UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

IN RE:

GEORGE GERARD COOPER, SR. Debtor(s),

)

)

)

)

CASE No: 19-72343-FJS

Chapter 13

Waterfall Victoria Grantor Trust II, Series G,

Movant.

v.

George Gerard Cooper, Sr., Debtor,

Cynthia R. Cooper, Co Debtor,

R. Clinton Stackhouse, Jr., Trustee,

Respondents.

)

)

)

)

)

)

)

MOTION TO ANNUL CO-DEBTOR STAY

Waterfall Victoria Grantor Trust II, Series G, as serviced by Statebridge Company, LLC

(“Creditor”) hereby moves this court for annulment of the Co-Debtor stay under 11 U.S.C.

§1301. In further support of this Motion, Creditor respectfully states:

1. The Debtor has executed and delivered or is otherwise obligated with respect to

that certain promissory note in the original principal amount of $315,000.00 (the

“Note”). The Co Debtor is not obligated with respect to the Note. A copy of the

Note is attached hereto as Exhibit A.

2. Pursuant to that certain Deed of Trust (the “Deed of Trust”), all obligations

(collectively, the “Obligations”) of the Debtor under and with respect to the Note

and the Deed of Trust are secured by that property located at 2004 Nellie Court,

Virginia Beach, VA 23464 (“the Property”) and the other collateral described in

the Deed of Trust. The lien created by the Deed of Trust was perfected by

recording of the Deed of Trust in the office of the Clerk of the Circuit Court of

Virginia Beach. The Co Debtor is a signatory to the Deed of Trust but is not

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 1 of 8
obligated on the Note. A copy of the recorded Deed of Trust is attached hereto as

Exhibit B.

3. All rights and remedies under the Deed of Trust have been assigned to the Movant

pursuant to that certain assignment of deed of trust, a copy of which is attached

hereto as Exhibit C.

4. The legal description of the Property is:

All that certain lot, piece or parcel of land, with the buildings and improvements thereon,

situate in Kempsville Borough of the City of Virginia Beach, Virginia, and being known,

numbered and designed at Lot 14, Block E, as shown on that certain plat entitled "Plat of

Charlestowne Lakes South, Section Two, Part "A" Kempsville Borough, Virginia Beach,

Virginia", which said plat is duly recorded in the Clerk`s Office of the Circuit Court of the

City of Virginia Beach, Virginia in Map Book 145, at page 26.

5. Debtor has filed numerous bankruptcies, their details and results as follows:

(a) Case Number 10-75433-FJS

1. Chapter 13

2. Date filed: 11/16/2010

3. Result: Dismissed on 7/15/2014

(b) Case Number 16-70250-SCS

1. Chapter 7

2. Date Filed: 1/27/2016

3. Result: Dismissed on 2/16/2016

(c) Case Number 18-73606-FJS

1. Chapter 13

2. Date Filed: 10/12/2018

3. Result: Dismissed on 11/30/2018

(d) Case Number 19-70717-FJS

1. Chapter 13

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 2 of 8
2. Date Filed: 2/27/2019

3. Result: Dismissed on 4/11/2019

(e) Case Number 19-72343-FJS

1. Chapter 13

2. Date Filed: 6/19/2019

3. Result: Present case.

6. The following chart sets forth the number and amount of payments due pursuant

to the terms of the Note that have been missed by the Debtor as of March 29,

2019:

Number of

Missed

Payments

From To Monthly

Payment

Amount

Total Missed

Payments

56 08/01/2014 03/01/2019 $2,469.70 $138,303.20

Less partial payments (suspense balance): ($1,225.81)

Total: $137,077.39

7. As of March 29, 2019, the total contractual arrearage/delinquency was

$162,375.31, consisting of (i) the foregoing total of missed payments in the

amount of $137,077.39, plus (ii) the following fees and advances for taxes and

insurance in the amount of $25,297.92:

Description Amount

Late Charges $950.80

Attorney Fees & Costs $3,888.76

Corporate Advances $4,613.00

Escrow Advances $15,845.36

8. The Obligations are in Default, and there is a total debt of $469,628.83.

9. A contractual payment history is attached hereto as Exhibit D.

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 3 of 8
10. The estimated market value of the Property is $254,600.00. The basis for such

valuation is the Virginia Beach Tax Assessment Report. A true and accurate copy

of the Tax Assessment report is attached as Exhibit E and incorporated herein.

11. Upon information and belief, the aggregate amount of encumbrances on the

Property listed in the Schedules or otherwise known, including but not limited to

the encumbrances granted to Movant, is $469,628.83.

12. The only reason debtor’s account remains delinquent for 2014 and almost double

the value of the property is because of the repetitive and abusive bankruptcy

filings outlined above.

13. Pursuant to 11 U.S.C. § 362(c)(4)(a)(i), created under the Bankruptcy Abuse

Prevention and Consumer Protection Act of 2005, the automatic stay of 11 U.S.C. § 362(a) did not go into effect as to the debtor upon the filing of the present case.

However, despite the patent abuses complained of herein the Co-Debtor stay of 11

U.S.C. § 1301 may have been invoked even as to the interest of a non-obligated

property owner creating the absurd situation where the debtor would benefit from

a repeat filing when Congress’ clear intent was to prevent an abusive Debtor from

enjoying such a benefit. 14. Due to a misunderstanding as to the foregoing, a foreclosure sale was held for the

Property on June 20, 2019 at 2:00 PM. 15. “The avowed purpose of § 1301's stay of actions against the codebtor is to

‘protect a chapter 13 debtor from indirect pressure from a creditor exerted through

his friends or relatives, to favor or prefer that creditor.’ In re Motes, 166 B.R. 147,

149 (Bankr. E.D. Mo. 1994) quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 121

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 4 of 8
(1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6082. In the present issue, 11

U.S.C. § 1301 is not serving this function, as the Co Debtor is not liable on the

Note and the Co Debtor has never opposed the relief as to the Property in any of

the Debtor’s preceding cases. Nor has Co Debtor taken an interest in curing

existing arrearage or maintaining ongoing contractual payments.

