§ 19.2     Timing of Briefing
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 19.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The timing of the prepetition briefing required by § 109(h)1 is important for at least two reasons. Section 109(h)(1) ambiguously recites that an individual is not eligible for Chapter 13 unless a prepetition briefing was received from an approved nonprofit budget and credit counseling agency (NBCCA) “during the 180-day period ending on the date of filing of the petition.”2 Between October 17, 2005,3 and December 22, 2010,4 the 180-day period in § 109(h)(1) was “preceding” rather than “ending on” the petition date. Detailed in this section, there is controversy under both versions of the statute with respect to whether a briefing on the same calendar day as the filing of a petition satisfies § 109(h). Detailed elsewhere,5 if the debtor did not receive a briefing before the petition and seeks the temporary exemption in § 109(h)(3), then the debtor must have requested “credit counseling services” from an approved NBCCA and been unable to obtain those services “during the 7-day period beginning on the date on which the debtor made that request.”6 Prior to December 1, 2009, the 7-day period in § 109(h)(3)(A)(ii) was “5-day.”7

[2]

Before wrestling the details in § 109(h), there is one certain message for prospective debtors and their attorneys with respect to timing and § 109(h): start early and don’t count on fixing a misstep after the petition. Filing a Chapter 13 petition on the same calendar day on which the debtor receives a § 109(h) briefing is an invitation to eligibility litigation;8 failing to request a briefing before filing the petition is almost certain ineligibility.9 The courts have uniformly concluded there is no discretion to waive the § 109(h) briefing requirement—except as specifically provided in § 109(h)(2),10 109(h)(3)11 or 109(h)(4)12—when a debtor neither receives nor requests a briefing before the petition.13 Ignorance of the briefing requirement has been poorly received as an excuse for failing to request a briefing before the petition.14

[3]

The first timing principle in § 109(h) probably answers little but seems uncontroversial: in the clear cases, “during the 180-day period” means during, not before or after. Counting the 180-day period is probably managed by Bankruptcy Rule 9006(a). In re John15 presented the question whether you count the 180 days in § 109(h) forward from the date 180 days before the filing of the petition, or do you count it backward from the date of filing of the petition? The answer to that question made a difference in John.

[4]

The Chapter 13 petition in John was filed on September 8, 2008. The prepetition briefing certificate16 was dated March 11, 2008. If counted backward from the petition date, the briefing certificate was stale. If counted forward using Bankruptcy Rule 9006(a), the last day of the 180-day period fell on a weekend and the certificate would be timely. Acknowledging the changes to § 109(h)(1) by the Bankruptcy Technical Corrections Act of 2010,17 the bankruptcy court in John found that the statutory change made no difference: “Rule 9006(a) is applicable to § 109(h), and the period will be calculated backwards from the date of the petition. . . . Debtors did not satisfy the statutory requirements of § 109(h).”18

[5]

The “during” requirement matters in some cases. For example, in Taal v. Sumski (In re Taal),19 the debtor obtained two briefings—one, 259 days before the filing of the Chapter 13 petition; another, five days after the petition. The Bankruptcy Appellate Panel for the First Circuit had no trouble finding that neither briefing satisfied § 109(h).20 The lesson of Taal: quality, not quantity, defines a successful prepetition briefing. Many other courts in clear cases have found debtors ineligible when the briefing was obtained more than 180 days before the date of the petition.21

[6]

Many courts have held—before and after the 2010 amendment substituted “ending on” for “preceding”—that a briefing after the moment of the filing of the petition does not satisfy § 109(h), though these courts do not all address the effectiveness of a briefing on the same day as the petition.22

[7]

The 2010 amendment did not eliminate the ambiguity in § 109(h)(1) with respect to briefings on the same day as the filing of the petition. “Date of filing” appears in the pre- and post-2010 versions of the statute. Substituting “ending on” for “preceding” left the ambiguous phrase “date of filing” untouched. The substitution of “ending on” for “preceding” convinced one bankruptcy judge in the Northern District of Illinois that a briefing on the same calendar day as the filing of the Chapter 13 petition satisfies § 109(h) even when the time stamp on the petition is before the moment of completion of the briefing:

The 180-day period of a debtor to receive credit counseling includes the date of the filing of the petition. No finer distinction is included in the statute . . . . As the Debtor in this case obtained his credit counseling on the date of the filing of his bankruptcy petition, that credit counseling—though taken after the filing of the petition—satisfies the express terms of section 109(h)(1). . . . Congress must have seen value in postpetition credit counseling, or section 109(h)(3) would not exist. . . . In 2010, Congress amended the language of section 109(h)(1). Prior to amendment, phrase in question read “preceding the date of the filing of the petition.” . . . The express wording of the pre-amendment section dictated that a debtor complete the credit counseling requirement, at the latest, the day before the filing of the petition. . . . Congress expressly amended away any such period of contemplation in 2010. . . . [T]he plain language of section 109(h)(3) is at odds with the petition form.23
[8]

A different bankruptcy judge in the same Bankruptcy Court for the Northern District of Illinois reached exactly the opposite conclusion—that a prepetition briefing on the same day but six hours after the filing of the Chapter 13 petition did not satisfy § 109(h):

