James E. Kane (VSB# 30081) 

KANE & PAPA, P.C. 

P. O. Box 508 

Richmond, Virginia 23218-0508 

Telephone (804) 225-9500 

Counsel for Debtor

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

IN RE: ) 

 ) 

MARLENA JENKINS ) Case No. 20-31613-KLP 

) Chapter 13 

 Debtor ) 

MEMORANDUM IN SUPPORT OF MOTION TO IMPOSE AUTOMATIC STAY 

COMES NOW MARLENA JENKINS (the “Debtor”), by counsel, pursuant to 11 U.S.C. 

§ 362(c)(4)(B) and files the following Memorandum in Support of Motion to Impose Automatic 

Stay and, and affirmatively states as follows: 

Jurisdiction 

1. Jurisdiction of this Court over the instant matter is based upon 28 U.S.C. §§ 1334 

and 157 in that this action arises in and relates to the bankruptcy case of the Debtor. 

2. This proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), (K), and 

(O). 

3. Venue is proper pursuant to 28 U.S.C. § 1409. 

Background Facts 

4. On March 20, 2020 (hereinafter the “Petition Date”), the Debtor filed a petition for 

relief under Chapter 13 of the Bankruptcy Code (the “instant case”). 

5. Within the year prior to filing the instant case, Debtor has been a debtor in two (2) 

pending Chapter 13 bankruptcy case which were filed on June 14, 2019 and dismissed on or about 

February 27, 2020 (Case No. 19-33166) and on June 5, 2017 and dismissed on or about May 24, 

2019 (Case No. 17-32876) (the “previous cases”). 

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6. The most recent case was dismissed on the Chapter 13 Trustee’s Motion due to 

delinquent payments. In the previous case the Debtor’s company changed payroll companies and 

the wage order did not carry over to the new payroll company. By the time the Debtor discovered 

the error, she was too far behind in payments to cure the delinquency. The Debtor has been 

working with the same company for 13 years and will be vigilant in this case in assuring that the 

Plan payments are being properly deducted from her wages. 

Facts of the Instant Case 

7. In the instant case, Debtor has proposed a Chapter 13 Plan (the “Plan”) that commits 

to pay the Trustee all projected disposable income, $1,900.00 per month for 60 months. 

8. Among other provisions, the Plan proposes the following: Payment through the 

Trustee to Mr. Cooper for mortgage arrearages, Nissan Motor Acceptance Corporation for a car 

loan, local taxes, and to unsecured creditors a dividend of fifty-two percent (52%). 

Discussion 

9. Because the instant case was commenced within one (1) year of the dismissal of 

the prior cases, the automatic stay in the instant case is not imposed “with respect to any action 

taken with respect to a debt or property securing such debt or with respect to any lease . . . ” unless 

the Court imposes the automatic stay. 11 U.S.C. § 362(c)(4)(A) and (B). 

10. Pursuant to 11 U.S.C. § 362(c)(4)(B), Debtor must demonstrate to the Court that 

the instant case was filed in good faith in order to obtain an imposition of the automatic stay. 

11. If the Court finds grounds for presuming the instant case was filed “not in good 

faith,” § 362(c)(4)(C) would impose a burden on Debtors to overcome such presumption and prove 

good faith by clear and convincing evidence. If, however, the Court finds no grounds for presuming 

the instant case was filed “not in good faith,” Debtors must merely prove good faith by a 

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preponderance of the evidence. In re Havner, 336 B.R. 98, 103 (Bankr. M.D.N.C. 2006); In re 

Ball, 336 B.R. 268, 273 (Bankr. M.D.N.C. 2006). 

12. Within the context of motions to impose the automatic stay pursuant to § 362(c)(4), 

In re Chaney, 362 B.R. 690, 694 (Bankr. E.D. Va. 2007), instructs that the term “good faith” was 

defined judicially in the Fourth Circuit by Deans v. O’Donnell, 692 F.2d 968, 972 (4

th 

Cir. 1982), 

further refined by Neufeld v. Freeman, 794 F.2d 149, 152 (4

th 

Cir. 1986), and left unchanged by 

Congress when it created § 362(c)(3). Chaney at 694. 

