1 

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

In re: )

)

MARIETTA CHEEKS, ) Case No. 19-10516-BFK

) Chapter 13

Debtor. )

MEMORANDUM OPINION AND 

ORDER GRANTING: (A) U.S. BANK NATIONAL ASSOCIATION’S

MOTION TO CONFIRM ABSENCE OF THE AUTOMATIC

STAY (DOCKET NO. 13); AND (B) CLEAR SKY PROPERTIES, LLC’S MOTION 

FOR RELIEF FROM THE AUTOMATIC STAY 

(DOCKET NO. 32)

This matter came before the Court on the Motion of U.S. Bank National Association

(“U.S. Bank”) to Confirm Absence of the Automatic Stay, and on the Motion of Clear Sky 

Properties, LLC (“Clear Sky”) for Relief from the Automatic Stay. Docket Nos. 13, 32. The 

Motions essentially seek the same relief - U.S. Bank, the former beneficiary of the Deed of Trust 

at issue in this case, and Clear Sky, the successful bidder at the foreclosure sale of real property

located at 17160 Belle Isle Drive, Dumfries, VA (hereinafter, the “Property”), assert that the

Property was always titled in the name of the Debtor’s husband and that the Debtor had no legal 

or equitable interest in the Property at the time she filed her bankruptcy petition. U.S. Bank 

requests, in the alternative, that the Court grant relief from the automatic stay, nunc pro tunc.

Clear Sky argues, also in the alternative, that if the automatic stay applied to the Property, Clear 

Sky is entitled to be treated as a bona fide purchaser for value. See 11 U.S.C. §§ 549(c),

550(b)(1). 

The Debtor opposes both Motions, acknowledging that legal title was in the name of her 

husband but arguing that she possessed an equitable interest in the Property at the time she filed 

her bankruptcy petition. She argues that the Deed can and should be reformed under applicable 

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non-bankruptcy law, here the law of Virginia, to include her as a Grantee. Docket Nos. 22 and 

37.

The Court heard the evidence and the parties’ arguments on June 14 and 24, 2019. The 

Court finds that the Debtor’s evidence falls short of establishing a claim for equitable title and 

that reformation of the Deed is not available in this case. The automatic stay, therefore, did not

come into effect with respect to the Property when the case was filed. The Court further finds, in 

light of the foregoing, that: (a) U.S. Bank’s alternative request for nunc pro tunc relief is moot; 

and (b) the Court need not address Clear Sky’s argument that it is a good faith purchaser for 

value. The Court will grant U.S. Bank’s and Clear Sky’s Motions.

Findings of Fact

The Court, having heard the evidence, makes the following findings of fact: 

1. The Debtor, Marietta Cheeks, is an individual residing the town of Dumfries, in 

Prince William County, Virginia. 

2. Ms. Cheeks and her husband, Frederick Cheeks, have been married for 43 years. 

They have two children, who are adults, and two grandchildren. 

3. The Property is the Cheeks’ principal residence.

4. Mr. Cheeks worked as a lineman for Dominion Power for 45 years. He is now 

retired. 

5. Ms. Cheeks operates a day care business, though she testified that she does not 

bring any children into the Property and that her activities are largely confined to picking up and 

dropping off the children from school and from after-school activities.

6. Ms. Cheeks generally handles the family’s finances. She pays the bills, handles 

the bank accounts and prepares the tax returns.

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7. U.S. Bank and the Debtor stipulated to the following facts:

(a) Prior to the foreclosure sale of the property known as 17160 Belle Isle Drive, 

Dumfries, VA 22026 (the property), Robert Butler contacted Brock & Scott, 

PLLC and advised the representative for the firm, that Marietta Cheeks has 

filed bankruptcy and that the sale should be placed on hold.

(b) Robert Butler is not an attorney licensed to practice law and is not an 

employee of, or affiliated with Debtor’s counsel, Nathan Fisher, or his law 

firm.

(c) Brock & Scott, PLLC received notice of Marietta Cheeks’ bankruptcy filing 

from Robert Butler only.

(d) The Note attached to the Joint Stipulation is a true and exact copy of the 

original signed Note.

