UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT

Transcription

1 IN THE MATTER OF: UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT NORBERT RUPERT NOWICKI, JR., Debtor. Case No TJT Honorable THOMAS J. TUCKER Chapter Noble Drive Chesterfield, MI XXX-XX / MOTION TO 1) SELL REAL PROPERTY, PURSUANT 11 U.S.C. 363(b) AND 2) COMPENSATE REAL ESTATE BROKER, PURSUANT TO 11 U.S.C. 330 AND FED. R. BANKR. P NOW COMES Chapter 7 Trustee, Charles L. Wells, III, by and through counsel, Kilpatrick & Associates, P.C., and for this Motion to 1) Sell Real Property, Pursuant to 11 U.S.C. 363(b) and 2) Compensate Real Estate Broker, Pursuant to 11 U.S.C. 330 and Fed. R. Bankr. P. 2016, states as follows: 1. On or about January 14, 2015 Norbert Rupert Nowicki, Jr., ( Debtor ) filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. 2. Subsequently, Charles L. Wells, III, ( Trustee ) was appointed the duly qualified and acting trustee for the bankruptcy estate tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 1 of 15

2 3. The Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157(a) and 1334(b). (N). 4. This is a core proceeding pursuant to 28 U.S.C. 157(b)(1), (M) and 5. This Motion is brought pursuant to 11 U.S.C. 363(b), 11 U.S.C. 506(c), 11 U.S.C. 330, Fed. R. Bankr. P. 2016, L.B.R (E.D.M.), and L.B.R (b) (E.D.M.). 6. The bankruptcy estate includes real property located at Noble Drive, City of Chesterfield, County of Macomb, State of Michigan, more particularly described as follows: Lot 349, KING S POINTE SUBDIVISION NO. 3, according to the plat thereof, as recorded in Liber 116, Pages 1 through 5 of plats, Macomb County Records. commonly known as Noble Drive, Chesterfield Township, Michigan ( Real Property ). 7. On the date of the filing of the bankruptcy case, the Real Property was subject to the mortgage of Green Tree Servicing, LLC ( Green Tree ) dated January 27, 2015, and recorded on January 28, 2015, 2007 in Liber 23222, Page 074, Macomb County Records tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 2 of 15

3 8. The property is also subject to an equity line of credit in favor of National City Bank in the amount of Forty-Five Thousand Two Hundred Thirty- Seven and 57/100 ($45,237.57) dollars. 9. On June 17, 2015, the Trustee filed an Ex Parte Application for Authority to Employ Craig Dunlap and Dunlap and Associates Realtors ( Application ) as real estate broker for the estate to, among other things, market and advertise the Real Property. See Doc The Application proposed payment of a commission of seven percent (7%) of the sale price of the Real Property to Craig Dunlap and Dunlap and Associates Realtors ( Dunlap ) in consideration for services rendered to the estate. 11. On June 17, 2015, an Order was entered by the Court approving the employment of Craig Dunlap and Dunlap and Associates Realtors ( Dunlap ) as real estate broker. See Doc Over a period of approximately six (6) months, Dunlap advertised the Real Property, showed the Real Property to interested parties, and fielded questions regarding the Real Property from interested parties. 13. Through the efforts of Dunlap, the Trustee received an offer to purchase the Real Property in the amount of One Hundred and Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars plus a carve-out of Six Thousand and 00/100 ($6,000.00) dollars. In addition, the contract requires the tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 3 of 15

4 seller/estate to contribute Four Thousand Nine Hundred Fifty and 00/100 ($4,950.00) dollars toward closing costs. 14. While negotiations for approval of the short sale were ongoing, on August 28, 2015, Green Tree bought the Real Property at Sheriff s Sale for One Hundred Twenty Thousand Nine Hundred Six and 00/100 ($120,906.00). 15. The purchaser has requested that the estate waive the Six Thousand and 00/100 ($6,000.00) dollars carve-out as the foreclosure sale has been concluded; the Trustee has agreed tentatively to this if the Buyer pays the $4, that the estate was to contribute to the closing cost. 16. The interest of an entity in property of the estate may be extinguished through the sale of the property if the holder of the interest consents to the sale. Lack of objection after receiving notice of the proposed sale is considered consent. See FutureSource, LLC v. Reuters, Ltd., 312 F.3d 281, 284 (7th Cir. 2002). 17. Through this Motion, the Trustee seeks the Court s approval to: a) sell the Real Property to Tonya N. Green for the sum of One Hundred Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars or to the person making the highest or best offer to purchase the Real Property, pursuant to 11 U.S.C. 363(b); tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 4 of 15