13. Pursuant to Neufeld v. Freeman, good faith determinations require courts to 

consider, inter alia, “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.” Id. at 

152, citing Deans v. O’Donnell, 692 F.2d at 972. The focus of the inquiry is “to determine whether 

or not . . . there has been ‘an abuse of the provisions, purpose, or spirit’ of Chapter 13 in the 

proposal or plan.” Neufeld at 152, citing Deans at 972, and quoting 9 Collier on Bankruptcy 9.20 

at 319 (14

th 

ed. 1978). 

14. In order to apply the Fourth Circuit’s definition of good faith in determining 

whether the automatic stay should be imposed pursuant to § 362(c)(4), “the court must be satisfied 

that the plan in the new case will succeed where the plan in the prior case did not. Usually this will 

require a finding that some change in the financial or personal affairs of the debtor has occurred 

that will allow the debtor to perform under the terms of the plan in the new case. But the inquiry 

does not end there. The court needs to determine that the repetitive filing does not violate the spirit 

of the Bankruptcy Code. The new case must not be a ploy to frustrate creditors. It must represent 

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a sincere effort on the part of the debtor to advance the goals and purposes of chapter 13.” Chaney 

at 694. 

Argument 

15. In the case sub judice there is a presumption that the instant case was filed “not in 

good faith” as to all creditors. Therefore, Debtor must prove by clear and convincing evidence that 

the instant case was filed in good faith. 

16. In the instant case, the Debtor has acted in good faith, and Debtor requests that the 

Court grant an extension of the automatic stay as to all creditors, as to Debtor and the Debtor’s 

property, and as to the property of the estate for the duration of the instant case. In support thereof, 

Debtor submits an Affidavit, which is attached hereto as Exhibit “1” and incorporated herein by 

this reference. 

17. Applying the Neufeld factors to Debtor’s circumstances and to this case leads to 

the following conclusions: 

a. Percentage of proposed repayment - The Plan proposes to pay a dividend of 52% 

to non-priority unsecured creditors. Such creditors would receive a dividend of 50% if Debtor were 

to file a Chapter 7 bankruptcy case. Application of this factor favors a finding of good faith. 

b. Debtor’s financial situation – Debtor has income from working as a care giver for 

Consumer Direct Care Network where she has worked for 13 years. Application of this factor 

favors a finding of good faith. 

c. Period of time payment will be made - The period of time in which payments will 

be made is reasonable and is based upon the Debtor’s best efforts. Application of this factor favors 

a finding of good faith. 

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d. Debtor’s employment history and prospects – Debtor has income from working as 

a care giver for Consumer Direct Care Network where she has worked for 13 years. Application 

of this factor favors a finding of good faith. 

e. Nature and amount of unsecured claims – Debtor’s Schedule F non-priority 

unsecured debts are estimated to be approximately $4,835.00. Debtor has not incurred any 

unsecured debt for luxury goods or services or any unsecured debt due to revolving credit accounts 

or pay day loans within the 90 days prior to filing the instant case. Application of this factor favors 

a finding of good faith. 

f. Debtor’s past bankruptcy filings - The instant Motion is required due to the fact 

that the Debtor’s previous case that was dismissed within one (1) year of the Filing Date hereof. 

The Affidavit attached hereto as Exhibit “1” describes fully the reasons that the previous case was 

dismissed. Debtor incorporates such explanation herein by this reference. Debtor’s hardships do 

not indicate an abuse of the bankruptcy system; rather, they indicate an honest but thus far 

unsuccessful attempt to financially reorganize. Application of this factor favors a finding of good 

faith. 

g. Debtor’s honesty in representing facts – Debtor has fully disclosed all assets, 

liabilities, and pertinent information regarding personal and financial affairs and is prepared to 

cooperate fully with the Chapter 13 Trustee. Application of this factor favors a finding of good 

faith. 

h. Any unusual or exceptional problems facing the particular debtors – There are no 

unusual or exceptional problems facing Debtor. Application of this factor favors a finding of good 

faith. 

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18. Debtor asserts that the instant case does not “violate the spirit of the Bankruptcy 

Code” and it is not “a ploy to frustrate creditors”; rather, it represents “a sincere effort on the part 

of the debtor to advance the goals and purposes of chapter 13”. See Chaney at 694. In support 

hereof, the Debtor asserts the following additional arguments: 

a. The timing of the petition – Between the dismissal of the previous case and the 

instant case, Debtor did not act in a manner so as to purposely delay payment of debts and did not 

delay in filing the instant case so as to intentionally frustrate creditors. Debtor’s actions in this 

regard indicate an intent to use the bankruptcy system to resolve debts in an appropriate manner. 