Arkuszewski stated that she had begun the process of obtaining the credit counseling briefing before she filed the case, but she did not complete the process and receive the briefing until afterward. . . . Section 109(h)(1) requires that a credit counseling briefing be received in the 180-day period “ending on the date of filing.” Some decisions hold that “date of filing” means the time of day when filing takes place. Under this view, the 180-day period ends when the case is filed, and a receipt of credit counseling after case filing would be outside the statutory period. . . . Under [In re Walker, 502 B.R. 324 (Bankr. N.D. Ill. Dec. 9, 2013) (Barnes)], the 180-day period would extend to any time before midnight of the day of filing, and a post-filing briefing that day would comply with § 109(h)(1). But a second, quite distinct issue concerns the status of “debtor,” . . . . Section 109(h) states that if an individual does not receive a credit counseling briefing during the 180-day period, the individual “may not be a debtor.” If a person must qualify as a “debtor” to file a case, then someone who has not yet received a credit counseling briefing—and so may not be a debtor—cannot properly file. . . . As used in § 109(h)(1), . . . the present perfect tense does not indicate continuing activity. Rather, the tense is used in a phrase or sentence to set out an action, completed in the past, that has a present effect. The Cambridge Grammar . . . calls this the “resultative perfect.” . . . In § 109(h)(1), . . . the present perfect tense . . . sets out the completed action, and the result is that the individual is eligible to be the debtor in a bankruptcy case. Eligibility begins when the past action—receipt of a credit counseling briefing—has been completed. Only a person who “has received” a credit counseling briefing is eligible to be a debtor; a person who is only in the process of receiving the briefing is not eligible. . . . The current version of § 109(h)(1) was introduced by the Bankruptcy Technical Corrections Act of 2010 . . . ; it resolved the dispute in the case law by allowing the briefing to be received on the date of filing. But as a technical correction, the new version cannot properly be interpreted as reversing the original requirement that the credit counseling briefing be received before the bankruptcy case is filed.24
[9]

A fair number of reported decisions hold that a briefing on the same day as the filing of the petition satisfies § 109(h) when the briefing is completed before the moment of the filing of the Chapter 13 petition.25 These courts find nothing in the language of § 109(h) or in the legislative history of the 2005 enactment or the 2010 amendment to suggest that Congress intended a calendar-day waiting period between the briefing and the filing of bankruptcy. The 2013 version of the Application Procedures and Criteria for Approval of NBCCAs promulgated by the Executive Office of the U.S. Trustee states that a briefing certificate26 “must bear not only the date, but also the time and the time zone when counseling services [sic]27 were completed by the client.”28 This Rule certainly facilitates precise determination whether the briefing won the race with the petition.

[10]

Several decisions, most rendered before the 2010 amendments, take the hard line that a Chapter 13 debtor is ineligible when the prepetition briefing is completed on the same calendar day as the filing of the bankruptcy petition—even if the briefing is completed before the time stamp on the petition.29 The rule in these cases is a bright line requiring that the briefing be completed at least one calendar day before the date of filing the petition.

[11]

Courts do not agree whether there is discretion to excuse the failure of a debtor to obtain a prepetition briefing within the 180 days described in § 109(h). Discussed elsewhere, § 109(h)(3) elaborately describes a temporary exemption from the prepetition briefing requirement when the debtor requests a briefing and is unable to obtain a briefing during the seven-day period before the petition.30 Congress also provided a permanent statutory waiver of the prepetition briefing requirement when NBCCA services are not adequate or the debtor is mentally or physically unable to complete a briefing.31 Some courts have read these statutory waivers and exemptions as evidence that Congress did not intend bankruptcy courts to exercise discretion to excuse the failure to complete a prepetition briefing under other circumstances.32

[12]

A few other courts have found some wiggle room for excusing the failure of a debtor to obtain a proper prepetition briefing when the facts won’t fit into the statutory temporary exemption or permanent waiver. In In re John,33 mentioned above, the second question presented to the bankruptcy court was whether there was discretion to excuse the “technical” noncompliance with § 109(h). The bankruptcy court found authority to do just that in § 105:

Debtors did not satisfy the statutory requirements of § 109(h). . . . Had I acted contemporaneously or shortly after the filing of the underlying Motion to Dismiss, then I believe undoubtedly I would have dismissed the underlying case. But for a reason or reasons which are inexplicable at this time, this matter was not again brought to my attention until quite recently when the Final Report was filed. . . . I find it sufficient to utilize my authority under § 105 to excuse the technical non-compliance with § 109(h). At no time was the Debtors’ good faith questioned in this case, and I simply cannot find that any party will be prejudiced by allowing this case to proceed to its logical conclusion.34
[13]

Ironically, this timing controversy saved one debtor from ineligibility. In In re Murphy,35 the debtor received a § 109(h) briefing on January 17. The electronic filing of a Chapter 13 petition was attempted on January 17 but by mistake the document attached to the electronic “petition” event was not a Chapter 13 petition. The mistake was realized the next day and a Chapter 13 petition was correctly attached and electronically filed on January 18. The bankruptcy court first concluded that “date of” the petition in § 109(h) was calendar date and that “the latest that the debtor could have obtained credit counseling under § 109(h) was the date prior to her petition date.”36 Scrutinizing the electronic record, because the petition was not filed until January 18, § 109(h) was satisfied, albeit by mistake.

[14]

The timing controversies in § 109(h)(1) are not likely to go away quietly. The phrase “date of filing of the petition” appears many places in the Bankruptcy Code.37 There are a fair number of reported cases holding that the calendar day on which the petition is filed is excluded for purposes of counting forward or backward from the filing of the petition.38 There will be more courts that conclude § 109(h)(1) is properly interpreted to exclude the calendar day on which the petition is filed from the universe of possible days on which a briefing can be received that will satisfy the eligibility requirement. This lens will see the drafters of BAPCPA intending at least a one-day waiting period between the briefing and eligibility to file a bankruptcy petition. Of course, a clearer legislative statement of a waiting period is easily conceived, but some courts will find one in the ambiguity that is § 109(h)(1).

