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”). 2. 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 1 As used herein, the term “Debtor” shall include a single debtor or joint debtors, as the case may be. Page 1 of 7 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). 4. As of the Petition Date, the Debtor valued the Debtor’s interest in Property at $______________. 5. Secured claims against the property are as follows: Creditor Type of Lien (e.g., deed of trust, mortgage, statutory, judicial) Approximate Balance owed as of the time of the filing of the Motion 6. 7. B. [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. 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 7 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). 10. 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. 11. 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. 12. 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 7 American LegalNet, Inc. www.FormsWorkFlow.com to such co-owners; and (4) the Property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power. The co-owner has consented to the property being sold by the Trustee [if the co-owner has not consented, then an adversary proceeding may be necessary pursuant to Fed. R. Bankr. P. 7001(3)]. C. OBJECTION 13. D. Any party that objects to this Motion to Sell must file a written objection with the Bankruptcy Court, at (Northern District: P.O. Box 70, Wheeling, WV 26003 or Southern District: 300 Virginia Street East Room 3200, Charleston, WV 25301), the United States Trustee, at 2025 United States Courthouse, 300 Virginia Street East, Charleston, WV 25301, and the Chapter 7 Trustee (address listed below) within the notice period issued by the Bankruptcy Court Clerk. The written objection shall set out the specific grounds for objection. Unless the Court orders otherwise, or unless the Court sets a hearing on this Motion, that objection period is generally 21 days from the filing of this Motion pursuant to Fed. R. Bankr. P. 2002(a)(2). The deadlines set forth in this Paragraph concerning objections to a proposed sale supercede those provided in Fed. R. Bankr.P. 6004(b). In the absence of a timely filed objection to this Motion to Sell, or, in the absence of a timely upset bid (as detailed below) the court may enter an order approving this Motion to Sell without further notice or hearing. UPSET BID PROCEDURES 14. Any party interested in purchasing the Property (an “Upset Bidder”) should file a notice of an upset bid with the Bankruptcy Court, United States Trustee, and Chapter 7 Trustee (at the address listed below) within the time set by the Bankruptcy Court Clerk for objecting the to Motion to Sell. The Upset Bidder shall submit to the undersigned Trustee an offer, in writing, in an amount equal to the Alternative Minimum Bid (defined below), and submit information demonstrating the financial wherewithal of the Upset Bidder to consummate the proposed transaction. Upset Bidders may not substantially deviate from the terms of the contract of sale attached hereto as Exhibit A. The Trustee, in the Trustee’s discretion, will determine if the Upset Bidder has submitted a qualified bid based on the terms of the bid, and the Upset Bidder’s financial ability to consummate the proposed purchase at the Alternative Minimum Bid price. The deadlines set forth in this Paragraph concerning objections to a proposed sale by an Upset Bidder supercede those provided in Fed. R. Bankr.P. 6004(b). 15. The Alternative Minimum Bid is $____________. Page 4 of 7 American LegalNet, Inc. www.FormsWorkFlow.com 16. 17. If a bidder at the auction objects to the Trustee’s selection of the Winning Bidder, then that bidder may submit a bid under protest at the auction and shall have standing to object to the Trustee’s selection of the Winning Bidder. The Trustee shall notify the Court of the objection to the Trustee’s selection of the Winning Bidder and the Court shall hold a hearing on the objection. 18. If for any reason the Winning Bidder fails to consummate the sale of the Property, the offeror of the second highest or best bid (subject to the same reservations) will automatically be deemed to have submitted the highest and best bid, and the Trustee is authorized to effect the sale of the Property to such offeror without further order from the bankruptcy court. If such failure to consummate the purchase of the Property is the fault of the Winning Bidder, the Winning Bidder’s deposit, if any, shall be forfeited to the Trustee, and the Trustee specifically reserves the right to seek all available damages from the defaulting bidder. 19. D. If a qualified Alternative Minimum Bid is timely received by the Trustee, then the Trustee shall conduct a private auction at a time, place, and manner that is determined by the Trustee. The Trustee will file a notice of the auction time and place with the court. The Trustee will select the bid, or combination of bids, at the conclusion of the auction that the Trustee believes to be the highest or best value for the Property (the “Winning Bidder”). The Trustee reserves the right to select the best bid, even if not the highest bid. The Winning Bidder must complete and sign all agreements or other documents with the Trustee evidencing and containing the terms and conditions on which the winning bid was made before the auction is concluded. In the event the Winning Bidder is different from the Buyer identified in this Motion to Sell, the Trustee shall ascertain whether the Winning Bidder is an insider of the Debtor, whether the sale represents an arms-length transaction between the parties, made without fraud or collusion, and whether there has been any attempt by either party to take any unfair advantage of the other such that the Winning Bidder may be deem to be purchasing the Property in good faith pursuant to 11 U.S.C. § 363(m). The Trustee shall state these factual findings in any order approving the Motion to Sell that is submitted to the Court. The Court may, in its discretion, hold a separate hearing to make the findings required to approve the sale pursuant to § 363(m). The Trustee reserves the right to: (1) impose, at or before the Auction, additional terms and conditions on a sale of the Property; (2) extend the deadlines from those set forth herein, adjourn the auction at the auction; (3) withdraw the Property, or any part of the Property, from sale at any time before or during the auction, and to make subsequent attempts to market the same; and (4) reject all bids if, in the Trustee’s reasonable judgment, no bid is for a fair and adequate price. RELIEF REQUESTED Page 5 of 7 American LegalNet, Inc. www.FormsWorkFlow.com WHEREFORE, the Trustee requests: A. That the Clerk’s Office issue a notice to all interested parties of the filing of the Motion to Sell and the Notice of Auction and Bid Procedures pursuant to Fed. R. Bankr. P. 2002(a)(2), (c)(1), (k) and 6004(a). B. That the Court enter an Order, submitted by the Trustee, in the absence of any timely filed objection to the sale motion, which: 1. Authorizes the Trustee to sell the Property; 2. Approves the sale of the Property pursuant to 11 U.S.C. § 363(b), (f), (h), (m) and Fed. R. Bankr. P. 6004; 3. Declares that all liens against the Property attach to the proceeds of the sale; 4. Approves the payment of sale proceeds to: (1) the costs of sale; (2) the satisfaction of liens in the Property in order of priority; (3) the satisfaction of any co-owner’s interest; (4) the satisfaction of the Debtor’s exemptible interest in the property; and (5) the Trustee for payment to allowed claims filed in the Debtor’s bankruptcy case. 5. Waiving the 10-day stay of the order approving the sale under Fed. R. Bankr. P. 6004(h); 6. Requiring the Chapter 7 Trustee to file a final report of sale with the Court in accordance with Fed. R. Bankr. P. 6004(f). 7. Granting such other relief that the court deems just and proper. Respectfully submitted, ____________________________________ Address CERTIFICATE OF SERVICE The undersigned hereby certifies that the above-referenced Motion was served on the parties that receive electronic notification in these proceedings. The Motion was also served on the parties listed below via U.S. Mail, postage prepaid, on __________________. Page 6 of 7 American LegalNet, Inc. www.FormsWorkFlow.com E.g., the debtor, the Buyer, all other known, prospective bidders, secured creditors not receiving electronic notification . . . . Page 7 of 7 American LegalNet, Inc. www.FormsWorkFlow.com