Jonathan B. Vivona, Esquire

601 King Street, Suite 400

Alexandria, Virginia 22314

Telephone Number: (703) 739-1353

vivonalaw@gmail.com

Counsel for Michael A. Mendoza and Margarita Mendoza

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

IN RE: )

)

DARRIN Z. BURTON, ) Case No. 19-12225-BFK

) Chapter 13

Debtor, )

__________________________________________)

MOTION TO DISMISS CHAPTER 13 CASE WITH PREJUDICE

COMES NOW Michael and Margarita Mendoza (“the Mendozas”), by counsel, and 

state the following in support of their Motion to Dismiss the present Chapter 13 case filed by the 

Debtor, Darrin Z. Burton (“Burton” or “Debtor”).

FACTS

1. On July 5, 2019, Debtor filed his Chapter 13 bankruptcy petition in the Eastern 

District of Virginia, Alexandria Division, Case No. 19-12225-BFK.

2. Debtor has filed eight bankruptcies in this Court since 2008, including this case. 

Case Number Chapter Duration of Case Net Receipts Payments to 

Unsecured

Case No. 08-15058-RGM 7 August 22, 2008 –

December 9, 2008

N/A $0.00

Case No. 09-18157-SSM 13 October 5, 2009 – May 

19, 2010

$2,540.00 $0.00

Case No. 10-14302-RGM 13 May 25, 2010 –

October 31, 2012

$32,600.00 $1,690.30

Case No. 13-12858-BFK 13 June 19, 2013 – April 

30, 2014

$10,080.00 $0.00

Case No. 14-14585-BFK 13 December 10, 2014 –

August 18, 2016

$9,838.48 $0.00

Case No. 16-13137-RGM 7 September 13, 2016 –

January 9, 2017

N/A $0.00

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Case No. 18-12462-KHK 13 July 14, 2018 – June 

13, 2019

$6,049.44 $0.00

3. In Debtor’s most recent Chapter 13 case which was pending for twelve months, 

there was a sum total of $6,049.44 in disbursements, none of which was paid to unsecured creditors. 

Instead $5,144.72 went to administrative expenses and $904.72 went to one secured creditor. All 

of debtor’s Chapter 13 cases, with the exception of one, follow this pattern. All have ended in 

dismissal. See attached Chapter 13 Final Reports marked Exhibit “A”.

4. In his most effective case, Debtor paid $32,600.00 into the Chapter 13 Plan, 

$1,690.30 of which went to unsecured claimants. He now purports that he will be able to pay 

$185,950.00 into the present plan as well as make required mortgage payments of $2,335.50 per 

month going forward.

5. Debtor’s extensive history and recent history in bankruptcy demonstrate that this 

is not possible, and that creditors can only expect further undue delay in collection of their claims.

6. In debtor’s last case he only was able to make payments to the trustee in the total 

amount of $10,106.16 over the twelve month period he was in bankruptcy, for an average of 

$842.18 per month. Though his household income has not changed significantly from then to now, 

Debtor claims he can now make payments of $3,125.00 per month for the remainder of the Plan.

DEBTOR’S INACCURATE SCHEDULES IN PRIOR FILINGS

7. In his Chapter 13 case immediately preceding the present case, Case No. 18-

12462-KHK, Burton did list on his schedules the real property located at 18 Mill Springs Drive, 

Fredericksburg, VA 22406. However, he valued the property at $0.00 and did not list the claim of 

the secured creditor, Carrington Mortgage Services. Further he did not provide for either surrender 

of the property or payment of the arrearages in his previous Chapter 13 case, nor did he provide 

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for any treatment of this claim in his confirmed Amended Chapter 13 Plan in that case. See attached

marked Exhibit “B”.

8. In the present case Carrington is listed as having a secured claim of $524,500.00 

and the Amended Chapter 13 Plan estimates arrearages of $75,000.00. This claim was neither 

listed nor provided for in any capacity in Debtor’s prior case.

9. Debtor also did not list the Mendozas as creditors in his prior case nor did he list 

the Lease as an executory contract in Schedule G of his bankruptcy filing.

UNDERESTIMATION OF THE MENDOZAS’ CLAIM

10. Debtor underestimates the Mendozas’ claim. In addition to rent that Debtor 

failed to pay to the Mendozas, Burton and his spouse, Stephani Burton caused approximately

$16,000.00 of damage to their property. The Mendozas have had to spend significant funds to 

return the Property to rentable condition, as well as lost rental income because the property was 

not ready for new tenants while the damage was being fixed.

ARGUMENT

Debtor has not proceeded in good faith in his many years in bankruptcy and his 

reorganization in this case is not feasible. Burton has perpetually utilized the bankruptcy process 

to delay creditors while not performing on proposed plans. He has failed to pay even secured 

claims, let alone unsecured creditors, who have received $1,690.30 in all of his cases combined. 

Burton has obtained two Chapter 7 discharges since 2008 and is no doubt aiming for a third. He 

is not eligible for a discharge in the present case, nor was he eligible in his prior Chapter 13 filing

dismissed weeks before this case, in which unsecured creditors received zero payment and were 

delayed nearly a year. 

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Due to this pattern of abuse, unsecured creditors are not being provided the 

treatment to which they are entitled under the Bankruptcy Code. Creditors are continually

relinquishing precious time during which they could collect on debts that are not subject to 

discharge in either a Chapter 7 or Chapter 13, while Debtor counts the days before he can become 

eligible for a third Chapter 7 discharge. Unsecured creditors are unlikely to obtain any return if 

Burton remains in bankruptcy.

I. The Debtor’s Bankruptcy Case Has Not Been Filed in Good Faith

To determine whether a chapter 13 petition and plan are filed in good faith, the 

Fourth Circuit applies a totality of the circumstances test. Deans v. O'Donnell, 692 F.2d at 972 

and expanded in In re Solomon, 67 F.3d 1128, 1134 (4th Cir. 1995), and Neufeld v. Freeman, 794 

F.2d 149, 152 (4th Cir. 1986). The factors to be considered include (but are not limited to): the 

percentage of proposed repayment, the debtor’s financial situation, the period of time payment will 

be made, the debtor’s employment history and prospects, the nature and amount of unsecured 

claims, the debtor’s past bankruptcy filings, the debtor’s honesty in representing facts, and any 

unusual or exceptional problems facing the particular debtor. The inquiry is to determine whether 

there has been “an abuse of the provisions, purpose or spirit” of Chapter 13. Id. The Debtors bear 

the burden of proof on the issues of good faith and disposable income. In re Brandland, 570 B.R. 

203, 212 (Bankr E.D. Va. 2017); In re Cole, 548 B.R.132, 141 (Bankr. E.D. Va. 2016); In re 

Colston, 539 B.R. 738, 746 (Bankr. W.D. Va. 2015); In re Daniels (Bankr. E.D. Va., 2018).

While the debtor’s Plan proposes payments of $3,125.00 per month for the rest of 

the Plan, the vast majority of the funds will be paid to secured arrearages and priority claims. The 

percentage proposed repayment to unsecured creditors is 25%. More importantly, their claims are 

not going to be paid any amount until year four or five of the Plan. Given debtor’s track record in 

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his prior bankruptcy cases, it is highly unlikely that he makes it this far along in the Plan. Should 

Burton cease making payments as he has numerous times in the past, these creditors will have lost 

the ability to collect on their claims during the period in which Burton is ineligible for a discharge. 

Unsecured creditors are significantly damaged by this delay as Burton will inch closer to becoming 

eligible for a discharge in Chapter 7, at which time unsecured creditors will almost assuredly 

receive nothing. 

Under the Bankruptcy Code creditors must be provided fair and equitable treatment. 

As a result, debtors are prohibited from receiving multiple discharges in bankruptcy within a given 

number of years. Burton should not be able to frustrate the purpose of this prohibition by using a 

series of Chapter 13 filings to remain perpetually resistant to claims of his unsecured creditors

until he ultimately becomes eligible for a Chapter 7 discharge. By doing so, Debtor would be 

doing precisely what the good faith requirement seeks to prevent, which is an “‘abuse of the 

provisions, purpose or spirit’ of Chapter 13.” In re Daniels, Case No. 17-14285-BFK (Bankr. E.D. 

Va., 2018) at 6 citing Neufeld v. Freeman, 794 F.2d 149, 152 (4th Cir. 1986) and Deans v. 