[15]

Courts accepting a briefing on the same calendar day as the petition are certainly right that the moment of the petition is fundamental to bankruptcy practice. That moment creates a protected estate, cleaves the balances in a debtor’s bank accounts and fundamentally changes everything in the financial life of a debtor. Requiring debtors who have been interviewed by attorneys, chaperoned through a prepetition briefing and then poised to file a case to leave and come back another day is at least silly if not improbable. With electronic filing, a calendar day means less and less. The courts finding a calendar-day interpretation in § 109(h) invite midnight game playing that is not compelled by the statute.

[16]

But the message for debtors and their attorneys remains clear: If you have a choice, be briefed at least one calendar day before the Chapter 13 petition is filed. If you don’t have that flexibility and must file bankruptcy and be briefed on the same calendar day, make sure the time stamp on the petition is after the time of completion on the briefing certificate.39


 

1  See § 18.1  In General.

 

2  11 U.S.C. § 109(h)(1) (emphasis added).

 

3  The effective date of most of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

4  See Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, 124 Stat. 3557 (Dec. 22, 2010).

 

5  See § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request and § 20.5  Briefing after Temporary Exemption.

 

6  11 U.S.C. § 109(h)(3)(A)(ii).

 

7  See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16 (effective Dec. 1, 2009).

 

8  See below in this section.

 

9  See § 20.4  Prepetition Request. See, e.g., In re Wallace, 338 B.R. 399 (Bankr. E.D. Ark. Mar. 9, 2006) (Mixon) (Debtor who did not obtain credit counseling until seven days after the petition and who did not certify a prepetition request was not eligible.); In re Sosa, 336 B.R. 113, 114–15 (Bankr. W.D. Tex. Dec. 22, 2005) (Monroe) (Debtors who failed to request a briefing before filing the petition are not eligible. “[I]f the debtor does not request the required credit counseling services from an approved nonprofit budget and credit counseling service before the petition is filed, that person is ineligible to be a debtor no matter how dire the circumstances the person finds themselves in at that moment. This Court views this requirement as inane. However, it is a clear and unambiguous provision obviously designed by Congress to protect consumers. . . . [B]ecause the Debtors did not request such counseling before they filed their case, Congress says they are ineligible for relief under the Act. Can any rational human being make a cogent argument that this makes any sense at all?”); In re Valdez, 335 B.R. 801, 802–03 (Bankr. S.D. Fla. Dec. 13, 2005) (Cristol) (Pro se debtor who failed to receive or request a briefing before filing a Chapter 13 petition is not eligible.); In re Booth, No. 05-45002-LMK, 2005 WL 3434776 (Bankr. N.D. Fla. Oct. 19, 2005) (unpublished) (Killian) (Motion for Exemption from Credit Counseling is legally insufficient because it failed to state that the debtor received or requested credit counseling before the petition.).

 

10  See § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

11  See § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request and § 20.5  Briefing after Temporary Exemption.

 

12  See § 21.2  Timing, Procedure and Form and § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

13  See below in this section.

 

14  See, e.g., In re Valdez, 335 B.R. 801, 802–03 (Bankr. S.D. Fla. Dec. 13, 2005) (Cristol) (“Mirielys Valdez states that she did not know the law required such counseling . . . . In this case Mirielys Valdez pleads ignorance of the requirement until too late to fulfill it. . . . Is it the intent of Congress that poor, ignorant persons who do not know the law and cannot afford to obtain the advice of counsel are to be denied protection and assistance of the Bankruptcy Code which is available to more affluent and better educated persons? . . . Mirielys Valdez does not qualify as a debtor as she has not fulfilled the budget and credit counseling requirement necessary to become a debtor and she is not, by her own admission, entitled to a waiver of such requirement[.]”). See also In re Rios, No. 07-66047-PWB, 2008 WL 7842082, at *1 (Bankr. N.D. Ga. Jan. 11, 2008) (unpublished) (Bonapfel) (“The Court enters this Order to make it clear that, regardless of the difficulty or complexity of a case or the usefulness of the pre-filing credit briefing requirement of § 109(h), the requirement exists. Congress mandated it, and it is this Court’s responsibility to enforce it. Consequently, it is counsel’s professional duty to see to it that debtors he represents obtain it before filing or that the requirements of § 109(h) are otherwise met. Counsel seems to think that if he advises the client of the pre-filing requirement he can file the petition without determining whether the client in fact has obtained the briefing prior to filing. This practice does not comply with § 109(h) and will result in dismissal if eligibility is timely raised.”).

 

15  479 B.R. 643 (Bankr. M.D. Pa. June 4, 2012) (Thomas).

 

16  See § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

17  Pub. L. No. 111-327, 124 Stat. 3557 (Dec. 22, 2010).

 

18  In re John, 479 B.R. at 648. The bankruptcy court in John went on to excuse the “technical noncompliance with § 109(h).” See below in this section.

 

19  504 B.R. 682 (B.A.P. 1st Cir. Jan. 30, 2014) (Hillman, Boroff, Godoy).

