IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF KANSAS. Chapter 7

Transcription

1 The relief described hereinbelow is SO ORDERED. SIGNED this 16th day of August, IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF KANSAS IN RE: MISSION GROUP KANSAS, INC., d/b/a Wright Career College, Case No. BK Chapter 7 Debtor. ORDER APPROVING MOTION TO SELL CHEVY EQUINOX FREE AND CLEAR OF LIENS PURSUANT TO 11 U.S.C. 363 (SALE #1) THIS MATTER comes on for consideration upon the Motion for Approval to Sell Chevy Equinox Free and Clear of Liens pursuant to 11 U.S.C. 363 (the Motion ) filed on or about July 25, Due and proper notice of the Motion was given to the Debtor, creditors, and all parties in interest, as evidenced by the Notice with Opportunity filed on or about July 25, No objections were timely filed by the shortened objection deadline of August 9, 2016 and no hearing was held. Accordingly, the Court, having considered the Application, the file, and being duly advised in the premises, finds and orders as follows: 1. Debtor filed a voluntary Chapter 7 on April 15, Case Doc# 172 Filed 08/16/16 Page 1 of 7

2 2. Carl R. Clark was appointed Trustee on the above-captioned case, has qualified, and is now acting as such Trustee. 3. The Trustee seeks to sell Debtor s interest in a Chevy Equinox with VIN 2CNDL23FX (the Property ). 4. Debtor did not list the Property in the schedules filed with the Court. On information and belief, there is no lien on the certificate of title in the Property. However, to the extent any creditor claims a lien in the Property by way of a UCC or other lien, Trustee hereby seeks authority to sell said Property free and clear of liens. 5. The Trustee has determined that it is in the best interests of the Debtor s Estate to sell the Property. The Proposed Sale 6. The Trustee seeks approval to sell the Property. 7. The Trustee expects that the Property will be sold at an online auction ( Auction ) organized by Robert Mayo (the Auctioneer ), to take place no sooner than August 16, The Trustee filed concurrently with this Motion an Application to Employ Auctioneer (the Application ) in connection with the sale of the Property. 8. The Trustee will sell the Property pursuant to the following terms and conditions: a. The Trustee and Auctioneer will have the sole discretion to set a minimum bid price; b. In the event the Trustee and Trustee s Auctioneer believe, in their sole judgment, that a sale of the Property will not yield sufficient funds to justify administration, the Trustee has the authority to cancel the sale. 2 Case Doc# 172 Filed 08/16/16 Page 2 of 7

3 In the event the Trustee cancels the sale, Debtor will not be responsible for any costs of the sale. c. The Trustee and Auctioneer will have the sole discretion to set other normal and reasonable conditions of the sale, without further approval from the Bankruptcy Court. 9. Mayo shall be paid a commission of fifteen percent (15%), to be paid from the gross sale proceeds of the Property. Mayo will also be paid a ten percent (10%) buyer s premium, in addition to the foregoing commissions, to be paid directly to Mayo by the buyers at the auction. Mayo has advanced, and requests authority to recoup from the sale proceeds, expenses for re-keying, pickup of the Property, and marketing not to exceed $250 in order to prepare and transport the Property in advance of the proposed sale. 10. The Trustee also requested authority for Mayo to deduct the foregoing commission, buyer s premium, and expenses from the gross sale proceeds, with Mayo remitting the net sale proceeds to the Trustee, without further Court Order or notice, upon conclusion of the sale. 11. The auction will be conducted online pursuant to such terms and conditions as Mayo and the Trustee, in their sole discretion, deem advisable and in the best interest of creditors and the Estate. 12. The Property will be sold free and clear of all liens, claims and encumbrances. 13. Section 363(f) of the Bankruptcy Code provides for the sale of property free and clear of liens and encumbrances if: (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; 3 Case Doc# 172 Filed 08/16/16 Page 3 of 7

