M. Christine Maggard, VSB# 33824 

Brock & Scott, PLLC 

484 Viking Drive, Suite 203 

Virginia Beach, VA 23452 

christine.maggard@brockandscott.com 

Counsel for the Movant 

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

In re: MARIETTA CHEEKS,

Address: 17160 Belle Isle Drive 

 Dumfries, VA 22026 

Debtor(s). 

CASE NO: 19-10516 

CHAPTER 13 

U.S. BANK, NATIONAL ASSOCIATION 

Plaintiff, 

v. 

MARIETTA CHEEKS, 

Debtor(s) 

FREDERICK CHEEKS, 

 Co-Debtor, 

THOMAS P. GORMAN, 

Trustee 

Defendants. 

NOTICE OF MOTION AND MOTION FOR ORDER CONFIRMING ABSENCE OF 

THE AUTOMATIC STAY, OR IN THE ALTERNATIVE, FOR NUNC PRO TUNC 

RELIEF FROM THE AUTOMATIC STAY AND CO-DEBTOR STAY 

 U. S. Bank, National Association, a creditor in this case, has filed papers with the court for 

the granting of an Order confirming absence of the automatic stay, or in the alternative, for the 

granting of nunc pro tunc relief from the automatic stay and co-debtor stays of the Bankruptcy Code 

with regard to certain property more particularly described in those papers which are attached. 

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 wish the Court to grant the relief sought in the 

motion, or if you want the court to consider your views on the motion, then within 14 days 

from the date of service of this motion, you must file a written response explaining your 

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position with the Court and serve a copy on the movant. Unless a written response is filed and 

served within this 14-day period, the Court may deem opposition waived, treat the motion as 

conceded, and issue an order granting the requested relief without further notice or hearing. 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 expiration of the 14-day period (21-day period if you are the CoDebtor). 

If you are the Debtor and you do not want the Court to grant this creditor relief from the 

provisions of the automatic stay of the Bankruptcy Code, or if you want the Court to consider your 

views on the Motion, then on or before March 26, 2019, you or your attorney must: 

File with the Court, at the address shown below, a written response pursuant to Local 

Bankruptcy Rules 4001(a)-1(C) and 9013-1(H). 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 date stated above. 

United States Bankruptcy Court 

 200 South Washington Street 

Alexandria, VA 22314 

You must also mail a copy of any such response to: 

 M. Christine Maggard, Esquire 

 Brock & Scott, PLLC 

484 Viking Drive, Suite 203 

Virginia Beach, VA 23452 

Attend the preliminary hearing that will be conducted in the Alexandria Division of the U.S. 

Bankruptcy Court, 200 South Washington Street, Alexandria, VA 22314 on APRIL 10, 2019 at 

9:30 AM in Courtroom I. 

If no timely response has been filed opposing the relief requested, the Court may grant the relief 

requested in the Motion. 

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 and may enter an Order granting the relief. 

NOTICE TO CO-DEBTOR 

If you are the Co- Debtor and you do not want the Court to grant this creditor relief from the 

provisions of the automatic stay of the Bankruptcy Code, or if you want the Court to consider your 

views on the Motion, then on or before April 2, 2019, you or your attorney must: 

File with the Court, at the address shown below, a written response pursuant to Local 

Bankruptcy Rules 4001(a)-1(C) and 9013-1(H). 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 date stated above. 

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United States Bankruptcy Court 

200 South Washington Street 

Alexandria, VA 22314 

You must also mail a copy of any such response to: 

 M. Christine Maggard, Esquire 

 Brock & Scott, PLLC 

484 Viking Drive, Suite 203 

Virginia Beach, VA 23452 

Attend the preliminary hearing that will be conducted in the Alexandria Division of the U.S. 

Bankruptcy Court, 200 South Washington Street, Alexandria, VA 22314 on APRIL 10, 2019 at 

9:30 AM in Courtroom I. 

If no timely response has been filed opposing the relief requested, the Court may grant the relief 

requested in the Motion. 

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 and may enter an Order granting the relief. 

TO ALL DEFENDANTS: 

 Pursuant to Rule 4001(a)-1(C) of the Local Rules of the United States Bankruptcy 

Court of the Eastern District of Virginia, you have fourteen (14) days (Twenty-one (21) days if 

you are the co-debtor) from March 11, 2019, the date of service of this Motion upon you, to 

file a written response thereto and you must file such response with the Clerk of the United 

States Bankruptcy Court, Alexandria Division, 200 South Washington Street, Alexandria, VA 

22314 and serve a copy of same upon the Plaintiff’s attorney, M. Christine Maggard, at 484 

Viking Dr. Suite 203, Virginia Beach, VA 23452.

