Bank of America, N.A. v. Caruk Holdings Arkansas, LLC et al

Filing 66

ORDER denying 64 Motion to Modify Decree and Approve Agreement for Private Sale of Real Property. Signed by Honorable Jimm Larry Hendren on June 28, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BANK OF AMERICA, N.A.
v.

PLAINTIFF
Civil No. 11-2096

CARUK HOLDINGS ARKANSAS, LLC;
DENISE L. CARUK; and
GORDON C. CARUK

DEFENDANTS

O R D E R
Now on this 28th day of June 2013, comes on for consideration
plaintiff's

Unopposed

Motion

to

Modify

Decree

and

Approve

Agreement for Private Sale of Real Property (document #64). The
Court, being well and sufficiently advised, finds and orders as
follows:
1.
in favor

On February 19, 2013, this Court entered Judgment in rem
of

plaintiff

Bank

of

America, N.A.

(BANA)

against

defendants Denise L. Caruk and Gordon C. Caruk (Caruks) in the
amount of $87,688.52, plus attorneys' fees and expenses.
2.

Thereafter, the Court entered a Decree of Foreclosure in

which it granted BANA's prayer for foreclosure of Real Property
held by the Caruks. The Decree provided for public sale of the
Real Property by the Commissioner of the Court in the event the
judgment was not paid within ten days of the decree.
3.

BANA filed the present motion on June 17, 2013, stating

that it had since received an offer to privately sell the Real
Property for $82,500, $5,000 of which would be held in escrow for

the benefit of the Caruks' bankruptcy trustee. BANA states that
the Caruks agree to the terms of the sale. It further states its
belief that the private sale will result in the highest possible
sale price. BANA asks the Court to modify its Decree to permit the
private sale.
4.

Pursuant to 28 U.S.C. § 2001(b), the Court may order a

private sale of real property -- in lieu of a public sale -- if it
finds that the best interests of the estate will be conserved
thereby. However, before the Court can confirm such a sale, it
must consider the appraisals of three disinterested appraisers and
confirm that the sale price is not less than two-thirds of the
property's appraised value. 28 U.S.C. § 2001(b). Additionally, the
terms of the sale must be published in a newspaper of general
circulation at least ten days before confirmation. Id.
5.

Although BANA indicates that the private sale will

result in the highest possible sale price for the Real Property at
issue, it has not offered any proof from which the Court can
determine the property's appraised value. Therefore, the Court
cannot determine whether the offered price of $82,500 is at least
two-thirds of the property's worth. Because these procedural
safeguards have not been satisfied, the Court must deny BANA's
motion at this time.
IT IS THEREFORE ORDERED that BANA's Unopposed Motion to
Modify Decree and Approve Agreement for Private Sale of Real
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Property (document #64) is denied.
IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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