 

20  Taal v. Sumski (In re Taal), 504 B.R. 682, 685 (B.A.P. 1st Cir. Jan. 30, 2014) (Hillman, Boroff, Godoy) (Briefing 259 days before petition and again five days after petition did not satisfy § 109(h). “The Debtor did not complete a credit counseling course within 180 days prior to the petition date—the first course was completed 259 days prior to the petition date and the second course was completed 5 days after the petition date. . . . [N]either certificate satisfied the statutory requirement.”).

 

21  See, e.g., In re DeHoog, No. 13-08-12312 SF, 2008 WL 5191389 (Bankr. D.N.M. Sept. 17, 2008) (unpublished) (Starzynski) (Certification that briefing took place more than 180 days before petition fails to satisfy § 109(h); case must be dismissed.); In re Sherry, No. 08-62658, 2008 WL 3876595 (Bankr. N.D. Ohio Aug. 20, 2008) (unpublished) (Kendig) (Briefing certificate from prior case filed outside 180-day time frame in § 109(h)(1) is “immaterial” to satisfaction of § 109(h) in current case.); In re Bartlett, No. 07-63647-fra13, 2008 WL 337380 (Bankr. D. Or. Feb. 5, 2008) (unpublished) (Alley) (Briefing 185 days prior to petition is not timely; debtors are ineligible, and case must be dismissed notwithstanding inconvenience and expense.); In re Ruckdaschel, 364 B.R. 724, 734 (Bankr. D. Idaho Mar. 20, 2007) (Pappas) (Bankruptcy court is without discretion to allow § 109(h) ineligible debtor to remain in Chapter 13; credit counseling completed 187 days before petition does not satisfy statutory mandate notwithstanding that debtors participated in debt repayment plan for more than a year before receiving briefing and then were delayed in filing Chapter 13 petition because one debtor was incarcerated. “Because the law is clear, the Court has no authority to employ equitable principles to excuse Debtors from the time requirements of § 109(h)(1). . . . 180 days cannot mean 187.”); In re Williams, 359 B.R. 590 (Bankr. E.D.N.C. Feb. 9, 2007) (Doub) (In Chapter 13 case filed on February 2, 2007, certificate of completion of briefing on August 4, 2006, does not satisfy § 109(h) because briefing occurred 182 days before petition.); In re Giles, 361 B.R. 212 (Bankr. D. Utah Jan. 19, 2007) (Thurman) (Briefing 182 days before Chapter 13 petition does not satisfy § 109(h); bankruptcy court has no discretion to allow exception to § 109(h) notwithstanding that debtors complied with “spirit” of statute. Trustee’s motion to dismiss is granted although trustee stated a preference that the court deny the motion.).

 

22  See Taal v. Sumski (In re Taal), 504 B.R. 682 (B.A.P. 1st Cir. Jan. 30, 2014) (Hillman, Boroff, Godoy) (Briefing five days after the petition did not satisfy § 109(h).); Gibson v. Dockery (In re Gibson), No. CC-10-1399-PaHKi, 2011 WL 7145612 (B.A.P. 9th Cir. Dec. 1, 2011) (unpublished) (Pappas, Hollowell, Kirscher) (Completion of counseling four days after filing did not satisfy § 109(h) and was cause for dismissal.); Haynes v. Stephenson, No. 3:14-cv-352-MGL, 2015 WL 687133 (D.S.C. Feb. 18, 2015) (Lewis) (Briefing certificate dated one day after filing of Chapter 13 petition does not satisfy § 109(h).); In re Hoshan, No. 07-2931, 2008 WL 81994, at *3 (E.D. Pa. Jan. 7, 2008) (McLaughlin) (Briefing on April 3 does not satisfy § 109(h) when petition was filed on March 30; facing difficult family circumstances, including seven children and an injured husband, does not waive prepetition briefing requirement. “The appellant did not get credit counseling until after she had filed her petition, and she did not seek an exigent circumstances waiver. Her family situation, while difficult, does not rise to the level of those cases in which courts avoid manifest injustice by waiving the credit counseling requirements.”); In re Baker, No. 14-37087-H3-13, 2015 WL 1515287, at *5 (Bankr. S.D. Tex. Mar. 30, 2015) (Paul) (“Debtors failed to receive the briefing required by Section 109(h)(1) within the 180-day period preceding the date of filing of the petition. Thus, on the petition date in the instant case, Debtors were not eligible to be debtors under Title 11, pursuant to Section 109(h)(1)[.]”); In re Mikell, No. 08-60473, 2008 WL 7390622 (Bankr. S.D. Ga. Oct. 9, 2008) (unpublished) (Dalis) (Briefing seven days after petition does not satisfy § 109(h) and debtor is ineligible; false and conflicting certificates with respect to prepetition briefing subject debtor to dismissal with 180-day bar to refiling.); In re Wallace, 338 B.R. 399 (Bankr. E.D. Ark. Mar. 9, 2006) (Mixon) (Debtor who did not obtain credit counseling until seven days after the petition and who did not file a certification of exigent circumstances was not eligible.); In re Waggoner, No. 05-57036, 2006 WL 705931 (Bankr. E.D. Ky. Mar. 16, 2006) (unpublished) (Scott) (No discretion to waive § 109(h) briefing when debtors completed the briefing the day after filing the petition and did not file a certification of exigent circumstances.).