(e) The Deed of Trust, Deed, & Corrected Deed all attached to the Joint 

Stipulation are true and exact copies of documents on file in the Prince 

William Circuit Court Clerk’s Office, among the land records for that county.

(f) The Note and Deed of Trust are signed by Frederick Cheeks.

Joint Stipulation of Facts, Docket No. 55. 

A. The Contract of Sale.

8. Mr. and Ms. Cheeks began searching for a home in 2013. They employed a 

realtor recommended by their daughter, who brought them to the Potomac Shores neighborhood 

in Dumfries. 

9. NVHomes is one of the home builders in the Potomac Shores development. 

10. Mr. and Ms. Cheeks visited and viewed model homes. They picked out a lot, and 

chose the Portsmouth model for their home. 

11. On May 17, 2015, Frederick Cheeks individually entered into a Purchase 

Agreement for the purchase of a home with NVHomes. CSP Ex. 22.1

12. The original purchase price was $753,475.00. Id., ¶ 2.

 

1

 Clear Sky’s Exhibits are referred to herein as “CSP No. __.” U.S. Bank’s Exhibits are referred to as “USB No. 

__.” The Debtor’s Exhibits are referred to as “DR Ex. __.”

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13. Apparently on the same day, Frederick Cheeks and his daughter, Kimberly 

Cheeks, entered into a Purchase Agreement for the purchase of the same property, with the same 

purchase price. CSP Ex. 23. 

14. On May 28 and 29, 2015, Mr. Cheeks individually signed a Change Order

Addendum and a Flooring Selection Sheet (together, the “Change Orders”) as addenda to the 

Purchase Agreements. DR Exs. C and D. 

15. Ms. Cheeks was the primary point of contact for NVHomes for the selection of 

finishes and upgrades to the Property. She testified that she was present and assisted her husband 

on the computer in their home in affixing his electronic signatures to the Change Orders.

16. On October 6, 2015, Virginia Wahab (known to Ms. Cheeks as Ginnie) of NVR

Settlement Services e-mailed a letter to Ms. Cheeks. DR Ex. I. The letter enclosed a Tenancy 

form. Ms. Wahab requested that the form be signed and returned to the closing attorney. Id.

17. Mr. Cheeks returned two Tenancy forms to the closing attorney, Benjamin C. 

Winn. The first (somewhat inconsistently) stated : “Frederick L. Cheeks, Tenants by the 

Entirety.” The second checked the box that stated: “Sole Owner (If you are buying the property 

alone then this will be your option.)”) DR Ex. U. 

18. Mr. and Ms. Cheeks understood that Ms. Cheeks would not be a borrower on the

mortgage loan because she had student loan debt that would have made approval of the loan 

more difficult. This notwithstanding, Ms. Cheeks and Mr. Cheeks both testified convincingly 

that they have always owned their properties jointly during their 43-year marriage and that it was 

their intent to take title to this Property jointly. 

B. The Applications for Financing. 

19. Mr. and Ms. Cheeks intended to use $400,000.00 of Mr. Cheeks’ retirement 

savings (401(K)) for the down payment, financing the rest of the purchase price with an FHA

mortgage.

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20. Mr. Cheeks submitted three Uniform Residential Loan Applications to NVR 

Mortgage. DR Exs. O, P, Q. Each of these Applications indicated that Mr. Cheeks was to be the 

sole borrower, but that title would be taken jointly with Ms. Cheeks. See DR Exs. O (“Title held 

jointly”), P (“Title held jointly”), Q (“Title held jointly”). 

21. On October 13, 2015, Russell Turner of NVR Mortgage wrote an e-mail to Ms. 

Cheeks advising her that “we are running into a little issue with regards to the debt to income 

[ratio] on our end.” DR Ex. K. He referred Mr. and Ms. Cheeks to George Mason Mortgage. Id.

22. NVR Mortgage sent Mr. Cheeks a Notice of Action Taken, Statement of Reasons 

and Counteroffer denying loan approval on October 15, 2015. CSP Ex. 37. The stated reason for 

the denial was “DTI [Debt to Income] – Unreimbursed Exp.”2

23. Mr. Cheeks then submitted a Uniform Residential Loan Application to George 

Mason Mortgage. DR Ex. S. The section labeled “Manner in which Title will be held” was left 

blank. Id.

