Case No. 11-64068.United States Bankruptcy Court, E.D. Michigan, Southern Division.
September 30, 2011
ORDER DENYING DEBTOR’S MOTION TO REINSTATE CASE
THOMAS TUCKER, Bankruptcy Judge
This case is before the Court on a motion filed by Debtor on September 26, 2011, entitled “Motion . . . to Reinstate the Chapter 7 Bankruptcy Case Based on 11 U.S.C. [§] 109(h)(3)(i)” (Docket # 44, the “Motion”). The Court construes the Motion as a motion for reconsideration of, and for relief from, the Court’s September 24, 2011 Order dismissing this case (Docket # 43).
The Court dismissed this case because “Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1),” since “Debtor only received credit counseling five days after filing the bankruptcy petition.” (See “Order Dismissing Case” (Docket # 43, the “Dismissal Order”).) The Motion argues that the exception to § 109(h)(1), contained in § 109(h)(3) applies, and excuses the Debtor’s failure to obtain the credit counseling briefing on or before the day of the petition.
The Court has reviewed and considered the Motion, and finds that the Motion fails to demonstrate a palpable defect by which the Court and the parties have been misled, and that a different disposition of the case must result from a correction thereof See E.D. Mich. L.B.R. 9024-1(c).
The Court also finds that the allegations in the Motion do not establish excusable neglect under Fed.R.Civ.P. 60(b)(1), FedR.Bankr.P. 9024, or any other valid ground for relief from the Dismissal Order.
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In addition, the Court notes the following. Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1). That provision requires that a debtor obtain a credit counseling briefing before or on the date of filing a bankruptcy petition. It provides in relevant part, that
an individual may not be a debtor under this title unless such individual has, during the 180-day period ending on the date of filing the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.
(emphasis added). 11 U.S.C. § 109(h)(3) provides a limited exception to § 109(h)(1)’s requirement of obtaining a credit counseling briefing before or on the date of filing the bankruptcy petition. This exception permits a debtor to obtain the required credit counseling briefing up to 30 days after filing the petition, and for cause shown, up to 45 days after filing the petition. Section 109(h)(3)(A) provides:
(3)(A) Subject to subparagraph (B), the requirements of paragraph (1) shall not apply with respect to a debtor who submits to the court a certification that —
(i) describes exigent circumstances that merit a waiver of the requirements of paragraph (1);
(ii) states that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services referred to in paragraph (1) during the 7-day period beginning on the date on which the debtor made that request; and
(iii) is satisfactory to the court.
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LBR 1007-6 (E.D. Mich.) provides the procedure that a debtor must use when filing a certificate of exigent circumstances under § 109(h)(3)(A):
(a) Certification Procedures. A debtor who files a certification under § 109(h)(3)(A) shall also file a motion for approval of the certification. The debtor shall file the certification and the motion with the petition, serve it on all parties and file a certificate of service. The deadline to file a response shall be 14 days after service. If no timely response is filed, the certification shall be deemed satisfactory under § 109(h)(3)(A)(iii) without a hearing or further order. The motion shall be accompanied by a notice that the deadline to file a response is 14 days after service and that if no response is filed, the court will deem the certification satisfactory under § 109(h)(3)(A)(iii) without a hearing.
In this case, Debtor failed to comply with the requirements of both § 109(h)(3)(A) and L.B.R. 1007-6.
First, Debtor did not file a certificate of exigent circumstances or a motion to approve her certification of exigent circumstances with the petition, as required by L.B.R. 1007-6(a). In fact she did not file such a motion at any time before dismissal of this case.
Second, even if Debtor’s Motion could be viewed as an untimely certification of exigent circumstances, it does not comply with § 109(h)(3)(A)(ii), and it is not “satisfactory to the court” as required by § 109(h)(3)(A)(iii). As to the latter point, the Debtor’s attorney’s unawareness (until after the case was dismissed) of § 109(h)(1)’s requirements regarding the timing of the required credit counseling briefing, is not a valid basis for excusing or overlooking Debtor’s failure to comply with that requirement.
For these reasons, the Court must deny the Debtor’s Motion. But the Court notes that
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neither this Order nor the Dismissal Order precludes the Debtor from filing a new bankruptcy case.
Accordingly,
IT IS ORDERED that the Motion (Docket # 44) is denied.
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