UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
HUGO M. MOSQUEIRA and Case No. 803-80743-478 NERI
MOSQUEIRA,
Debtors. AFFIRMATION
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Steven B. Sheinwald, an attorney duly admitted to practice in the courts
of the State of New York, and in this Court, affirms the following to be
true under penalty of perjury:
1. I am a member of KIRSCHENBAUM & KIRSCHENBAUM, P.C., the
attorneys for the Trustee. I am fully familiar with the facts and
circumstances herein. I submit this affirmation in support of the
Trustee's motion for an order:
(a) pursuant to 11 U.S.C. Sections 363(b) and (f) and Bankruptcy Rule
6004, authorizing the trustee to sell real property located at 10
Altamont Avenue, Sea Cliff, New York, free and clear of liens and
encumbrances, which liens shall attach to the proceeds of sale, for the
sum of $330,000.00;
(b) authorizing the trustee to disburse sufficient funds out of the
proceeds of sale to satisfy the liens which encumber the subject property
without further order of the Court;
(c) fixing the compensation of Realty Experts, Inc., as real estate
broker to the trustee in the aggregate sum of $14,850.00 and authorizing
the trustee to disburse the compensation awarded to the real estate
broker without further order of the Court;
(d) pursuant to 11 U.S.C. Section 105(a), authorizing the trustee to pay
all reasonable and necessary closing costs out of the proceeds of sale
without further order of the Court;
(e) directing the debtors to forthwith vacate the subject premises and to
remove all of their personal belongings; and
(f) for such other and further relief as this Court may deem just and
proper.
2. A voluntary Chapter 7 petition was filed by the debtors on
February 6, 2003. On or about February 6, 2003, Kenneth Kirschenbaum was
appointed the Chapter 7 trustee in this proceeding.
3. Schedule A annexed to the debtors' petition reflected that the debtors
possessed a one hundred percent ownership interest in real property
consisting of a one-family residence located at 10 Altamont Avenue, Sea
Cliff, New York (the "residence"). According to Schedule A, the debtors
estimated the fair market value of the real property at the time of
filing to be $236,000.00. According to Schedule D annexed to the
petition, there is a first mortgage lien encumbering the residence.
According to the debtors' schedules, the amount necessary to satisfy the
first mortgage at the time of filing was $210,911.50. In addition, the
debtors claimed a homestead exemption in the aggregate sum of $20,000.00.
4. At the time of the Section 341 meeting of creditors, the Trustee
questioned the debtors about the value of their residence and the
mortgage. Following the Section 341 meeting, the trustee conducted an
independent investigation and determined that the fair market value of
the property was substantially greater than that reported in the
schedules. As such, he made a decision to administer the property.
5. Pursuant to an order dated April 23, 2003, the trustee retained
Realty Experts, Inc. as his real estate broker to assist him in the
marketing and sale of the property. The order further provided that
compensation in the maximum amount of 4½% of the gross sale price of the
subject property shall not be paid to Realty Experts, except as is
approved by the Court, upon proper application and notice. A copy of the
Order Authorizing the Retention of Real Estate Broker to the Trustee is
annexed hereto as Exhibit A.
6. The trustee's real estate broker has worked vigorously to market the
real property. Notwithstanding the debtors' estimate of the fair market
value of the property, the real estate broker held discussions with the
trustee, at which time she suggested that the property be listed for the
sum of $349,000.00. Within a relatively short period of time the real
estate broker produced potential purchasers who were offering the sum of
$330,000.00 to purchase the property. The trustee held discussions with
the broker to ascertain whether this was a fair and reasonable offer and
was advised that the offer was in fact more than reasonable and that it
should be accepted.
7. There is currently one outstanding mortgage encumbering the property,
held by Greenpoint Mortgage. The outstanding sum necessary to satisfy
the mortgage indebtedness is approximately $210,000.00. Therefore, if
the sale is approved, it is anticipated that after the first mortgage is
satisfied, the remaining equity will approximate $120,000.00.