 

23  In re Walker, 502 B.R. 324, 328–32 (Bankr. N.D. Ill. Dec. 9, 2013) (Barnes), appeal dismissed as moot, No. 14-1241, 2014 WL 7004965 (7th Cir. Dec. 11, 2014) (unpublished) (Wood, Flaum, Rovner) (Appeal of bankruptcy court holding that prepetition briefing on same day but after filing of petition is okay is moot when underlying case is dismissed on an independent ground.).

 

24  In re Arkuszewski, 507 B.R. 242, 244–47 (Bankr. N.D. Ill. Mar. 24, 2014) (Wedoff), aff’d, No. 14 C 3086, 2015 WL 4727423, at *4 (N.D. Ill. Aug. 10, 2015) (Ellis) (Prepetition briefing on same day but six hours after filing of petition does not satisfy § 109(h). “If eligibility is determined as of the time of filing, then the interpretation of ‘date’ as the moment of filing would . . . avoid a ‘gap period’ question of when exactly on the day the requirement must be met. Pegging the credit counseling requirement to the moment of filing certainly gives clarity to petitioners . . . .”). Accord In re Koo, No. 12-00121, 2012 WL 692578, at *1–*2 (Bankr. D.D.C. Mar. 2, 2012) (Teel) (The eligibility condition in § 109(h) is tested at the moment of the petition: briefing on same day but hours after the petition leaves debtors ineligible for Chapter 13. Addressing the Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, 124 Stat. 3557 (Dec. 22, 2010): “The statute contains no indication that the change to § 109(h)(1) was anything other than a technical amendment intended to clarify that . . . the required prepetition credit counseling could be received up until the moment of the filing of the bankruptcy petition, and need not be received prior to the calendar day on which the petition was filed. . . . [E]ligibility is generally tested as of the moment of filing of the petition. . . . The statute’s use of the past tense contemplates credit counseling obtained before the moment at which eligibility generally is tested, the moment of filing of the petition.”).

 

