I. Facts
The debtor here, Doris Robinson, has lived in Chicago Housing Authority (CHA) housing for low-income individuals for about 35 years and in the apartment at issue here for 15 years. At the end of 1992 she had difficulty making her rent payments of $22 per month, and by December of 1992 she owed CHA $66 of back rent. She offered payment of $60, but CHA would not accept partial payment.
CHA served Robinson with a Notice of Termination of Tenancy on January 7, 1993. The notice informed Robinson that the failure to pay $88 within 14 days would result in termination of her lease on the 15th day. She did not meet the 14 day deadline, and CHA filed a Forcible Entry and Detainer Action against Robinson in the Circuit Court of Cook County on February 23, 1993.
The court entered a Judgment of Possession in favor of CHA on May 4th, 1993. The ruling determined that CHA could accept Robinson’s rent if it so chose, but that, should it choose not to accept the rent, as was its right, a writ of possession would issue 30 days later on June 3, 1993. Robinson attempted to pay the full rent due before June 3rd, but CHA chose not to accept the payment. This apparently inflexible attitude of CHA has given us particular cause to consider carefully Robinson’s claims.
On June 3, 1993, the day the writ of possession was to issue, Robinson filed for bankruptcy and asked that the trustee assume her lease under her Chapter 13 reorganization plan. As a result, she retained possession of the apartment. However, Bankruptcy Judge Sonderby granted CHA’s subsequent motion for relief from the automatic stay, ruling that the trustee could not assume the lease as part of Robinson’s Chapter 13 plan because there was no lease left to assume. The district court affirmed the bankruptcy court’s decision. Robinson now appeals, arguing that a distinction exists between a “terminated” lease and an “expired” lease, and that this distinction allows the trustee to assume the lease in her case. We disagree and affirm.
II. Discussion
A. Federal Bankruptcy Law
Robinson argues that her lease may be assumed by the bankruptcy trustee under 11 U.S.C. § 365(a). Section 365(a) states that “the trustee ... may assume or reject any executory contract or unexpired lease of the debtor” (emphasis added). When a debtor files for bankruptcy, the debt- or’s possible interest in such a lease is protected by an automatic stay under 11 U.S.C. § 362. This stay prevents a landlord from *318 initiating or pursuing claims against the debtor, including state eviction proceedings. 11 U.S.C. § 362. However, a landlord may file for relief from the stay if the debtor does not have a valid interest in the leasehold.
Robinson filed for bankruptcy under § 365(a), and the trustee in normal course assumed what Robinson claims was her unexpired lease. However, CHA filed for relief from the automatic stay, which otherwise applied, on the grounds that the lease was not “unexpired” and thus was not assumable. The bankruptcy court and, subsequently, the district court granted CHA the requested relief, agreeing that Robinson’s lease was not assumable because it was not “unexpired.” Robinson, however, argues that both federal bankruptcy law and state law establish that, although her lease may have been “terminated,” it had not “expired” under § 365(a) and should have been deemed assumable.
As Robinson concedes, neither § 365 nor the rest of the federal bankruptcy code defines “unexpired.”
See, e.g., In re Collier,
Robinson points to 11 U.S.C. § 362(b)(10), § 541(b)(2) and § 365(c)(3) as evidence of congressional intent to treat “terminated” leases differently than “expired” leases. Section 362(b)(10) provides that the automatic bankruptcy stay does not apply to actions by a lessor of nonresidential real property against a debtor "with respect to a lease that has “terminated by the expiration of the stated term of the lease.” Similarly, § 541(b)(2) excepts from property of the estate any possible interest a debtor might have in a lease of nonresidential property that has “terminated at the expiration of the stated term of such lease.” These provisions protect lessors of nonresidential property from having to petition for relief from the automatic stay if the stated term of the lease has run. These provisions thus apply when certain leases have been brought to an end in a particular way and create special rules for those circumstances. These provisions may not, however, be construed to mean that the reaching of the stated term is the
only
way that leases can expire, nor do they indicate that premature termination under state law is not another applicable mode of expiration of the lease.
