STANDARD NO. 412
PROBLEM:
What evidence supporting authority to sell is required when the subject property is being sold during a pending proceeding under the Bankruptcy Code as amended?
RECOMMENDATION:
A.
1. Chapter 7: Notice of abandonment by Trustee and deed from Debtor, or notice of intent to sell by Trustee with certificate of service and no objection filed and deed of Trustee.
2. Chapter 11: Notice of intent to sell with certificate of service and with no objection filed and deed from Debtor-in-possession, or deed from Trustee if debtor is not in possession.
3. Chapter 13: Notice of intent to sell with certificate of service and with no objection filed and deed from Debtor.
B.
1. Written consent filed with the Bankruptcy Court of all parties who have an interest of record, the Trustee if one has been appointed and the creditors committee if one has been formed; or
2. Motion to sell free and clear of liens filed in the Bankruptcy Court and a resulting Court order authorizing the sale.
3. If the non-consenting entity is a co-owner of the property, then a complaint to obtain approval pursuant to Section 363 (h) for the sale of both the interest of the estate and a co-owner in accordance with Bankruptcy Rule 7001 et seq and a resulting court order approving the sale.
DECISION:
A. See Bankruptcy Code as amended Sec. 102 for meaning of “after notice and a hearing”. See Sec. 363 (b) (1) for general authority of Debtor or Trustee to sell property.
B.
See Rule 6004 of the Rules of Bankruptcy Procedure and
Rule 6004 of the Rules of the
First adopted December 7,
1983; revised January 10, 1989 and February13, 2007.
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