1

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

In re: )

)

ELIZABETH H. COOMES, ) Case No. 17-13497-BFK

) Chapter 13

Debtor. )

ORDER GRANTING TRUSTEE’S MOTION 

TO DISMISS BANKRUPTCY CASE 

WITH PREJUDICE

This matter is before the Court on the Chapter 13 Trustee’s Motion to Dismiss this 

bankruptcy case with prejudice. Docket No. 43. The Debtor filed an Opposition to the Trustee’s 

Motion. Docket No. 60. The Court heard the evidence on June 6, 2018. For the reasons stated 

below, the Court will dismiss this bankruptcy case with prejudice for a period of 180 days. 

Findings of Fact 

This is the Debtor’s fourth Chapter 13 case since 2012, plus a related corporate Chapter 

11 case filed in March 2018. The Court will recount the procedural history of the Debtor’s 

bankruptcy cases, below. 

A. The Debtor. 

1. The Debtor is an individual residing in Leesburg, Virginia. She has been 

employed as an insurance agent over the years. She owns an insurance agency known as Old 

Town Insurance & Financial Services, Inc. (“Old Town”). 

2. The Debtor owns four properties: her home at 201 Cornwall St. NW, in Leesburg, 

a 5-bedroom vacation rental property in Bayse, Virginia (which is located within the Bryce 

Resort in Shenandoah County), and two unimproved lots also within Bryce (“the Bryce Lots”). 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 1 of 13
2

3. The Cornwall Street property is encumbered by one mortgage. The Bayse 

property has two mortgages.1

4. The Debtor has suffered a series of setbacks over the years. First, she asserts that 

the heating and air conditioning apparatus in her office was improperly connected, resulting in 

sewer gas being inducted into the office. She asserts that she has suffered chronic respiratory 

conditions as a result. She has a lawsuit pending in the Circuit Court of Fauquier County against 

the owner of the property and the property manager, in which she is represented by counsel. She 

testified that she has spent “six figures” for expert witnesses and other out-of-pocket costs for the 

lawsuit. The case is not currently set for a trial. 

5. Second, the Debtor voluntarily surrendered her insurance license in Virginia. This 

happened after Anthem Blue Cross Blue Shield of Virginia (BCBS) sent a number of 

commission checks to the Debtor in error. BCBS demanded immediate repayment of the 

commissions. When the Debtor was unable to repay the amounts immediately, BCBS filed a 

complaint with the Virginia Insurance Commissioner in September 2012. The Debtor voluntarily 

surrendered her license while these charges were pending. 

6. In 2013, the State of Maryland then instituted reciprocal proceedings, alleging 

that the Debtor’s failure to self-report the voluntary surrender of her license in Virginia was a 

 

1 The nature and amount of the Debtor’s mortgages on her properties is the source of some confusion for the Court. 

In her 2012 Chapter 13 case, the Debtor listed two mortgages against her principal residence at Cornwall St. (Chase 

Bank in the amount of $522,857.00, and Wells Fargo in the amount of $113,849.28), and three mortgages against 

the Basye property (CitiMortgage in the amount of $196,000.00, Wells Fargo in the amount of $100,175.49, and 

Middleburg Bank in the amount of $64,000.00). Case No. 12-15441, Docket No. 1, Schedule D. In this case, the

Debtor listed only one mortgage against Cornwall St. (Bank of New York Mellon in the amount of $605,000.00), 

and two mortgages against the Bayse property (Nationstar in the amount of $237,528.00 and Middleburg Bank in 

the amount of $67,000.00). It is unclear what became either of the $113,849.28 debt previously secured by the

second mortgage on Cornwall St. and the $100,175.49 debt secured by the second mortgage against the Bayse 

property. It is possible that the debt on Cornwall St. was rolled into the first mortgage, now held by Bank of New 

York Mellon, and the debt against the Bayse property was released. In the end, the confusion is not material to the 

Court’s decision as set forth below. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 2 of 13
3

violation of the insurance regulations in Maryland. The Debtor takes the position that the 

voluntary surrender of her license was not an “adverse action” within the meaning of the 

Maryland Insurance Code and that the Maryland Insurance Commission lacks jurisdiction over 

acts that occurred in Virginia.

7. The Debtor has asserted in this case that the Maryland Insurance Administration 

violated the automatic stay by moving to dismiss (successfully) her appeal of the revocation of 

her license. See Docket No. 80, Motion to Enforce Automatic Stay. The Maryland Insurance 

Administration responded to the Debtor’s Motion, arguing that it was entitled to move to dismiss 

her appeal pursuant to Bankruptcy Code Section 362(b)(4) (the police and regulatory power 

exception to the automatic stay). Docket No. 90, at 6 (“This provision [Section 362(b)(4)] has 

been uniformly interpreted to except from the automatic stay provisions of the Bankruptcy Code 

actions such as the one brought by the Administration in this case.”) 

