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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI-DADE DIVISION

www.flsb.uscourts.gov

IN RE:

YUNEIVIS RIVAS

Debtors

 /

Case No.: 19-17426-RAM

Chapter 7

MOTION FOR RELIEF FROM THE AUTOMATIC STAY BY PNC BANK, NATIONAL 

ASSOCIATION NOTICE OF OPPORTUNITY TO OBJECT AND FOR HEARING

(VEHICLE) (NO PROOF OF INSURANCE AND MISSING)

Replaces DOC 20) 

(Amended to attach corrected exhibits)

ANY INTERESTED PARTY WHO FAILS TO FILE AND SERVE A 

WRITTEN RESPONSE TO THIS MOTION WITHIN 14 DAYS AFTER 

THE DATE OF SERVICE STATED IN THIS MOTION SHALL, 

PURSUANT TO LOCAL RULE 9013-1(D), BE DEEMED TO HAVE 

CONSENTED TO THE ENTRY OF AN ORDER IN THE FORM 

ATTACHED TO THIS MOTION. ANY SCHEDULED HEARING MAY 

THEN BE CANCELED.

COMES NOW PNC BANK, National Association (hereinafter “PNC” or “Movant”); by 

and through its undersigned counsel and hereby files this Amended Motion for Relief from the 

Automatic Stay and respectfully requests this Court to enter an Order Granting Relief from the 

Automatic Stay to pursue its state law remedies for the collateral, including but not limited to sell 

same and to issue a Certificate of Title and possession, and to pursue any insurance proceeds 

recovery that may exist, if any, and in furtherance thereof states:

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1. This Court has jurisdiction over this matter pursuant to 11 U.S.C. §361, §362, and 

the other various other applicable provisions of the United States Bankruptcy Code and Federal 

Rules of Bankruptcy Procedure. 

2. The Debtor listed above filed a Voluntary Petition pursuant to Chapter 7 on June 3, 

2019. 

3. PNC holds a security interest in the Debtor’s 2016 Mercedes Benz GLE 350 and 

any insurance proceeds related thereto, VIN: 4JGDA5HB6GA689771, pursuant to a Retail

Installment Sale Contract and Note (“Note”) dated December 27, 2018, and placement of the lien 

on the state title records. (Copy of Note/ Contract attached hereto as Exhibit “A”) (Confirmation 

of recorded lien attached as Exhibit “B”).

4. The aforementioned Note and DMV Lien gives PNC a first lien position on said 

property more specifically as: 2016 Mercedes Benz GLE 350, VIN: 4JGDA5HB6GA689771.

5. The Debtor admitted no payment was made on the Note after the purchase at the 

341. As of June 28, 2019 the Debtor, is indebted to PNC in the amount of $47,766.41 principle 

balance, plus interest at the contract rate of 10.950%, together with advances, costs, and attorney’s 

fees advanced by PNC, pursuant to the Note. The vehicle has a value of $25,750.00 per the Black 

Book (Copy of Black Book attached as Exhibit “C”). (See attached Affidavit in Support of Motion 

for Relief from the Automatic Stay Exhibit “D”).

6. The Debtor did not list the 2016 Mercedes Benz GLE 350 in the Initial Schedule 

B, C, or D nor in the Statement of Intention and the Debtor testified at the 341 that she was not in 

possession of the vehicle.

7. The Debtor has acknowledged at the initial and continued 341 meetings PNC’s

security interest in the vehicle, and alleges the vehicle was in an accident in early April, 2019 and 

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that she is not aware of its location and she has not provided proof of insurance and of a claim 

despite request.

8. The Debtor has not claimed the property as exempt nor that there is any equity in 

the vehicle and lists it as repossessed on the Amended Statement of Financial Affairs filed July 22, 

2019 (ECF 17). PNC does not have the vehicle.

MEMORANDUM OF LAW

9. The lienholder is entitled to relief from the automatic stay pursuant to 11 U.S.C. § 

362(d)(1) based upon the lack of equity Debtor’s failure to make the required payments postpetition. 