TO THE HONORABLE BRIAN R. KENNEY: 

 Your Plaintiff, U. S. Bank, National Association (hereinafter “U.S. Bank”), respectfully 

represents as follows: 

1. That this is a core proceeding within the meaning of the Bankruptcy Code and Rules. 

2. That on February 16, 2019, the above-named Debtor(s) filed a Petition in this Court. 

3. That Thomas P. Gorman was appointed Trustee of the property, has qualified and is now 

acting. 

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4. That at the time of the filing of the Debtor’s petition herein, the Debtor resided at a certain 

real property and improvements having a street address of 17160 Belle Isle Drive, and more 

particularly described as follows: 

All that certain lot, piece or parcel of land, with all improvements thereon and all 

appurtenances thereto belonging, located and being in the County of Prince William, 

Commonwealth of Virginia, and being designated as follows: 

Lot 59, Phase 2B, Section 2, Harbor Station, as the same is duly dedicated in Instrument 

Number 201211160110982, and as shown on plat at Instrument Number 

201211160110983, recorded among the land records of Prince William County, Virginia. 

Tax No.: 8389-26-3514 

Property address: 17160 Belle Isle Drive, Dumfries, VA 22026 

5. That the Plaintiff is the holder of a Note dated November 30, 2015, in the original principal 

amount of $424,297.00 with interest thereon from said date at the rate of 4.00% per annum, 

secured by a Deed of Trust on said real property and improvements recorded in the Clerk’s 

Office of the Circuit Court of the County of Prince William, Virginia. True copies of the 

Note and Deed of Trust are attached hereto and incorporated by reference as Exhibits “A” 

and “B”, respectively. 

6. U. S. Bank had the right to foreclose because: U. S. Bank was the original mortgagee or 

beneficiary or assignee of the security instrument for the referenced loan. U. S. Bank directly 

or through an agent had possession of the promissory note and the promissory note is either 

made payable to U. S. Bank or had been duly endorsed. The loan was in default. 

7. The Debtor herein is not a party to the Note or Deed of Trust, and the property is deeded 

solely to Frederick Cheeks. The Deed is attached hereto as Exhibit “C”. 

8. The current bankruptcy case was filed on a Saturday, preceding the foreclosure sale that was 

noticed, advertised and scheduled for February 19, 2019 at 2:00 p.m. The Debtor’s 

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bankruptcy filing contained no schedules or plan, and, as of the filing of this motion, the 

Debtor has not filed schedules or a plan. There was no and is no indication that the Debtor 

has a legal interest in the property, nor at the time of the sale or prior to it, had the Debtor 

asserted an equitable interest in the property; therefore, the property was sold at the 

scheduled foreclosure sale on behalf of the foreclosure trustee, Trustee Services of Virginia, 

L.L.C., a Virginia Limited Liability Company. A third-party, Clear Sky Properties, L.L.C. 

(Clear Sky), was the high bidder/purchaser. The sale price was $493,625.00 which was 

sufficient to pay off the indebtedness on the Note. In accordance with the terms of the Deed 

of Trust, the foreclosure trustee collected a deposit in the amount of $45,000.00 from Clear 

Sky. The memorandum sale and Notice of Sale are attached hereto as Exhibit “D.” 

9. Upon information and belief, the Debtor asserts an equitable interest in the property. The 

Debtor has asserted that pursuant to 11 U.S.C. § 541 (a)(1), property of the bankruptcy estate 

includes "all legal or equitable interests of the debtor in property as of the commencement of 

the case," and accordingly, 11 U.S.C. § 362(a)(3) applies to stay "any act to obtain 

possession of property of the estate or of property from the estate or to exercise control over 

property of the estate." 

10. To the extent that the Debtor is asserting an equitable interest in the property, Frederick 

Cheeks may be considered a Co-Debtor pursuant to 11 U.S.C. § 1301.1

11. Upon information and belief, at the time of the bankruptcy filing and the foreclosure sale, 

the Debtor and Frederick Cheeks were married and they had not filed any action to dissolve 

 

1 Relief from the co-debtor stay is sought out of an abundance of caution; however, US Bank does not believe it 

applies. 11 U.S.C §1301 provides that a co-debtor stay arises from “a consumer debt of the debtor from any 

individual that is liable on such debt with the debtor.” The Debtor is not liable on the debt to U.S. Bank. The 

Debtor has not raised the question of the applicability of the co-debtor stay

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their marriage. 

12. Mr. Cheeks filed two prior bankruptcy cases in what appears to be an attempt to stay the 

Bank’s foreclosure efforts. After unsuccessful efforts at loss mitigation, a non-judicial 

foreclosure sale was set for November 29, 2017. On November 29, 2017, prior to the 

scheduled sale time, Frederick Cheeks filed a Chapter 13 bankruptcy petition in the United 

States Bankruptcy Court for the Eastern District of Virginia, Alexandria Division (BCN: 17-

14027). The sale was stayed. On December 18, 2017, Mr. Cheeks’ case was dismissed. 