24. George Mason Mortgage approved the loan in the amount of $424,297.00, with 

an interest rate of 4.0% and a 30-year amortization, on November 25, 2015. CSP Ex. 66. 

25. Mr. Cheeks signed a second Uniform Residential Loan Application with George 

Mason Mortgage as of the date of the settlement on the Property, November 30, 2015. DR Ex. T. 

This time, the section entitled “Manner in which title will be held” stated: “Married Man.” Id.

C. The Closing. 

26. About three weeks prior to the closing, on November 5, 2015, Mr. Cheeks signed

a Title Addendum to Purchase Agreement. CSP Ex. 49. The Title Addendum stated that he 

 

2 The First Payment Letter issued at the closing indicated that the monthly mortgage payment would be $3,144.02. 

CSP Ex. 80. Mr. Cheeks listed his monthly income including overtime as $7,127.82 in his Loan Application with 

George Mason Mortgage. DR Ex. S, p. 2. Ms. Cheeks’ day care business did not appear to contribute significantly to 

the family’s income. CSP Exs. 13 (2012 Tax Return), 14 (2013 Tax Return), 16 (2014 Tax Return), 18 (2015 Tax 

Return). Thus, the monthly mortgage payment would have been approximately 44% of Mr. Cheeks’ gross (i.e.,

before tax) monthly income.

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wished to add Ms. Cheeks as an Additional Title Holder. It further stated the following 

conditions: 

(a) Purchaser shall provide Seller written evidence from the Lender (as defined in 

the Agreement), satisfactory to Seller in its sole discretion, that adding the 

Additional Title Holder to the deed of conveyance shall not affect Purchaser’s

ability to obtain a loan from Lender. In the event that Purchaser does not 

provide such written evidence to Seller prior to Settlement, title shall be 

conveyed to Purchaser as provided in the Agreement. 

(b) Purchaser agrees that adding the Additional Title Holder to the deed of 

conveyance shall in no way delay, prevent, or otherwise adversely affect 

Settlement as contemplated under the Agreement, and any such delay, failure 

to obtain financing, or failure to settle due, in Seller’s sole determination, to 

the addition of the Additional Title Holder, shall be a default under the terms 

of the Agreement. 

Id., ¶¶ 2 (a) and (b). 

27. The closing on the sale of the Property took place on November 30, 2015. CSP

Ex. 83 (HUD-1 Settlement Statement). Ms. Cheeks testified that she and Mr. Cheeks had to wait 

for two closings to be completed before theirs, and that when it came to their closing they felt 

very rushed. 

28. The final purchase price with all of the additions and upgrades was $859,400.00.

Id., Line 401. The Cheeks paid $418,929.06 in cash at closing, in addition to their $30,000.00 

deposit, both of which came from Mr. Cheeks’ 401(K) retirement account. Id., Lines 507 

(Deposit), 303 (Cash from Borrower). 

29. The Deed to the Property from NVR, Inc., identified Mr. Cheeks as the sole 

Grantee. CSP Ex. 7 (recorded 12/2/2015).3

30. Mr. Cheeks signed the Note payable to George Mason Mortgage; Ms. Cheeks did 

not. CSP Ex. 6. 

 

3

 NVR, Inc. later recorded a Correction Deed, which included information concerning the Cherry Hill Community 

Development Authority District (CDA). CSP Ex. 7. Ms. Cheeks was quite unhappy to learn after the closing that she 

and Mr. Cheeks would owe taxes to two taxing authorities – Prince William County and the Cherry Hill CDA (in 

addition to their Homeowners Association dues). 

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31. Mr. Cheeks executed the Deed of Trust as “Frederick Cheeks, Married Man.”

CSP Exs. 3, 4. 

32. No evidence was presented that Mr. and Ms. Cheeks ever complied with the 

condition stated in paragraph 2(a) of the Title Addendum, which required the written consent of

the lender.

