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: ) 

 ) 

DIANE ELIZABETH ELDER ) Case No. 20−32216−KLP 

 ) Chapter 7 

 Debtor ) 

NOTICE OF MOTION TO EXTEND THE AUTOMATIC STAY AND HEARING 

The above named Debtor, by counsel, has filed a Motion to Extend the Automatic Stay 

with the Court pursuant to 11 U.S.C. § 362(c)(3)(B). Your rights may be affected. You should read 

these papers carefully and discuss them with your attorney, if you have one. 

NOTICE IS HEREBY GIVEN THAT A HEARING ON THIS MOTION WILL BE HELD 

ON June 3, 2020 at 10:00 a.m. in Honorable Judge Keith L. Phillips’ Courtroom, U.S. 

Bankruptcy Court, 701 E. Broad Street, Room 5100, Richmond, VA 23219. 

If you want to be heard on this matter, then no later than three (3) days before the date of 

the hearing, you or your attorney must: 

1. File with the court, at the address below, a written response pursuant to Local Rule 

9013-1(H). If you mail your response to the Court for filing, you must mail it early enough so 

that the Court will receive it on or before the date stated above. 

Clerk of Court 

United States Bankruptcy Court 

701 E. Broad Street, Room 4000 

Richmond, VA 23219-3515 

2. You must also mail a copy to: 

 James E. Kane, Esquire 

 Kane & Papa, PC 

 P.O. Box 508 

 Richmond, VA 23218 

If you or your attorney do not take these steps, the Court may decide that you do not oppose 

the relief sought in the Motion and may enter an Order granting that relief. 

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Respectfully submitted, 

DIANE ELIZABETH ELDER 

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 May 29, 2020, I have transmitted a true copy of the foregoing document 

electronically through the Court’s CM/ECF system or by mail to the Debtors, 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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3 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Richmond Division 

IN RE: ) 

 ) 

DIANE ELIZABETH ELDER ) Case No. 20−32216−KLP 

 ) Chapter 7 

 Debtor ) 

MOTION TO EXTEND AUTOMATIC STAY AND MEMORANDUM IN SUPPORT 

COMES NOW DIANE ELIZABETH ELDER (the “Debtor”), by counsel, pursuant to 11 

U.S.C. § 362(c)(3)(B) and files the following Motion to Extend Automatic Stay and Memorandum 

in Support Thereof, 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 May 6, 2020 (hereinafter the “Petition Date”), the Debtor filed a petition for 

relief under Chapter 7 of the Bankruptcy Code (the “instant case”). 

5. On May 26, 2020, the Debtor filed a Motion to Convert to Chapter 13. 

6. Within the year prior to filing the instant case, Debtor has been a debtor in one (1) 

pending Chapter 13 bankruptcy case which was filed on February 7, 2019 and dismissed on or 

about March 3, 2020 (Case No. 19-30652) (the “previous case”). The Debtor has also been a 

debtor in a Chapter 7 case filed on March 3, 2005 wherein the Debtor received a discharge on June 

13, 2005 (Case No. 05-10724). 

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7. The previous case was dismissed by the Court because the Debtor was delinquent 

in payments to the Chapter 13 Trustee. In September 2019 the Debtor’s employment contract 

ended and she was out of work for 3 months with no income. Once the Debtor regained 

employment, she was unable to catch up on the missed payments. Debtor now has stable income 

from Mpire Technology Group Inc. and will be having her plan payments made via a wage order. 

Facts of the Instant Case 

8. In the instant case, the Debtor anticipates a proposed Chapter 13 Plan (the “Plan”) 

that commits to pay the Trustee all projected disposable income, $50.00 per month for a period of 

one (1) month, and $460.00 for a period of thirty-five (35) months. Among other provisions, the 

Plan will propose payment through the Trustee to unsecured creditors a dividend of approximately 

eleven percent (11%). 

Discussion 

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

the prior case, the automatic stay in the instant case will expire “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 extends the automatic stay. 11 U.S.C. § 362(c)(3)(A) and (B). 

10. Pursuant to 11 U.S.C. § 362(c)(3)(B), Debtor must demonstrate to the Court that 

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

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

faith,” § 362(c)(3)(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 

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). 

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12. Within the context of motions to continue the automatic stay pursuant to 

§ 362(c)(3), 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 extended pursuant to § 362(c)(3), “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 

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

at 694. 

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6 

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 his property, 

and as to the property of the estate for the duration of the instant case 

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 is expected to propose to pay a 

dividend of 11% to non-priority unsecured creditors. Such creditors would receive a dividend of 

0% 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 at Mpire 

Technology Group Inc where she has worked for two (2) months. 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. 

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

Mpire Technology Group Inc where she has worked for two (2) months. 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 $94,264. Debtor has not incurred any unsecured 

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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. 

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 

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8 

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. 

