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the availability of administrative priority in determining whether an assurance of payment should be modified. And at least one court has interpreted the court's power to modify an assurance of payment extremely narrowly and limited to changed circumstances, not to give the court power to determine initially an appropriate assurance of payment.85
Some courts had held § 366(b) is self-executing and a utility is not required to seek stay relief before terminating service.86 This view seems to be bolstered by BAPCPA's addition of § 366(c)(2). However, § 366 does not necessarily preempt state law governing termination of services.87 Moreover, a utility does not need court authority to apply a deposit furnished by debtor pursuant to § 366 to postpetition arrearages, and this is now codified by § 366(c)(4), added by BAPCPA.88
Often, a merchant debtor will have a contract with a bank to accept credit card charge slips and provide the merchant with prompt cash for the amount of the charge slips, minus a few percent processing fee. Such a bank is called the "merchant bank" in the credit card industry. The merchant bank's relationship with the bank that issued the consumer's credit card, called the "issuing bank," is governed by a master contract and regulations issued by the credit card company (e.g., Master Card, VISA, etc.). The merchant bank ultimately collects the amount of the charge slips from the issuing bank, which collects from the card holder and therefore bears the risk of the card holder's failure to pay.
85 In re Lucre, Inc., 333 B.R. 151 (Bankr. W.D. Mich. 2005).
86
In re Carter, 133 B.R. 110 (Bankr. N.D. Ohio 1991); Johnson v. Philadelphia Elec. Co., 80 B.R. 30 (E.D. Pa. 1987) (no stay violation resulted from utility's threat to terminate service); Lloyd v. Champaign Telephone Co., 52
B.R. 653 (Bankr. Ohio 1985).
87
Begley v. Philadelphia Elec. Co., 760 F.2d 46 (3rd Cir. 1985); Robinson v. Michigan, 916 F.2d at 588.
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