8. The debtors have claimed a $20,000.00 homestead exemption and a
request is being made to fix the compensation of the real estate broker
in the sum of $14,850.00. The aggregate sum of all general unsecured
claims filed with the Clerk of the Court totals $19,058.91. As such, it
appears that if this motion is granted in its entirety, there will be
sufficient funds available to pay all administrative expenses, to make a
100% distribution plus interest to all creditors with filed claims, and
there will be a substantial remaining surplus to be disbursed to the
debtors.
9. After considering the factors set forth above, the Trustee believes
that a sale of the property for the sum of $330,000.00 is in the best
interests of the creditors, and should be authorized by the Court.
10. Pursuant to 11 U.S.C. Section 363(f):
The trustee may sell property under subsection (b) or (c) of this
section free and clear of any interest in such property of an entity
other than the estate, only if-
(1) applicable nonbankruptcy law permits sale of such property free and
clear of such interest;
(2) such entity consents;
(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.
11. In accordance with 11 U.S.C. §363(f)(3), the price at which the
property will be sold is greater than the aggregate value of all liens.
Furthermore, in accordance with 11 U.S.C. §363(f)(5), the mortgagee could
be compelled, in a legal or equitable proceeding, to accept a money
satisfaction of its interest.
12. The proposed sale of the property has been brought about through the
services rendered by Realty Experts, Inc., the real estate broker
retained by the trustee. Pursuant to the Order authorizing the retention
of Realty Experts by the trustee, compensation in the maximum amount of
4½% of the gross sale price of the subject property shall not be paid to
Realty Experts except as is approved by the Court, upon proper
application and notice. As such, the trustee is requesting that the
Court fix the compensation to be awarded to Realty Experts, Inc. in the
maximum sum of $14,850.00 (representing 4½% of $330,000.00) for services
rendered as real estate broker to the trustee. Given the outstanding
services which have been rendered by the broker and the results achieved,
the trustee believes that the broker should receive the maximum award
allowable under the terms of the Order.
13. A Notice has been served upon all creditors informing them of the
trustee's intention to sell the subject property, the request to fix the
award of compensation to be received by the broker and the other related
relief. All creditors were informed that they have an opportunity to
file objections to the trustee's application and an opportunity to be
heard by the Court.
14. The trustee is further seeking an order authorizing him to disburse
the fee awarded to the real estate broker without further order of the
Court, to satisfy the existing mortgage lien encumbering the subject
property out of the proceeds of sale at the time of closing and to
disburse any and all reasonable and necessary closing costs incurred in
connection with the sale of the property out of the proceeds of sale
without further order of the Court.
15. The trustee is asking the Court to enter an order directing the
debtors to vacate the subject premises and remove all of their personal
belongings forthwith so that the trustee can proceed with the closing of
title as soon as possible. The trustee has ready, willing and able
purchasers, and an outstanding result will be achieved if the property is
sold for $330,000.00. The debtors continued residence at the premises
may very likely interfere with the sale. If this happens, the trustee
will risk losing the purchasers as well as an outstanding benefit for the
creditors of this estate. For these reasons, the trustee believes that
it is imperative that the Court enter an order directing the debtors to
vacate the premises immediately and to take all of their personal
belongings with them. Upon the filing of their petition, the debtors
knew, or should have known, that this could result. They should not now
be permitted to claim that they do not have another place to live and
that they need an extended amount of time to find a new residence. They
have already had an extended period of time since they were first advised
of the trustee's intentions. It has taken a great deal of hard work by
several parties to reach this point, and what has been achieved must be
preserved.
16. In view of the foregoing, it is respectfully submitted that the
trustee has met the requirement set forth in 11 U.S.C. Section 363(f) to
sell the property free and clear of any interest in the property of any
entity other than the estate.
17. A notice to creditors has been served in accordance with Bankruptcy
Rules 6004 and 2002, advising all creditors, the United States Trustee,
the debtors, the debtors' attorney, the mortgagee, and any other parties
entitled to notice, of the trustee's application to sell the debtors'
real property. See notice to creditors annexed hereto as Exhibit "B".
18. Given that no novel issues exist, a request is being made for the
Court to dispense with the requirement set forth in Local Bankruptcy Rule
9013-1(b) that a memorandum of law accompany this application. However,
movant is hereby reserving its right to submit a memorandum of law to the
Court in the event any opposition to the motion is filed.