B. Case No. 10-17530-SSM (Eastern District of Virginia).

8. On September 6, 2010, Ms. Coomes and her husband filed a Voluntary Petition 

under Chapter 7 with this Court. Case No. 10-17530-SSM, Docket No. 1. 

9. She received a discharge in December 2010, and the case was closed. Docket 

Nos. 22, 24. 

C. Case No. 12-15441-BFK (Eastern District of Virginia). 

10. On September 7, 2012, Ms. Coomes filed a Voluntary Petition under Chapter 13 

with this Court. Case No. 12-15441-BFK Docket No. 1. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 3 of 13
4

11. In her Petition, she listed 210 Cornwall St., NW, Leesburg, VA, as her residence. 

Id. She stated in her Schedules that the Cornwall Street property had a value of $358,873.00, 

with mortgages totaling $636,706.28. Id., Schedule A, at 21.2

12. The Debtor listed the Bayse property with a value of $175,000.00 and secured 

debt of $360,175.49. Id.

13. Shortly after she filed her Chapter 13 petition, Ms. Coomes filed adversary 

proceedings against Wells Fargo Bank, N.A. and Middleburg Bank. Adversary Proceedings Nos.

12-01423-BFK and 12-01424-BFK.

14. In the Wells Fargo adversary proceeding, Ms. Coomes was successful in 

obtaining a default judgment against Wells Fargo which stripped off a wholly unsecured second 

deeds of trust lien against her residence in Leesburg, Virginia, and a wholly unsecured lien 

against her rental property in Bayse, Virginia. Adversary Proceeding No. 12-01423-BFK, Docket 

No. 20.

15. The Middleburg Bank adversary proceeding concluded with a Consent Order, 

also stripping off a wholly unsecured deed of trust lien against the Debtor’s rental property in 

Bayse, subject to the successful completion of a confirmed Chapter 13 plan. Adversary 

Proceeding No. 12-01424-BFK, Docket No. 16.

16. As in all strip-off adversary proceedings in Chapter 13, the strip off of these liens 

was subject to the successful completion of a confirmed Chapter 13 Plan. 11 U.S.C. §§ 

348(f)(1)(C) (effect of conversion), 349(b)(1)(C) (effect of dismissal). 

 

2 The Debtor has filed a lawsuit in State court against the lender on her residence, claiming that the lender has 

unfairly denied her a loan modification. It does not appear that this lawsuit will be resolved any time soon. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 4 of 13
5

17. The Debtor filed an Amended Chapter 13 Plan on February 13, 2013. Docket No. 

58. In her Amended Plan, the Debtor stated the amount of the arrearages on her principal 

residence as $16,064.56, and the arrearages on her rental property at $17,273.07. Id., ¶ 5(A). 

18. The Court entered an Order confirming the Debtor’s Chapter 13 Plan on March 

29, 2013. Docket No. 66. 

19. In March 2015, JP Morgan Chase Bank N.A. (“JP Morgan Chase”), the Debtor’s 

mortgage lender with a first deed of trust on her residence in Leesburg, filed a Motion for Relief 

from the Automatic Stay with respect to the property. Docket No. 116. 

20. On March 16, 2015, the Chapter 13 Trustee filed a Motion to Dismiss the 

Debtor’s bankruptcy case for failure to make her plan payments. Docket No. 115. 

21. On March 26, 2015, the Debtor filed a Change of Address form with the Court, 

indicating that she had moved from Leesburg to 5974 Main St. Mount Jackson, VA 22842. 

Docket No. 119. 

22. On April 15, 2015, the Debtor filed an Amended Chapter 13 Plan in which she 

indicated that it was her intent to surrender the Cornwall Street property in Leesburg. Docket No. 

122, ¶ 3(B). She again listed the arrearages on the rental property in Bayse at $17,273.07. Id., ¶ 

5(A). 

23. On April 23, 2015, the Court entered an Order granting JP Morgan Chase’s 

Motion for Relief from the Automatic Stay with respect to the Leesburg property which, as 

noted, the Debtor indicated her intent to surrender. Docket No. 125. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 5 of 13
6

24. The Court granted the Trustee’s Motion to Dismiss the case on June 4, 2015. 

Docket No. 136.3

D. Case No. 15-51124 (Western District of Virginia).

25. The Debtor filed a Voluntary Petition under Chapter 13 in the U.S. Bankruptcy 

Court for the Western District of Virginia, pro se, on November 17, 2015. Case No. 15-51124.

