS UNDER 11 U.S.C. 707(b) A. JAY CRISTOL, Bankruptcy Judge. This cause came on to be heard sua sponte upon the court?s own motion to dis- miss this chapter 7 petition pursuant to 11 U.S.C. 707(b) and the court having re- ceived the inspiration for the motion from a 4. The plaintiffs? argument that the debtors should be denied a discharge pursuant to 11 61 BANKRUPTCY REPORTER little old ebony bird and not from any party in interest or any other person and having considered the presumption in favor of debtor provided in 11 U.S.C. 707(b) and not deeming it appropriate to take evi- dence, the court finds: Once upon a midnight dreary, while I pon- dered weak and weary Over many quaint and curious files of chapter seven lore While I nodded nearly napping, suddenly there came a tapping As of some one gently rapping, rapping at my chamber door, ?Tis some debtor? I muttered, ?tapping at my chamber door? Only this and nothing more.? Ah I recall, it was in the early fall And the file still was small The Code provided I could use it If someone tried to substantially abuse it No party asked that it be heard. ?Sua sponte? whispered a small black bird. The bird himself, my only maven, strongly looked to be a raven. Upon the words the bird had uttered I gazed at all the files cluttered ?Sua sponte,? I recall, had no meaning; none at all. And the cluttered files sprawl, drove a thought into my brain. Eagerly I wished the morrow?vainly I had sought to borrow From BAFJA, surcease of sorrow? and an order quick and plain That this case would not remain as a source of further pain. The procedure, it seemed plain. As the case grew older, I perceived I must be bolder. And must sua sponte act, to determine every fact, If primarily consumer debts, are faced, U.S.C. 727(a)(3) is wholly without merit and need not be discussed. IN RE MIDWEST POLYCHEM, LTD. 559 Cite as 61 559 1986) Perhaps this case is wrongly placed. This is a thought that I must face, perhaps I should dismiss this case. I moved sua sponte to dismiss it for I knew I would not miss it The Code said I could, I knew it. But not exactly how to do it, or perhaps some day I?d rue it. I leaped up and struck my gavel. For the mystery to unravel Could Should Sua sponte, grant my motion to dismiss? While it seemed the thing to do, suddenly I thought of this. Looking, looking towards the future and to what there was to see If my motion, it was granted and an appeal came to be, Who would be the appellee? Surely, it would not be me. Who would file, but pray tell me, a learned brief for the appellee The District Judge would not do so At least this much I do know. Tell me raven, how to go. As I with the ruling wrestled In the statute I saw nestled A presumption with a flavor clearly in the debtor?s favor. No evidence had I taken Sua sponte appeared foresaken. Now my motion caused me terror A dismissal would be error. Upon consideration of 707(b), in anguish, loud I cried The court?s sua sponte motion to dismiss under 707(b) is denied. 0 KEY NUMBER SYSTEM 4mm: In re MIDWEST POLYCHEM, LTD., Debtor. Bankruptcy No. 84 12484. United States Bankruptcy Court, N.D. Illinois, E.D. June 9, 1986. Chapter 11 debtor manufacturer of an- tifreeze sought to reject executory contract with seller, which had also filed Chapter 11 case. The Bankruptcy Court, Frederick J. Hertz, J., held that: (1) manufacturing agreement under which seller supplied debtor with antifreeze formula and other materials and debtor blended antifreeze, packaged it and shipped it to seller?s cus- tomers was ?executory? at time debtor filed Chapter 11 petition, which was in mid- dle of marketing season, and thus was sub- ject to rejection under the Bankruptcy Code, and (2) debtor was not entitled to reject contract in order to avoid covenant not to compete. Motion to reject denied. 1. Bankruptcy ?Executory contract? subject to as- sumption or rejection under the Bankrupt- cy Code is contract under which obligation of both debtor and other party to contract are so far unperformed that failure of ei- ther to complete performance would consti- tute material breach excusing performance of the other. Bankr.Code, 11 U.S.C.A. 365(a). See publication Words and Phrases for other judicial constructions and definitions. 2. Bankruptcy @673 Manufacturing agreement under which seller supplied debtor manufacturer with antifreeze formula and other materials and debtor blended antifreeze, packaged it and shipped it to seller?s customers was ?exec- utory? at time debtor filed Chapter 11 peti- tion, which was in middle of marketing season, and thus was subject to rejection under the Bankruptcy Code. Bankr.Code, 11 U.S.C.A. 365(a), 1101 et seq. See publication Words and Phrases for other judicial constructions and definitions.