No. 4-06-00383-EWH.United States Bankruptcy Court, D. Arizona.
May 4, 2006
ORDER GRANTING DEBTOR’S REQUEST FOR A DETERMINATION OF EXIGENT CIRCUMSTANCES
EILEEN HOLLOWELL, Bankruptcy Judge
On April 25,2006, an order was entered denying the Debtor’s request for a waiver, pursuant to 11 U.S.C. § 109(h)(4), of the § 109(h)(1) requirement that the Debtor obtain credit counseling prior to the filing of his petition. The request for a waiverwas denied because the Debtor, even though he is incarccratcdand, thcrcforc, without acccss to a tclcphone or a computerwith internet capability, is nevertheless not impaired or disabled as those terms are defined in § 109(h)(4).
On May 2, 2006, the Debtor filed a motion for reconsideration in which he states that he has only recently been informed by prison authorities that if this court issues an order requiring it, he will be permitted to obtain access to a telephone so that he can complete both the credit counseling requirements of 11 U.S.C. § 109(h)(1) and the personal and financial management course required prior to discharge pursuant to 11 U.S.C. § 727(a)(11).
The court interprets the Debtor’s motion for reconsiderationto be a request for a determination of exigent circumstances under § 109(h)(3)(A) which, if granted, would permit a waiver of the requirement that he file a credit counseling certificate demonstrating that he received
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approved credit counseling services prior to the filing of his petition. If an exigent circumstances determination is made, then under § 109(h)(3)(B), the Debtor has 30 days from his petition date to file the required credit counseling certificate. The court may, for cause, grant an additional 15 days for the Debtor to file the credit counseling certificate.
The Debtor’s application for a waiver of the credit counseling requirement describes exigent circumstances_____ the Debtor’s incarcertaion. The Debtor, therefore, meets the first requirement for a waiver under § 109(h)(3)(A)(1)(i). The second requirement for an exigent circumstances determination is that the Debtor certify that in the five-day period prior to filing his petitiion, he requested, but was unable to obtain, credit counseling from an approved credit counseling agency. Because the Debtor was incarcerated and because his motion for reconsideratioin indicates that he could not obtain the right to request credit counseling services by phone or by Internet, unless this court issued an order directing the prison authorities to provide him with such access, it was literally impossible for the Debtor to obtain credit counseling services before he filed his petition. Accordingly, the court finds that the requirement of § 109(h)(3)(A)(ii) are inapplicable to this Debtor. The third requirement for a determination of exigent circumstances is that the Debtor’s explanation be satisfactory to the court. The court finds that, in these circumstances, the Debtor’s explanation is satisfactory. The Debtor’s Motion for Reconsideration and defacto Request for a Determination that Exigent Circumstances exist is, therefore, GRANTED.
IT IS FURTHER ORDERED:
A. Requiring the Arizona Department of Corrections to allow the Debtor the use of a telephone or Internet services so that he can obtain a credit counseling certificate and a certificate demonstrating that he has completed a personal financial management course;
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B. Extending the time for the Debtor to complete the credit counseling requirement of 11 U.S.C. § 109(h)(1) until 45 days after his petition date as permitted under § 109(h)(3)(B) or by no later than May 30, 2006.
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