Robert F. Moorman, Esq. VSB #39129

KaneJeffries, LLP

1700 Bayberry Court, Suite 103 

Richmond, VA 23226

Phone: 804-726-5845

Fax: 804-285-7365

rfm@kanejeffries.com

Counsel for Virginia Partners Bank

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

)

In re: ) 

Joseph Anthony Nicotera ) Case No. 20-31700-KLP

and Carolyn Marie Nicotera, ) Chapter 13

Debtors. )

)

OBJECTION OF VIRGINIA PARTNERS BANK TO 

DEBTORS’ MOTION TO IMPOSE AUTOMATIC 

STAY AND MOTION TO EXTEND AUTOMATIC STAY 

Virginia Partners Bank (“VPB” or “Lender”), a secured creditor herein, by and through the 

undersigned counsel, respectfully files its Objection with respect to the Motion to Impose 

Automatic Stay and Motion to Extend Automatic Stay (the “Motion”) (Docket No. 7) filed by 

Joseph Anthony Nicotera (“Mr. Nicotera”) and Carolyn Marie Nicotera (“Mrs. Nicotera”) 

(collectively, “Debtors”), and in support thereof states as follows:

Introduction

In jointly filing the above-captioned case under Chapter 13 of the United States Bankruptcy 

Code, 11 U.S.C. §101 et seq. (the “Bankruptcy Code”), Mr. Nicotera has now commenced three

cases in the past ten months and Mrs. Nicotera has commenced two cases during that same period. 

Each filing has had the effect of staying pending foreclosure efforts by VPB against residential real 

property jointly owned by the Debtors. 

Pursuant to section 362(c)(4)(A)(i), the automatic stay no longer applies to protect Mr. 

Nicotera’s interest in the jointly owned property. And as to Mrs. Nicotera’s joint interest, section 

362(c)(3)(A) limits the protections of the automatic stay to a thirty-day period. 

By the Motion, each of the Debtors now seeks to either reimpose (as to Mr. Nicotera) or 

extend (as to Mrs. Nicotera) the automatic stay in this case. But the Debtors have each failed to 

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carry their burden of overcoming, by clear and convincing evidence, the presumption that the 

instant case was commenced in bad faith. For the reasons stated below, the Motion should be 

denied.

Background

1. Debtors own or hold an interest in the following property (hereinafter the 

“Property”):

That certain parcel of land in Chancellor District, Spotsylvania County, Virginia, 

shown as Lot 3, of Edgerton Subdivision, shown on plat of Sullivan, Donahoe and 

Ingalls, Engineers and Surveyors, dated April 2, 1997 and recorded in Plat file 6, 

pages 390-391 in the Clerk’s Office of the Circuit of Spotsylvania County, Virginia. 

Parcel ID/Sidwell Number: 13B15 3

This Property is commonly knowns as 1415 Heatherstone Drive, 

Fredericksburg, VA 22407

 

2. On or about October 6, 2008, VPB extended a home equity loan (the “HELOC”) to 

Debtors in the principal amount of $119,000 plus interest, as evidenced by a Home Equity Line of 

Credit Agreement and Truth in Lending Disclosure Statement (the “Note”) signed by Debtors on 

such date. On October 6, 2018, VPB entered into a written Change in Terms Agreement, whereby 

certain payment terms were altered and by which the principal balance of the HELOC is shown to 

have increased to $120,068.01. The Note, as amended by the Change in Terms Agreement, is 

attached as Exhibit A. 

3. The Note, as amended, is secured by a Deed of Trust executed by the Debtors and 

recorded as a lien on the Property in the Clerk’s Office of the Circuit Court of Spotsylvania County 

as Instrument No. 080020536. A copy of the Deed of Trust is attached as Exhibit B. 

4. The mortgage loan account became due and payable on November 7, 2018 due to 

Debtors’ numerous default in payment. The amount necessary to pay off the referenced loan as of 

the Petition Date is $145,023.34.

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5. Following the Debtors’ default of obligations under the Note and Deed of Trust, 

VPB caused a foreclosure of the Property to be scheduled for June 12, 2019 (the “First Foreclosure 

Sale”) and notice thereof was provided to Debtors on or about May 15, 2019. A true copy of 

correspondence to the Debtors dated May 15, 2019 with the Trustee’s Notice regarding the First 

Foreclosure Sale, with a Deed of Appointment of Substitute Trustee included, is attached as Exhibit

C.

6. On June 12, 2019, Debtors jointly filed their first case in this Court under Chapter 13 

of the Bankruptcy Code, Case No. 19-33126-KLP (the “First Bankruptcy Case”). The filing of the 

First Bankruptcy Case operated to stay the First Foreclosure Sale, which was cancelled. The First 

Bankruptcy case was dismissed by Order entered on September 25, 2019 due to Debtors’ failure to 

commence Chapter 13 plan payments. 

7. Following the dismissal of the First Bankruptcy Case, VPB again caused a 

foreclosure of the Property to be scheduled, this time for November 12, 2019 (the “Second 

Foreclosure Sale”) and notice thereof was provided to Debtors on or about October 22, 2019. A 

true copy of correspondence to the Debtors dated October 22, 2019, with the Trustee’s Notice 

regarding the Second Foreclosure Sale, is attached as Exhibit D.

8. On November 8, 2019, Mr. Nicotera solely filed a voluntary petition in this Court,

thereby initiating a second Chapter 13 case, Case No. 19-35903-KRH (the “Second Bankruptcy 

Case”). The Second Bankruptcy Case operated to stay the Second Foreclosure Sale, which was 

cancelled. The Second Bankruptcy Case was dismissed by Order entered on February 19, 2020 due 

to Mr. Nicotera’s failure to commence Chapter 13 plan payments.