Application of this factor favors a finding of good faith. 

b. How the debt(s) arose – The debts in this case arose primarily over a period of time 

extending back several years. The debts were not the result of misuse of credit or luxury spending; 

rather, they arose as a result of ordinary living expenses that Debtor became unable to repay. 

Application of this factor favors a finding of good faith. 

c. The debtor’s motive in filing the petition – Debtor’s motive in filing this case is to 

apply best efforts to repay creditors and receive a fresh start through bankruptcy. Application of 

this factor favors a finding of good faith. 

d. How the debtor’s actions affected creditors – The Plan provisions and treatment of 

creditors are generally described in paragraph 7, supra. This factor will rarely favor a debtor, 

because “[f]iling for bankruptcy relief will almost always prejudice one's creditors.” Galanis, 334 

B.R. at 696. 

e. Changes in circumstance and ability to complete this case – The Affidavit attached 

hereto as Exhibit “1” describes fully the Debtor’s changes in circumstances and explain both the 

legitimate bases for the filing of this case as well as the Debtor’s ability to complete this case. 

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Debtor incorporates such explanations herein by this reference. Application of this factor favors a 

finding of good faith. 

WHEREFORE, for the foregoing reasons, MARLENA JENKINS respectfully requests 

this Honorable Court to enter an Order imposing the automatic stay as to all creditors, as to Debtor 

and Debtor’s property, and as to the property of the estate for the duration of the instant case, and 

for such other and further relief as to the Court shall be deemed appropriate. 

Respectfully submitted, 

MARLENA JENKINS 

By Counsel: 

/s/ James E. Kane 

James E. Kane (VSB# 30081) 

KANE & PAPA, P.C. 

P. O. Box 508 

Richmond, Virginia 23218-0508 

Telephone (804) 225-9500 

Counsel for Debtor 

CERTIFICATE OF SERVICE 

I certify that on April 3, 2020, I have transmitted a true copy of the foregoing document 

electronically through the Court’s CM/ECF system or by mail to the Debtor, Chapter 13 trustee, 

the United States trustee if other than by the electronic means provided for at Local Bankruptcy 

Rule 2002-1, all attorneys appearing in the previous case as listed below, and to all creditors and 

parties in interest of the mailing matrix attached hereto. 

/s/ James E. Kane 

Counsel for Debtor 

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IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

IN RE: ) 

 ) 

MARLENA JENKINS ) Case No. 20-31613-KLP 

) Chapter 13 

 Debtor ) 



AFFIDAVIT OF MARLENA JENKINS 

BEFORE ME, the undersigned authority, personally appeared MARLENA JENKINS, 

known to me, and upon oath, stated as follows: 

1. My name is MARLENA JENKINS I am above the age of 18 years, and competent 

to make this affidavit. 

2. I have personal knowledge of the facts set forth in this affidavit. 

3. I reside at 10600 Rhoads Drive, Fredericksburg, Virginia 22407. 

4. I have income from working as a care giver for Consumer Direct Network. 

5. Within the year prior to filing the instant case, I was a debtor in two (2) pending 

Chapter 13 bankruptcy case which were filed on June 14, 2019 and dismissed on or about February 

27, 2020 (Case No. 19-33166) and on June 5, 2017 and dismissed on or about May 24, 2019 (Case 

No. 17-32876) (the “previous cases”). 

6. The previous case was dismissed on the Chapter 13 Trustee’s Motion due to 

delinquent payments. In the previous case my company changed payroll companies and my wage 

order did not carry over to the new payroll company. By the time I discovered the error, I was too 

far behind in payments to cure the delinquency. I have been working with the same company for 

13 years and will be vigilant in this case in assuring that the Plan payments are being properly 

deducted from my wages. 

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7. I have listed all of my assets and all of my debts and have fully and accurately 

disclosed all of my income and expenses in the Schedules in this case. 