33. Ms. Cheeks testified that she did not notice at the closing that the Deed was made 

out solely to Mr. Cheeks as Grantee and that she was not on the Deed. In fact, she testified, she 

was not aware of this until after she filed her bankruptcy petition in this case in February 2019. 

34. Mr. and Ms. Cheeks moved into the Property on December 20, 2015.

35. The servicing of their loan was later transferred to U.S. Bank. U.S. Bank. CSP Ex. 

88.

D. The Prior Bankruptcy Cases. 

36. Mr. Cheeks received a discharge in a Chapter 7 case in 2013 (before the Cheeks’

purchase of the Property). In re Frederick Lee Cheeks, Case No. 13-13628-BFK.4

37. Ms. Cheeks filed two previous bankruptcy cases. The first case was a Chapter 13

case filed in September 2003, and was dismissed in June 2004. In re Marietta Cheeks, Case No. 

03-14173-SSM. The second case was filed as a Chapter 13 case in August 2004, and was

dismissed in November 2004. In re Marietta Cheeks, Case No. 04-13487-SSM. Both of these 

cases preceded, by many years, the Cheeks’ purchase of the Dumfries Property. 

38. After defaulting on the loan with U.S. Bank, Mr. Cheeks filed two Chapter 13 

cases. In re Frederick L. Cheeks, Case No. 17-14027-KHK; In re Frederick L. Cheeks, Case No. 

18-13245-KHK. The first case was dismissed for failure to pay the filing fee and the failure to 

 

4 The Court can take judicial notice of its own records. In re Heilig-Meyers Co., 328 B.R. 471, 488-89 (E.D. Va. 

2005); In re Rivera, No. 13-14351-BFK, 2014 WL 287517, at *2 n.2 (Bankr. E.D. Va. Jan. 27, 2014); In re Ryan,

472 B.R. 714, 727-28 (Bankr. E.D. Va. 2012); In re Giordano, 472 B.R. 313, 335 n.15 (Bankr. E.D. Va. 2012).

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file Lists, Schedules and a Chapter 13 Plan. Case No. 17-14027-KHK, Docket No. 16. The

second case was dismissed for the same reasons. Case No. 18-13245-KHK, Docket No. 21.

E. Ms. Cheeks Files the Instant Bankruptcy Case. 

39. Ms. Cheeks filed this case as a Voluntary Petition under Chapter 13 at 4:00 p.m. 

on February 16, 2019. Docket No. 1. She was represented by counsel in the filing. Id.

40. Ms. Cheeks testified that she and Mr. Cheeks had consulted with an attorney from 

California who advised them that Mr. Cheeks was not eligible to file another bankruptcy petition 

because of his previous bankruptcy cases. 

41. Ms. Cheeks’ Schedule A/B lists the Property as being “Owned as husband and 

wife.” Docket No. 16, Schedule A/B.

42. She listed the Property with a value of $989,000.00, and with secured debt in the

amount of $420,000.00 as of the petition date. Id., Schedules A/B, D.

F. The Foreclosure of the Property and the Sale to Clear Sky. 

43. Ms. Cheeks testified that they were able to make the payments for about one year, 

through December 2016. The last payment that she and Mr. Cheeks made to U.S. Bank was in 

early 2017.

44. Ms. Cheeks worked on a loan modification and hired a company to help her in 

that effort. She testified that she sent all of the required documents to U.S. Bank in January 2017,

and that she and Mr. Cheeks were approved for a reduced monthly payment of $2,889.00. She

testified that they made these payments in February and March 2017. 

45. In April 2017, U.S. Bank started returning the payments and asserted that they 

were again in default. As a result, Mr. and Ms. Cheeks stopped making payments to U.S. Bank in

April 2017 and thereafter. 

46. U.S. Bank noticed a foreclosure on the Property for the morning of February 19,

2019, at 2:00 p.m. USB Ex. 8. 

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47. Charles Einsmann, Clear Sky’s Managing Member, testified that this was the

third time that the Property had been noticed for a foreclosure, the first two having been stayed

by Mr. Cheeks’ bankruptcy filings.

