In re Avery Bradley Green (Case No. 17-11043)

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Order Denying Trustee’s Motion for Public Auction Sales of Real Property. The chapter 7 trustee moved under 11 U.S.C. § 363(f) to conduct online public auctions of five parcels of real property and sell them free and clear of all liens, encumbrances, and other claims of interest. Although the Debtor agreed in principle that the properties could be sold, he objected to the proposed procedures for the sale. Donald Green, a co-owner and the Debtor’s brother, also objected to the sale, arguing that one of the properties should be sold to a family member and that the benefit to the estate of any sale of that property would not outweigh the detriment to Mr. Green, in contravention of § 363(h)(3).
 
The Court overruled the Debtor’s objection for lack of standing, as the record indicates that he would not have a pecuniary interest in the distribution of assets; there was no possibility of a surplus returning to the Debtor because he did not claim a homestead exemption on any of the properties and there was little chance they would be sold for a price higher than the value of the liens. See In re Hamilton Road Realty, Inc., No. 8-19-72596, 2021 WL 1620046, at *3 (Bankr. E.D.N.Y. Apr. 26, 2021). The Court also overruled Mr. Green’s objection with respect to the comparative determination of benefit to the estate vs. detriment to the co-owner under principles of res judicata, because the Court had already found in a related adversary proceeding that the benefit to the estate of a sale of the property would outweigh any detriment to Mr. Green.
 
On the merits of the motion, the Court found that the overwhelming weight of authority holds that courts, in exercising their independent duty to review proposed sales, should not authorize a trustee’s sale of fully encumbered assets. See, e.g., In re Bird, 577 B.R. 365, 377-78 (B.A.P. 10th Cir. 2017). Here, the parties conceded that the properties were overencumbered by Palm Avenue Hialeah Trust’s claim and none of the proceeds would be available to pay general unsecured creditors. The only carve-outs allowed by Palm Avenue were for expenses related to the proposed sale, including compensation to the trustee and his professionals. Payment of these priority unsecured claims did not justify sale of the properties by the trustee.
 
Accordingly, the Court determined that the motion should not be granted because the trustee failed to demonstrate that sale of the properties would have a discernible benefit to general unsecured creditors.

File: 
Date: 
Thursday, December 8, 2022
Published: 
No
Index Heading: 
363(f) Sales
Affirmed: