UNITED STATES BANKRUPTCY COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

In re: :

MARIETTA CHEEKS : Chapter 13

: Case No. 19-10516-BFK

Debtor :

____________________________________:

:

U.S. Bank National Association :

Plaintiff : 

: Relief From Stay

v. : Contested Matter

: No.

Marietta Cheeks :

Debtor :

:

Thomas Gorman :

Trustee :

Respondents :

____________________________________:

DEBTORS ANSWER TO MOTION FOR ORDER CONFIRMING ABSENCE 

OF AUTOMATIC STAY OR IN THE ALTERNATIVE FOR NUNC PRO 

TUNC RELIEF FROM THE AUTOMATIC STAY AND CO-DEBTOR STAY

Debtor, through undersigned counsel, responds to the Motion for

Order Confirming Absence of the Automatic Stay or in the alternatice for Nunc 

pro Tunc Relief from the Automatic Stay filed herein by U.S. Bank National 

Associationas follows:

_______________________

Nathan Fisher

Fisher-Sandler, LLC

3977 Chain Bridge Rd., #2

Fairfax, VA 22030

VSB #37161

(703) 691-1642

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1. The allegations of paragraphs 1, 2, 3, 4, 5, 9 and 11 and are

admitted.

2. The Debtor is unable to admit or deny the allegations of 

paragraphs 6, 7, 10, 12, 13. 14, 15 and 16 and therefore denies same.

3. The allegations of paragraphs 8, 17 and 18 are denied.

4. The subject property in this case, located at 17160 Belle Isle Drive, 

Dumfries, VA 22026 has approximately $400,000.00 in equity. The purchase 

price was $859,000,00 in 2015; mortgage debt on the property is approximately 

$450,000.00.

5. Legal title to the subject property is in the name of Frederick 

Cheeks, the spouse of the Debtor.

6. It was the intent of the parties to have the property titled in the 

name of both husband and wife, as Tenants-by-the-Entirety, when the subject 

property was purchased in 2015.

7. When filing this Chapter 13 case, the Debtor believed she was on

the Deed to the property and that the property was held as Tenants-by-theEntirety.

8. Nevertheless, the debtor asserts an equitable interest in the 

$400,000.00 in marital equity in the subject property.

9. Notice of the bankruptcy filing was provided to U.S. Bank 

National Association and its’ attorneys prior to the foreclosure sale on February 

19, 2019. The notice of bankruptcy filing was completely ignored.

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10. Property of the bankruptcy estate per 11 U.S.C. 541(a)(1) includes 

“all legal or equitable interests of the debtor in property as of the 

commencement of the case”.

11. Bankruptcy Code Section 11 U.S.C. Section 362(a)(3) provides 

that the automatic stay applies to “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”.

12. It is not the right of U.S. Bank National Association to unilaterally 

make a determination as to whether or not the Automatic Stay is in effect when 

they have notice of a bankruptcy filing; U.S. Bank National Association, upon 

having knowledge of the bankruptcy filing in this case, had a simple remedy 

which was to file a Motion for Relief from Stay in the United States Bankruptcy 

Court so that a judicial determination could be made on the issue.

12. The foreclosure on the subject property was a violation of the 

Automatic Stay.

 

WHEREFORE, the Debtor prays that the Movant’s Motion be DENIED,

and for such other relief as this Court deems appropriate.

Dated: April 3, 2019 Respectfully Submitted

Marietta Cheeks

By Counsel:

/s/ Nathan Fisher

Nathan Fisher

3977 Chain Bridge Rd., #2

Fairfax, VA 22030

(703) 691-1642

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 3rd day of April, 2019, I served 

the foregoing, via first-class mail, on the following, who are all necessary parties 

under Local Rule 4001(a)-1(E)(1):

Thomas Gorman Marietta Cheeks

300 N. Washington St., 17160 Belle Isle Drive

Suite 400 Dumfries, VA 22026

Alexandria, VA 22314

M. Christine Maggard, Esq.

Brock & Scott, PLLC

484 Viking Drive, Ste. 100

Virginia Beach, VA 23452

/s/ Nathan Fisher

Nathan Fisher

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