9. Following the dismissal of the Second Bankruptcy Case, VPB again caused a 

foreclosure of the Property to be scheduled, this time for Monday, March 30, 2020 (the “Third 

Foreclosure Sale”) and notice thereof was provided to Debtors on or about March 10, 2019. A true 

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copy of correspondence to the Debtors dated March 10, 2019, with the Trustee’s Notice regarding 

the Third Foreclosure Sale, is attached as Exhibit E.

10. On Friday, March 27, 2020 (the “Petition Date”) Debtors jointly filed the abovecaptioned Chapter 13 case (the “Third Bankruptcy Case”). Pursuant to the provisions of section 

362(c)(4)(A), the filing of the Third Bankruptcy case did not operate to stay the Third Foreclosure 

Sale as to Mr. Nicotera. However, since the Third Bankruptcy Case was only the second case 

naming Mrs. Nicotera as Co-Debtor, VPB cancelled the Third Foreclosure Sale to avoid violation of 

the automatic stay as to Mrs. Nicotera. 

Argument

11. In the Motion, Mr. Nicotera requests that this Court impose the automatic stay as to 

him pursuant to 11 U.S.C. § 362(c)(4)(B). In order to grant the relief requested under that 

provision, the Court must find that Mr. Nicotera’s filing of this Third Bankruptcy Case was in 

“good faith” as to the creditors to be stayed. Pursuant to § 362(c)(4)(D), a presumption arises that 

this case was not filed in good faith, as to all creditors, because Mr. Nicotera filed the First 

Bankruptcy Case and Second Bankruptcy Case within the year preceding the Petition Date. 11 

U.S.C. § 362(c)(4)(D)(i). This presumption may only be rebutted by “clear and convincing 

evidence to the contrary.” Id. 11 U.S.C. § 362(c)(4)(D).

12. Far short of providing clear and convincing evidence, Mr. Nicotera offers no basis

whatsoever to rebut the presumption of bad faith in this case. Indeed, there is no suggestion in the 

Motion that Mr. Nicotera has seen a substantial change in his financial condition since the dismissal 

of the Second Bankruptcy Case, and no suggestion of any difference in circumstances that would 

lead to a result different from the failures of the two previous cases that he commenced. All that we 

have is the unrebutted presumption that this Third Bankruptcy Case--filed after two previous case 

dismissals within the past 10 months for failure to make plan payments--is part of a scheme to 

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delay, hinder, or defraud creditors from pursuing their contractual and state law rights. As such, the 

commencement of the instant case by Mr. Nicotera constitutes an abuse of the provisions of 11

U.S.C. § 362.

13. Mrs. Nicotera’s motion to extend the automatic stay pursuant to 11 U.S.C. § U.S.C. 

362(c)(3)(B) is equally flawed. In order to grant the relief requested, similar to the requirements for 

Mr. Nicotera, the Court must find that Mrs. Nicotera filed this case in “good faith” as to the 

creditors to be stayed. Pursuant to § 362(c)(3)(C) a presumption arises that this case was not filed 

in good faith, as to all creditors, because Mrs. Nicotera co-filed the First Bankruptcy Case within 

the past year. This presumption may only be rebutted by “clear and convincing evidence to the 

contrary.” Id. 11 U.S.C. § 362(c)(3)(C).

14. Once again, as with her husband, Mrs. Nicotera offers no basis whatsoever to rebut 

the presumption of bad faith in this case. There is no suggestion in the Motion that Mrs. Nicotera 

has seen a substantial change in her financial condition since the dismissal of the First Bankruptcy 

Case, and no suggestion of any difference in circumstances that would lead to a result different from 

the failure of her previous case. All that we have is the unrebutted presumption that this Third 

Bankruptcy Case--filed after a previous case dismissal within the past 10 months for failure to make 

plan payments--is part of a scheme to delay, hinder, or defraud creditors from pursuing their 

contractual and state law rights. As such, the commencement of the instant case by Mrs. Nicotera 

similarly constitutes an abuse of the provisions of 11 U.S.C. § 362. 

15. Debtors have therefore failed to overcome with any evidence (let alone clear and 

convincing evidence) the presumption that the instant case has been commenced in bad faith. As 

such, there is no basis to reimpose the automatic stay as to Mr. Nicotera or to extend the automatic 

stay as to Mrs. Nicotera.

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WHEREFORE, for the foregoing reasons, VPB respectfully request that the Court enter an 

Order denying the Motion and providing such other and further relief as is just and proper. 

Dated: April 10, 2020 Respectfully submitted

/s/ Robert F. Moorman

Robert F. Moorman, Esq. VSB #39129

KaneJeffries, LLP

1700 Bayberry Court, Suite 103

Richmond, VA 23226

Phone: (804) 726-5845

Facsimile: (804) 441-8201

Email: rfm@kanejeffries.com

Counsel for Virginia Partners Bank

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CERTIFICATE OF SERVICE

I hereby certify that on April 10, 2020, I caused a true and correct copy of the foregoing to 

be served on all persons required to receive notice under Local rule 4001(a)-1(F), by means of 

electronic transmission through the ECF system upon all persons designated to receive notice 

thereunder, and by mailing a true and correct copy to the following persons:

Suzanne E. Wade, Trustee

7202 Glen Forest Drive, Ste. 202

Richmond, VA 23226

James E. Kane

Kane & Papa, PC

1313 East Cary Street

P.O. Box 508

Richmond, VA 23218-0508

Joseph A. Nicotera

1415 Heatherstone Drive

Fredericksburg, VA 22407

Carolyn M. Nicotera

1415 Heatherstone Drive

Fredericksburg, VA 22407

/s/ Robert F. Moorman

Robert F. Moorman

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