19. No prior application has been made to this Court or to any other
court for the relief requested herein.
WHEREFORE, it is respectfully requested that the Court grant the
motion in its entirety.
Dated: Garden City, New York
July 21, 2003 __________________________________ Steven B.
Sheinwald
I:\Bankruptcy\DEBTOR\Mosqueira\applicat.363.wpd
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
HUGO M. MOSQUEIRA and Case No. 803-80743-478 NERI
MOSQUEIRA,
Debtors.
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ORDER AUTHORIZING THE SALE OF REAL PROPERTY FREE AND CLEAR OF LIENS AND
ENCUMBRANCES, FIXING THE COMPENSATION OF THE REAL ESTATE BROKER TO THE
TRUSTEE, AUTHORIZING THE TRUSTEE TO MAKE DISBURSEMENTS AND DIRECTING THE
DEBTORS TO VACATE THE REAL PROPERTY
The trustee, Kenneth Kirschenbaum, having moved by his attorneys,
Kirschenbaum & Kirschenbaum, P.C., by Notice of Motion, dated July 21,
2003, for an order:
(a) pursuant to 11 U.S.C. Sections 363(b) and (f) and Bankruptcy Rule
6004, authorizing the trustee to sell real property located at 10
Altamont Avenue, Sea Cliff, New York, free and clear of liens and
encumbrances, which liens shall attach to the proceeds of sale, for the
sum of $330,000.00;
(b) authorizing the trustee to disburse sufficient funds out of the
proceeds of sale to satisfy the liens which encumber the subject property
without further order of the Court;
(c) fixing the compensation of Realty Experts, Inc., as real estate
broker to the trustee in the aggregate sum of $14,850.00 and authorizing
the trustee to disburse the compensation awarded to the real estate
broker without further order of the Court;
(d) pursuant to 11 U.S.C. Section 105(a), authorizing the trustee to pay
all reasonable and necessary closing costs out of the proceeds of sale
without further order of the Court;
(e) directing the debtors to forthwith vacate the subject premises and to
remove all of their personal belongings; and
(f) for such other and further relief as this Court may deem just and
proper, and upon the affirmation of Steven Sheinwald, dated July 21,
2003, and the exhibits annexed thereto, and proof of service having been
filed, and all creditors and other parties in interest having had an
opportunity to file written objections to the motion, and this matter
having come on before the Court on August 12, 2003, and no creditor or
other party in interest having filed an objection to the trustee's
motion, and the time for creditors and parties in interest to file
objections having expired, and after due deliberation,
NOW, upon the application of KENNETH KIRSCHENBAUM, Chapter 7
trustee, it is hereby
ORDERED, pursuant to 11 U.S.C. Sections 363(b) and (f) and Bankruptcy
Rule 6004, that the trustee is authorized to sell real property located
at 10 Altamont Avenue, Sea Cliff, New York, free and clear of liens and
encumbrances, which liens shall attach to the proceeds of sale, for the
sum of $330,000.00; and it is further
ORDERED, that the Trustee is authorized to disburse sufficient funds out
of the proceeds of sale to satisfy the mortgage lien which encumbers the
subject property without further order of the Court; and it is further
ORDERED, that the award of compensation to Realty Experts, Inc., as real
estate broker to the trustee is hereby fixed in the sum of $14,850.00,
and the trustee is authorized to disburse the compensation awarded to
Realty Experts, Inc. out of the proceeds of sale without further order of
the Court; and it is further
ORDERED, pursuant to 11 U.S.C. Section 105(a), that the trustee is
authorized to pay all reasonable and necessary closing costs out of the
proceeds of sale without further order of the Court; and it is further
ORDERED, that the debtors are hereby directed to forthwith vacate the
real property commonly known as 10 Altamont Avenue, Sea Cliff, New York
and to remove all of their personal belongings from said premises.
Dated: Central Islip, New York
August , 2003
_______________________________ HONORABLE DOROTHY
EISENBERG UNITED STATES BANKRUPTCY JUDGE