Local Rule 6004-1: SALE OF PROPERTY, APPRAISALS AND AUCTIONS

Rule 6004-1 SALE OF PROPERTY, APPRAISALS AND AUCTIONS

(a) Conflict of Interest.

An appraiser, auctioneer, or officer, director, stockholder, agent, employee, or insider of an appraiser or auctioneer, or any relative of any of the foregoing, shall not purchase, directly or indirectly, or have a financial interest in the purchase of, any property of the estate that the appraiser or auctioneer has been employed to appraise or sell.

(b) Notice of Sale of Estate Property by Public or Private Sale.

A trustee seeking to sell property of the estate outside the ordinary course of business must give the notice required by Bankruptcy Rule 2002(a)(2) and, if applicable, Bankruptcy Rule 6004(g); provided that a trustee may sell property of the estate that the trustee reasonably believes has an aggregate gross value of no more than $10,000 by public or private sale on 7 days' written notice to the United States trustee, any party with an interest in such property, the landlord of the premises at which the property is located, all parties who have filed notices of appearance, and such other notice as the Court may direct.

Such notice shall contain:

(i) a general description of the property;

(ii) a statement explaining where a complete description or inventory of the property may be obtained or examined;

(iii) the terms of sale, including the upset price, if any, the procedures for bidding on the property to be sold, and the terms of any pending offer proposed to be accepted;

(iv) whether the sale will be public or private;

(v) the place, date, and time of the sale;

(vi) the place, date, and time the property may be examined prior to the sale;

(vii) the date by which objections to the sale must be filed with the Court;

(viii) the date of the hearing to consider any objections to the sale; and

(ix) the name and address of the trustee, if any.

(c) Manner of Display and Conduct of Auction.

The auction shall be conducted in the following manner:

(i) the property shall be on public display for a reasonable period of time prior to the auction;

(ii) prior to receiving bids, the auctioneer shall announce the terms of sale;

(iii) when practicable, the property shall be offered for sale first in bulk and then in lots; and

(iv) any property that is not to be included in the auction shall be set apart and conspicuously marked "not included in the sale," and such fact shall be announced by the auctioneer before the auction.

(d) Joint Auctions.

Whenever the trustee and a secured party, or other third party having an interest in the property, desire to conduct a joint auction, or if the joint sale of property in more than one (1) bankruptcy estate is anticipated to be more cost-effective or beneficial for all the bankruptcy estates, the Court may enter an order fixing the method of allocating the buyer's premiums, commissions and expenses of sale.

(i) The trustee may participate in a joint sale with a non-debtor, provided it is in the best interest of the debtor's estate and its creditors.

(ii) The buyer's premiums, commissions and expenses incurred on behalf of one (1) bankruptcy estate in a joint auction sale shall not be charged to any other estate unless the motion requesting the joint auction discloses the identity and number of any other estate participants in the joint auction sale, and how such buyer's premiums, commissions and expenses shall be apportioned among them.

(e) Proceeds of Auction.

(i) Upon receipt of the proceeds of sale, the auctioneer shall immediately deposit the proceeds in a separate account that the auctioneer maintains for the estate in accordance with Bankruptcy Code § 345(a). Payment of the gross proceeds of the sale shall be made promptly by the auctioneer to the trustee or debtor in possession, but in no event later than 7 days after the proceeds are received.

(f) Report of Auction.

Within 21 days after the last date of the auction, the auctioneer shall file a verified report and provide the report to the trustee and the United States trustee. If all proceeds of the auction have not been received by such date, the auctioneer shall file a supplemental report within 14 days after all proceeds have been received. The report shall set forth:

(i) the time, date, and place of the auction;

(ii) the gross dollar amount received at the auction;

(iii) if property was sold in lots, a description of the items in each lot, the quantity in each lot, the dollar amount received for each lot, and any bulk bid(s) received;

(iv) an itemized statement of expenditures, disbursements, buyer's premiums and commissions allowable under E.D.N.Y. LBR 6005-1, including the name and address of the payee and receipts or canceled checks for the expenditures or disbursements. When labor charges are included, the report shall specify the days worked and the number of hours worked each day by each person, supported by an affidavit from every person receiving compensation, which also sets forth all amounts received. If the canceled checks are not available at the time the report is filed, the report shall so state, and the canceled checks shall be filed as soon as they become available;

(v) when the auctioneer has a blanket insurance policy covering all sales conducted by the auctioneer, a statement of how any insurance expense charged to the estate was computed;

(vi) if any articles were withdrawn from the auction because of a third party claim of an interest therein, a statement of the articles and the names of the third parties;

(vii) the names and addresses of all purchasers;

(viii) the sign-in sheet, or, if none, the approximate number of people attending the auction;

(ix) the items for which there were no bids and the disposition of those items;

(x) the terms of sale that were announced prior to receiving bids;

(xi) a statement of the manner and extent of advertising of the auction, including a copy of the published advertisement and a certificate of publication;

(xii) a statement of the manner and extent of the availability of the items for inspection;

(xiii) a copy of the order retaining the auctioneer; and

(xiv) any other information that the trustee, the United States trustee, or the Court may request.

(g) Affidavit to Accompany Report of Auction.

The auctioneer shall submit with the report of auction an affidavit stating:

(i) that the auctioneer is duly licensed;

(ii) the auctioneer's license number and place of business;

(iii) the authority pursuant to which the auctioneer conducted the auction;

(iv) the date and place of the auction;

(v) hat the labor and other expenses incurred on behalf of the estate as listed in the report of auction were reasonable and necessary; and

(vi) that the gross proceeds were remitted to the trustee or debtor in possession and the date of the remittance.

(h) Notice of Sale by Auction; Advertisement and Publication.

An advertisement or publication of notice of a sale by auction or otherwise may be made without Court approval if it is sufficient to provide adequate notice of the sale and is advertised or published at least once in a newspaper of general circulation in the city or county in which the property is located. The advertisement or publication shall include:

(i) the date, time, and place of the sale;

(ii) a description of the property to be sold, including with respect to real property, the approximate acreage of any real estate outside the limits of any town, village or city, and the street, lot, and block number of any real estate within any town, village or city, and a general statement of the character of any improvements upon the property;

(iii) the terms and conditions of the sale; and

(iv) the name, address, and telephone number of the auctioneer.

The Judge may fix the manner and extent of advertising and publication at any time.

(i) No Order Needed to Confirm Sale.

Unless a timely objection is made, an order of the Court shall not be required to confirm a sale of property otherwise authorized by the Bankruptcy Code, the Bankruptcy Rules, or Court order. The trustee, debtor, or debtor in possession may execute any documents and instruments that are necessary to complete the sale, and shall file with the Clerk and transmit to the United States trustee a report of the sale as required by Bankruptcy Rule 6004(f) when the sale is completed. On request, the Clerk shall issue a certificate stating that a notice of a proposed auction, with proof of service, has been filed pursuant to E.D.N.Y. LBR 2002-1 and that no timely objection has been filed.

(j) Compliance with Sale Guidelines.

Except as otherwise provided by this rule, in addition to the foregoing requirements, parties conducting a sale of property of the estate, including trustees and auctioneers, must comply with the Sale Guidelines by the Court, which shall be available on the Court's Website [PROVIDE LINK].

CROSS-REFERENCES: E.D.N.Y. LBR 2002-1, 2014-1, 6005-1, 9018-1 REFERENCES: Bankruptcy Code § 245(a); Bankruptcy Rules 2002, 6004, General Order on Electronic Filing Procedures