See, e.g., Talley,
Section 365(c)(3), Robinson’s third basis for her argument, presents a possibly more difficult problem. It provides that a lease may not be assumed by the trustee if “such lease is of nonresidential real property and has been terminated under applicable nonbank-ruptcy law prior to the order for relief.” 11 U.S.C. § 365(c)(3). Robinson argues that Congress deliberately drafted § 365(c) to apply to nonresidential leases that have been terminated under the provisions of nonbank-ruptcy law in order to draw a distinction between “terminated” leases in § 365(c) and “unexpired” leases in § 365(a). This distinction, she argues, creates broader federal protections for residential leases because it means that the only non-assumable residential leases are those whose stated term has *319 run. Residential leases that have ended for reasons other than the running of the stated term, she asserts, are “unexpired” while the stated term of the lease is still running, even if the lease has been ended under state law before its stated term. To read the statute otherwise, she claims, would ignore the distinction Congress was trying to make between nonresidential leases in § 365(c) and residential ones in § 365(a).
At least superficially, Robinson’s argument has some appeal, principally because the application of state law to § 365(a) means that § 365(a) and § 365(c) will ordinarily be applied in the same way. In the usual interpretation of § 365(a), courts look to state law to determine whether a lease is “unexpired.” The question is whether the lease has ended under state law, either through eviction proceedings, the running of the stated term of the lease or through other means that otherwise legally sever the landlord-tenant relationship. In this analysis, any method that fully severs the rights of the tenant in the property renders the lease expired; the only question is at what point in time the severance is final and complete.
The ultimate result of looking to state law in applying § 365(a), however, renders the analysis under § 365(a) no different than that under § 365(c), which provides that nonresidential leases cannot be assumed if they have been “terminated under applicable nonbankruptcy law.” Yet § 365(c) was drafted to apply only to nonresidential leases, apparently in an effort by Congress to create some difference in assumability between residential and nonresidential leases. As a result, there is some apparent merit to Robinson’s argument that, in view of what appears to be an obvious attempt to differentiate residential from nonresidential leases, we cannot continue to rely on state law to determine when a lease has expired under § 365(a) because in doing so, we would be using essentially the same analysis for residential leases under § 365(a) as for nonresidential leases under § 365(c).
Despite this apparent difficulty, however, neither the legislative history of § 365(c) nor the debtor here provides any authority for the proposition that Congress intended its choice of words to create expanded federal protection for residential leases. Section 365(c) was added to the Code by the Bankruptcy Amendments and Federal Judgeship Act of 1984 in response to concerns of shopping center owners and tenants. Congress recognized that the long delays attendant to resolution of bankruptcy disputes and the prolonged inaction under an automatic bankruptcy stay are particularly harmful to shopping centers. S.Rep. No. 65, 98th Cong., 1st Sess. 33-43 (1983). Congress was concerned because the fortunes of separate retail businesses in the same shopping center are inextricably linked; if one retail space in the center remains vacant for a long period of time the business of the other tenants suffers accordingly. Id. Because the bankruptcy of one shopping center tenant so seriously affects other tenants, and because attempts to remedy this problem in the 1978 Bankruptcy Reform Act had not been successful, special provisions, including § 365(c), were drafted to expedite these bankruptcy proceedings and protect other tenants. S.Rep. No. 65, 98th Cong.,, 1st Sess. 35 (1983). Thus § 365(c) is a deliberate addition to the Code crafted to address a specific issue which has nothing to do with residential leases.
Further, in enacting the Bankruptcy Amendments of 1984, Congress stated that “a distinction between residential and nonresidential leases is made here and in other provisions in this subtitle ... in order to avoid depriving residential tenants of whatever consumer protections they may have under applicable .non-bankruptcy law.” Sen. Rep. 98-65, 98th Cong. 1st Session 37 (1983) (emphasis added). Therefore, rather than supporting Robinson’s claim that Congress was suggesting, enhanced federal protections for residential lessees, the legislative history here supports the established practice of looking to state law to determine whether á lease is unexpired.
We must also reject Robinson’s approach on grounds of rational policy. If we do as, she asks and define an “unexpired” lease under § 365(a) solely as one whose stated term has not yet run (even though it might have been otherwise terminated), we would allow bankrupt tenants whose lease had
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clearly been abrogated and who had perhaps already been evicted to have a continuing interest in the lease simply because its stated term had not yet expired. Thus, leases that state courts had determined to be at an end could suddenly be revived, and landlords would face continuing uncertainty whether a lease was in fact alive or dead. Such a result seems irrational and is not congruent with the general principles of bankruptcy law.
