In re Moreno

554 B.R. 504, 2016 Bankr. LEXIS 2701, 2016 WL 4045340
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedJuly 25, 2016
DocketNo. 7-09-10073 JL
StatusPublished
Cited by3 cases

This text of 554 B.R. 504 (In re Moreno) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Moreno, 554 B.R. 504, 2016 Bankr. LEXIS 2701, 2016 WL 4045340 (N.M. 2016).

Opinion

MEMORANDUM OPINION

ROBERT H. JACOBVITZ, United States Bankruptcy Judge

More than six years after the Debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code, the Chapter 7 Trustee, Philip J. Montoya (“Trustee”), seeks Court approval of the sale of the certain real property located at 4570 Los Morenos Court in which the estate has a tenant in common interest (the “Property”) free and clear of liens, claims and interests pursuant to 11 U.S.C. §§ 363(b), (f) and (h) with such liens, claims and interests to attach to the proceeds of sale with the same validity and priority and to the same extent that they attached to the asset sold. See Trustee’s Amended Motion for Authority to Sell Estate’s Interest in Real Property and Interest of Co-Owner Out of the Ordinary Course of Business, Free and Clear of Liens, Claims and Interests (“Motion to Sell”).1 Teresa Moreno, who holds an interest in the Property, together with her husband, William S. Moreno,2 objected to the Motion to Sell. See Docket No. 114, They believe that the sales price for the Property is too low, and object to the proposed purchaser, Bobby Moreno, a relative and neighbor of Teresa and William Moreno. The Court held a final, evidentiary hearing on the Motion to Sell on June 15, 2016 and took the matter under advisement. After considering the evidence presented at the final hearing in light of the applicable standards for approving a sale of estate property outside the ordinary course of business, the Court concludes that the Motion to Sell should be granted.

FACTS AND PROCEDURAL HISTORY3

Christopher R. Moreno and Ernestina S. Moreno (the “Debtors”) filed a voluntary petition under Chapter 7 of the Bankruptcy Code on January 9, 2009. Philip J. Montoya is the appointed Chapter 7 Trustee for the Debtors’ bankruptcy estate. The Debtors’ Schedule A filed in this bankruptcy case listed certain land and apartments located on Los Morenos Court with_a zero value, stating that Christopher Moreno claimed “no interest” in the property and explaining that the property was “put under debtor’s name for probate pur[507]*507poses ...” See Docket No. 1. The total amount of the claims filed against the Debtors’ bankruptcy estate is $47,025.28. Of this amount, approximately $21,775 are unsecured claims. Id.

On January 11, 2011, Christopher Moreno transferred his interest in the Property to the Trustee by Warranty Deed. See Exhibit 2. In November of 2011, the Trustee filed an adversary proceeding against Christopher Moreno, Teresa Moreno, Monica Moreno, and Larry Moreno as Adversary Proceeding No. 09-1174 J (the “Adversary Proceeding”) seeking authority to sell the estate’s interest in certain real property. The Trustee amended the complaint in January of 2012, seeking authority to sell the estate’s interest in the following properties:

4595 Los Morenos Court
4597 Los Morenos Court
4560 Los Morenos Court
4570 Los Morenos Court (defined above as the “Property”)

As part of the Adversary Proceeding, the Court determined that Teresa Moreno and Christopher Moreno each held an interest as tenants in common in the Property as of the petition date, and that the Trustee was authorized to sell both the estate’s interest and Teresa Moreno’s interest in the Property, subject to filing the Motion to Sell with a notice of objection deadline. See Order Granting Partial Final Summary Judgment in Favor of Plaintiff Pursuant to Rule 54(b) with Respect to Property Located at 4570 Los Morenos Court — Adversary Pi’oceeding, Docket No. 76.

In 2013, the Trustee sold the real property located at 4560 Los Morenos Court to Bobby Moreno for $17,300. See Order Approving Trustee’s Motion for Authority to Sell Estate’s Interest in 4560 Los More-nos Court, Las Cruces, New Mexico Out of the Ordinary Course of Business, Free and Clear of Liens, Claims and Interests— Docket No. 68. Bobby Moreno is Teresa Moreno’s brother in law, and a relative of Christopher Moreno. He also owns other property located across the private dirt road that provides access to properties on Los Morenos Court identified above. Teresa Moreno has an interest in a tri-plex rental property located kitty-corner from the property located at 4560 Los Morenos Court and directly across from the Property that is the subject of the Motion to Sell. See Exhibit 6. Ms. Moreno testified that she has had trouble with Bobby Moreno for the past eleven years concerning water service to the tri-plex rental property and the private dirt road.

The Property

The Property abuts the property located at 4560 Los Morenos Court. See Exhibit 6. The Property consists of a .706 acre tract of land more particularly described as follows:

A 0.706 Acre tract of land situate north of the City of Las Cruces, Dona Ana County, New Mexico, located in Section 25, T.22S., R.1E, N.M.P.M. of the U.S.R.S. Surveys, and being part of lots 9 and 10, Block 27 of the Elephant Butte Land and Trust Company Subdivision “A” filed March 01, 1911 in Plat Book 8, page 86, Dona Ana County records

Access to the Property is along the private dirt road. The residential dwelling located on the Property is a duplex. The duplex units are rented. Currently, only one septic tank services the duplex. Upon a change in ownership of the Property, two separate septic systems will need to be installed, along with two new water meters and a new water line. An “existing 30’ Ft. wide roadway easement” runs up to the northeast corner of the Property, but it would be impracticable to run a new water line along the roadway easement. Any potential buyer would need to obtain an [508]*508easement over the property located at 4560 Los Morenos Court (currently owned by Bobby Moreno) to provide access to the water main to service the Property. The stucco on the duplex is also in need of repair.

The Trustee’s Efforts to Sell the Property

The Trustee first listed the Property for sale in February 2014 with Don Brown, a real estate broker for Steinborn & Associated Real Estate. See Exhibit 3. The Trustee originally listed the Property for sale for $70,000. The Trustee received no offers to purchase the Property at the original listing price. Mr. Brown passed away, and a new broker, Thomas Watley, took over the listing for the Property in March of 2015. Because the Property is in a rural area with dirt roads, has significant water and septic issues, and is in need of other significant repairs, it is a difficult property to sell. Investors who might be interested in buying an income producing rental property are generally not interested in properties located in rural areas outside the “lot/block” subdivisions of the city. The Trustee eventually dropped the listing price to $55,000.

Bobby Moreno is the only person to make an offer to purchase the Property since the Property was listed for sale. He offered $20,000. The Trustee made a counter-offer of $30,000 that Bobby Moreno did not accept. Instead, Bobby Moreno obtained the following quotes for work to be done on the Property and renewed his offer to purchase the Property for $20,000:

Dona Ana Mutual Domestic Water Consumers Association

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Cite This Page — Counsel Stack

Bluebook (online)
554 B.R. 504, 2016 Bankr. LEXIS 2701, 2016 WL 4045340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moreno-nmb-2016.