Musi v. Nigro (In re Homestead Industries, Inc.)

138 B.R. 788, 1992 Bankr. LEXIS 541
CourtDistrict Court, W.D. Pennsylvania
DecidedApril 9, 1992
DocketBankruptcy No. 90-3721-BM; Motion No. 92-0479M
StatusPublished

This text of 138 B.R. 788 (Musi v. Nigro (In re Homestead Industries, Inc.)) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Musi v. Nigro (In re Homestead Industries, Inc.), 138 B.R. 788, 1992 Bankr. LEXIS 541 (W.D. Pa. 1992).

Opinion

[789]*789MEMORANDUM OPINION

BERNARD MARKOYITZ, Bankruptcy Judge.

Before the Court is a motion by debtor and Dean Musi (hereinafter “movants”) for reconsideration of an order issued on February 18, 1992, approving the sale of debt- or’s realty to Ace Tire and Parts Co., Inc. (hereinafter “Ace”), for $402,000. Movants ask that the order be vacated and that bidding on said property be reopened. They contend that Musi did not clearly hear or understand the court’s instructions at the sale and that as a consequence he mistakenly bid on debtor’s personalty when he intended to bid on the realty. Movants claim that Musi is willing and able to bid approximately $100,000 more than the highest bid by Ace at the sale. The Official Committee of Unsecured Creditors (hereinafter “Committee”) offers no legal or factual basis for its position but urges the court to reconsider.

Ace, for obvious reasons, opposes the motion and denies that Musi was mistaken or erred. To the contrary, the successful bidder infers Musi was merely feeling remorse.

Although this court would also desire additional funds with which to pay creditors who clearly will not be paid in full, for the reasons hereinafter set forth this motion must be denied.

-I-

FACTS

Debtor filed a voluntary chapter 11 petition on November 26, 1990. A trustee was appointed shortly after the case was converted to a chapter 7 proceeding on November 7, 1991.

On January 21,1992, the trustee brought a motion to sell debtor’s personalty and real property free and clear of all liens and encumbrances.

A hearing was held on the motion on February 18, 1992. Debtor’s personalty was sold first and was followed by a sale of debtor’s realty. Musi was present in the courtroom throughout both sales.

The trustee addressed the court prior to the sale of the personalty and stated unequivocally and with clarity that he had received an offer of $600,000 for debtor’s personalty. The trustee enumerated in great detail what items were and what items were not being sold at that time. He explicitly stated that the sale included debt- or’s equipment, inventory, blueprints, trademarks, and customer list but did not include debtor’s accounts receivable, certain metal drums containing unidentified liquids, and certain product liability claims.

Counsel to the first bidder then came forward and stated that his client was interested in purchasing only debtor’s personalty. He then repeated the items of personalty which were to be included in the proposed sale and made clear that debtor’s realty was to be sold separately and that his client was not bidding on the latter.

The court, out of an abundance of caution, then repeated still another time that the items to be sold first included only debtor’s equipment, inventory, blueprints, trademarks, and customer lists. After doing so, the court then inquired whether anyone in the courtroom wished to make a higher or better offer than $600,000.

Musi, who had been present in the courtroom throughout the proceeding, came forward at that point and stated that he wished to make a higher bid.

The court, in order to avoid confusion or misunderstanding, then inquired of Musi whether he understood what it was he was offering to purchase. Musi responded without equivocation that he did.

Before making his bid, Musi asked for two points of clarification. One of his questions concerned the “penalty” if the “soil” was contaminated. The court then asked the trustee whether any “soil” was included in the sale, whereupon the trustee responded soil was not included among the personalty to be sold.

Musi, upon hearing the response of the trustee, then bid $601,000 — one thousand dollars ($1,000) more than the initial bid. When the court refused to permit bids in increments of a thousand dollars and required that all bids be in increments of ten thousand dollars, Musi bid $610,000. The [790]*790court then reconsidered its ruling sua sponte and permitted bids in increments of five thousand dollars.

Musi, when asked whether he wished to bid $605,000 instead of $610,000, responded that he wished to bid only $601,000 and withdrew his bid altogether and returned to his seat in the courtroom. After inquiring whether there were any higher or better offers, and after determining that no further bidding would occur, the sale of debtor’s personalty for $600,000 was approved.

Sale of debtor’s realty was conducted immediately after sale of the personalty. As had been the case with the sale of debtor’s personalty, the trustee stated with clarity what was included in this sale. He indicated clearly that this sale included the building in which debtor had conducted its business.

Ace made an initial offer of $402,000. When no other bidder came forward, sale of the realty to Ace for $402,000 was approved by the court. Musi, who also was present during this sale, did not participate.

No party in interest objected to either sale or raised a question of adequacy of offer prior to the entry of the Order confirming the sales. No one appeared disoriented or indicated that a mistake had occurred.

A hearing was held on the motion before the court at this time on April 2, 1992. Musi did not appear at the hearing but was represented by counsel, who advised that Musi was now willing to offer $501,000 for debtor’s realty. When the court asked counsel whether he personally knew that Musi had funds sufficient to close the deal, counsel advised that he was acting upon his client’s word. When the court inquired as to the reason Musi was now offering $501,-000 rather than his original $601,000, counsel assumed this was merely an opening bid.

-II-

ANALYSIS

Bankruptcy courts are loath to tamper with a confirmed sale of estate property. Judicial sales are to be accorded a substantial measure of finality in order to protect and encourage the process of selling estate assets.

If parties are to be encouraged to bid at judicial sales there must be stability in such sales and a time must come when a fair bid is accepted and the proceedings are ended.

In re Webcor, 392 F.2d 893, 898 (7th Cir.1968).

In order for a confirmed sale to be set aside, there must be a “fundamental defect” which is sufficiently egregious to overcome the policy of favoring finality. In re Time Sales Finance, 445 F.2d 385, 386-87 (3d Cir.1971). The defect must be so egregious as to “shock the conscience of the chancellor”. In re Lamont, 453 F.Supp. 608, 609-10 (N.D.N.Y.1978), aff'd, 603 F.2d 213 (2d Cir.1979).

Authority to set aside a confirmed sale is derived from Fed.R.Civ.P. 60(b), which is made applicable to bankruptcy proceedings by Bankruptcy Rule 9024. In re Marcus Hook Development Park, Inc., 943 F.2d 261, 265 (3d Cir.1991) (citing Matter of Met-L-Wood, 861 F.2d 1012, 1018 (7th Cir.1988), cert. denied, 490 U.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
138 B.R. 788, 1992 Bankr. LEXIS 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musi-v-nigro-in-re-homestead-industries-inc-pawd-1992.