See In re Triangle Laboratories, Inc.,
Hence we conclude that federal bankruptcy law draws no meaningful distinction between “expired” and “terminated” residential leases and does not provide greater federal protection for lessees under residential leases, the stated terms of which have not run, even though they have been otherwise terminated. Instead the federal law allowing “unexpired” leases to be assumed calls for a determination whether a lease has ended under state law.
See, e.g., In re Escondido West Travelodge,
B. Illinois Law
Since we believe state law controls here, we must examine the law of Illinois. In general, states establish various phases in the process of termination of a lease, and the point at which tenants lose their right to possession differs considerably from state to state. Accordingly, we must examine whether under Illinois law Robinson’s lease had ended at the time she filed in bankruptcy— after a judgment for possession had been entered but before a writ of possession was scheduled to issue.
Robinson argues that her lease was “unexpired” under state law when she sought to have it assumed by the bankruptcy trustee. Robinson urges us, once again, to distinguish between the terms “expired” and “terminated” in our state law analysis. She argues that, even if federal law does not contain a meaningful difference between “expiration” and “termination,” Illinois law does, and that we should recognize that distinction for purposes of lease assumption in bankruptcy.
As Robinson notes, there are in fact certain circumstances where “expiration” and “termination” do have different meanings under Illinois law. For instance, if a lease is for a “certain period,” and the tenancy “expires by the terms of the lease,” it is not necessary to give notice before filing an action for forcible entry and detainer. 735 Ill.Rev.Stat., Ch. 110, para. 9-213. However, notice is required when a landlord terminates the lease before the term of the lease has run. S.H.A. 735 ILCS 5/9-209 (1994). Also, if a tenant willfully holds over after the term of the lease has run, she is treated differently than a tenant who holds over after a landlord’s premature termination. Thus, a landlord may be entitled to double rent from a tenant who holds over after the expiration of the lease term but not from a tenant whose lease has been terminated by the landlord prior to the expiration of the term.
See Stuart v. Hamilton,
As we have noted, there seems to be no suggestion in 'the bankruptcy law that we scour Illinois law for distinctions between “terminated” and “expired” unless they are relevant to the question whether there is still an assumable interest in a lease at a point in time that is material in bankruptcy.
See Talley,
In Illinois, as in other states, “[t]he residential landlord tenant relationship is layers of rights which peel away during the [termination] process.”
Talley,
Second, the lease may not be considered ended until the tenant herself no longer has legal recourse to revive the lease.
See, e.g., Ross,
The complete process of evicting a tenant in Illinois involves five distinct steps. However, the occurrence or execution of all the five steps may not be necessary for the tenant to lose her right to possession. In any event, the first essential step is that the tenant must be delinquent in her rent. See *322 S.H.A. 735 ILCS 5/9-209 (1994). Second, the landlord must notify the tenant, in writing, that the rent must be paid within no less than five days. Id. Third, the specified time period mentioned in the notice must pass without tender of payment by the tenant. Id. Fourth, the landlord must sue for possession or maintain ejectment and obtain a judgment for possession. Id. Fifth, and finally, a writ of possession issues pursuant to the judgment for possession. The question before us is to determine where in this succession of steps the lease has been abrogated for bankruptcy purposes.
A lease certainly cannot have been terminated upon completion of only the first two steps. Obviously, more than mere delinquency is required to terminate a tenant’s rights. The statute clearly directs landlords to give tenants a “second chance” by requiring that they give the tenant at least five days in which to cure the delinquency, and thus mere notice of the delinquency is not enough to end the lease.
Whether a lease may end after completion of the third step is less clear. Two district courts have addressed this issue. One concluded that a lease was ended after a tenant had received a thirty-day termination notice from the landlord but before a judgment for possession had been entered,
Cunningham,
Maxwell
cites several cases to support its finding that, under state law, a lease terminates prior to the entry of a judgment of possession.
