John D. Burns, Esq. Md. Bar No. 22777 (Admitted Pro Hac Vice)

The Burns Law Firm, LLC

6303 Ivy Lane, Suite 102

Greenbelt, MD 20770

(301) 441-8780

Steven H. Greenfeld, Esq. (#30332)

Cohen, Baldinger and Greenfeld, LLC

2600 Tower Oaks Blvd., Suite 290

Rockville, MD 20852

(301) 881-8300

Co-counsel for Debtor, David Michael Maresca

UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

(Alexandria Division)

___________________________________

In re: )

)

DAVID MICHAEL MARESCA ) Case No.20-11483-khk

) (Chapter 7) (converted from Chapter 11)

Debtor )

)

RESPONSE TO MOTION TO COMPEL TURNOVER OF ESTATE PROPERTY 

13159 LAKEHILL DRIVE, NOKESVILLE, VIRGINIA

DAVID MICHAEL MARESCA (the “Debtor”), by and through counsel John D. 

Burns, Esquire, and Steve Greenfeld, Esquire, hereby files this Response to Motion to Compel 

Turnover of Estate Property 13159 Lakehill Drive, Nokesville, Virginia (the “Response”), and 

states as follows:

FACTUAL STATEMENT:

On or about June 19, 2020 (the “Petition Date”), the Debtor filed the present case 

under Chapter 11 of the Bankruptcy Code. On or about February 2, 2021, the Bankruptcy Court 

entered an Order converting this case to a proceeding under Chapter 7 of the Bankruptcy Code. 

The Debtor has an exempt interest in the property situate at 13159 Lakehill Drive, 

Nokesville, Virginia (the “Property”) [Dkt. 156; p.2] which was previously claimed preCase 20-11483-KHK Doc 161 Filed 04/21/21 Entered 04/21/21 17:26:46 Desc Main

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conversion and was not objected to by the Trustee. There is meaningful equity in the Property, 

some of which may exceed any allowed claims herein that will result from the administration of 

this Chapter 7 case. The Debtor has a real stake and capacity in this Property and the present 

Motion before the Bankruptcy Court.

The Debtor resides in the Property with others including his fiancée, her mother, 

and two children thus a total household of six. The Debtor has cancer and is being treated in 

chemotherapy at a nearby medical center to the Property. The Debtor maintains the Property in 

good condition. The Debtor has paid every mortgage installment post-conversion on the 

Property, thus there is adequate protection to the Trustee by no diminishment in equity for 

accruing arrears on the mortgage. 

Any averments by the Trustee by and through the testimony of the realtor; 

namely, Stephen Karbelk, that the Property is in less than pristine condition will be refuted by 

photos and testimony of the Debtor at the hearing on this Motion. The suggestion that the 

Property is not in “showable” condition is inaccurate. Moreover, the Debtor has had no 

objection to showings of the Property since the filing of the Turnover Motion; however, despite 

the retention and approval of the realtor by the Trustee and Bankruptcy Court respectively, no 

such showings have been scheduled or conducted by the Trustee.

The Debtor’s fiancée, Rachel Garibaldi, is looking to finance her equity in selfowned properties to create an equity buy-out for the Trustee in the Property. The Debtor 

understands that the Trustee, Jason Gold, has an obligation to monetize the equity in the 

Property. The Debtor requests one hundred twenty days (120) in the Property prior to moving 

out if the Property is to be sold (to August 31, 2021), and alternatively to raise the necessary 

funds from his fiancée for the Trustee and the estate to purchase the anticipated equity level in 

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the Property and thereby to avoid a sale of the Property. An affidavit from the Debtor is annexed 

hereto containing these facts and others as Exhibit A. There is serious impracticability impeding 

any turn over prior to August 31, 2021 given the Debtor’s family, health conditions, and need to 

procure local replacement housing. The Debtor has commenced reviewing housing options in the 

area so that his medical treatments can continue uninterrupted by a change in facility, and it has 

been challenging for the Debtor to find such housing.

DISCUSSION:

The Trustee has filed a Motion to Compel Turnover of Estate Property 13159 

Lakehill Drive, Nokesville, Virginia (the “Motion”) [Dkt. 141]. Therein, the Trustee avers that 

(i) the Debtor should be required to surrender occupancy of the Property by May 31, 2021 in 

broom clean condition with all keys and remotes; (ii) the Property has at least $230,000.00 in 

equity; and (iii) the realtors involved want to show the Property in vacant status based on their 

personal preferences.

For this relief, the Trustee cites to 11 U.S.C. § 542(a) and other provisions related 

to a Debtor’s duty to cooperate with a Chapter 7 Trustee in the case. 

Section 542(a) of Title 11 provides that: 

Except as provided in subsection (c) or (d) of this section, an 

entity, other than a custodian, in possession, custody, or control, 

during the case, of property that the trustee may use, sell, or lease 

under section 363 of this title, or that the debtor may exempt 

under section 522 of this title, shall deliver to the trustee, and 

account for, such property or the value of such property, unless 

such property is of inconsequential value or benefit to the estate.