26. The case was dismissed on January 20, 2016, because the Debtor had not 

complied with the requirement for pre-petition credit counseling. Docket Nos. 31 (Order 

Denying Debtor’s Motion to Waive Credit Counseling), 32 (Order Dismissing Case). 

E. Case No. 16-50200 (Western District of Virginia). 

27. The Debtor filed a Voluntary Petition under Chapter 13 (her third Chapter 13 

case) with the U.S. Bankruptcy Court for the Western District of Virginia on March 3, 2016. 

Case No. 16-50200, Docket No. 1. 

28. In this Petition, the Debtor listed her residence as the Cornwall Street address in 

Leesburg. Id.

29. The Debtor filed this petition pro se, but counsel later entered his appearance on 

her behalf. Docket No. 19. 

30. U.S. Bank, N.A. filed a Motion to Confirm Termination or Absence of Stay.

Docket No. 16.

31. On May 9, 2016, the Court entered an Order imposing the automatic stay but 

subject to the conditions that the Debtor remain current on her post-petition mortgage payments 

for both the Leesburg property and the Bayse property, that the Debtor remain current on her 

 

3 In all, the Debtor spent approximately two years and nine months in this Chapter 13 case – September 7, 2012, to 

June 4, 2015. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 6 of 13
7

Chapter 13 plan payments, and that she achieve confirmation of a plan by July 6, 2016. Docket 

No. 33. 

32. A month later, U.S. Bank filed a Notice of Default with the Court. Docket No. 42. 

33. The Debtor’s attorney was allowed to withdraw from the case. Docket No. 45. 

34. Ms. Coomes, now acting pro se, filed a Response to U.S. Bank’s Notice of 

Default. Docket No. 46. 

35. The Court ruled on July 6, 2016, that it would grant relief to U.S. Bank. Docket 

No. 49.

36. The Debtor filed a Motion to Reconsider and a Supplement to her Motion to 

Reconsider. Docket Nos. 51, 53. 

37. She filed an Adversary Complaint against Middleburg Bank with respect to the 

Bayse property. Adversary No. 16-05016.

38. Bank of New York Mellon, as successor to JP Morgan Chase, filed a Motion for 

Relief from the Automatic Stay with respect to the Cornwall Street property in Leesburg. Docket 

No. 65. 

39. The Bankruptcy Court dismissed the Debtor’s case on August 3, 2016, thereby 

rendering Bank of New York Mellon’s Motion moot. Docket Nos. 69, 70. 

40. The adversary proceeding against Middleburg Bank was dismissed as moot. 

Adversary No. 16-05016, Docket No. 71. 

41. The Debtor appealed the dismissal of her bankruptcy case. Docket No. 73. 

42. On June 26, 2017, the District Court affirmed the Order dismissing the Debtor’s 

bankruptcy case. Docket No. 112. Coomes v. Structured Asset Securities (In re Coomes), No. 

5:16 cv00048, 2017 WL 2799903 (W.D. Va. June 27, 2017). 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 7 of 13
8

43. The Debtor’s bankruptcy case was closed on July 31, 2017. Docket No. 113.4

F. Case No. 17-13497-BFK (Eastern District of Virginia) (This Case).

44. The Debtor returned to this Court with the filing a Voluntary Petition under 

Chapter 13 (her fourth), pro se, on October 16, 2017. Docket No. 1. 

45. Counsel for the Debtor entered his appearance in the case on January 16, 2018. 

Docket No. 36. 

46. The Trustee filed his Motion to Dismiss Case with Prejudice on February 1, 2018. 

Docket No. 43. 

47. The Debtor listed not only the Cornwall Street property and the Bayse property, 

which were listed in her previous cases, but two Lots in Bryce Resort as well. Docket No. 38, 

Schedule A, at 4. The two Bryce Lots are unimproved and do not generate any income.5

48. The Debtor’s Amended Chapter 13 Plan, filed on March 28, 2018, states that she 

now has accrued $142,960.02 in arrearages on her principal residence, the Cornwall Street 

property in Leesburg, which she stated will be “taken care of through personal injury proceeds or 

a loan mod., whichever occurs first.” Docket No. 57, at 4, ¶ 6(A). 

49. In her Amended Chapter 13 Plan she listed “$0.00” in arrearages for the two Lots, 

but she also listed $76,678.59 in arrearages on the Bayse property. Id.

