Case No. 05-38249.United States Bankruptcy Court, E.D. Tennessee.
January 5, 2006
MEMORANDUM AND ORDER
RICHARD STAIR JR., Bankruptcy Judge
The Chapter 13 Trustee, by her Objection to Confirmation of Chapter 13 Plan filed on December 22, 2005, and in open court on January 4, 2006, has raised the issue of the Debtor’s eligibility to file for bankruptcy relief pursuant to 11 U.S.C. § 109(h) (2005). This section of the Bankruptcy Code requires an individual to receive a briefing from an approved nonprofit budget and credit counseling agency within the 180 days immediately preceding the date upon which a bankruptcy petition is filed.
The Debtor filed the Voluntary Petition commencing this Chapter 13 bankruptcy case on November 16, 2005. He did not file his statements and schedules, a plan, payment advices, a statistical summary, or certification that he had obtained pre-petition consumer credit counseling,
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all of which are required under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), applying to all bankruptcy cases filed on or after October 17, 2005. On November 22, 2005, the Debtor filed a document entitled “Certificate of Exigent Circumstances,” which states the following:
1. The Debtor was contacted by Option One Mortgage and threatened with foreclosure on his home on November 17, 2005.
2. The Debtor was unable to complete Consumer Credit Counseling before the date of the foreclosure and needed to file his Chapter 13 case immediately. Debtor will complete Consumer Credit Counseling in a timely fashion.
On December 16, 2005, the Debtor filed a certificate from Consumer Credit Counseling Service, representing that he obtained counseling on December 10, 2005.
One new requirement instituted by virtue of BAPCPA is the necessity of individual debtors to attend a consumer credit counseling briefing prior to filing a petition under any chapter of the Bankruptcy Code. Section 109(h), entitled “Who may be a debtor,” provides, in material part:
(h)(1) Subject to paragraphs (2) [inapplicable] and (3), and notwithstanding any other provision of this section, an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of 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.
. . . .
(3)(A) Subject to paragraph (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);
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(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 5-day period beginning on the date on which the debtor made that request; and
(iii) is satisfactory to the court.
(B) With respect to a debtor, an exemption under subparagraph (A) shall cease to apply to that debtor on the date on which the debtor meets the requirements of paragraph (1), but in no case may the exemption apply to that debtor after the date that is 30 days after the debtor files a petition, except that the court, for cause, may order an additional 15 days.
11 U.S.C.A. § 109(h).
Debtors are required to provide proof that they received this counseling at the commencement of their cases by filing the following documentation:
(1) a certificate from the approved nonprofit budget and credit counseling agency that provided the debtor services under section 109(h) describing the services provided to the debtor; and
(2) a copy of the debt repayment plan, if any, developed under section 109(h) through the approved nonprofit budget and credit counseling agency referred to in paragraph (1).
11 U.S.C. § 521(b) (2005); see also INTERIM FED. R. BANKR. P. 1007 (“[A]n individual debtor must file the certificate and debt repayment plan, if any, required by § 521(b), a certification under § 109(h)(3), or a request for a determination by the court under § 109(h)(4).”).
Recently, the court examined this precise issue and found that the statute unambiguously required compliance as follows:
[A]ny consumer debtor filing a petition under any chapter of the Bankruptcy Code must either (1) participate in consumer credit counseling prior to filing, or (2) certify to the court that they were unable to meet this requirement prior to filing due to exigent circumstances, with a thirty-day grace period. Any individual consumerPage 4
debtor that has not met this requirement may not be a debtor under any chapter of the Bankruptcy Code after October 17, 2005.
In re Fields, No. 05-37959, slip op. at 10 (Bankr. E.D. Tenn. Dec. 9, 2005) (footnote omitted).
Moreover, the court held that there is only one way to obtain a waiver of the pre-petition counseling requirement, as expressly set forth by the statute.
Section 109(h)(3) states that any debtor requesting a waiver must file a certification with the court, providing the following necessary elements, which satisfy the court: (1) a description of the exigent circumstances meriting the waiver; and (2) a statement that the debtor actually requested consumer credit counseling with an approved agency, but he or she was unable to obtain the counseling because the agency was unable to provide the debtor with counseling within five days of the debtor’s request. Nevertheless, even if the court does find that exigent circumstances prevented the debtor’s pre-petition counseling, and a waiver is granted, the debtor must still complete consumer credit counseling post-petition and file certification thereof within thirty days of the date upon which the bankruptcy case was filed.
Fields, No. 05-37959, slip op. at 11-12 (footnote omitted) see also In re Cleaver, 333 B.R. 430, 434 (Bankr. S.D. Ohio 2005) (“The three requirements for an acceptable certification under § 109(h)(3)(A) are couched in conjunctive language and, therefore, all three must be satisfied for the certification to be effective as a temporary exemption from the pre-petition briefing mandated by § 109(h)(1).”).
The language of the statute is clear, as is the court’s opinion in Fields. A debtor must present to the court exigent circumstances to warrant a waiver of pre-petition consumer credit counseling, as well as attempt to obtain the counseling pre-petition, in order to receive a waiver of the pre-petition counseling requirement. The court has no discretion and simply cannot otherwise grant an extension for the Debtor to obtain the required counseling post-petition.
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In this case, the Debtor filed his bankruptcy case on November 16, 2005, but he did not file a certification of exigent circumstances until November 22, 2005, and he did not obtain counseling until December 10, 2005. Furthermore, his “Certificate of Exigent Circumstances” does not contain the certification required by § 109(h)(3)(A)(ii) that he requested credit counseling but was unable to obtain the services within a five day period. Accordingly, he is not eligible to be a debtor under any chapter of title 11, and his case must be dismissed. It is unfortunate that he did not consult with an attorney until the day immediately preceding his scheduled foreclosure; however, as stated, the court has no discretion. The Debtor was required to fulfill the consumer credit counseling requirement prior to filing his bankruptcy case. See Cleaver, 333 B.R. at 433 (“The statute is unequivocal and allows for no other excuse or exception.”); In re Wallert, 332 B.R. 884, 890 (Bankr. D. Minn. 2005) (“The application of § 109(h), as thus read, falls heavily on one subset of debtors-particularly at present, in the early stages of a transition to a new bankruptcy law regime. Nonetheless, because the requirements of the statute are so clear and so exacting on their face, and because they dovetail with a rational divination of congressional intent, it simply is not open to the courts to depart from their express terms.”).
For the reasons set forth above, the court directs that because the Debtor did not attempt to obtain a consumer credit counseling briefing from an approved nonprofit budget and credit counseling agency prior to filing his bankruptcy petition, as required by 11 U.S.C. § 109(h), he is not eligible to be a debtor under any chapter of title 11, and this bankruptcy case is therefore DISMISSED.
SO ORDERED.
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