UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

 Richmond Division

In re: 

 

Reginald D. Hunley Case No. 16-33446-KLP

 

Debtor(s) Chapter 13

11402 Dunbrook Rd. Apt 202

N. Chesterfield, VA 23235 

 

Last four digits of Social Security or Individual Tax-payer 

Identification (ITIN) No(s)., (if any): 8298

NOTICE OF MOTION 

Debtor(s), by counsel, have filed papers with the court to Extend the Automatic Stay.

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 sough in the motion (or objection), or if you want 

the court to consider your views on the motion (or objection), then or before August 9, 2016 (14 days), 

you or your attorney must: 

 File with the court, at the address shown below, a written request for a hearing [or a 

written response pursuant to Local Bankruptcy Rule 9013-1(H)]. If you mail your 

request for hearing (or response) to the court for filing, you must mail it early enough so 

the court will receive it on or before the date stated above.

Clerk of Court

United States Bankruptcy Court

701 E. Broad St.

Richmond, VA 23219

You must also mail a copy to:

Winslow & McCurry, PLLC

1324 Sycamore Square Ste. 202C

Midlothian, VA 23113

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Colonial Heights, VA 23834

 Attend a hearing to be scheduled at a later date. You will receive a separate notice of 

hearing. If no timely response has been filed opposing the relief requested, the court 

may grant the relief without holding a hearing.

 Attend the hearing on the motion (or objection) scheduled to be held August 10, 2016 at

10:00 am the United States Bankruptcy Court, 701 E. Broad St, Courtroom 5100, 

Richmond, VA 23219. 

If you or your attorney do not take these steps, the court may decide that you do not 

oppose the relief sought in the motion or objection and may enter an order granting that 

relief. 

Date: July 26, 2016 /s/ Christopher M. Winslow

 Christopher M. Winslow, Esq.#76156

 Winslow & McCurry, PLLC

 1324 Sycamore Square Ste. 202C

 Midlothian, VA 23113

 Ph: (804) 423-1382

 Counsel for Debtor(s)

Certificate of Service

I hereby certify that I have, this July 26, 2016, mailed or delivered by electronic means a 

true copy of the foregoing Notice of Motion (or Objection) to the parties listed on the 

attached service list.

/s/ Christopher M. Winslow

Counsel for Debtor(s)

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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

In re:

Reginald D. Hunley

Case No: 16-33446-KLP

Debtor(s) Chapter 13

MOTION TO EXTEND THE AUTOMATIC STAY AND

MEMORANDUM IN SUPPORT THEREOF

COMES NOW the Debtor(s), by counsel, and offer the following Memorandum 

in Support of Debtor(s) Motion to Extend Automatic Stay:

 JURISDICTION

1. Jurisdiction of this Court over the instant matter is based upon 28 

U.S.C. §1334 and 157 in that this action arises in and relates to the bankruptcy case of the 

Debtor(s).

2. This proceeding is a core proceeding under 28 U.S.C. §157(b)(2)(A), (B), (K), 

and (O).

3. Venue is proper pursuant to 28 U.S.C. §1409.

BACKGROUND FACTS

4. On 7/13/2016 (hereinafter the “Petition Date”) , the Debtor(s)

filed in this Honorable Court a petition for relief under Chapter 13 of the Bankruptcy 

Code, 11 U.S.C. § 1301 et seq. (the “instant case”). 

5. Carl M. Bates was appointed to serve as Chapter 13 trustee in this case 

(the “Trustee”).

6. Within the year prior to filing the instant case, Debtor(s) has been a Debtor(s) 

in one (1) pending Chapter 13 bankruptcy case (the “previous case”), which was filed on 

11/2/2014 and dismissed on 6/24/2016. (Case No. 14-73076).

7. The previous case was dismissed by the court for default in making the plan 

payments.

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FACTS OF THE INSTANT CASE

8. In the instant case, Debtor(s) has proposed a Chapter 13 Plan (the “Plan”) 

that commits to pay the Trustee all projected disposable income, $300.00 for 55 months.