50. Three features of the Debtor’s Amended Plan are notable. First, the Plan proposed

to pay to the Chapter 13 Trustee $300.00 per month for 12 months, then $750.00 per month for 

18 months and then $1,950.00 per month for 30 months. Id. at 1, ¶ 2. The Debtor’s net monthly 

 

4 Including the appeal, the Debtor spent sixteen months, from March 2016 to July 2017, in this Chapter 13 case. 

5 It is not clear where the Debtor obtained the funds to purchase the two Lots – perhaps from the rental income from 

the Bayse property, perhaps from commissions owed to Old Town. It is clear, though, that the Debtor was not 

paying any of her mortgages throughout this period of time. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 8 of 13
9

income, as evidenced by Line 23c of her Schedule J attached to the Amended Plan, indicates that 

she has $361.08 in net monthly income. Id. at 10.

51. Second, the Amended Plan states that the Debtor will attempt to modify her loan 

on the Cornwall St. property. Id. at 5, ¶ 12.

52. Third, the Plan calls for additional amounts to the paid to the Trustee “from sale 

of Bryce Resort Lots and personal injury lawsuit.” Id. at 1, ¶ 2 The Debtor testified at the hearing 

in this case that the Bryce Lots are not currently listed for sale. Further, the personal injury 

lawsuit, though pending, is not set for a trial. 

53. The Debtor testified that the Bayse property has not been regularly rented since 

2015. She is, however, attempting to rent the property in 2018, and she has a few weeks 

currently booked. She testified that in 2017 the property generated approximately $10,000.00 in 

gross rental income. 

54. On May 31, 2018, the Court denied confirmation of the Debtor’s Amended 

Chapter 13 Plan, with the Debtor’s consent. Docket No. 77. 

G. Old Town Insurance & Financial Services, Inc. (Case No. 18-11046-BFK). 

55. On March 26, 2018, the Debtor filed a Voluntary Petition under Chapter 11 for 

Old Town in this Court. Case No. 18-11046-BFK. 

56. The Debtor filed the case without an attorney. Docket No. 1. Old Town did not 

pay the filing fee. Docket No. 3. 

57. The case was dismissed on April 4, 2018. Docket No. 9. 

58. On April 5, 2018, the Debtor requested an extension of time to secure counsel and 

to pay the filing fee. Docket No. 11. The Court granted Old Town until May 31st to have counsel 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 9 of 13
10

enter his or her appearance and to pay the filing fee. Docket No. 14 (Order Extending Stay of 

Dismissal). 

59. On May 31st, the Debtor requested an additional extension of time, which the 

Court denied. Docket Nos. 16, 17. 

60. The Debtor testified that she is not personally generating any commissions with 

Old Town because she does not have a license in Virginia. She did testify that Old Town has 

residual commissions owed on policies that were generated before she surrendered her license. 

Her husband (who is in his own Chapter 13 case in the Western District of Virginia) may also be 

generating commissions through Old Town, though the extent of any income from Old Town 

was not clear to the Court.

Conclusions of Law 

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

Reference of the U.S. District Court for this District entered 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). 

Under Section 1307(c)(1) of the Code, the Court can convert or dismiss a case, whichever 

is in the best interests of creditors, for “unreasonable delay by the debtor that is prejudicial to 

creditors.” 11 U.S.C. § 1307(c)(1). Upon a dismissal, the Court can impose such conditions as it 

may deem necessary. In re Ellsworth, 455 B.R. 904, 921-22 (9th Cir. B.A.P. 2011); In re 

Cruscuolo, No. 09-14063-BFK, 2014 WL 1910078 (Bankr. E.D. Va. May 13, 2014) (relying on 

Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007), and In re Mitrano, 472 B.R. 

706 (E.D. Va. 2012)). See also 11 U.S.C. § 349(a) (“Unless the court, for cause, orders 

otherwise . . . nor does the dismissal of a case under this title prejudice the debtor with regard to 

the filing of a subsequent petition under this title . . .”) (Emphasis added). 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 10 of 13
11

By any measure, the Debtor has been in Chapter 13 for an extraordinary period of time. 

