Case 2:19-bk Doc 69 Filed 04/11/19 Entered 04/11/19 15:44:31 Desc Main Document Page 1 of 7

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1 Document Page 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION In Re Actual Brewing Company, LLC Debtor. Case No Chapter 7 Judge Charles M. Caldwell TRUSTEE S MOTION FOR ORDER AUTHORIZING SALE OF PROPERTY OF THE ESTATE FREE OF LIENS AND NOTICE WITH CERTIFICATE OF SERVICE Clyde Hardesty, Trustee ( Seller ), hereby moves the Court pursuant to 11 U.S.C. 363(b)(1) and 363(f)(4), Bankruptcy Rule 6004, and Local Bankruptcy Rule (b)(1) for an order authorizing the sale of property of the estate other than in the ordinary course of business, free of a disputed encumbrance, on the terms and conditions set forth below. General Description of Property All right, title and interest of Actual Brewing Company, LLC ( Debtor ) in and to all furniture, fixtures and equipment located in the premises at 2808 North High Street, Columbus, Ohio described in the attached Asset Schedule ( Assets ). At Purchaser s request, Trustee will also assign current A liquor permit to Purchaser. Terms, Conditions and Expenses of the Sale The terms, conditions and expenses of sale are set forth in a written Purchase and Sale Agreement dated April 9, Parties in interest may obtain a copy of the Purchase and Sale Agreement from undersigned counsel upon written request. Cash consideration to the estate is $30, The sale to Purchaser is contingent on Purchaser securing a replacement lease for the premises at 2802 N. High St., Columbus, Ohio ( Premises ) where Debtor operated one of its businesses. Trustee will not incur any out of pocket expenses to consummate the sale. Date, Time, and Place of Sale As soon as practicable after expiration of the notice period for objections as described below and after resolution of timely objections, if any. Purchaser George Tanchevski, who is unrelated to Debtor, or his nominee. Purchaser s address is 2 Edge of Woods, New Albany, Ohio \000034\ v1 1

2 Document Page 2 of 7 Disposition of Proceeds and Treatment of Liens There are no known creditors with perfected liens on the Assets. Trustee is informed and believes that Emmart Y. Hoy III has or may claim a security interest in property of the Debtor located at 655 North James Road, Columbus, Ohio to secure a loan for $10, he made to Debtor on or about June 4, Hoy s security interest does not include the Assets. Therefore, Hoy s interest in the Assets is the subject of a bona fide dispute by Trustee. Trustee is authorized by 11 U. S. C. 363(f)(4) to sell the Assets free of Hoy s interest. The Court s order authorizing this sale will transfer any interest of Hoy in the Assets to the sale proceeds for subsequent determination of the extent, validity and priority of his claim, if any. Trustee s Analysis and Recommendation Trustee recommends approval of this transaction. Maximum value for the Assets can be obtained if a buyer is able to use the Assets in the Premises. EBP 2800 North High LLC ( Landlord ) has approved Purchaser for a lease of the Premises. Purchaser can re-open the business immediately. Any other purchaser would be required to incur the expense of removing the Assets from the Premises. Trustee submits that the Cash Consideration is reasonable, as well. Trustee received a written offer of $24, for the Assets from an unrelated third party. However, Landlord declined to negotiate a lease with that offeror. Also, Debtor provided a third party appraisal of assets conducted prior to Trustee s appointment. Trustee submits that the proposed Cash Consideration is reasonable in light of the appraisal and the offer from the third party. Because of accruing administrative expenses related to securing and insuring the Assets, time is of the essence in completing the transaction. Trustee therefore recommends approval of the proposed sale on the terms set forth herein. WHEREFORE, Trustee moves the Court to enter an order approving the sale of the Assets to the Purchaser, on the foregoing terms and conditions, free of the disputed interest of Emmart Y. Hoy III, provided, however, that any interest of Hoy in the Assets shall be transferred to the proceeds for subsequent determination of the extent, validity and priority of his claim if any; and for such other or further relief to which Trustee may be entitled. /s/larry J. McClatchey Larry J. McClatchey ( ) KEGLER BROWN HILL & RITTER 65 East State Street, Suite 1800 Columbus, Ohio (614) Facsimile (614) lmcclatchey@keglerbrown.com Attorney for Trustee \000034\ v1 2

3 Document Page 3 of 7 NOTICE AND CERTIFICATE OF SERVICE PLEASE TAKE NOTICE that Clyde Hardesty, Trustee filed a Motion for Order Authorizing Sale of Property of the Estate Free of Liens with the Court. NOTE Trustee has filed a motion asking that the Response Date described in the following paragraph be reduced from 21 days to 10 days. If the motion to reduce time is granted, your objection or response is due, without further notice, within TEN DAYS from the date in the certificate of service for the notice set forth below. If the motion to reduce time is denied, the Response Date described in the following paragraph is applicable, without further notice from Trustee or the Court. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this Bankruptcy case. (If you do not have an attorney, you may wish to consult one.) If you do not want the Court to grant the relief requested, or if you want the court to consider your views on the notice, then on or before twenty one (21) days from the date set forth in the certificate of service for the notice ("Response Date") [subject to the notice in the preceding paragraph], you must file with the court a response explaining your position by mailing your response by regular US Mail to the Clerk of the United States Bankruptcy Court, 170 North High Street, Columbus, Ohio OR your attorney must file a response using the court's ECF System. If you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the Response Date. You must also mail a copy of your response on or before the Response Date by 1) the Court's ECF System or 2) by regular US Mail to Trustee's counsel, Larry J. McClatchey, Kegler Brown Hill & Ritter, 65 East State Street, Suite 1800, Columbus, Ohio If you or your attorney do not take these steps, the Trustee will decide that you do not oppose the proposed sale and the sale will be completed without further notice. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Trustee s Motion for Order Authorizing Sale of Property of the Estate with Certificate of Service was served on April 11, 2019 through the court s ECF System on all ECF participants registered in this case at the addresses registered with the court, by ordinary U.S. Mail on all parties listed in attached Exhibit A and listed below George Tanchevski 2 Edge of Woods New Albany, Ohio /s/larry J. McClatchey Larry J. McClatchey \000034\ v1 3

4 Document Page 4 of 7 Item copper brewhouse 3 copper ferm +1 brite 4 grundy tanks asst clamps and gaskets hand truck draft system 2 tvs 2 breadcrumb pos 2 x 24 inch reach in cooler hoshizaki ice machine sinks behind bar printer safe standing 2 door cooler standing freezer single door hood vent water heater 2 door worktop cooler 6 burner stove grill fryer under counter freezer asst pots and pans dishwasher microwave 10 x 20 walk in 58 chairs 14 tables churchpew 4 highchairs Asset Schedule

5 Document Page 5 of 7 EXHIBIT A

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