Other than administrative expenses, the Plan proposes the following:

a. To pay the secured claims of $3,800.00

b. To pay the priority claims of $5,000.00

c. To pay a dividend to non-priority unsecured creditors of 3.56%, which 

claims are estimated to be approximately $19,713.00

 DISCUSSION

9. Because the instant case was filed within one (1) year of the dismissal of the

previous case, the automatic stay will expire in the instant case on 8/13/2016, unless the 

Court extends the automatic stay pursuant to 11 U.S.C. §362 (c)(3)(A) and (B).

10. Pursuant to the provisions of the Bankruptcy Abuse Prevention and Consumer

Protection Act of 2005 (“BAPCPA”), the Debtor(s) must demonstrate to the Court that 

the instant case was filed in good faith in order to obtain an extension of the automatic 

stay pursuant to 11 U.S.C. §362 (c)(3)(B).

11. If the Court finds grounds for presuming the instant case was filed “not in 

good faith” §362(c)(3)(C) would impose a burden on Debtor(s) to overcome such 

presumption and prove good faith by clear and convincing evidence. If, however, the 

Court finds no grounds for presuming the instant case was filed “not in good faith,” 

Debtor(s) must merely prove good faith by a preponderance of the evidence. In re 

Havner, 336 B.R. 98, 103 (Bankr. M.D.N.C. 2006); In re Ball, 336 B. R. 268, 273 

(Bankr. M.D.N.C. 2006)

12. Within the context of motions to continue the automatic stay pursuant to 

§362(c)(3), In re Chaney, 362 B.R. 690, 694 (Bankr. E.D. Va. 2007) instructs that the 

term “good faith” was defined judicially in the Fourth Circuit by Deans v. O’Donnell, 

692 F.2d 968, 972 (4th Cir. 1982), further refined by Neufeld v. Freeman, 794 F.2d 149,

152 (4th Cir. 1986), and left unchanged by Congress when it created §362(c)(3). Chaney

at 694.

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13. Pursuant to Neufeld v. Freeman, good faith determinations require courts to 

consider, inter alia, “the percentage of proposed repayment, the Debtors’ financial 

situation, the period of time the payment will be made, the Debtors’ employment history 

and prospects, the nature and amount of unsecured claims, the Debtors’ past bankruptcy 

filings, the Debtors’ honesty in present facts, and any unusual or exceptional problems 

facing the particular Debtors.” Id. at 152, citing Deans v. O’Donnell, 692 F.2d 968, 972 

(4th Cir. 1982). The focus of the inquiry is “to determine whether or not, considering ‘all 

militating factors,’ there has been ‘an abuse of the provisions, purpose, or spirit’ of 

Chapter 13 in the proposal or plan.” Neufeld, 794 F.2d at 152, citing Deans at 972 and 

quoting 9 Collier on Bankruptcy 9.20 at 319 (14th ed. 1978). 

14. In order to apply the Fourth Circuit’s definition of good faith in determining 

whether the automatic stay should be extended pursuant to §362(c)(3),

“the court must be satisfied that the plan in the new case will succeed where the 

plan in the prior case did not. Usually this will require a find that some change in 

the financial or personal affairs of the debtor has occurred that will allow the 

debtor to perform under the terms of the plan in the new case. But the inquiry 

does not end there. The court needs to determine that the repetitive filing does not 

violate the spirit of the Bankruptcy Code. The new case must not be a ploy to 

frustrate creditors. It must represent a sincere effort on the part of the debtor to 

advance the goals and purposes of chapter 13”

Chaney at 694.

ARGUMENT

15. In the case sub judice, there is a presumption that the instant case was filed 

“not in good faith” as to all creditors. Therefore, Debtor(s) must prove by clear and 

convincing evidence that the instant case was filed in good faith.

16. In the instant case, the Debtor(s) have acted in good faith, and Debtor(s) 

Requests that the Court grant an extension of the automatic stay as to all creditors, as to 

Debtor(s) and Debtor(s)’ property, and as to the property of the estate for the duration of 

the instant case. In support thereof, Debtor(s) submit an Affidavit, which is attached 

hereto as Exhibit “A’ and incorporated hereby by reference thereto. 

17. Applying the Neufeld factors to the Debtor(s)’ circumstances and to this case 

leads to the following conclusions:

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a. Percentage of proposed repayment – The Plan proposes to pay a 

dividend of 3.56% to non-priority unsecured creditors. Such creditors 

would receive a dividend of 0% if Debtor(s) were to file a Chapter 7 

bankruptcy case. Application of this factor favors a finding of good 

faith. 

b. Debtors’ financial situation – The Debtor’s financial situation is now 

sufficient to allow him to maintain an average standard of living for

himself, and to complete the terms of the Chapter 13 Plan. 