O'Donnell, 692 F.2d 968, 972 (4th Cir. 1982). 

Furthermore, an examination of Debtor’s prior cases demonstrates two additional 

indicia of bad faith. First, Debtor was less than forthright in representing material facts regarding 

the mortgage claim against his Property, which was listed for the duration of his prior case as zero

but is now listed in this case at $524,500.00 with an arrearage of $75,000.00. This is an omission

of particular significance in a Chapter 13 case as the Debtor’s ability to pay arrearages on secured 

claims is vital to remaining in Chapter 13 bankruptcy. In addition, the $75,000.00 in arrearages 

which are included in the present case (but not in the previous one) will soak up the lion’s share

of plan funding. 

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Secondly, Debtor has demonstrated that he will use the bankruptcy process solely 

as a means of delaying his creditors while paying them as little as humanly possible. This is made 

clear by the fact that Debtor’s plan payments are drastically different in his last two cases in spite 

of the fact that his household income has remained the same. Debtor was supposed to have 

contributed all of his monthly disposable income into his Chapter 13 plan in his prior case, yet 

paid a meager $842.18 per month. Now that he is required to pay his mortgage arrearages in order 

to get a plan approved, Burton claims $3,125.00 per month is available to pay creditors. It would 

behoove the creditors not to ask the question how all this money has suddenly emerged shortly 

after his prior case was dismissed.

Finally, Debtor has not acted in good faith with respect to the Mendozas. Whether 

behind on rent or not, there was no reason for the Burtons to leave the Mendozas’ house in terrible 

condition upon vacating the Property. Debtor demonstrates no accountability to others because he 

has been successful in manipulating the bankruptcy process to avoid facing consequences for his 

actions. 

II. Reorganization by the Debtor is Not Feasible

Burton proposes his most ambitious plan yet in his sixth Chapter 13 filing, and yet 

he has routinely failed to execute lesser plans. As discussed above, Burton’s employment situation 

and financial circumstances have not changed, yet his Amended Plan proposes payment of 

$3,125.00 per month for the rest of the case. Burton only made payments of $841.18 per month 

in his prior case which was dismissed only weeks prior to the present case. There is no reason to 

believe he could successfully pay a far greater amount now. Furthermore, even if he makes it to 

year 4 or 5 of the Plan when it comes time to pay unsecured claims, he will have no incentive to 

pay those claims with no possibility of receiving a discharge in this case.

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CONCLUSION

Burton is evading provisions of the Bankruptcy Code that limit a debtor’s right to 

a discharge, which are in place to ensure fairness to creditors. This purpose would be clearly 

frustrated if Burton is allowed to delay creditors with yet another bad faith Chapter 13 filing in 

which he has no feasible plan. Debtor’s numerous filings, meager disbursements to unsecured 

creditors, failure to list his major secured creditor in his prior case and his actions in damaging the 

Mendoza’s property demonstrate his bad faith. They also demonstrate a belief that as long as he 

has the option of bankruptcy available, meeting his obligations to creditors is optional. Finally, 

the amended plan is not feasible. Debtor has attempted far less ambitious plans in the past and has 

never come close to successfully completing one.

WHEREFORE, Michael and Margarita Mendoza, by counsel, request that this 

Honorable Court dismiss the Debtor, Darrin Z. Burton’s Chapter 13 case with prejudice.

MICHAEL MENDOZA

MARGARITA MENDOZA

By Counsel

JONATHAN B. VIVONA, PLC

__/s/ Jonathan B. Vivona ______________

JONATHAN B. VIVONA, ESQUIRE

Virginia State Bar No. 82762

601 King Street, Suite 400

Alexandria, Virginia 22314

Telephone Number: (703) 739-1353

Fax Number: (703) 337-0490

vivonalaw@gmail.com

Counsel for Michael and Margarita Mendoza

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CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of October, 2019 a true copy of the foregoing 

Motion to Dismiss was served electronically pursuant to this Court’s CM/ECF procedures on: 

Thomas P. Gorman, Trustee and Earl J. Oberbauer, Jr., Esquire, and sent via first class mail, 

postage pre-paid to: Darrin Z. Burton, 19 Glenview Court, Stafford, VA 22554.

____/s/ Jonathan B. Vivona__________

JONATHAN B. VIVONA

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