Despite these doubts as to Maxwell’s holding, however, we do not question that a tenant no longer retains her right to possession once a judgment of possession has been entered. At this fourth step in the eviction process a landlord has surely taken the steps requisite for termination. Nor is there any recourse left for the tenant to revive the lease. Thus, absent a waiver of forfeiture by the landlord, 2 the lease may not be deemed “unexpired” beyond that point.
*323 A Judgment of Possession of Robinson’s apartment was entered on May 4th, 1993. Robinson did not file for bankruptcy until June 3rd, the day the writ of possession was to issue. This, of course, was almost a month after entry of the judgment of possession. Since Robinson sought to have her lease assumed by the bankruptcy trustee after the judgment of possession had been entered, we conclude that she did so after the lease had been abrogated (or had expired) and it was therefore not assumable under 11 U.S.C. § 365(a).
C. Public Housing
Robinson next contends that a public housing lease remains viable longer than a lease of a private dwelling, and that possession by the tenant may preserve a public housing lease even if it does not preserve a private one, citing
Thorpe v. Housing Authority of Durham,
Chicago Housing Authority v. Harris,
These cases do not support Robinson’s contention that a lease remains viable, no matter what actions have been taken to abrogate it, until the resident has actually vacated the premises. Rather the courts in
Thorpe
and
Harris
held that special procedural protections for public housing tenants created while the tenant’s eviction was still being appealed could be applied to that eviction. The housing authorities in these cases were required to revisit the eviction process
in spite of
the fact that it had already been completed prior to the issuance of the new circular. But the reason for this requirement was that new procedural protections were created while the tenant was challenging her eviction, not the fact that the tenant remained in possession. As the Court explained, “the circular should be applied to all tenants still residing in McDougald Terrace ... not only because it is designed to insure a fairer eviction procedure in general, but also because the prescribed notification is essential to remove a serious impediment to the successful protection of constitutional rights.”
WThile the fact that the tenant was still in possession may have played some role in the Court’s decision to apply the new provisions retroactively, that fact cannot be construed to extend an interest in a lease (or the right to have the lease assumed by a bankruptcy
*324
trustee) to any public housing tenant whose lease has been validly terminated but who has not yet been forcibly evicted. Robinson’s eviction is not being challenged here. She was not denied any procedural protections; she is simply attempting to assume a validly terminated lease under the bankruptcy code. The
Thorpe
Court’s decision to apply the circular to “any tenant still residing in [the] projects on the date of this decision” does not give her that ability.
We note that under ordinary landlord and tenant law, a tenant’s status as a resident of public housing generally does in some respects enhance her rights.
In re Sudler,
Generally, courts have not treated public housing tenants differently in determining when a lease is “unexpired” for purposes of lease assumption under 11 U.S.C. § 365.
Talley,
D. Discrimination
Finally, Robinson contends that she has been discriminated against in violation of § 525(a) of the Bankruptcy Code which states
a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, discriminate with respect to such a grant against ... a person that is or has been a debtor under this title ... solely because such bankrupt or debtor is or has been a debtor under this title ...
11 U.S.C. § 525(a).
Robinson’s claim that her lease termination was a product of discrimination against her as a debtor in bankruptcy has no merit. In order for CHA to have discriminated against Robinson because of her bankruptcy status, it must have been aware of that status. Robinson did not file in bankruptcy until the day a writ of possession was scheduled to issue. CHA had completed the lease termination process long before this, and thus its actions could not have been motivated by Robinson’s bankruptcy.
III. Conclusion
For these reasons, we hold that Robinson’s lease has ended under Illinois law and is not assumable under 11 U.S.C. § 365(a). We therefore affirm the judgment of the district court.
Notes
. Looking to state law to determine a party’s property interest is derived from the principle stated in
Butner v. United States,
. Some jurisdictions have found that if the lease may still be saved under anti-forfeiture laws, then the lease will not be considered expired for purposes of bankruptcy assumption.
See Ross,
Unlike Florida, Illinois does not have a similar anti-forfeiture law awarding such great discretion to the courts. After a judgment of possession, only the landlord is in a position to prevent forfeiture. If a landlord acts inconsistently with his "declaration of forfeiture” then he may have waived the forfeiture.
See Chicago Housing Authority v. Taylor,