5 b) pay Green Tree Servicing, LLC approximately One Hundred Twenty-Three Thousand Seven Hundred and Ninety-Four Dollars and 36/100 ($123,794.36) dollars or the amount necessary to redeem the Real Property from the proceeds of the sale at closing in full satisfaction of the amounts due and owing under the Mortgage; c) compensate Dunlap in the amount of Twelve Thousand Twelve and 00/100 ($12,012.00) dollars which represents seven percent (7%) of the sales price of One Hundred Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars from the proceeds of the Sale in accordance with the Listing Agreement; e) extinguish the lien of PNC Bank; and f) take any action and execute any and all documents necessary to conclude the sale of the Real Property, including paying the normal costs associated with closing, and such other things as may be necessary or appropriate to implement and effectuate the sale of the Real Property tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 5 of 15

6 18. The sale of the Real Property will result in the estate receiving net proceeds from the sale in the approximate amount of Thirty-Three Thousand Four Hundred Sixty-One and 67/100 ($33,461.67) dollars. 19. The Trustee, in the exercise of sound business judgment pursuant to the criteria set forth in Drexel v. Loomis, 35 F.2d 800 (8th Cir. 1929) and In re Carson, 82 B.R. 847 (Bankr. S.D. Ohio 1987), is of the opinion that that this sale is in the best interest of the estate and creditors. 20. The Trustee reviewed this Motion before it was filed as required by L.B.R (a)(10) and approved of the amount of compensation requested for Dunlap. 21. No concurrence was sought as it is impractical. WHEREFORE, Chapter 7 Trustee, Charles L. Wells, III, prays that this Honorable Court grant the relief sought in this Motion or, in the alternative, grant such other or further relief that this Court deemed just and equitable considering the facts and circumstances of this case. Respectfully Submitted, KILPATRICK & ASSOCIATES, P.C. By: /s/ Richardo I. Kilpatrick RICHARDO I. KILPATRICK (P35275) JAMES M. McARDLE (ARDC ) Attorneys for Charles L. Wells III, Chapter 7 Trustee 903 N. Opdyke Rd., Ste. C tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 6 of 15

7 Dated: January 20, 2016 Auburn Hills, MI (248) ; tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 7 of 15

8 IN THE MATTER OF: UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT NORBERT RUPERT NOWICKI, JR., Debtor. Case No TJT Honorable THOMAS J. TUCKER Chapter Noble Drive Chesterfield, MI XXX-XX / ORDER ON TRUSTEE S MOTION TO 1) SELL REAL PROPERTY, PURSUANT 11 U.S.C. 363(b), 2) COMPENSATE REAL ESTATE BROKER, PURSUANT TO 11 U.S.C. 330 AND FED. R. BANKR. P This matter having come before the Court on the Trustee s Motion to 1) Sell Real Property, Pursuant to 11 U.S.C. 363(b) and 2) Compensate Real Estate Broker, Pursuant to 11 U.S.C. 330 and Fed. R. Bankr. P ( Motion ); Notice of the Motion having been served on all parties pursuant to Fed. R. Bankr. P and L.B.R (E.D.M.); no objections having been filed thereto, or if filed, having been resolved or overruled; and the Court being otherwise fully advised in the premises; IT IS HEREBY ORDERED that Chapter 7 Trustee, Charles L. Wells, III, is authorized to sell Noble Drive, City of Chesterfield, County of Macomb, tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 8 of 15

9 State of Michigan ( Real Property ) to Tonya N. Green for the sum of One Hundred and Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars or to the person making the highest or best offer to purchase the Real Property; IT IS FURTHER ORDERED that Chapter 7 Trustee, Charles L. Wells, III, may take any action and execute any and all documents necessary to conclude the sale of the Real Property, including paying the normal costs associated with closing, and do such other things as may be necessary or appropriate to implement and effectuate the sale of the Real Property; IT IS FURTHER ORDERED that Chapter 7 Trustee, Charles L. Well, III, is authorized to pay Green Tree Servicing, LLC One Hundred Twenty-Three Thousand Seven Hundred Ninety-Four and Thirteen Dollars and 36/100 ($123,794.36) dollars or the amount necessary to redeem the Property from the proceeds of the sale of the Real Property at closing in full satisfaction of the amount due and owing under the Mortgage; IT IS FURTHER ORDERED that compensation to Craig Dunlap and Dunlap and Associates Realtors in the amount of Twelve Thousand Twelve and 00/100 ($12,012.00) dollars which represents seven percent (7%) of the sales price of One Hundred and Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars is approved and Chapter 7 Trustee, Charles L. Wells, III, is tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 9 of 15

10 authorized to pay Craig Dunlap and Dunlap and Associates Realtors from the proceeds of the sale of the Real Property; IT IS FURTHER ORDERED that the lien in favor of PNC Bank is hereby extinguished tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 10 of 15