25  In re Francisco, 390 B.R. 700 (B.A.P. 10th Cir. July 2, 2008) (Bohanon, Cornish, Thurman) (Briefing on same calendar date as petition satisfies § 109(h). “Although both lines of cases are inherently sound, this Court is more persuaded by the reasoning of the Bright Line cases. . . . [W]e agree that the language of § 109(h) is ambiguous, based both on other uses of the term ‘date’ in the Bankruptcy Code and on the fact that the term has been interpreted in two vastly different ways by the courts . . . . Given that nothing in the legislative history supports an interpretation of that deadline as including a waiting period prior to filing of the petition, as well as the difficulty of enforcing such a waiting period under the current statutory language, we conclude that a debtor qualifies as a debtor under § 109(h) so long as he or she completes the required credit counseling at any time between 180 days before, and the moment of, filing of the petition.”), rev’g 386 B.R. 854 (Bankr. D.N.M. Jan. 25, 2008) (Starzynski) (Briefing does not satisfy § 109(h) on same calendar day as petition. “[T]he day something happens rather than the time fits the concept of the statute more closely. . . . [I]nterpreting § 109(h)(1) to refer to a day rather than a time within a day certainly provides a bright-line test for anyone that wants it. It means that the counseling must take place before midnight of the day of the filing. . . . It is true that interpreting the statute this way could lead to an odd result . . . . Congress could have simply deleted the words ‘the date of’ from the statute, so it read ‘within the 180-day period preceding the filing of the petition. . . . ’”); In re Hancock, No. 15-10037-JDL, 2015 WL 1292387, at *3 (Bankr. W.D. Okla. Mar. 19, 2015) (Loyd) (Sua sponte dismissal appropriate when petition was filed at 3:17 p.m. and counseling certificate indicated that briefing occurred at 7:42 p.m. on same day. “Debtor did not obtain a credit counseling before the filing of his bankruptcy . . . . [C]redit counseling completed on the day a bankruptcy petition is filed is satisfactory so long as the counseling is completed before the petition is filed.”); In re Koo, No. 12-00121, 2012 WL 692578, at *1 (Bankr. D.D.C. Mar. 2, 2012) (Teel) (“[T]he required prepetition credit counseling could be received up until the moment of the filing of the bankruptcy petition, and need not be received prior to the calendar day on which the petition was filed.”); In re Barbaran, 365 B.R. 333, 334–38 (Bankr. D.D.C. Mar. 29, 2007) (Teel) (Retreating from In re Mills, 341 B.R. 106 (Bankr. D.D.C. Apr. 20, 2006) (Teel), briefing on same calendar day as petition is sufficient for § 109(h) purposes. “I am now convinced that in § 109(h), Congress failed to accord the term ‘date’ . . . its usual meaning of calendar day, and instead intended ‘date’ to mean the moment of the filing of the petition. . . . [W]hen . . . Congress intended an act to take place prior to the calendar date of an event, it knew how to express that purpose. See 11 U.S.C. § 1308(a).”); In re Moore, 359 B.R. 665, 671–75 (Bankr. E.D. Tenn. Dec. 14, 2006) (Parsons) (Disagreeing with In re Cole, 347 B.R. 70 (Bankr. E.D. Tenn. July 31, 2006) (Stair), briefing on same day but before filing of petition satisfies § 109(h). “While ‘date’ usually means ‘calendar date,’ it also often means ‘a specified time.’ . . . [C]onsidered in its context of § 109’s eligibility requirements, the more likely plain meaning of ‘date’ as used in § 109(h)(1) appears to be the less common, but still often used definition, that of moment or specific time. . . . [L]egislative history statements . . . disclose no time requirement other than the one common to all bankruptcy eligibility prerequisites, that the counseling occur by the bankruptcy filing. . . . [I]f Congress had intended a waiting period in order to give a prospective filer a day’s contemplation regarding the counseling before eligibility to file arrives, the language chosen does not produce this result in this electronic age, if date is construed to mean calendar date. . . . [O]ne-fourth of credit counseling briefings are conducted via the Internet and from the debtor Seabolt’s testimony, apparently around the clock. . . . [A] debtor who finishes a credit counseling briefing at 11:59 p.m. and then files her bankruptcy case two minutes later will satisfy the trustee’s interpretation of eligibility, but a debtor who finished a credit counseling briefing at 12:01 a.m. and then files 23 hours and 58 minutes later would not, even though the latter situation provided this debtor a longer contemplation period and would even permit him or her to ‘sleep on’ the decision. . . . [Section] 109(h)(1) governs not the period of time for doing an act after a bankruptcy case is commenced but rather describes the requisite time for taking a step to establish eligibility . . . . Application of Rule 9006(a) to § 109(h)(1) . . . would impermissibly abridge an individual’s substantive right to file bankruptcy, in derogation of 28 U.S.C. § 2075.”); In re Hudson, 352 B.R. 391, 394–96 (Bankr. D. Md. Sept. 14, 2006) (Derby) (Briefing on day of petition satisfies § 109(h). “Absent compelling reasons to the contrary, it should be presumed that Congress intended the term ‘date’ to have the same meaning in one section of the Bankruptcy Code as another. In the context of the Bankruptcy Code, the term ‘date’ appears to identify a moment in time, rather than a span of time. . . . [U]nder the Bankruptcy Code references to the date of a petition tend of necessity to be far more precise in time, because there is great significance to the status of property, events and actions whether they are pre-petition or post-petition. The court concludes that the word ‘date’ conveys more than the word ‘day.’ . . . [T]he result in [In re Warren, 339 B.R. 475 (Bankr. E.D. Ark. Mar. 20, 2006) (Mixon),] is more persuasive . . . . It does not advance the design of the Bankruptcy Code to adopt a more imprecise definition of ‘date’ as including the notion of the day as it is used in Section 109(h)(1). . . . Bankruptcy petitions may now be filed electronically 24 hours each day, seven days each week. Credit counseling may be obtained on-line. There simply is no filing delay that can be enforced fairly.”); In re Toccaline, No. 06-20218, 2006 WL 2081517, at *2 (Bankr. D. Conn. July 17, 2006) (unpublished) (Krechevsky) (“[P]etitioners have certified that they requested the briefing prior to, but on the same day as, the filing of their petition. . . . The court agrees with the reasoning of [In re Warren, 339 B.R. 475 (Bankr. E.D. Ark. Mar. 20, 2006) (Mixon),] that a credit briefing received prepetition, but on the same day that the petition is filed, satisfies § 109(h)(1). . . . [P]etitioners’ request for credit counseling on the same day as the filing of the petition was a timely request.”); In re Spears, 355 B.R. 116, 118 (Bankr. E.D. Wis. June 19, 2006) (Pepper) (Citing In re Warren, 339 B.R. 475 (Bankr. E.D. Ark. Mar. 20, 2006) (Mixon), and rejecting In re Mills, 341 B.R. 106 (Bankr. D.D.C. Apr. 20, 2006) (Teel), “to comply with § 109(h)’s credit briefing requirement, a debtor must obtain a credit briefing within the 180-day period prior to the moment she files her petition.”); In re Warren, 339 B.R. 475, 480 (Bankr. E.D. Ark. Mar. 20, 2006) (Mixon) (Briefing on the same day as filing of petition satisfies § 109(h). “[T]he Court interprets the words ‘date of filing’ as used in section 109(h)(1) to mean the specific day, month, year, and time of day the petition was filed. . . . [T]he Debtor’s credit counseling occurred at 11:16 a.m. on October 27, 2005, approximately four hours preceding the time of filing at 3:04 p.m. Thus, the Debtor has complied with the requirement in section 109(h)(1) that he must receive credit counseling during the 180-day period preceding the date of the filing of the petition. . . . Nothing in the legislative history suggests that Congress contemplated at least a one-day waiting period after completion of credit counseling.”). See also In re Rowe, No. 11-35428-HDH-13, 2011 WL 5545861, at *2 (Bankr. N.D. Tex. Nov. 14, 2011) (Hale) (Pro se attorney/debtor’s testimony about receiving briefing 13 minutes before being physically present in clerk’s office to file petition was not credible; first briefing certificate was altered with “white out” and second certificate was incomplete. Debtor, an attorney, was held to “a higher standard with regard to the irregularities surrounding the certificates of credit counseling.”); In re Walker, No. 10-02302-TOM-13, 2010 WL 2812570 (Bankr. N.D. Ala. July 15, 2010) (unpublished) (Mitchell) (Case dismissed for other reasons is reinstated to determine whether receipt of credit briefing on same date as filing was ground for ineligibility under § 109(h).).

