Augustus C. Epps, Jr., Esquire (VSB No. 13254)

CHRISTIAN & BARTON, LLP

909 East Main Street, Suite 1200

Richmond, Virginia 23219

Tel: (804) 697-4100

Fax: (804) 697-4112

Counsel for Peter J. Barrett, Chapter 7 Trustee

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

____________________________________

)

In re: )

) Case No. 17-35009-KRH

)

) Chapter 7

M&M Asphalt Paving & )

Grading, LLC, )

)

Debtor. )

____________________________________)

MOTION BY CHAPTER 7 TRUSTEE TO APPROVE SALE OF PROPERTY

OF ESTATE BY AUCTION, FREE AND CLEAR OF INTERESTS,

PURSUANT TO §§ 363(b) AND (f)(3) OF THE BANKRUPTCY CODE

Peter J. Barrett, Chapter 7 Trustee for the bankruptcy estate of M&M Asphalt Paving & 

Grading, LLC (the “Trustee”), hereby requests that this Court authorize him (a) to advertise, list 

and sell certain real property of the bankruptcy estate by auction, and to consummate such sale,

and (b) to pay the commissions and expenses incurred in connection with the sale, using the 

services of Tranzon FOX, a licensed Virginia auction firm, such sale to be free and clear of 

interests in the real property. In support thereof, the Trustee states as follows:

1. On October 5, 2017 (the “Petition Date”), M&M Asphalt Paving & Grading, LLC 

(the “Debtor”) filed for relief pursuant to Chapter 7 of the Bankruptcy Code, 11 U.S.C. §§ 101 

et seq. (the “Bankruptcy Code”), and an Order for Relief was duly entered with respect thereto. 

2. Peter J. Barrett was appointed Chapter 7 Trustee (the “Trustee”), and he continues 

to serve in that capacity. 

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3. By order entered February 5, 2018 (Docket No. 47) this Court authorized the 

Trustee to employ Tranzon FOX to auction or sell by other means certain real property 

belonging to M&M Asphalt Paving & Grading, LLC (the “Debtor”) commonly known as 7218 

King’s Highway, Montross (Westmoreland County), Virginia, Tax Map #19-43 (the “Real 

Property”). The Real Property is more particularly described as follows:

ALL that certain lot, parcel or tract of land, situate, lying and being 

in the Washington Magisterial District, Westmoreland County, 

Virginia, containing 10.6785 acres, more or less, and designated as 

Parcel A, on a plat of survey made by Edward G. Holsinger, 

C.L.S., dated October 18, 2005, entitled “Plat of Survey Showing 

the property of McDaniel & Sons Homebuilders, LLC:, a copy of 

which is recorded in Plat Book 736, at Page 66, in the Clerk’s 

Office of the Circuit Court of Westmoreland County, Virginia.

LESS AND EXCEPT that portion of the aforesaid property 

containing 0.2000 Acres, which was conveyed to The Board of 

Supervisors of Westmoreland County, Virginia by Deed dated 

November 21, 2005, recorded in the aforesaid Clerk’s Office in 

Deed Book 707, page 801 and shown on plat recorded in Deed 

Book 707, page 803.

Being the same real property conveyed to M&M Asphalt Paving 

and Grading, LLC, by Deed dated 22 October 2013, from 

William H. Casterline, Jr., et al., Substitute Trustees, recorded in 

the Clerk’s Office, Circuit Court, County of Westmoreland, 

Virginia, in Deed Book 852, page 1028.

4. The Real Property is encumbered by a deed of trust dated January 24, 2014, 

recorded in the office of the Clerk of the Circuit Court of Westmoreland County, Virginia in 

Deed Book 855 at page 894 (the “Deed of Trust”). The Deed of Trust states that it was given to 

secure a note dated January 24, 2014 made by the Debtor in the original principal amount of One 

Hundred Fifty-Four Thousand Dollars ($154,000.00) payable to the order of Branch Banking and 

Trust Company, 400 George Street, Fredericksburg, Virginia 22401. It is the Trustee’s 

understanding that the current balance due and payable to BB&T secured by the Deed of Trust 

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approximates $110,000.00. There are also currently accruing real estate taxes accruing in the 

approximate amount of $900.00. 

5. Tranzon FOX has determined that the Real Property should be sold at auction. 

Accordingly the Trustee seeks authorization from this Court to proceed with the auction and sale 

of the Real Property. 