8. I have proposed the following treatment of my creditors in my Chapter 13 Plan: 

$1,900.00 per month for 60 months. Among other provisions, the Plan proposes the following: 

Payment through the Trustee to Mr. Cooper for mortgage arrearages, Nissan Motor Acceptance 

Corporation for a car payment, local taxes, and to unsecured creditors a dividend of fifty-two 

percent (52%). 

9. After the dismissal of my previous case, I acted as fast as I reasonably could to 

retain a bankruptcy attorney to file this case for me because I want to use the bankruptcy system 

to resolve my debts. 

10. My debts arose as a result of ordinary living expenses. The debt I have has 

accumulated over several years and is not the result of any purchases of luxury goods or services. 

11. I have also not incurred any unsecured debt due to revolving credit accounts or pay 

day loans within the 90 days prior to filing the instant case. 

12. I desire to use the bankruptcy system to obtain a fresh start and have not been 

attempting to evade my responsibilities or delay my creditors’ attempts to collect. 

13. My income is consistent and likely to remain so during this case. My household 

expenses are not likely to change substantially. I believe I will be able to make my payments to 

the Trustee and meet my other obligations as they come due throughout this case. 

 

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WITNESS the following signature and seal on March 20, 2020. 

/s/ MARLENA JENKINS (seal) 

 MARLENA JENKINS 

CERTIFICATE OF ACKNOWLEDGMENT 

State of Virginia 

City of Richmond; to wit: 

The foregoing instrument was acknowledged before me on November 19, 2019, by MARLENA 

JENKINS 

 /s/ Elizabeth June Frazier 

 Notary Public 

My Commission Expires: August 31, 2021 

Notary Registration Number: 7261289 

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}bk1{CreditoAsMarix}bk{

Capital One

15000 Capital One Dr

Richmond, VA 23238

Capitol Sheds

8813 Jefferson Davis Hwy,

Fredericksburg, VA 22407

Cashnet USA- Bankruptcy

175 W. Jackson Blvd.

Suite 1000

Chicago, IL 60604

Credit One Bank

P.O. Box 98873

Las Vegas, NV 89193

Dsnb Macys

Po Box 8218

Mason, OH 45040

First Premier Bank

Attn: Bankruptcy

Po Box 5524

Sioux Falls, SD 57117

JD Receivables

Attn: Bankruptcy

PO Box 382656

Germantown, TN 38183

Kay Jewelers

P.O. Box 740425

Cincinnati, OH 45274

Lendmark Financial Services

1735 North Brown Road

Suite 300

Lawrenceville, GA 30043

Lvnv Funding Llc

Po Box 10497

Greenville, SC 29603

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Marinr Finc

8211 Town Center Dr

Nottingham, MD 21236

McCabe, Weisenberg & Conway

312 Marshall Avenue

Laurel, MD 20707

Medstar Washington Hospital

PO Box 418203

Boston, MA 02241

Midland Credit Management

PO Box 13105

Roanoke, VA 24031

Midland Credit Management

ATTN BANKRUPTCY

PO Box 2036

Warren, MI 48090

Mr. Cooper

ATTN BANKRUPTCY DPMT

PO Box 619094

Dallas, TX 75261

Nissan Motor Acceptance

PO Box 49360

San Jose, CA 95161

Nordstrom Fsb

13531 E Caley Ave

Englewood, CO 80111

Quantum3 Group, LLC

PO Box 788

Kirkland, WA 98083

Reviver Financial LLC

PO Box 3023

Hutchinson, KS 67504

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Sentara Northern Virginia Med.

c/o NCC

PO Box 9156

Alexandria, VA 22304

Spotsylvania County Treasurer

9104 Courthouse Rd

Spotsylvania, VA 22553

Spotsylvania Regional Medical

P.O. Box 740760

Cincinnati, OH 45274

Synch/Care Credit

950 Forrer Blvd.

Kettering, OH 45420

Transworld Sys Inc/51

Po Box 15618

Wilmington, DE 15618

Verizon

500 Technology Dr

Weldon Spring, MO 63304

Virginia Department of Taxatio

PO Box 2369

Richmond, VA 23218

Wakefield & Associates

Attn: bankruptcy

7005 Middlebrook Pike

Knoxville, TN 37909

Walmart

c/o Synchrony Bank

PO Box 965064

Orlando, FL 32896-5064

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