11 IN THE MATTER OF: UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT NORBERT RUPERT NOWICKI, JR., Debtor. Case No TJT Honorable THOMAS J. TUCKER Chapter Noble Drive Chesterfield, MI XXX-XX / NOTICE OF TRUSTEE S MOTION TO 1) SELL REAL PROPERTY, PURSUANT 11 U.S.C. 363(b), 2) COMPENSATE REAL ESTATE BROKER, PURSUANT TO 11 U.S.C. 330 AND FED. R. BANKR. P Chapter 7 Trustee, Charles L. Wells, III has filed a Motion to 1) Sell Real Property Pursuant to 11 U.S.C. 363(b), 2) Compensate Real Estate Broker Pursuant to 11 U.S.C. 330 and Fed. R. Bankr. P ( Motion ) with the Court. The Motion seeks the Court s approval to 1) sell real property located at Noble Drive, City of Chesterfield, County of Macomb, State of Michigan ( Real Property ) for the sum of One Hundred and Seventy-One Thousand Six Hundred and 00/100 ($171,600.00) dollars or to the person making the highest or best offer; 2) pay Green Tree Servicing, LLC, One Hundred and Twenty-Three Thousand Seven Hundred Ninety-Four and 36/100 ($123,794.36) dollars or the amount necessary to redeem the Real Property from the proceeds of the sale of the Real Property in full satisfaction of the amount due under the Mortgage; 3) compensate Craig Dunlap and Dunlap and Associates Realtors in the amount of Twelve Thousand Twelve and 00/100 ($12,012.00) dollars from the proceeds of the sale, pursuant to 11 U.S.C. 330 and Fed. R. Bankr. P Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one.) tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 11 of 15

12 If you have any objections to the relief sought in the Motion, within TWENTY (20) days, you or your attorney must: 1. File with the Court a written response or an answer, explaining your position at: 1 United States Bankruptcy Court, 211 W. Fort Street, Detroit, Michigan If you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the date stated above. You must also mail a copy to: Richardo I. Kilpatrick, Attorney for Trustee, Kilpatrick & Associates P.C., 903 N. Opdyke Rd., Suite C, Auburn Hills, Michigan 48326, Jeffrey J. Randa, Attorney for the Debtor, 75 N. Main Street, Mt. Clemens, Michigan If you have any objections to the relief sought in the Motion, within twenty (20) days, you or your attorney must: 1. File with the Court a written response or an answer, explaining your position at: 2 United States Bankruptcy Court, 211 W. Fort Street, Detroit, Michigan If you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the date stated above. You must also mail a copy to: Richardo I. Kilpatrick, Attorney for Trustee, Kilpatrick & Associates P.C., 903 N. Opdyke Rd., Suite C, Auburn Hills, Michigan 48326, Jeffrey J. Randa, Attorney for the Debtor, 75 N. Main Street, Mt. Clemens, Michigan If a response or objection is timely filed and served, the clerk will schedule a hearing on the Motion and you will be served with a notice of the date, time and location of the hearing. 1 Response or answer must comply with Fed. R. Civ. P. 8(b), (c) and (e). 2 Response or answer must comply with Fed. R. Civ. P. 8(b), (c) and (e) tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 12 of 15

13 If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief sought in the Motion and may enter an order granting the relief requested in the Motion. Respectfully submitted; KILPATRICK & ASSOCIATES, P.C. /s/_richardo I. Kilpatrick RICHARDO I. KILPATRICK (P35275) JAMES M. McARDLE (ARDC ) Attorneys for the Trustee 903 North Opdyke Rd., Suite C Auburn Hills, Michigan Dated: January 20, 2016 (248) ecf@kaalaw.com tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 13 of 15

14 IN THE MATTER OF: UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT NORBERT RUPERT NOWICKI, JR., Debtor. Case No TJT Honorable THOMAS J. TUCKER Chapter Noble Drive Chesterfield, MI XXX-XX / PROOF OF SERVICE Karen O Nail states that on this 25 th day of January, 2016, she served a copy of the TRUSTEE S MOTION TO SELL REAL PROPERTY FREE AND CLEAR OF LIENS PURSUANT TO 11 U.S.C. 363 (b) & (f), PROPOSED ORDER, NOTICE OF TRUSTEE S MOTION TO SELL REAL PROPERTY, and this PROOF OF SERVICE upon the following parties with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Charles L. Wells, III Jeffrey J. Randa Office of the U.S. Trustee Johnniest@charleslwellsiii.com jrandalaw@aol.com via ecf And by depositing same in a United States postal box located in Auburn Hills, Michigan, with the lawful amount of postage affixed thereto and addressed to: Norbert Rupert Nowicki, Jr Noble Drive Chesterfield, Michigan tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 14 of 15

15 And a copy of the Notice of Trustee s Motion to Sell Real Property Free and Clear of Liens Pursuant to 11 U.S.C 363 (b) & (f) was served on the Debtors Creditor Mailing Matrix on January 19, /s/karen O Nail Karen O Nail, an employee of KILPATRICK & ASSOCIATES, P.C. 903 North Opdyke Road, Suite C Auburn Hills, Michigan (248) ecf@kaalaw.com tjt Doc 34 Filed 01/25/16 Entered 01/25/16 15:36:35 Page 15 of 15