6. As set forth in the Application of the Trustee seeking this Court’s approval to 

employ Tranzon FOX (Docket No. 35) the Trustee proposes to compensate Tranzon FOX for its 

services pursuant to the terms set forth in the listing agreement (the “Listing Agreement”)

attached to that Application as Exhibit A (the “Compensation Terms”). As set forth in the 

Listing Agreement Tranzon FOX shall receive compensation as follows: Tranzon FOX will 

charge a Buyer’s Premium of ten percent (10%), which will be added to the high bid and 

included in the total purchase price paid by the buyer to the Trustee. The Buyer’s Premium will 

be added to the high bid to achieve the total (gross) purchase price. If the Real Property is sold

at the auction and closing subsequently occurs, the Trustee shall pay Tranzon FOX fee of ten 

percent (10%) of the total (gross) purchase price payable in cash at closing, if approved by the 

Bankruptcy Court. Ten percent of the purchase price shall be the full extent of Tranzon FOX’s 

compensation in connection with this transaction. In addition to any other fee from the above 

compensation, Tranzon FOX may pay a commission of up to three percent (3%) of the 

successful bid to any cooperating broker that follows Tranzon FOX’s registration guidelines and 

whose registered buyer is the successful bidder and purchaser of the Property. If the Real 

Property is sold prior to the auction to any party, or is sold within ninety (90) days after the 

auction, the Trustee shall pay Tranzon FOX a fee consistent with the terms of the Listing 

Agreement. 

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7. The estate will pay the first $1,500.00 of marketing expense. 

8. Tranzon FOX may also incur extraordinary expenses and will be reimbursed for 

the same, all subject to approval by the Court. 

9. The Trustee now seeks this Court’s authorization to consummate the sale of the 

Real Property to a third-party upon the conclusion of the auction. 

10. Based upon conversations with Tranzon FOX, the Trustee believes that the 

process for selling the Real Property will yield a sufficient purchase price. Furthermore, given 

the nature of the sales process, a requirement for further approval by the Court would likely 

hinder the purchase price for the Real Property and reduce the recovery for the Debtor’s estate. 

Therefore, the Trustee is seeking approval to sell the Real Property to the highest bidder and to 

consummate such sale without further approval of this Court. 

11. Following the payment or satisfaction of the routine costs associated with the sale 

of the Real Property, including real estate taxes due to Westmoreland County (approximately 

$900.00 as of April 15, 2018) and fees and commissions due to Tranzon FOX pursuant to the 

Compensation Terms, the remaining proceeds from the sale shall be paid first to Branch Banking 

and Trust Company (“BB&T”), the holder of the note secured by the Deed of Trust, and,

thereafter, the remainder to the Debtor’s estate.

12. Because the sale of the Real Property is to be accomplished pursuant to Section 

363(f)(3) of the Bankruptcy Code, the Trustee shall not accept any otherwise successful bid if the 

proceeds that would be payable to the Trustee upon consummation of a sale pursuant to such bid 

would not be sufficient to pay all expenses of the sale plus the amount necessary to pay in full all 

interests in the Real Property, including real estate taxes and the debt to BB&T secured by the 

Deed of Trust. 

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WHEREFORE, the Trustee hereby requests that this Court approve (i) the sale of the 

Real Property to the highest bidder in connection with the auction to be conducted by Tranzon 

FOX, such sale to be free of interests pursuant to § 363(f)(3) of the Bankruptcy Code,

(ii) authorizing the Trustee to pay all fees, expenses and costs incurred in connection with the 

sale of the Real Property, including the amount necessary to pay in full real estate taxes payable 

to Westmoreland County and the debt secured by the Deed of Trust plus all fees or commissions 

due to Tranzon FOX; and (iii) granting such other relief as the Court deems just and proper. 

Dated: February 14, 2018 Peter J. Barrett, Chapter 7 Trustee

By counsel

/s/ Augustus C. Epps, Jr.

Augustus C. Epps, Jr. Esquire

CHRISTIAN & BARTON, L.L.P.

909 East Main Street, Suite 1200

Richmond, Virginia 23219

Telephone: (804) 697-4100

Facsimile: (804) 697-4112

Counsel to Peter J. Barrett, Chapter 7 Trustee

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CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of February, 2018, a true and correct copy of the 

foregoing Application was served via electronic delivery and/or first class mail postage prepaid 

to: 

M&M Asphalt Paving & Grading, LLC

127 Breezewood Drive

Colonial Beach, Virginia 22443

Robert B. Van Arsdale, Esquire

Assistant United States Trustee

Office of the United States Trustee

701 East Broad Street, Suite 4304

Richmond, Virginia 23219

BB&T-VA Collateral Service, Corporation, 

Deed of Trust Trustee

901 East Byrd Street, Suite 600

Richmond, Virginia 23219

Branch Banking and Trust Company

901 East Byrd Street

Richmond, Virginia 23219

Branch Banking and Trust Company

c/o CT Corporation System

4701 Cox Road, Suite 288

Glen Allen, Virginia 23060

Branch Banking and Trust Company

400 George Street

Fredericksburg, Virginia 22401

Sue Jones, Treasurer

Westmoreland County, Virginia

Post Office Box 730

Montross, Virginia 22520

Mr. William Londrey

Tranzon FOX

7 North Robinson Street

Richmond, Virginia 23220

James E. Kane, Esquire

Kane & Papa

1313 East Cary Street

Post Office Box 508

Richmond, Virginia 23218-0508

/s/ Augustus C. Epps, Jr.

Augustus C. Epps, Jr.

2270716

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