Case 4:07-bk EWH Doc 96 Filed 07/31/09 Entered 07/31/09 11:20:01 Desc Main Document Page 1 of 8

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1 Michael M. Neal, Esq. LAW OFFICE OF MICHAEL M. NEAL, P.C. 1 S. Church Avenue, Suite Tucson, Arizona 01 Telephone: (0) - Facsimile: (0) - mmnealpc@qwestoffice.net State Bar No. 01 Attorney for Chapter Trustee IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA In re: ) ) Chapter Proceeding ARTHUR F. MYERS, ) ) Case No. -0-bk-01-EWH ) ) TRUSTEE S APPLICATION AND ) MOTION TO AUTHORIZE AND ) APPROVE A SALE OF AN INACTIVE Debtor. ) ARIZONA SERIES LIQUOR LICENSE ) FREE AND CLEAR OF LIENS WITH ) THE PAYMENT AT CLOSING OF ) COSTS AND CLAIMS NECESSARY ) TO CLOSE THE SALE INCLUDING ) PAYMENT OF CLAIMS HELD BY ) THE ARIZONA DEPARTMENT OF ) REVENUE ) The appointed and serving Chapter Trustee, Stanley J. Kartchner, by and through his undersigned attorney, Moves and Applies to this Court for relief as described above and in support thereof presents the following: BACKGROUND OF THE CASE AND ASSET TO BE SOLD 1. On August 0, 00, the above named Debtor filed a petition for relief under Chapter 1 of the Bankruptcy Code. On May, 00 the case was converted to a Chapter. Stanley J. Kartchner was thereafter appointed the Trustee of the estate and continues to serve in that capacity.. An asset of the bankruptcy estate scheduled by the Debtor is the fee title ownership Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page 1 of

2 interest in an Arizona Series Liquor License Number 010 that had been issued to the Debtor and used by the Debtor in his business called Artie s on Main located at N. Main Street, Florence, Arizona, hereinafter referred to as the Liquor License;. The Liquor License is inactive which results in not less than a One Hundred Dollars ($0.00) charge being owed the State of Arizona Liquor Control each month the Liquor License is not active. In addition, a fee of Two Hundred Fifty Dollars ($0.00) needs to be paid to Liquor Control on or before August 1, 00 to have the Liquor License re-issued by Arizona Liquor Control.. The Bankruptcy estate presently holds no money to pay the fees and charges described in paragraph three () above. If necessary the Trustee will advance monies necessary to have the Liquor License re-issued and kept inactive until a sale of the Liquor License Closes. THE TERMS OF THE SALE. Subject to approval by this Court after notice to creditors and parties in interest, publication of the terms of the sale, and a call for higher and better bids, the Trustee has, pursuant to U.S.C., entered into a Purchase and Sale Agreement to sell the Liquor License to Patricia R. Pfeiffer, and/or her assignee. She has a mailing address of PO Box, Florence, Arizona 1. The sales price is Twenty-Five Thousand Dollars ($,000.00) to be paid in cash or certified funds at Closing. A copy of the Purchase and Sale Agreement between the parties will be filed with the Clerk of Court and is incorporated herein by this reference. The sale is also subject to and conditional upon specific terms set forth in that Agreement. The sale is AS IS, WHERE IS and WITH ALL FAULTS. It is asserted that the Purchaser is a good faith purchaser for value as described in U.S.C. (m). The Buyer has the risk and burden of having the Arizona Department of Liquor Control accept the transfer of the Liquor License to the Buyer and to recognize the Buyer as the holder of the Liquor License. PAYMENT OF CLAIMS. Other than the following the Trustee is not aware of any valid and enforceable liens Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