4 (3) such interest is a lien and the price at which such 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 proceeding, to accept a money satisfaction of such interest. A Bankruptcy Court may approve a sale free and clear of liens and encumbrances provided at least one of the subsections is met. See In re Elliot, 94 B.R. 343, 345 (E.D. Pa. 1988). The Trustee contends that there is no lien noted on the certificate of title for the Property. However, there is the possibility that a creditor may claim a security interest in the Property pursuant to a UCC blanket lien. Trustee contends that, to the extent such a lien is claimed, any claiming creditor will consent to the sale or such security interest is in bona fide dispute as it is avoidable using the Trustee s strong arm powers due to failure to note the lien on the certificate of title. The Sale is in the Best Interest of the Estate and Creditors 14. In exercising his sound business judgment, the Trustee has determined that the sale of the Property will result in the best, most efficient and most expedient distribution to creditors. 15. The Bankruptcy Code allows a Trustee, after notice and a hearing [to] use, sell or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b). 16. The Trustee proposes the instant sale is in good faith and for the sound business purpose of maximizing the return on the Property to be sold hereunder. 17. The Trustee believes that the instant sale will produce a value that is fair and reasonable for the Bankruptcy Estate. 18. Time is of the essence in the above-referenced sale. The Trustee further requested authority to enter into and execute any agreements and/or documents necessary to liquidate the 4 Case Doc# 172 Filed 08/16/16 Page 4 of 7

5 Property as contemplated herein, as well as to transfer title to any successful buyer of the Property. 19. The Trustee further alleges, based upon a desired expeditious closing date and the benefit to all parties involved as a result of the sale and because the auction is set to conclude on August 16, 2016, that cause exists to except any Order approving this Motion from the requirements of Fed. R. Bankr. P. 6004(h) and order that the effectiveness of the order approving this Motion should not be stayed for any time period. 20. The Trustee further requested this Court find that any successful bidder that has acted in good faith with respect to the sale proposed by the sale application be afforded the protection provided to good-faith purchasers as set forth in 363(m) of the Bankruptcy Code. Notice and Mailing Matrix 21. The Trustee sent a copy of his Motion to all to all parties of interest participating in the CM/ECF system, as allowed under the Court s order limiting notice (Doc. 59). The Trustee also supplied copies of his Motion to any potential bidders that contacted the Trustee. 22. By his Motion, the Trustee sought this Court s approval of the notice procedures described herein and this Court s finding that said notice procedures are sufficient. Issuance of Certificates of Title 23. The Trustee is not in possession of a Kansas certificate of title for the Property. 24. The Trustee requested that the Court direct the Kansas Department of Revenue, upon request by the Trustee, to issue a certificate of title for the Chevy Equinox with VIN 2CNDL23FX to the Trustee at the address below: Carl R. Clark, Chapter 7 Trustee 9260 Glenwood Overland Park, KS Case Doc# 172 Filed 08/16/16 Page 5 of 7

6 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED (a) (b) That the sale of the Property as set forth in the Trustee s Motion is approved; The notice procedures described in the Trustee s Motion are approved and are sufficient; (c) That, upon closing of the sale, (i) Mayo be paid a commission of fifteen percent (15%), to be paid from the gross sale proceeds of the Property. (ii) In addition to the foregoing commission, Mayo be paid a 10% buyer s premium to be paid directly to Mayo by the buyers at the auction; (iii) Mayo be paid the expenses for preparation of sale detailed in the Motion in the amount not to exceed $250.00; (iv) Mayo may deduct the foregoing commission buyer s premium, and expenses from the gross sale proceeds, with Mayo remitting the net sale proceeds to the Trustee; and (d) The Kansas Department of Revenue is hereby directed to issue a certificate of title for the Chevy Equinox with VIN 2CNDL23FX to the Trustee at the address below: Prepared by: Carl R. Clark, Chapter 7 Trustee 9260 Glenwood Overland Park, KS IT IS SO ORDERED. LENTZ CLARK DEINES PA s/ Shane J. McCall # # # 6 Case Doc# 172 Filed 08/16/16 Page 6 of 7

7 Carl R. Clark, KS #11411 Shane J. McCall KS # Glenwood Overland Park, KS (913) (913) Telecopier Trustee/Attorney for Trustee 7 Case Doc# 172 Filed 08/16/16 Page 7 of 7