48. On February 19th, just before conducting the foreclosure, the Substitute Trustee 

called his office to determine whether the record titleholder, Mr. Cheeks, had filed a bankruptcy 

petition; the answer was no. Unbeknownst to the Substitute Trustee, Ms. Cheeks had filed her 

Voluntary Petition on February 16th, three days before the foreclosure sale. 

49. Clear Sky was the successful bidder at the foreclosure, having bid $493,624.00.

USB Ex. 7. The Substitute Trustee signed a Memorandum of Trustee’s Foreclosure Sale dated 

February 19, 2019, and Clear Sky paid the Substitute Trustee $45,000.00 as a deposit. Id.

50. Both Mr. and Ms. Cheeks testified that, in their view, the Property has a value of 

approximately what they paid for it, $859,000.00.

51. Mr. Einsmann was not able to conduct an inspection of the Property before he 

made the bid at the foreclosure sale. He testified that Clear Sky generally calculates its bids at 

foreclosure sales based on neighborhood comparable sales, less anticipated costs for the repair 

and renovation of the property. In Mr. Einsmann’s words, “we buy wholesale, and we sell retail.” 

In this case, Mr. Einsmann estimated the “after-repair” value of the Property to be, 

conservatively, $750,000.00. 

52. Mr. Einsmann further testified that the values in this neighborhood for secondary 

sales were somewhat depressed (perhaps 5 to 7% of their value) owing to the fact that NV was 

still selling homes in the project, so sellers are still competing against the builder of the homes. 

53. He further estimated the repairs for this Property, a new property which has been 

well-maintained, to be approximately $30,000.00. Thus, his “before repair” value was 

approximately $700,000.00. Clear Sky’s foreclosure bid represented 70% of Mr. Einsmann’s 

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estimated pre-repair value of $700,000.00, but only 57% of the Cheeks’ valuation of 

$859,000.00.

Conclusions of Law

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Order of

Reference entered by the District Court for this District on August 15, 1984. This is a core 

proceeding under 28 U.S.C. §§ 157(b)(2)(A) (matters concerning the administration of the 

estate) and (G) (motions to terminate, annul or modify the automatic stay). 

Section 362(d)(1) of the Code allows the automatic stay to be terminated for cause,

including a lack of adequate protection. 11 U.S.C. § 362(d)(1). Clear Sky and U.S. Bank seek

relief from the automatic stay to complete the foreclosure sale by recording a Trustee’s Deed to 

the Property and to proceed with State law remedies to gain possession of the Property. Here, 

there is cause to grant Clear Sky’s and U.S. Bank’s Motions because the Property never 

constituted property of Ms. Cheeks’ bankruptcy estate.

A. Property of the Estate and the Automatic Stay. 

The nature and extent of the bankruptcy estate’s interest in property is determined under 

State law, unless there is a competing bankruptcy law consideration, which there is not in this 

case. Butner v. U.S. 440 U.S. 48, 55 (1979). Bankruptcy Code Section 541(a)(1) provides that 

property of the estate shall consist of “all of the following property wherever located and by 

whomever held... [including] all legal and equitable interests of the debtor in property as of the 

commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). 

The automatic stay precludes creditor action against property of the estate, with certain 

exceptions not relevant here. 11 U.S.C. § 362(a). A number of courts have held that the

automatic stay can extend to a debtor’s equitable interest in property, where title to the property 

is recorded in another entity. For example, in In re Ealy, the bankruptcy court held that the 

automatic stay protected certain property that was held in the name of a limited liability company 

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because the Deed should have been in the names of the Debtors. 307 B.R. 653, 657-58 (Bankr. 

E.D. Ark. 2004). In Ford v. A.C. Loftin (In re Ford), the bankruptcy court held that “the Debtor 

has a continuing beneficial ownership interest in the residence on the basis of an implied trust 

under Georgia cases.” 296 B.R. 537, 543 (Bankr. N.D. Ga. 2003). In Fadel v. DCB United LLC 

(In re Fadel), the Ninth Circuit Bankruptcy Appellate Panel employed a “form of title”

presumption – that the description of title in the deed presumptively reflects actual ownership –

but that this presumption could be rebutted by a showing of undue influence in the transaction.