 

26  See § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

27  See § 19.1  What is a Briefing?.

 

28  See 28 C.F.R. § 58.22(n)(3).

 

29  See In re Wise, 415 B.R. 579 (Bankr. N.D. Ala. Sept. 2, 2009) (Robinson) (Citing In re Hammonds, No. 08-40928-JJR-13, 2008 WL 4830071 (Bankr. N.D. Ala. Sept. 22, 2008) (unpublished) (Robinson), prepetition briefing must occur at least one calendar day before filing petition; because eligibility is not jurisdictional, creditor waived issue by waiting until after confirmation to raise timing question.); In re Hammonds, No. 08-40928-JJR-13, 2008 WL 4830071, at *4 (Bankr. N.D. Ala. Sept. 22, 2008) (unpublished) (Robinson) (Rejecting In re Francisco, 390 B.R. 700 (B.A.P. 10th Cir. Jan. 25, 2008) (Starzynski), “Section 109(h) is not ambiguous . . . . [A]pplying Rule 9006 to Section 109(h) does not lead to an absurd result . . . . [T]he ‘180-day period preceding the date of the filing of the petition’ does not include the date the petition was filed. . . . [A]t a minimum, it appears Congress intended for individuals to wait at leas[t] one calendar day before filing bankruptcy after being informed of its consequences and plausible alternatives.”); In re Cole, 347 B.R. 70, 73 (Bankr. E.D. Tenn. July 31, 2006) (Stair) (“The court agrees with the holdings in [In re Mills, 341 B.R. 106 (Bankr. D.D.C. Apr. 20, 2006) (Teel),] and [In re Murphy, 342 B.R. 671 (Bankr. D.D.C. Feb. 22, 2006) (Teel),] that, based upon the plain language of the statute, a debtor who obtains the required pre-petition counseling briefing on the same day as the date upon which a petition is filed does not comply with § 109(h)(1) and is not eligible to be a debtor under title 11.”); In re Mills, 341 B.R. 106, 109 (Bankr. D.D.C. Apr. 20, 2006) (Teel) (Section 109(h) briefing must be completed no later than the day before the date on which the petition is filed. Disagreeing with In re Warren, 339 B.R. 475 (Bankr. E.D. Ark. Mar. 20, 2006) (Mixon), “[a] person must obtain credit counseling of the kind described in § 109(h) on a date prior to the petition date to be eligible for relief under title 11.”); In re Murphy, 342 B.R. 671, 673 (Bankr. D.D.C. Feb. 22, 2006) (Teel) (Section 109(h) requires a Chapter 13 debtor to receive “credit counseling” no later than the day before the date on which the petition is filed; mistaken electronic filing on January 17 did not commence a Chapter 13 case when the petition was actually filed on January 18, but “credit counseling” on January 17 satisfied § 109(h) with respect to January 18 petition. “Section 109(h) does not simply require the debtor to obtain credit counseling [sic] before she files her bankruptcy petition. Instead, it specifies that credit counseling [sic] must be obtained prior to ‘the date of the filing of the petition.’ . . . [T]he latest that the debtor could have obtained credit counseling [sic] under § 109(h) was the date prior to her petition date.”). But see In re Barbaran, 365 B.R. 333, 334–38 (Bankr. D.D.C. Mar. 29, 2007) (Teel) (Retreating from In re Mills, 341 B.R. 106 (Bankr. D.D.C. Apr. 20, 2006) (Teel), briefing on same calendar day as petition is sufficient for § 109(h) purposes. “I am now convinced that in § 109(h), Congress failed to accord the term ‘date’ . . . its usual meaning of calendar day, and instead intended ‘date’ to mean the moment of the filing of the petition. . . . [W]hen . . . Congress intended an act to take place prior to the calendar date of an event, it knew how to express that purpose. See 11 U.S.C. § 1308(a).”).

 

30  11 U.S.C. § 109(h)(3), discussed in § 20.1  In General, § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances, § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?, § 20.4  Prepetition Request and § 20.5  Briefing after Temporary Exemption.

 

31  See 11 U.S.C. § 109(h)(2), discussed in § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services, and 11 U.S.C. § 109(h)(4), discussed in § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

32  See, e.g., Gibson v. Dockery (In re Gibson), No. CC-10-1399-PaHKi, 2011 WL 7145612, at *4 (B.A.P. 9th Cir. Dec. 1, 2011) (unpublished) (Pappas, Hollowell, Kirscher) (Completion of counseling four days after filing did not satisfy § 109(h) and was cause for dismissal. Acknowledging that minority of courts have exercised judicial discretion in applying § 109(h) requirements, “the command of § 109(h) is clear, and, unless one of the stated exceptions applies, an individual ‘may not be a debtor’ unless she has received credit counseling prior to filing her bankruptcy petition.”); In re Melendez, No. 08-06925 (GAC), 2009 WL 2914217 (Bankr. D.P.R. Aug. 19, 2009) (unpublished) (Carlo) (Failure to get prepetition briefing is not excused by debtor’s claim that attorney misdirected debtor to get financial management course instead of prepetition briefing. Debtor had numerous opportunities to file proper documents before dismissal but delayed eight months in getting briefing.); In re Ruckdaschel, 364 B.R. 724, 734 (Bankr. D. Idaho Mar. 20, 2007) (Pappas) (“Because the law is clear, the Court has no authority to employ equitable principles to excuse Debtors from the time requirements of § 109(h)(1).”); In re Giles, 361 B.R. 212 (Bankr. D. Utah Jan. 19, 2007) (Thurman) (Briefing 182 days before Chapter 13 petition does not satisfy § 109(h); bankruptcy court has no discretion to allow exception to § 109(h) notwithstanding that debtors complied with “spirit” of statute. Trustee’s motion to dismiss is granted although trustee stated a preference that the court deny the motion.); In re Waggoner, No. 05-57036, 2006 WL 705931 (Bankr. E.D. Ky. Mar. 16, 2006) (unpublished) (Scott) (No discretion to waive § 109(h) briefing when debtors completed the briefing the day after filing the petition and did not file a certification of exigent circumstances.); In re Sosa, 336 B.R. 113, 114–15 (Bankr. W.D. Tex. Dec. 22, 2005) (Monroe) (Debtors who failed to request a briefing before filing the petition are not eligible. “[I]f the debtor does not request the required credit counseling services from an approved nonprofit budget and credit counseling service before the petition is filed, that person is ineligible to be a debtor no matter how dire the circumstances the person finds themselves in at that moment. This Court views this requirement as inane. However, it is a clear and unambiguous provision obviously designed by Congress to protect consumers. . . . [B]ecause the Debtors did not request such counseling before they filed their case, Congress says they are ineligible for relief under the Act. Can any rational human being make a cogent argument that this makes any sense at all?”). See also In re Sukmungsa, 333 B.R. 875, 879–80 (Bankr. D. Utah Nov. 23, 2005) (Boulden) (Ambiguous evidence that debtor received credit counseling three days or six days before petition did not establish excusable neglect for Rule 60 relief from clerk’s order of dismissal when neither box on petition was checked with respect to prepetition briefing. Debtor apparently received a prepetition briefing but failed to check box on the petition. Clerk entered an order of dismissal, and debtor moved for Rule 60 relief. “[B]oth the Debtors and Debtors’ counsel have failed to show excusable neglect . . . . No sufficient ‘reason’ for the failure to timely certify completion of the prepetition briefing requirement has been presented.”).

