Motion To Sell Property And Notice Of Upset Bid Procedures

IN THE UNITED STATES BANKRUPTCY COURT FOR THE ___________ DISTRICT OF WEST VIRGINIA IN RE: XXXXX XXXX XXXXXXX, Debtor. ) ) ) ) ) ) CASE NO. XX-XXXXX Chapter 7 MOTION TO SELL PROPERTY AND NOTICE OF UPSET BID PROCEDURES _____________ (the "Trustee") respectfully submits this Motion for an order pursuant to 11 U.S.C. §§ 105(a), 363, 704, and Fed. R. Bankr. P. 2002, and 6004 to approve the sale of property, and to approve the notice of the auction and bid procedures set forth herein. In support of this Motion, the Trustee states: A. BACKGROUND 1. The Debtor1 filed a petition under Chapter 7 of the Bankruptcy Code on ______________ (the "Petition Date"). An asset of the bankruptcy estate is real property commonly described as __________________________________________________________________ __________________________________________________________________ __________________________________________________________________, which consists of approximately ____ acres of land, and which includes the following improvements and/or additional structures:_______________________ __________________________________________________________________ ___________________________________________________________________ (the "Property"). OR 2. As used herein, the term "Debtor" shall include a single debtor or joint debtors, as the case may be. Page 1 of 6 1 American LegalNet, Inc. www.FormsWorkFlow.com An asset of the bankruptcy estate is personal property described as________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ ________________________________________________ (the "Property"). 3. The Debtor is the sole owner of the property (If the Debtor is a co-owner, state the name and addresses of the other co-owners, if known, and the co-owners' ownership interest in the Property). As of the Petition Date, the Debtor valued the Debtor's interest in Property at $______________. Secured claims against the property are as follows: Type of Lien (e.g., deed of trust, mortgage, statutory, judicial) Approximate Balance owed as of the time of the filing of the Motion 4. 5. Creditor 6. 7. [List any tax related issue pertinent to property and/or contemplated sale] Before the filing of this motion, the Trustee employed a realtor/broker/auctioneer to market the Property for sale. The Court has previously approved the employment of the realtor/broker/auctioneer, or, in conjunction herewith, the Trustee is filing a motion to approve that employment. The Property was listed by the realtor/broker/auctioneer for sale to the general public for a period of about ___ months/weeks. B. THE SALE 8. Subject to the Upset Bid Procedures set forth below, The Trustee proposes to sell the Property for $_______________to ________________________________________ (the "Buyer"), who has submitted an earnest money deposit for the purchase of the property in the amount of $_______. The closing date for the sale of the Property is currently scheduled for ________________. The contract of sale is attached Page 2 of 6 American LegalNet, Inc. www.FormsWorkFlow.com hereto as Exhibit A. The Trustee believes that the sales price is fair and reasonable considering the valuation of the property given by the Debtor, the fact that the property has been listed for sale with the general public, and considering the Trustee's estimation as to value and/or the Property's appraised value. 9. The Buyer is not an insider of the Debtor, and the sale represents an arms-length transaction between the parties, made without fraud, collusion, and no attempt has been made by either party to take any unfair advantage of the other (if the Buyer is an insider, or a person with whom the Trustee has a business relationship then explain the nature of that relationship and why the Trustee believes the sale price is fair). The Buyer is purchasing the Property in good faith pursuant to 11 U.S.C. § 363(m). From the sale proceeds, the Trustee proposes to pay the costs of the sale, including reasonable attorney's fees, real estate commissions, and taxes. In addition, the Trustee proposes to pay all creditors that have an undisputed secured interest in the property, in order of priority, as of the date of closing. Any co-owner will be paid the co-owner's interest in the property at closing, or as soon as practicable thereafter, pursuant to 11 U.S.C. § 363(j). The Trustee estimates that, after the payment of the costs of sale, satisfaction of secured liens, and payments to co-owners, approximately $_______________ in net proceeds will be realized from the sale. The Debtor is entitled to an exemption in the amount of $_______________ from the net proceeds realized from the sale of the Property pursuant to ______________. (e.g., W. Va. Code § 38-10-4(a)), which leaves approximately $____________ that the Trustee may distribute to pay of the costs of administering the estate and/or for the payment of valid claims against the estate pursuant to the priorities set forth in 11 U.S.C. § 726. For this reason, the sale is in the best interest of the debtor, the estate, creditors, and other parties in interest and should be approved. The sale of the Property is being made free and clear of any interest in the Property held by an entity other than the estate pursuant to 11 U.S.C. § 363(f) because either: (1) applicable non-bankruptcy law permits the sale of the Property free and clear of such interests; (2) such entity consents to the sale; (3) such interest is a lien and the price at which the Property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceedings, to accept a money satisfaction of such interest. In the event that the Property is co-owned, the sale of the Property is proper pursuant to 11 U.S.C. § 363(h) because: (1) partition in kind of such property among the estate and such co-owners is impracticable; (2) the sale of the estate's undivided interest in the Property would realize significantly less for the estate than a sale of the Property free and clear of the interest of co-owners; (3) the benefit to the estate of a sale of the Property free of the interests of co-owners outweighs the detriment, if any, Page 3 of 6 10.