(1) Debtor(s) has steady income from employment with 

VDOT.

Furthermore, he has no extraordinary expenses and is not maintaining 

any expenses that are not necessary for his maintenance and support. 

Application of these factors favors a finding of good faith.

c. Period of time payment will be made – The period of time in which 

payments will be made is reasonable and is based upon the Debtor’s 

best efforts. Application of these factors favors a finding of good 

faith.

d. Debtor’s employment history and prospects – The Debtor(s)’ income 

source demonstrates that the proposed Chapter 13 Plan is feasible and 

in good faith. Application of these factors favors a finding of good 

faith.

e. Nature and amount of unsecured claims – Likewise, the nature and 

amount of the Debtors’ unsecured debt demonstrates his good faith. 

(1) Debtor(s) unsecured, non-priority debts are estimated to 

be approximately $19,731.00 and are proposed to be 

repaid at 3.56%.

f. Debtors’ past bankruptcy filings - The instant Motion is required due 

to the fact that the Debtors have filed more than one (1) bankruptcy 

case. However, the Debtors’ bankruptcy history does not indicate a 

lack of good faith. The Affidavit attached hereto as Exhibit “A” 

describes fully the reasons that the previous case was dismissed. 

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Debtor(s) incorporate such explanation herein by this reference. 

Debtor(s)’ hardships do not indicate an abuse of the bankruptcy 

system; rather, they indicate an honest but thus far unsuccessful 

attempt to financially reorganize. Application of this factor favors a 

finding of good faith

g. Debtors’ honesty in representing the facts – The Debtor(s) have fully 

disclosed all assets, liabilities, and pertinent information regarding 

their personal and financial affairs. Application of this factor favors a 

finding of good faith.

h. Any unusual or exceptional problems facing the particular Debtors –

There are no unusual or exceptional problems facing the Debtor(s).

Application of this factor favors a finding of good faith.

18. Debtor(s) assert that the instant case does not “violate the spirit of the 

Bankruptcy Code” and it is not “a ploy to frustrate creditors”; rather, it represents “a 

sincere effort on the part of the Debtor(s) to advance the goals and purposes of chapter 

13”. See Chaney at 694. In support hereof, Debtor(s) assert the following additional 

arguments:

a. The timing of the petition - Between the dismissal of the previous case 

and the instant case, Debtor did not act in a manner so as to purposely 

delay payment of debts and did not delay in filing the instant case so as 

to intentionally frustrate creditors. Debtor(s)’ actions in this regard 

indicate an intent to use the bankruptcy system to resolve debts in an 

appropriate manner. Application of this factor favors a finding of 

good faith.

b. How the Debt(s) arose – The debts in this case arose primarily over a 

period of time extending back several years. The debts were not the 

result of misuse of credit or luxury spending; rather, they arose as a 

result of ordinary living expenses that Debtor(s) became unable to 

repay. Application of this factor favors a finding of good faith.

c. The Debtor’s motive in filing the petition – Debtor(s)’ motive in filing 

this case is to apply best efforts to repay creditors and receive a fresh 

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start through bankruptcy. Application of this factor favors a finding of 

good faith.

d. How the Debtor’s actions affected creditors – The Plan provisions and 

treatment of creditors are generally described in paragraph 8, supra. 

This factor will rarely favor a debtor as to the finding of good faith, 

because “filing for bankruptcy relief will almost always prejudice 

one’s creditors.” Galanis, 334 B.R. at 696.

e. Changes in circumstance and ability to complete this case – The 

Affidavit attached hereto as Exhibit “A” describes fully the Debtor(s)’ 

changes in circumstances and explains both the legitimate bases for the 

filing of this case as well as the Debtor(s)’ ability to complete this 

case. Debtor(s) incorporate such explanations herein by this reference. 

Application of this factor favors a finding of good faith.