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

finding of good faith. 

WHEREFORE, for the foregoing reasons, DIANE ELIZABETH ELDER respectfully 

requests this Honorable Court to enter an Order extending 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, 

DIANE ELIZABETH ELDER 

By Counsel 

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9 

/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 

 

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10 

CERTIFICATE OF SERVICE 

I certify that on May 29, 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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}bk1{CreditoAsMarix}bk{

America Infosource

Verizon

PO Box 248838

Oklahoma City, OK 73124

Anesthesia Solutions of VA

PO Box 73983

Dept. 1011

Atlanta, GA 30374

Atlas Acquisitions LLC

2601 Cattleman Rd.

Sarasota, FL 34232

Autotrakk Llc

Attn: Bankruptcy Department

1500 Sycamore Rd., Ste. 200

Montoursville, PA 17754

Blue & Grey Emerg Phys

PO Box 37877

Philadelphia, PA 19101

Capital One

Attn: Bankruptcy

Po Box 30285

Salt Lake City, UT 84130

CCI/Contract Callers Inc

Attn: Bankruptcy Dept

501 Greene St Ste 302

Augusta, GA 30901

Check Express Advance

10679 Courthouse Road

Fredericksburg, VA 22407

Comenity Bank/roamans

Po Box 182789

Columbus, OH 43218

Convergent Outsourcing, Inc.

Attn: Bankruptcy

Po Box 9004

Renton, WA 98057

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Credit Control Corp

Po Box 120568

Newport News, VA 23612

Cybrcollect

Attn: Bankruptcy

3 Easton Oval, Ste 210

Columbus, OH 43219

Darcey Geissler

919 Ware Street, SW

Vienna, VA 23180

Easy Comforts

P.O. Box 2861

Monroe, WI 53566

Fredericksburg Em Med Alliance

P.O. Box 808

Grand Rapids, MI 49518-0808

Fredericksburg Orthopaedic As

3310 Fall Hill Ave

Fredericksburg, VA 22401

Genesis Bc/celtic Bank

Attn: Bankruptcy

268 South State Street Ste 300

Salt Lake City, UT 84111

Jefferson Capital Systems LLC

Po Box 7999

Saint Cloud, MN 56302

Jefferson Capital Systems LLC

PO Box 17210

Golden, CO 80402

LVNV Funding/Resurgent Capital

Attn: Bankruptcy

Po Box 10497

Greenville, SC 29603

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Mary Washington Healthcare

2300 Fall Hill Ave.

Suite 101

Fredericksburg, VA 22401

MDG US/Capital Community Bank

49 W University Pkwy

Orem, UT 84058

Medical Imaging of Fredericks.

P.O. Box 7606

Fredericksburg, VA 22404

Midland Funding

2365 Northside Dr Ste 300

San Diego, CA 92108

MultiSpecialty Health Group

4604 Spotsylvania Pkwy

Suite 200

Fredericksburg, VA 22408

O'Sullivan Pathology, PLLC

9834 Business Way

Manassas, VA 20110

ODC Recovery Services, Inc

2300 Fall Hill Ave., Suite 314

Fredericksburg, VA 22401

Orthopaedics Specialists

PO Box 409591

Atlanta, GA 30384

Quantum 3 Group LLC

Comenity Bank

P.O. 788

Kirkland, WA 98083

Regional Acceptance Co

Attn: Bankruptcy

Po Box 1487

Wilson, NC 27894

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Regional Acceptance Co

Attn: Bankruptcy

1424 E Firetower Rd

Greenville, SC 27858

Remote Neuromonitoring Phys

Dept 2105

PO Box 11407

Birmingham, AL 35246

Security Check

Attn: Bankruptcy Dept

2612 Jackson Ave W

Oxford, MS 38655

Spotsylvania Multi Specialty

4604 Spotsylvania Pkwy

Suite 200

Fredericksburg, VA 22408

Spotsylvania Regional Medical

PO Box 13620

Henrico, VA 23255

Spottsylvania Regional Medical

4600 Spotsylvania Parkway

Fredericksburg, VA 22408

Stafford Hospital Center

101 Hospital Center Blvd

Stafford, VA 22554

Surgi-Center of Central VA

1500 Dixon St #101

Fredericksburg, VA 22401

Tate & Kirlin

2810 Southampton Road

Philadelphia, PA 19154

United Consumer Financial

865 Bassett Road

Westlake, OH 44145

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United Consumer Financial Services

Attn: Bankruptcy

Po Box 856290

Louisville, KY 40285

US Deptartment of Education/Great Lakes

Attn: Bankruptcy

Po Box 7860

Madison, WI 53707

Virginia Bariatric

1850 Town Center Parkway

Reston, VA 20190

Walter Sheffield, Esq.

PO Box 7906

Fredericksburg, VA 22404

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