 

33  479 B.R. 643 (Bankr. M.D. Pa. June 4, 2012) (Thomas).

 

34  In re John, 479 B.R. at 648–49. See also In re Bond, No. 09-30056(a)(7), 2009 WL 577278 (Bankr. W.D. Ky. Mar. 5, 2009) (unpublished) (Lloyd) (In Chapter 13 case filed on January 7, 2009, Trustee’s motion to dismiss based on “stale” briefing certificate dated February 1, 2008, is denied when debtor also filed a certificate dated January 23, 2009. “The Court determines that the case should not be dismissed since the Certificate of Credit Counseling now meets the requirements of 11 U.S.C. § 109(h)(1).”).

 

35  342 B.R. 671 (Bankr. D.D.C. Feb. 22, 2006) (Teel).

 

36  In re Murphy, 342 B.R. at 673.

 

37  11 U.S.C. §§ 101(14)(B); 108(a), 108(b), 108(c); 109(e), 109(h)(1); 303(h)(2); 329(a); 342(d); 348(a), 348(d), 348(f)(1)(A); 362(b)(18), 362(l)(5)(B)(ii); 365(g)(1); 366(c)(2), 366(c)(3)(B)(ii), 366(c)(4); 501(d); 502(b), 502(e)(2), 502(f), 502(g), 502(h), 502(i), 502(k)(1)(B)(i); 503(c)(3); 506(a)(2); 507(a)(1), 507(a)(4), 507(a)(5), 507(a)(8); 521(a)(1)(B)(iv), 521(a)(1)(B)(vi), 521(a)(2); 522(a)(2), 522(b)(3)(A), 522(b)(4), 522(o), 522(p)(1); 523(a)(1)(B)(ii), 523(a)(7)(B); 524(a)(3), 524(b)(1)(A); 541(a)(5), 541(b)(5), 541(b)(6); 542(d); 543(c)(3), 543(d)(2); 546(b)(2)(B); 547(b)(4), 547(c)(5)(A), 547(e)(2)(C), 547(f), 547(i); 548(a)(1), 548(b), 548(d)(1), 548(e)(1); 553(a)(2)(B), 553(a)(3)(A), 553(b)(1), 553(c); 724(b)(2); 726(a)(5); 727(a)(2)(A), 727(a)(2)(B), 727(a)(7), 727(a)(8), 727(a)(9); 741(3)(A); 746(a); 946; 1112(b)(4)(P); 1114(l); 1129(a)(14); 1145(a)(3)(A), 1145(a)(3)(C); 1208(c)(10); 1222(b)(11); 1225(a)(7), 1225(b)(2)(A); 1305(b); 1307(c)(11); 1308(a), 1308(b)(1)(A), 1308(b)(1)(B); 1322(b)(10); 1325(a)(8); 1529(2).

 

38  See, e.g., Carl Subler Trucking, Inc. v. Kingsville-Ninety Auto/Truck Stop, Inc. (In re Carl Subler Trucking, Inc.), 122 B.R. 318 (Bankr. S.D. Ohio Dec. 13, 1990) (Waldron) (preference period is determined by counting backward beginning with the day before the petition date) (citing Official Unsecured Creditors’ Comm. of Belknap, Inc. v. Shaler Corp. (In re Belknap, Inc.), 909 F.2d 879, 881 (6th Cir. July 25, 1990) (Merritt, Krupansky, Milburn)); Pineo v. Charley Bros. Co. (In re J.A.S. Mkts., Inc.), 113 B.R. 193 (Bankr. W.D. Pa. Apr. 23, 1990) (Bentz) (for purpose of preferential transfer, count is backward from petition date without counting petition date); Deutscher v. O’Neal Steel Corp. (In re Enterprise Fabricators, Inc.), 36 B.R. 220 (Bankr. M.D. Tenn. Dec. 30, 1983) (Bare) (preference period determined by counting backward starting with the day before the petition date).

 

39  See § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).