3 or claims against the Liquor License that need to be paid for the Trustee to convey clear title: A. As set forth above, monies are owed the Arizona Department of Liquor Control because the Liquor License is inactive. At the Closing of the Court authorized and approved sale, the amount that is owed the Department of Liquor Control, as of the date of Closing, will be paid by the Trustee as Seller or, in the alternative, this debt will be a credit against the Purchase Price with the Buyer thereafter being obligated to pay the amount owed as of the date of Closing and thereafter. B. The Arizona Department of Revenue has filed with the Court a Proof of Claim presenting that before the Debtor filed his Chapter 1 bankruptcy petition, it was owed, for unpaid Transactional Privilege Taxes, the amount of Eight Thousand Four Hundred Sixty Four Dollars and Twenty-Two Cents ($,.) for the tax, Eight Hundred Seventy-Six Dollars and Forty-One Cents ($.1) in penalties, and interest of One Thousand Four Hundred Fourteen Dollars and Fifty-Nine Cents ($1,1.) for a total prepetition claim of Ten Thousand Seven Hundred Fifty-Five Dollars and Twenty-Two Cents ($,.). It is the position of the Arizona Department of Revenue that this pre-petition claim must be paid in full before the Arizona Department of Liquor Control will be able to recognize a transfer of the Liquor License to a Buyer. See, In re Del Mission Limited, F.d ( th Cir. ); In re Farmers Markets, Inc., F.d 0 ( th Cir.). The Chapter Trustee concurs in the position of Arizona Department of Revenue and will pay the above said pre-petition claim of Ten Thousand Seven Hundred Fifty-Five Dollars and Twenty-Two Cents ($,.) as part of the Closing provided that with payment the Arizona Department of Revenue will not object to the transfer of the Liquor License based upon or arising out of this pre-petition claim. C. The Arizona Department of Revenue has also filed a Proof of Claim in the amount of Two Thousand Four Hundred Thirty-Six Dollars and Forty-One Cents ($,.1) for unpaid Transaction Privilege Taxes, penalties and interest from the time Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

4 the Debtor was in a Chapter 1 up to the time the case was converted to a Chapter. The Department of Revenue asserts that this claim represents an Administrative Expense. Title U.S.C. 0 controls what is and is not a cost of administration. However, in light of the above said case law cited in paragraph (B) above, the Trustee also intends to pay this claim in full at the Closing of the Sale provided that with payment the Department of Revenue will not object to a transfer of the Liquor License based upon or arising out of this post-petition claim. D. Landmarc Capital & Investment Company, hereinafter Landmarc Capital, has filed with the Arizona Department of Liquor Control a Statement of Equitable Interest in the Liquor License. However, Landmarc Capital has acknowledged and this Court has previously Ordered that Landmarc Capital does not have a perfected security interest in the Liquor License and that the Liquor License can be administered by the Trustee free and clear of any claim of Landmarc Capital in the Liquor License. See, Stipulated Order Granting Secured Creditor s Motion to Lift Stay entered on July 1, 00 as Docket Entry. As a consequence the Statement of Equitable Interest is to be of no force or effect with respect to a transfer of the Liquor License and no payment will be made to Landmarc Capital as part of the Closing. E. The Arizona Department of Liquor Control has had issue, against the Debtor, Complaints arising out of and related to the Debtor s use of the Liquor License. Based upon information provided the Trustee there are no monies owed based upon or arising out of or related to the Complaints and such Complaints do not serve to stop or impair transfer of the Liquor License by the Trustee or the use of the Liquor License at the location of North Main Street, Florence, Arizona or elsewhere in Pinal County. As a result the Trustee will not pay any monies at Closing related to or arising out of said Complaints except as is otherwise expressly set forth herein. In addition, said Complaints are not to stop or impair a transfer of the Liquor License. Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