492 B.R. 1, 11-12 (9th Cir. B.A.P. 2013). 

Ms. Cheeks, therefore, could possibly demonstrate that the Property was titled solely in 

her husband’s name as a product of a mutual mistake, for which she would be entitled to a

reformation of the Deed under State law. 

B. Virginia Law on Mistake, Equitable Title and Reformation. 

The legal burden to demonstrate an entitlement to reformation of instruments as a result 

of a mutual mistake is a heavy one in Virginia. In Gibbs v. Price, the Virginia Supreme Court

held: 

Equity has undoubted jurisdiction to reform an instrument if it does not express the intent 

of the parties. Equity should give effect to the true intent of the parties, despite a contrary 

intent reflected by a writing the parties mistakenly believed to monument their bargain.

But equity should not act lightly.... To support reformation on the ground of mutual 

mistake, the proof ‘must be clear and satisfactory, leaving but little, if any, doubt of the 

mistake’.

150 S.E.2d 551, 552 (Va. 1966) (emphasis added).5

In determining whether a mutual mistake has been made, ‘“the inquiry is not ... who 

initially made the mistake, but rather, whether each party held the same mistaken belief with 

respect to a material fact at the time the agreement was executed.’” Tiger Fibers, LLC v. Aspen

 

5

 Virginia law also allows for reformation where the mistake is unilateral, but is accompanied by a

misrepresentation or fraud by the other party to the instrument. Ward v. Ward, 387 S.E.2d 460, 462 (Va. 1990). 

There is no suggestion in this case that NV committed a fraud at the closing. 

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Specialty Ins. Co., 594 F. Supp. 2d 630, 643 (E.D. Va. 2009) (insurance policy reformation; 

citations omitted).6

C. The Application of Virginia Law to the Facts of this Case. 

The Court found Ms. Cheeks’ and Mr. Cheeks’ testimony to be highly credible on the 

issue of how they intended to take title. Mr. and Ms. Cheeks have been married for 43 years. 

They have always acted jointly in their financial affairs. Ms. Cheeks acknowledged that she was 

not going to be a borrower on the mortgage loan because of her student loan debt, but she was 

adamant that she was to be on the title. Although Clear Sky introduced evidence that Mr. and

Ms. Cheeks may have significant tax problems with the IRS, this did not shake the Court’s

conclusion on the core issue that Mr. and Ms. Cheeks intended to take title jointly to their home. 

This is not the end of the matter, however, because Mr. and Ms. Cheeks were not the only

parties to the transaction. NVHomes was the seller and George Mason Mortgage was the lender 

and the beneficiary of the Deed of Trust (later assigned to U.S. Bank). The Title Addendum 

clearly indicated that Mr. Cheeks intended to add Ms. Cheeks as an Additional Title Holder. CSP 

Ex. 49. However, just as clearly, the Title Addendum contained the condition that Mr. and Ms. 

Cheeks produce the written consent of the lender. Id., ¶ 2(a). Mr. Cheeks signed this on

November 5, 2015, about three weeks before the closing, so there was time to obtain the lender’s

 

6

 Although Ms. Cheeks did not press the issue at the final hearing in this matter, her pleadings allude to the fact that 

this Property was marital property under Virginia law. See Docket Nos. 22, ¶ 8 (“the debtor asserts an equitable 

interest in the $400,000.00 in marital equity in the subject property”), 37, ¶ 11 (same). The Court agrees with the 

bankruptcy court’s analysis in In re Balzano, 399 B.R. 428 (Bankr. D. Md. 2008), that this would have been 

insufficient to cause the Property to become property of Ms. Cheeks’ bankruptcy estate. Under Va. Code § 20-

107.3(A), the Circuit Court “upon decreeing the dissolution of marriage” shall determine “the legal title as between 

the parties.” The statute further provides that all orders or decrees that divide or transfer property between the parties 

shall be indexed and recorded in the city or county where the property is located. Va. Code § 20-107.3(C). The 

statute expressly states: 

For the purposes of this section only, both parties shall be deemed to have rights and interests in the marital 

property. However, such interests and rights shall not attach to the legal title of such property and are only 

to be used as a consideration in determining a monetary award, if any, as provided in this section.