11 U.S.C. § 542(a) (2020)

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The burden of proof for the Trustee is clear and convincing evidence. See, In re 

Lawrence, 251 B.R. 630, 639 (S.D. Fla. 2000). Cf, In re Alofs Manufacturing Company, 209 

B.R. 83, 89-91 (Bankr.W.D.Mich.1997). 

There is no stated date or time frame within Title 11 or the Federal Rules of 

Bankruptcy Procedure for a debtor to turnover property of the estate to the Trustee. What is 

required is that the Trustee must demonstrate to the Bankruptcy Court that the asset was “in the 

possession or under control [of the Debtor] at the time of the bankruptcy, but also that [the 

Debtor] had the ability at the time of the Turn Over Order to comply by turning over the 

[property].” Lawrence, 251 B.R. at 643 (emphasis supplied), citing to Maggio v. Zeitz, 333 U.S. 

56, 65 (1948). 

Although speaking to the “requisite power” to turn over the asset principally 

concerning legal notions of possession and capacity to turn over the asset, the larger issue here 

from the foregoing authorities is whether the Debtor has the ability to depart the Property by 

May 31, 2021 with a family of six and cancer and the need to raise equity funds for the Trustee, 

or whether such acts would be temporarily impracticable. The Debtor would reason for the 

factual bases stated herein and by his affidavit that he does not have such ability. The Debtor

needs until August 31, 2021 to do so and vacate if he has not caused the purchase of the equity in 

the asset from the Trustee by and through his fiancée by that time.

The importance of a timely defense to a turnover action is evidenced by the 

comments of the below cited Bankruptcy Court for the Western District of Virginia, quoting 

Lawrence, supra, which in turn, quoted Maggio, stated:

It is important for the court to consider the whole record and to 

exercise reason and sound judgment, ‘mindful that the [turnover] 

order should issue only as a responsible and final adjudication of 

possession and ability to deliver, not as a questionable experiment 

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in coercion which will recoil to the discredit of the judicial process 

if time proves the adjudication to have been improvident and 

requires the court to abandon its enforcement.’

In re Gentry, 275 B.R. 747, 752 (Bankr. W.D. Va. 2001), quoting Maggio, 333 

U.S. at 67.

The Debtor’s required time to demonstrate impracticability of performance in 

respect of a forthcoming turnover order is now, at the time of the answer and defense. And the 

Debtor has done so as to temporary impossibility concerning his family circumstances. The 

Debtor is willing to comply with the turn over requirement by the Trustee by August 31, 2021, to 

the extent an equity buy out is not accepted by that date, or a further date which may be 

agreeable to the Trustee.

Finally, the Bankruptcy Court herein should find the Trustee’s interest adequately 

protected by the Debtor’s continued payment of the mortgage obligation post-conversion, such 

that there is no harm to the estate in awaiting Debtor’s departure by August 31, 2021. And 

showings may commence immediately of the Property should the Trustee so desire.

The principles of adequate protection enuring to the benefit of and protection of 

the Trustee herein are germane and apply. See, 11 U.S.C. § 361(1). The Debtor has no objection 

to an order or direction requiring “periodic cash payments” in the form of regular mortgage 

payments as and when due to the mortgagee on the Property. Or other relief, which will “result 

in the realization by such entity of the indubitable equivalent of such entity’s interest in such 

property.” See, 11 U.S.C. § 361(3).

The mortgage payments monthly will maintain the balance and status quo 

between the Trustee and Debtor relative to the Property until either the Debtor’s departure with 

family (and dogs) by August 31, 2021, or until such time as an equity buyout is finalized with the 

Trustee, at a time agreeable to the Trustee.

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WHEREFORE, for the foregoing reasons, the Debtor respectfully requests the 

Trustee’s Motion be DENIED at this time and that such other and further relief be granted to the 

Debtor herein.

Respectfully submitted this 21st day of April 2021.

-------/S/ John D. Burns -------

____________________________

John D. Burns, Esq. (#MD U.S.D.C. 22777, Admitted Pro Hac Vice)

The Burns Law Firm, LLC

6303 Ivy Lane, Suite 102

Greenbelt, MD 20770

(301) 441-8780

info@burnsbankruptccyfirm.com

Co- Counsel for the Debtor

--------/S/ Steven H. Greenfeld--------

_______________________________

Steven H. Greenfeld, Esquire (#VA.30332)

2600 Tower Oaks Blvd.. STE 290

Rockville, MD 20852

Local Counsel to Debtor

(301) 881-8300

steveng@cohenbaldinger.com

Co-Counsel for the Debtor

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of April, 2021, a copy of the 

foregoing Response was served via electronic noticing through the Court's ECF system to the 

following parties:

Steven H. Greenfeld, Esquire 

2600 Tower Oaks Blvd.. STE 290

Rockville, MD 20852

Michael T. Freeman, Esquire

Assistant United States Trustee

Office of the United States Trustee

1725 Duke Street; STE 650

Alexandria, VA 22314

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Dylan C. Trache, Esquire 

Nelson, Mullins, Riley & Scarborough, LLP

101 Constitution Avenue, NW; STE 900

Washington DC 20001

/s/ John D. Burns

John D. Burns, Esq.

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