5 Court Approval of a Sale is to authorize and approve the payments described above and the findings described. Payments made by the Escrow Agent for the Sale are to be as if the payments were being made directly by the Chapter Trustee.. Court Approval of a Sale is also to authorize and approve reimbursing the Trustee, at Closing, of any monies that have been advanced by the Trustee to keep the Liquor License inactive and re-issued.. If after the entry of an Order authorizing and approving the sale, a dispute arises as to the lien status, the amount of the debt secured, or the amount of claim otherwise to be paid at Closing, the amount not in dispute will be paid at Closing by the Escrow Agent with the amount in dispute plus twenty percent (0%) being held after Closing by the Escrow Agent subject to further Order of the Court with the asserted lien and interest of the Claimant attaching to the monies held by the Escrow Agent as well as to those monies paid over by the Escrow Agent to the Trustee after Closing.. Except as is set forth above, the Trustee is not aware of any other claims or liens against the Liquor License that need to be paid to Close a Sale free and clear of liens and claims. In the event other liens or claims are discovered or asserted the Trustee reserves the right, as may be needed, to request a U.S.C. 0 surcharge against any and all lien or claim creditors. In the event circumstances result in the Trustee making such a request a separate Motion and Notice will be given unless a consensual agreement can be reached and presented to the Court as part of the Hearing on this Motion and Application. The Trustee also reserves the right, as set forth in the Purchase and Sale Agreement, to cancel the Sale should there be discover unforseen liens or claims against the Liquor License that result in a sale not benefitting the estate.. The Trustee is of the position that a sale of the Liquor License is in the best interest of the estate. Liquidation of the estate s interest in the Liquor License is needed to pay creditors. From information presently available, while the Liquor License has not been formally appraised, the sales price offered is fair and reasonable in the circumstances. Before a hearing is held to Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

6 approve of the sale the Trustee will advertise the Liquor License for sale in an attempt to attract higher bids for the Liquor License. Anyone interested in bidding should notify undersigned counsel and will need to appear in person or by telephone at the time set for the Court to hear this Motion and Application. WHEREFORE, in the circumstances, the Trustee requests relief as follows: 1. For a sale of the Liquor License free and clear of liens and claims to be approved and authorized to the Purchaser named herein on the terms described or as are subsequently amended or a sale be approved and authorized to such third party who may appear at the hearing and who makes a higher and better offer for the Real Property with the Purchaser to be found to be a good faith purchaser for value;. Authorize and approve as described herein the payments to be made at Closing by the Escrow Agent as if made directly by the Trustee and authorize and make the findings described herein as to the transferability of the Liquor License.. For all other relief fair, reasonable, or equitable in the circumstances. RESPECTFULLY SUBMITTED this 1 st day of July, 00. LAW OFFICE OF MICHAEL M. NEAL, P.C. By: /s/ Michael M. Neal 01 Michael M. Neal, Attorney for Chapter Trustee Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

7 Copy of the foregoing mailed this 1 st day of July, 00, to: Office of the United States Trustee 0 N. First Ave., Ste. 0 Phoenix, AZ 00- Stanley J. Kartchner, Trustee 00 N. Oracle Rd., #1-0 Tucson, AZ 0 (Via ) Asheton B. Call, Esq. 0 North Dobson Rd., Ste. # Chandler, AZ Attorney for Debtor Arthur F. Myers PO Box Florence, AZ Debtor Patricia R. Pfeiffer PO Box Florence, AZ 1 Matthew Ritter, Esq. Ritter Law Group LLC PO Box Florence, AZ (Via ) AZIZ Holdings, L.L.C. Att: James W. Boyd W. Boswell Boulevard Sun City, AZ Denise A. Faulk Office of the Attorney General 1 W. Washington Phoenix, AZ 00 (Via ) Kathryn Winters Assistant Attorney General 00 West Congress, Ste. 1 Tucson, AZ 01-1 Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

8 Marjorie S. Becklund Office of the Attorney General 00 West Congress, Ste. 1 Tucson, AZ 01-1 Office of Administrative Hearings 0 W. Washington, Suite 1 Phoenix, AZ 00 Office of Administrative Hearings 0 North Stone Avenue, #0 Tucson, AZ 01 Jerry A. Oliver, Sr., Director Arizona Dept. of Liquor Licenses & Control 00 W. Washington th Floor Phoenix, AZ 00 David J. Crantz 1 N. Scottsdale Road, #0 Scottsdale, AZ 1 Hendrick C. Schewel P.O. Box Florence, AZ A copy will also be mailed to all other creditors and parties in interest as shown by an updated Master Mailing List and a separate Certificate of Service. Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :0:01 Desc Main Document Page of