Va. Code § 20-107.3(B) (emphasis added). Of course, in this case, Mr. and Ms. Cheeks never instituted divorce 

proceedings and a decree with respect to the Property was never recorded. 

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written consent in advance of the closing. There was no evidence presented that Mr. and Ms. 

Cheeks ever requested the lender’s consent. A representative of George Mason Mortgage did not

testify, and the Court is left to speculate as to whether it would have consented to adding Ms. 

Cheeks as a record title holder. NV, the Grantor of the Deed, had no real interest in the identity 

of the party or parties to whom it was granting title, but it did require a written statement from 

the lender that adding Ms. Cheeks to the title was acceptable and would not delay the closing for 

any reason. The Title Addendum indicates that Mr. and Ms. Cheeks were aware that Ms. Cheeks 

would not be on the title and that, unless they produced a letter from George Mason Mortgage

consenting to adding Ms. Cheeks to the title, only Mr. Cheeks would be on the Deed as the 

Grantee. Having heard the evidence, the Court is constrained to hold that the Cheeks’ proof fell 

short of their burden to demonstrate a mutual mistake under Virginia law.

The Court is aware that this is a highly unfortunate result for Mr. and Ms. Cheeks. Mr. 

Cheeks was in fact eligible to file a bankruptcy petition in his own name, despite the fact that it 

would have been his third bankruptcy case (he would have had the benefit of the automatic stay 

for 30 days had he filed a third case, because a new case would have been his second case within 

12 months; he could have moved to extend the automatic stay under Bankruptcy Code Section 

362(c)(3)). Mr. Cheeks put over $400,000.00 of his hard-earned 401(K) savings into this 

property. Clear Sky purchased the property for a foreclosure bid of only $493,000.00. Virginia 

law, however, requires clear and satisfactory proof of a mutual mistake, not a unilateral 

misunderstanding.7

The Court, therefore, will grant Clear Sky’s and U.S. Bank’s Motions for Relief from the

Automatic Stay.

 

7

 It is possible that, had Mr. and Ms. Cheeks known that Ms. Cheeks was not on the title, Mr. Cheeks could have 

transferred the property to himself and Ms. Cheeks as joint tenants or tenants by the entirety without triggering a due 

on sale clause from the lender. See 12 U.S.C. § 1701j-3(d)(6) (preempting State law on due on sale clauses where

the transfer is to a spouse); 12 CFR § 591.5 (same).

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Conclusion 

For the foregoing reasons it is ORDERED:

1. U.S. Bank’s and Clear Sky’s Motions for Relief from the Automatic Stay are both 

granted, to permit them to record a Trustee’s Deed and to exercise their State law remedies with 

respect to possession of the Property.

2. The Clerk will mail copies of this Memorandum Opinion and Order, or will 

provide cm-ecf notice of its entry, to the parties below. 

Date: _____________________ ________________________________

Brian F. Kenney

Alexandria, Virginia United States Bankruptcy Judge

Copies to:

Marietta Cheeks 

17160 Belle Isle Drive 

Dumfries, VA 22026 

Chapter 13 Debtor

Nathan A. Fisher, Esquire

3977 Chain Bridge Road, #2 

Fairfax, VA 22030 

Counsel for Debtor

Edward J. Grass, Esquire

9501 Burke Road #10784

Burke, VA 22015 

Counsel for Clear Sky Financial, LLC

M. Christine Maggard, Esquire

Brock & Scott, PLLC

484 Viking Drive, Suite 203

Virginia Beach, VA 23452

Counsel for U. S. Bank, National 

Association

Thomas P. Gorman, Esquire

300 N. Washington St. Ste. 400 

Alexandria, VA 22314

Chapter 13 Trustee

Aug 12 2019 /s/ Brian F. Kenney

Entered on Docket: August 13, 2019

Case 19-10516-BFK Doc 76 Filed 08/13/19 Entered 08/13/19 08:47:07 Desc Main

 Document Page 14 of 14