She filed her first Chapter 13 case with this Court (Case No. 12-15441-BFK) on September 7,

2012. Now, five years and nine months later, and with three additional bankruptcy cases, the

Debtor remains in Chapter 13 without a confirmed Plan. When she began her journey in 

February 2013, she listed the arrearages on her principal residence (the Cornwall Street property) 

at $16,064.56 and the arrearages on her rental property in Bayse at $17,273.07. Case No. 12-

15441-BFK, Docket No. 58, ¶ 5(A). Now, over five years later (and after representing to this 

Court in her 2012 case that she was going to surrender the Cornwall Street property), the Debtor 

lists the arrearages on her Cornwall Street property at $142,960.02 (almost 9 times the originally 

stated arrearage amount), and on the Bayse rental property at $76,678.59 (almost 5 times the 

amount of the originally stated arrearages). Case No. 17-13497-BFK, Docket No. 57, ¶ 6(A).

This can hardly be described as progress in her multiple Chapter 13 cases. 

With $219,638.61 in combined arrearages on her two properties, the Debtor would need 

$3,660.64 per month just to pay the arrearages over a 60-month plan. She lists her monthly net 

income at $361.08 in her Schedule J, roughly one tenth of what would be required to cure the 

arrearages in Chapter 13. Id., Schedule J.

Moreover, the proposed step payments in the Debtor’s Amended Plan are unreasonably 

optimistic – increasing from $300.00 per month for the first 12 months to $750.00 for the next 18 

months, and then to $1,950.00 for the remaining 30 months of the Plan. The first increase is 2.5 

times the initial plan payment; the second increase is 6.5 times the amount of the initial plan 

payment. Although the Debtor testified that she is going back to school for a paralegal certificate

and that she plans to hire a licensed insurance agent at Old Town, these measures are all 

speculative in terms of their ability to generate income to fund the Plan in this case. 

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 11 of 13
12

The Debtor’s Amended Plan states that she will fund the plan with the sale of the Bryce 

Resort Lots and through her personal injury lawsuit. She acknowledged in her testimony, 

however, that the Bryce Lots have never been listed for sale with a realtor. Further, the Debtor 

testified that, while she is represented by counsel in her personal injury lawsuit, the lawsuit is not 

currently scheduled for a trial. A Chapter 13 Plan that depends on the outcome of nonbankruptcy litigation generally is considered to be speculative and not feasible. In re Milstein,

2014 WL 3511526, *3 (Bankr. D. Colo. 2014) (“Numerous courts have found that debtors who 

propose to fund their chapter 13 plans from a hoped for favorable litigation outcome cannot 

satisfy the feasibility requirement of § 1325(a)(6)”); In re Jensen, 425 B.R. 105, 110 (Bankr. 

S.D. N.Y. 2010) (“A chapter 13 plan cannot be premised on the successful litigation of a claim”); 

In re Ewald, 298 B.R. 76, 82 (Bankr. E.D. Va. 2002).

In sum, the Debtor’s income cannot feasibly support the payment of the arrearages on her 

two properties. She has been in four Chapter 13 cases, spanning almost six years, during which 

the arrearages on her two properties have grown exponentially. She has not listed the Bryce Lots 

for sale and her personal injury lawsuit is not set for a trial. There has been unreasonable delay 

that has prejudiced the creditors in this case. 11 U.S.C. § 1307(c)(1). 

Further, a dismissal without prejudice would only invite the Debtor to file a fifth 

bankruptcy case with the same intractable feasibility problems. The Court finds, therefore, that a 

dismissal with prejudice for a defined period of time is required by the facts and circumstances 

of this case.

Conclusion 

It is therefore ORDERED:

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 12 of 13
13

1. This bankruptcy case is dismissed with prejudice to a re-filing by the Debtor in 

any U.S. Bankruptcy Court for a period of 180 days from the date of the entry of this Order.

2. The Debtor is advised that she has the right to appeal this Order by filing a Notice 

of Appeal with the Clerk of this Court within 14 days of the entry of this Order. 

3. The Clerk will mail copies of this Order, or will provide cm-ecf notice of the 

same, to the parties below. 

Date: _____________________ ___________________________________

Brian F. Kenney

Alexandria, Virginia United States Bankruptcy Judge

Copies to:

Elizabeth H. Coomes

210 Cornwall Street NW 

Leesburg, VA 20176

Chapter 13 Debtor

Nathan A. Fisher

Michael O. Sandler

3977 Chain Bridge Road, #2

Fairfax, VA 22030

Counsel to Chapter 13 Debtor

Thomas P. Gorman 

300 N. Washington St.

Suite 400

Alexandria, VA 22314

Chapter 13 Trustee

Jul 10 2018 /s/ Brian F. Kenney

Entered on Docket: July 10, 2018

Case 17-13497-BFK Doc 98 Filed 07/10/18 Entered 07/10/18 15:17:43 Desc Main

 Document Page 13 of 13