- (8th Circuit, Dec 31,1969)
- An adversary challenging a completed 363 sale was considered in the context of Rule 60(b) in lieu of 363(m) because there had not been an appeal of the order approving the sale. BAP affirmed the bankruptcy court's holding that overruled the secured parties arguments that the sale approval order was void for lack of due process and notice. The BAP ruled that the contents of the sale notice complied with Rule 2002(c)(1) and provided sufficient notice as it specified the proposed sale was free and clear of liens, identified how to obtain a copy of the motion, the deadline to file objections to the sale, and the time and place of a hearing on the proposed sale. The court also rejected the secured creditor's argument that failure to designate it as such on the sale notice rendered it insufficient. The trustee's failure to serve the 363 motion upon the lienholders was not terminal as it merely deprived the lienholders of a procedural right and not due process because the lienholders had opportunity to object by virtue of their receipt of the sale notice.
- Procedural context:
- Junior lienholders filed an adversary complaint challenging the sufficiency of notice of a completed 363 sale and seeking declaratory judgment that liens remained valid or otherwise attached to the proceeds. Bankruptcy court granted trustee's 12(b)(6) motion to dismiss the adversary proceeding. Lienholders appealed the order dismissing the adversary.
- Chapter 7 trustee filed a motion to sell several parcels of real estate free and clear of all liens and encumbrances to a designated buyer. Two of the parcels in the sale were subject to junior liens. Trustee sent the notice of sale to all creditors and parties in interest, but did not serve all lienholders with a copy of the 363 sale motion. Debtor filed the only objection to the sale motion which was overruled by the bankruptcy court and the sale was consummated. The junior lienholders subsequently filed an adversary seeking to void the proposed sale without appealing the order that approved the sale in question.
- Nail, Saladino, Kressel
In re: SELIM AYKIRAN
Summarizing by Amir Shachmurove
Land Once Earmarked for $400 Million Development Near Denver Airport Sells for $18.1 Million at Auction
3360 in the system
2 Being Processed