Case No. 06-10619.United States Bankruptcy Court, N.D. Indiana, Fort Wayne Division.
May 11, 2006
DECISION AND ORDER CONCERNING DEBTOR’S COMPLIANCE WITH § 109(h)
ROBERT GRANT, Bankruptcy Judge
As a result of the bankruptcy reforms of 2005, to be eligible for relief under Title 11 an individual must have received credit counseling from an approved agency during the 180 days prior to filing the petition. 11 U.S.C. § 109(h)(1). This requirement may be waived, however, if the debtor files “a certification,” which “is satisfactory to the court,” describing “exigent circumstances” necessitating the immediate filing of a bankruptcy petition without waiting for the completion of credit counseling, and which “states that the debtor requested credit counseling . . . but was unable to obtain [it]” within five days. 11 U.S.C. § 109(h)(3)(A)(i-iii). The certification is to be filed with the petition, see, Interim Bankruptcy Rule 1007(b)(3), (c), and it must state the facts demonstrating both exigent circumstances and the debtor’s efforts to obtain credit counseling “with particularity.” Fed.R.Bankr.P. Rule 9013. If the certification is satisfactory to the court, the debtor is then required to obtain credit counseling within the 30 days following the petition. 11 U.S.C. § 109(h)(3)(B).
The debtors in this case have asked the court to waive the requirement of pre-petition credit counseling. The certification for that waiver, however, is insufficient and, therefore, not satisfactory to the court. To begin with, the bankruptcy petition clearly instructs the debtors that if they are
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seeking a waiver of the pre-petition credit counseling requirement they “must attach [a] certification describing” the facts justifying that request. The debtors did not do so. Instead, they waited about one week before filing the required certification. More fundamentally, however, that certification is not signed by the debtors, but by their counsel. Thus, it does not constitute a certification as required by § 109(h). See,In re DiPinto, 336 B.R. 693, 696 (Bankr. E.D. Pa. 2006); In reRodriguez, 336 B.R. 462, 469 (Bankr. D. Idaho 2005).[1]
Debtors shall file an amended certification which fully
complies with all of the requirements of § 109(h)(3) within fourteen (14) days. The failure to do so will result in the dismissal of this case without further notice or hearing.
SO ORDERED.
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