Pursuant to 11 U.S.C. Section 362(d)(1):

On request of a party in interest and after notice 

and a hearing, the Court shall grant relief from 

the stay provided under subsection (a) of this 

section such as by terminating, annulling, 

modifying, or conditioning such stay-

(1) for cause, including the lack of adequate 

protection of an interest in property of such 

party in interest; 

11 U.S.C. §362(d)(1).

10. Stay relief is appropriate pursuant to 11 U.S.C. §362(d)(1), for cause, in as much 

as: 

A. there is no realizable equity in the property;

B. the Debtor cannot provide adequate protection and the existence of 

insurance is questionable and;

C. the Debtor has not listed the property in the initial filing, advised same is 

wrecked and has failed to produce proof of insurance or the vehicle location..

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D. the property is not necessary to reorganize in a Chapter 7.

The lack of adequate protection constitutes “cause” under §362(d)(1). See In re McGaughey, 24 

F. 3d 904 (7th Cir. 1994).

11. Pursuant to the terms of the Note, PNC is entitled to recover its reasonable 

attorney’s fees and costs with relation to the prosecution of this Motion and representation in the 

Bankruptcy Court, and would request that this Court award the undersigned counsel its reasonable 

fees incurred in representing the Movant herein, including but not limited to, preparation and filing 

of this Motion, together with any attendance that is required with relation hereto and costs in the 

amount of $181.00 as the filing fee.

12. Pursuant to Section 362(d)(2) of the Bankruptcy Code, the Court shall grant relief 

from the stay of an act against property of the Debtor if: (A) the Debtor does not have any equity 

in such property; and (B) such proper is not necessary to an effective reorganization. 11 U.S.C. 

§362(d)(2). 

13. Creditor asserts sufficient cause exists to waive the stay of Bankruptcy Rule 

4001(a) (3), therefore allowing this Order to be effective upon entry by the Court. 

14. A proposed order is attached hereto as Exhibit “E.”

15. The undersigned counsel has spoken to and emailed the office of Debtor’s counsel,

multiple times and has left word with Trustee’s office. 

WHEREFORE, PNC Bank, Movant, requests this Court to enter an Order:

A. Granting in rem relief from the automatic stay:

B. Allowing PNC to prosecute it’s in rem state court remedies and actions

through and including possession, sale and issuance of Certificate of Title.

C. Directing the Debtor to provide PNC the vehicle location, proof of 

insurance for said vehicle and a copy of the Policy and claim number for the accident.

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D. Granting in rem Stay Relief to PNC to pursue its claim for Insurance 

Coverages and payments with relation to its collateral, if any. 

E. Awarding attorney’s fees and costs for representation in this proceeding.

F. Waiving the stay of F.R.B.P. 4001(a)(3).

G. Authorizing PNC, its agents/representatives to contact the Debtor to arrange 

turnover, if necessary. 

H. Granting such further relief as this Court deems appropriate. 

I. Retaining jurisdiction to enforce this Order. 

I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for 

the Southern District of Florida and I am in compliance with the additional qualifications to 

practice in this Court set forth in Local Rule 2090-1(A).

Dated: October 7, 2020 Quintairos, Prieto, Wood & Boyer, P.A.

Counsel for PNC BANK, N. A.

One E. Broward Blvd. Suite 1200

Ft. Lauderdale, FL 33301

Tel: (954) 523-7008 

Main Fax: (954) 523-7009

By: /s/ Arthur C. Neiwirth 

ARTHUR C. NEIWIRTH, ESQ.

FBN: 0289061

aneiwirth@qpwblaw.com

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I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all 

parties on the service list as noted this 7

th day of October, 2020.

Quintairos, Prieto, Wood & Boyer, P.A.

Counsel for PNC BANK, N. A.

One E. Broward Blvd. Suite 1200

Ft. Lauderdale, FL 33301

Tel: (954) 523-7008 

Main Fax: (954) 523-7009

By: /s/ Arthur C. Neiwirth 

ARTHUR C. NEIWIRTH, ESQ.

FBN: 0289061

aneiwirth@qpwblaw.com

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SERVICE LIST

CM/ECF

Arthur C. Neiwirth, Esq. aneiwirthcourt@qpwblaw.com

Robert Sanchez, Esq. court@bankruptcyclinic.com

All other parties on the Clerk’s CM/ECF mailing list

By U.S. First Class Mail:

Office of the US Trustee

51 S.W. 1st Ave.

Suite 1204

Miami, FL 33130

Drew M. Dillworth, Trustee

2200 Museum Tower

150 West Flagler Street

Miami, FL 33130

Yuneivis Rivas a/k/a Yuneivis Rivas Cardenas

3576 W. 74th Place

Hialeah, FL 33018-1718

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