9 Michael M. Neal, Esq. LAW OFFICE OF MICHAEL M. NEAL, P.C. 1 S. Church Avenue, Suite Tucson, Arizona 01 Telephone: (0) - Facsimile: (0) - mmnealpc@qwestoffice.net State Bar No. 01 Attorney for Chapter Trustee C:\MyDocs\Myers\Ntc of Hearing.wpd IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA In re: ) ) Chapter Proceeding ARTHUR F. MYERS, ) ) Case No. -0-bk-01-EWH ) ) NOTICE OF HEARING ON ) TRUSTEE S APPLICATION AND ) MOTION TO AUTHORIZE AND Debtor. ) APPROVE A SALE OF AN ) INACTIVE ARIZONA SERIES ) LIQUOR LICENSE FREE AND CLEAR ) OF LIENS WITH THE PAYMENT AT ) CLOSING OF COSTS AND CLAIMS ) NECESSARY TO CLOSE THE SALE ) INCLUDING PAYMENT OF CLAIMS ) HELD BY THE ARIZONA ) DEPARTMENT OF REVENUE ) ) Date: September 1, 00 ) Time: :00 a.m. ) Place: S. Scott Ave., Rm. ) Tucson, AZ 01 ) TO ALL CREDITORS AND PARTIES IN INTEREST: TAKE NOTICE that on the above date and time a hearing will be held in the United States Bankruptcy Court, S. Scott Ave., Room, Tucson, Arizona 01, on the Motion and Application of the Chapter Trustee, Stanley J. Kartchner, to Authorize and Approve a Sale of an Inactive Arizona Series Liquor License Free and Clear of Liens with the Payment at Closing of Costs and Claim Necessary to Close the Sale Including Payment of a Claim held by the Arizona Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :: Desc Main Document Page 1 of

10 Department of Revenue. A copy of the pleading is mailed with this Notice. Objections, if any, should be made in writing, filed with the Court and served within three () business days prior to the hearing date on Michael M. Neal, attorney for the Trustee, 1 S. Church Ave., Suite, Tucson, AZ 01. The rules of the Bankruptcy Court may require that an objection be filed electronically and an objection mailed to the clerk of Court by an attorney might not be accepted. DATED this 1 st day of July, 00. Copy of the foregoing mailed or served as shown the 1 st day of July, 00, to: Office of the United States Trustee 0 N. First Ave., Ste. 0 Phoenix, AZ 00- Stanley J. Kartchner, Trustee 00 N. Oracle Rd., #1-0 Tucson, AZ 0 (Via ) Arthur F. Myers PO Box Florence, AZ Debtor Asheton B. Call, Esq. 0 N. Dobson Rd., Ste. # Chandler, AZ Attorney for Debtor Patricia R. Pfeiffer PO Box Florence, AZ 1 Matthew Ritter, Esq. PO Box Florence, AZ (Via ) LAW OFFICE OF MICHAEL M. NEAL, P.C. By: /s/ Michael M. Neal 01 Michael M. Neal, Attorney for Chapter Trustee C:\MyDocs\Myers\Ntc of Hearing.wpd Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :: Desc Main Document Page of

11 AZIZ Holdings, L.L.C. Att: James W. Boyd W. Boswell Boulevard Sun City, AZ Denise A. Faulk Office of the Attorney General 1 W. Washington Phoenix, AZ 00 (Via ) Kathryn Winters Assistant Attorney General 00 West Congress, Ste. 1 Tucson, AZ 01-1 Marjorie S. Becklund Office of the Attorney General 00 West Congress, Ste. 1 Tucson, AZ 01-1 Office of Administrative Hearings 0 W. Washington, Suite 1 Phoenix, AZ 00 Office of Administrative Hearings 0 North Stone Avenue, #0 Tucson, AZ 01 Jerry A. Oliver, Sr., Director Arizona Dept. of Liquor Licenses & Control 00 W. Washington th Floor Phoenix, AZ 00 David J. Crantz 1 N. Scottsdale Road, #0 Scottsdale, AZ 1 Hendrick C. Schewel P.O. Box Florence, AZ A copy will also be mailed to all other creditors and parties in interest as shown by an updated Master Mailing List and a separate Certificate of Service. C:\MyDocs\Myers\Ntc of Hearing.wpd Case :0-bk-01-EWH Doc Filed 0/1/0 Entered 0/1/0 :: Desc Main Document Page of