WHEREFORE, the Debtors respectfully requests this Honorable Court to enter an 

Order extending the automatic stay as to all creditors, as to Debtor(s) and Debtor(s)’

property, and as to the property of the estate for the duration of the instant case, and for 

such other and further relief as to the Court shall be deemed appropriate.

Respectfully submitted,

Reginald D. Hunley

By: /s/ Christopher M. Winslow, Esquire

Christopher M. Winslow

Winslow and McCurry, PLLC

1324 Sycamore Square

Ste. 202C

Midlothian, VA 23113

Phone: (804) 432-1382

Fax: (804) 432-1383

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CERTIFICATE OF SERVICE

I certify that on July 26, 2016, a copy of this Memorandum in Support of 

Debtor(s)’ Motion to Extend the Automatic Stay was mailed via first-class mail, postage 

full pre-paid, to the Chapter 13 Trustee, Carl M. Bates, P.O Box 1819 Richmond, VA 

23218 the United States Trustee, 701 E. Broad Street, Suite 4304, Richmond, VA 23219 

and all creditors as set forth on the attached mailing matrix. 

/s/ Christopher M. Winslow

Christopher M. Winslow, Esquire

Counsel for Debtor(s)

CREDITORS

Acceptance Rentals,

2850 Hog Mountain Rd Suite 201

Dacula, GA 30019-0000

Afni

1310 Martin Luther King Dr

Bloomington, IL 61701-0000

Ally Financial

P.O. Box 951

Horsham, PA 19044-0000

American InfoSource LP

P.O. Box 248848

Oklahoma City, OK 73124-0000

American InfoSource LP as agent for

Spot Loan

PO Box 248838

Oklahoma City, OK 73124-8838

Automobile Acceptance

725 Main Street

Riverdale, GA 30274-0000

Automobile Acceptance Corp.

P.O. Box 961926

Riverdale, GA 30296-0000

Dish Network

9601 S. Meridian Blvd.

Englewood, CO 80112-0063

Diversified Consultant

Dci

P.O. Box 551268

Jacksonville, FL 32255-0000

Emerginet-Henry

c/o Kevin B. Wilson Law Office

2810 Walker Rd. Ste. 102

Chattanooga, TN 37421-0000

First American Title Lending

3525 Highway 138 SE

Stockbridge, GA 30281-0000

Georgia Urology

175 Country Club Dr.

Stockbridge, GA 30281-0000

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Guarantee Bank

4957 North Henry Blvd.

Stockbridge, GA 30281-0000

Henry County Radiology

P.O. Box 100032

Kennesaw, GA 30156-0000

HSBC Bank

P.O. Box 5253

Carol Stream, IL 60197-0000

Internal Revenue Service

Centralized Insolvency Unit

P.O. Box 7346

Philadelphia, PA 19101-7346

Isenburg & Hewitt, P.C.

6600 Peachtree Dunwoody Rd.

Embassy Rowe Bldg 600 Ste.150

Atlanta, GA 30328-0000

Midland Funding

2365 Northside Dr

Suite 300

San Diego, CA 92108-0000

Nationwide Insurance

One Nationwide Plaza

Columbus, OH 43215-0000

North American

2810 Walker Rd.

Chattanooga, TN 37421-0000

Pnc Mortgage

3232 Nemark Dr

Miamisburg, OH 45342-0000

PRA Receivables Management

P.O. Box 41067

Norfolk, VA 23541-0000

Quantum 3 Group/Ec2n Trust

P.O. Box 788

Kirkland, WA 98083-0000

Rec Mgt Grp

P.O. Box 6070

Columbus, GA 31917-0000

Receivables Management Group

2901 University Ave Ste 29

Columbus, GA 31917-0000

Rent Recovery Solutions

2814 Spring Rd. Ste. 30

Atlanta, GA 30339-0000

RNR Wheels & Tires

8321 Midlothian Turnpike

N. Chesterfield, VA 23235-0000

Santander

Attn: Bankruptcy

P.O. Box 560284

Dallas, TX 75356-0000

Southwest Credit Systems

4120 International Parkway

Suite 1100

Carrollton, TX 75007-0000

Sunset Finance

6263 Highway 278 E

Covington, GA 30014-0000

United Consumer Financial Svcs

865 Basset Road

Westlake, OH 44151-0000

WFNNB/Express

4590 E. Broad St.

Columbus, OH 43213-0000

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