13. Foreclosure action was restarted following dismissal, and a sale was set for March 14, 2018. 

Those efforts were placed on hold due to loss mitigation efforts. On July 19, 2018, US Bank 

restarted foreclosure action when loss mitigation efforts were again unsuccessful. The new 

foreclosure sale date was set as September 25, 2018. On September 25, 2018, prior to the 

sale time, Frederick Cheeks again filed for relief under Chapter 13. (BCN: 18-13245). The 

sale was stayed by the filing. On November 19, 2018, the bankruptcy case was dismissed as 

Mr. Cheeks had failed again to timely file a plan and had failed to appear at the hearing. 

14. The foreclosure trustee is unable to close the sale and record the foreclosure deed, or set 

aside this sale, without an Orderthis Court, determining the extent of the automatic stay in 

this case and granting an order confirming the absence of the automatic stay, or in the 

alternative, granting the Movant nunc pro tunc relief from the automatic and Co-Debtor 

stays of the Bankruptcy Code. 

15. Upon information and belief, Clear Sky asserts that it was the high bidder/purchaser at a 

validly conducted foreclosure sale. Clear Sky asserts that it has a valid legal right to 

purchase the property and stands ready to file actions to compel the same. 

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Upon information and belief, Clear Sky argues that Frederick Cheeks has a history of filing 

repeated bad faith bankruptcies. See, e.g., In re: Frederick Cheeks, No. 1-2018-13245 (E.D. 

Va.) (dismissed 11-21-18 for failure to appear); 2017-14027 (E.D. Va.) (dismissed 12-20-17 

for failure to file). He filed no bankruptcy related to this foreclosure, apparently because it 

was believed that a third filing may have immediately been deemed to be in bad faith. Clear 

Sky has stated that an assertion of the claim and alleged stay by Debtor Marietta Cheeks is 

part of an ongoing “scheme” “to delay or impede” foreclosure on the property contrary to the 

intentand terms of 11 U.S.C. § 362(d)(4), and to avoid the intent and terms of 11 U.S.C. § 

362(c)(4) barring dilatory repeat bankruptcy filings that improperly burden the Court and 

interested parties like Clear Sky, US. Bank, and the foreclosure trustee. Clear Sky asserts 

that it has contractual, legal, equitable, and other rights and interests in the property. Clear 

Sky is prepared to proceed to closing in the ordinary course, and if necessary, to sue to force 

such closing. 

16. U.S. Bank has attempted to foreclosure multiple times. Each sale was put on hold due to 

loss mitigation efforts and when those proved to be unsuccessful, each sale was stayed due to 

a bankruptcy filing. 

17. Upon information and belief, the Debtor asserts an “equitable” interest in the property that is 

not recognized under Virginia law. 

18. The facts hereinabove alleged constitute cause for an order confirming that the Debtor’s 

purported equitable interest was not property of the estate and that there was no automatic 

stay or Co-debtor stay in effect at the time of filing that operated to stay the foreclosure sale 

at which Clear Sky was the successful bidder. In the alternative, U.S. Bank requests an 

Order granting nunc pro tunc relief from the automatic stay and § 1301 co-debtor stay. 

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WHEREFORE, Plaintiff prays that it be granted an Order confirming absence of the automatic stay, 

or, in the alternative, an Order granting relief, nunc pro tunc, from the provisions of the automatic 

stay and Co-debtor stay of the Bankruptcy Code with regard to the above-described real property 

and improvements including any act necessary to recover possession of same from the Debtor and 

Co-Debtor and that the stay of such grant of relief imposed pursuant to the provisions of Rule 

4001(a)(3) of the Bankruptcy Rules be waived. 

U. S. Bank, National Association 

By: /s/M. Christine Maggard 

Of Counsel 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 12, 2019 a true copy of the foregoing Notice of Motion and Motion 

was submitted for electronic transmittal or mailed, first class, postage prepaid to: 

Marietta Cheeks 

17160 Belle Isle Drive 

Dumfries, VA 22026 

Debtor 

Frederick Cheeks 

17160 Belle Isle Drive 

Dumfries, VA 22026 

Co-Debtor 

Thomas P. Gorman 

300 N. Washington St. Ste. 400 

Alexandra, VA 22314 

Chapter 13 Trustee 

Nathan A. Fisher 

3977 Chain Bridge Road, #2 

Fairfax, VA 22030 

Counsel for Debtor 

John Fitzgerald, III 

Office of the U.S. Trustee – Region 4 

1725 Duke Street 

Suite 650 

Alexandria, VA 22314 

U.S. Trustee 

Edward J. Grass, Esq. Attorney-at-law 

9501 Burke Road #10784 

Burke, VA 22015 

Counsel for Clear Sky Properties, L.L.C. 

/s/ M. Christine Maggard 

M. Christine Maggard, VSB# 33824 

Brock & Scott, PLLC 

484 Viking Drive, Suite 203 

Virginia Beach, VA 23452 

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