16. “The notion that the automatic stay may be annulled to validate otherwise void

acts is contemplated by the express provisions of § 362 of the Bankruptcy Code.

Courts generally hold that this includes the power to grant relief retroactively to

validate actions taken in violation of the automatic stay.” In re McCrimmon, 536

B.R. 374, 380–81 (Bankr. D. Md. 2015). 17. Virginia Bankruptcy Courts, among others, have routinely concluded that “bankruptcy courts have wide discretion in weighing the factors and determining

what constitutes cause to annul the stay.” Shaw v. Ehrlich, 294 B.R. 260, 272

(W.D.Va.2003) (affirmed by Wiencko v. Ehrlich (In re Wiencko), 2004 U.S.App.

LEXIS 10174, 2004 WL 1146490, 99 Fed.Appx. 466 (4th Cir.Va., May 24,

2004)). In making this determination, courts have looked to a variety of factors,

including but not limited to a weighing of the extent of prejudice to creditors or

third parties if the stay relief is not made retroactive, whether harm exists to a

bona fide purchaser, whether the debtor has complied with the Bankruptcy Code

and Rules, the relative ease of restoring parties to the status quo, and whether

relief will promote judicial economy or other efficiencies. See In re Fjeldsted, 293 B.R. 12, 24–25 (9th Cir. BAP 2003); In re Coletta, 380 B.R. 140, 147–48

(Bankr.E.D.Pa.2007).

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 5 of 8
18. In the present case, the balance of facts supports retroactive annulment of the stay.

There is no stay in this case as to the Debtor pursuant to 11 U.S.C. §

362(c)(4)(a)(i) and the only stay at issue is the Co Debtor Stay of 11 U.S.C. §

1301. Debtor has more or less been involved in a continuous stream of

bankruptcy filings for most of the past decade and has engaged in a pattern of bad

faith filings designed to thwart creditors and waste judicial resources. Indeed,

Debtor has filed five petitions in the past nine years, four of which have resulted

in dismissal with the fifth currently facing a Trustee Motion to Dismiss. Debtor

has made no effort in any of his five bankruptcy cases to propose a realistic plan

of reorganization or take any meaningful steps to cure arrearage on a property for

which he holds no equity. There is substantial negative equity in the property, which favors the relief sought and demonstrates harm to Creditor without the

relief and undue benefit to Debtor if the relief is denied. Further, upon discovery

of the Co Debtor stay in this matter, Creditor has moved expeditiously to seek

retroactive relief from this Court and further proceedings will only squander

judicial resources with no remedial or rehabilitative effect on this serial-filing

Debtor.

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 6 of 8
WHEREFORE, noting that Debtor’s repetitive and abusive filings have served

merely to abuse these proceedings in an effort to frustrate Creditor action, Creditor prays

that this Court refuse to reward Debtor’s bad faith filings and issue an Order granting

Creditor’s Motion to Annul the Co-Debtor Stay and for such other relief as the Court

deems proper.

Respectfully Submitted,

Waterfall Victoria Grantor Trust II, Series G

By Counsel

By:

/s/ Kevin Hildebeidel

Kevin Hildebeidel, Esquire, Bar No: 35645

Amy Czekala, Esquire, Bar No: 74801

Stern & Eisenberg Mid Atlantic, PC

9920 Franklin Square Drive, Suite 100

Baltimore, MD 21236

Ph: (410) 635-5127, Fax: (443) 815-3931

Email: khildebeidel@sterneisenberg.com

Email: Aczekala@sterneisenberg.com

Attorney for Movant

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 7 of 8
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Retroactively

Annul Co-Debtor Stay has been sent by electronic means via the Court's CM/ECF notification

system this 2nd day of August, 2019 to the following:

R. Clinton Stackhouse, Jr. 7021 Harbour View Boulevard, Suite 101

Suffolk, VA 23435

Trustee

John P. Fitzgerald, III

Office of the U.S. Trustee, Region 4 -N

200 Granby Street, Room 625

Norfolk, VA 23510

U.S. Trustee

Cecelia Ann Weschler

Office of the U. S. Trustee

200 Granby Street, 625 Federal Building

Norfolk, VA 23510

cecelia.a.weschler@usdoj.gov

Attorney for U.S. Trustee

and by standard first class mail postage prepaid to:

George G. Cooper, Sr.

2004 Nellie Court

Virginia Beach, VA 23464

Pro-Se Debtor

Cynthia R. Cooper

2004 Nellie Court

Virginia Beach, VA23464

Co Debtor

By:

/s/ Kevin Hildebeidel

Kevin Hildebeidel, Esquire, Bar No: 35645

Amy Czekala, Esquire, Bar No: 74801

Stern & Eisenberg Mid Atlantic, PC

9920 Franklin Square Drive, Suite 100

Baltimore, MD 21236

Ph: (410) 635-5127, Fax: (443) 815-3931

Email: khildebeidel@sterneisenberg.com

Email: Aczekala@sterneisenberg.com

Attorney for Movant

Case 19-72343-FJS Doc 26 Filed 08/02/19 Entered 08/02/19 12:10:41 Desc Main

 Document Page 8 of 8