§ 20.2     Timing, Procedure and Form for Certification of Exigent Circumstances
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 20.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Debtors not permanently excused from the § 109(h) prepetition briefing requirement1 who have not received a prepetition briefing from an approved nonprofit budget and credit counseling agency (NBCCA)2 have only one option to establish eligibility for Chapter 13 relief: the “exigent circumstances” temporary exemption in § 109(h)(3).3 Congress and the drafters of the Official Forms did not make this easy. Qualifying for the temporary exemption demands checking the right boxes and filing the right documents at the right time with the correct content. Attention to forms, signatures and other details is essential.

[2]

First, carefully consider the check boxes in Part 5 of the current edition of the petition, Official Form 101.4 The third check box down is the box that initiates the quest for the exigent circumstances temporary exemption from the § 109(h) prepetition briefing requirement. Box 3 is a certification that the debtor requested “credit counseling services” from an “approved agency” but was unable to obtain the services during the seven5 days after the request, and a certification that the debtor has exigent circumstances that merit a temporary waiver of the “credit counseling requirement.”6 It is not obvious why § 109(h)(3)(A)(ii) requires certification of a prepetition request for “credit counseling services” when the temporary exemption sought is from the “briefing” described in § 109(h)(1).7

[3]

The third check box down in Part 5 of Official Form 101 is the certification of exigent circumstances contemplated by § 109(h)(3)(A). The current form of this certification became effective on December 1, 2015. Between the enactment of BAPCPA in 2005 and December 1, 2015, this certification was written and rewritten by the forms drafters at least three times—sometimes with and now without an additional requirement that the debtor file a motion for court determination whether “exigent circumstances” are sufficient to merit temporary exemption from the prepetition briefing requirement. These multiple changes in the certification make difficult reading of the case law because some courts have read the certification requirement very technically, most often to the detriment of debtors.

[4]

Prior to December 1, 2015, the certification of exigent circumstances was found in Exhibit D to Official Form 1. Check box 3 was the appropriate place to certify a prepetition request for “credit counseling services,” and the instructions to former Exhibit D required the debtor to “summarize exigent circumstances here.” The confined space on the former form in which to “summarize exigent circumstances” was not consistent with decisions by several courts that the certification of exigent circumstances must robustly detail circumstances alleged to be exigent.8

[5]

Prior to 2008, the instructions at check box 3 on then Exhibit D to Official Form 1 stated the petition “must be accompanied by a motion for determination by the court.” This separate motion requirement was an endless source of mistake and confusion and was ultimately eliminated by the forms drafters. Debtors and their attorneys too often assumed that filing a motion for determination of exigent circumstances substituted for the “certification” of exigent circumstances. Discussed below, several courts ruled technically that motions for extensions of time to complete the § 109(h) briefing did not satisfy the certification requirement in § 109(h)(3)(A). It can only be hoped that the elimination of the motion requirement together with the somewhat simplified form of certification now found in Part 5 of Official Form 101 will inspire courts to emphasize substance more and form less with respect to the exigent circumstances exemption from the prepetition briefing requirement. But it remains highly likely that failure to check the third box in Part 5 of Official Form 101 when a debtor needs an exigent circumstances temporary exemption from the briefing requirement will be fatal to the entire Chapter 13 case.9

[6]

There are four areas of disagreement with respect to the exigent circumstances certification: (1) who signed it?; (2) was it under oath?; (3) upon whom was it served?; and (4) was the content sufficient?

[7]

The debate begins with the word “certification” in § 109(h)(3)(A). As explained by one court, “There would be no reason for Congress to specifically require a certification if it intended a garden-variety motion signed by counsel to suffice.”10 It is a short step from there to the conclusion that the certification of exigent circumstances in § 109(h)(3) is a declaration under penalty of perjury consistent with 28 U.S.C. § 1746:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing . . . such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). _______________ (Signature)”.
(2) “If executed within the United States: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). ________________ (Signature)”.11
[8]

A fair number of courts—some citing 28 U.S.C. § 1746 and some not—have concluded that the § 109(h)(3) certification of exigent circumstances must be signed by the debtor under oath or under penalty of perjury.12 In these courts, filing only a motion for temporary exemption from the § 109(h) prepetition briefing requirement will not satisfy the “certification” requirement in § 109(h)(3)(A).

[9]

The rub was, prior to 2008, Exhibit D to (then) Official Form 1 at check box 3 instructed the debtor to file a motion together with the certification of exigent circumstances. This motion was supposed to trigger court determination whether the exigent circumstances stated by the debtor on Exhibit D merited a temporary exemption from the prepetition briefing requirement. Unfortunately, too many debtors (and their attorneys) filed a motion that was not signed by the debtor, or not signed under oath, and a motion like that, without more, was not sufficient “certification” to get the debtor in the door. In 2008, the Advisory Committee on Bankruptcy Rules modified the instructions at check box 3 on Exhibit D to (then) Official Form 1 to eliminate the confusing motion requirement.

[10]

Prior to its replacement on December 1, 2015, Exhibit D to (then) Official Form 1 was signed “under penalty of perjury” and was supposed to contain at least a summary description of exigent circumstances.13 A debtor who checked box 3 and filed (former) Exhibit D could claim satisfaction of both 11 U.S.C. § 109(h)(3) and 28 U.S.C. § 1746. One unpublished decision reveals a local rule that combined the certification under oath with a request for an order allowing the temporary exemption in a single event within the electronic case filing system.14

[11]

Not all courts agree that the § 109(h)(3) certification of exigent circumstances must be under oath or penalty of perjury. Finding no “oath” requirement in the statute, some courts accept certifications of exigent circumstances signed in the ordinary way by debtors.15 As explained in In re Talib,16 the word “certification” in § 109(h)(3) is similar to the word “certificate” in 28 U.S.C. § 1746 but “is not . . . the precise term[ ].”17 The certification in § 109(h)(3) “is not a ‘petition, list, schedule, statement or amendment’” of the sort captured by Bankruptcy Rule 1008—the rule that requires verification or “an unsworn declaration as provided in 28 U.S.C. § 1746” with respect to many other documents in a Chapter 13 case.18

[12]

The December 1, 2015, form of the certification—the third check box in Part 5 of Official Form 101—is clearly worded as a certificate, and Official Form 101 is signed under penalty of perjury. This ought to be enough to satisfy courts on both sides of the oath debate.

[13]

The message for debtors and their attorneys is: swear off of this debate. Careful attention to check box 3 on the December 1, 2015, version of Official Form 101 will produce a certification under penalty of perjury with respect to exigent circumstances. Make sure the debtor signs and files a completed Part 5 with the petition in any Chapter 13 case in which the debtor has not received a prepetition briefing.

[14]

The Official Form no longer requires a motion to be filed asking the bankruptcy court to bless the temporary exemption from the prepetition briefing requirement. Section 109(h) says nothing directly about a motion or hearing, and you might ask why the Official Form prior to 2008 instructed the debtor to file a separate motion with respect to exigent circumstances. That instruction is gone, but it did damage. In addition to confusing where the description of exigent circumstances was supposed to go, prior to 2008 several courts cited the failure to file a separate motion as a ground for rejecting a debtor’s effort to secure an exigent circumstances temporary exemption.19 Elimination of the separate motion in 2008 was a good idea.

[15]

After 2008, challenges to the form or content of the exigent circumstances certification typically must be initiated by the Chapter 13 trustee or by a creditor by motion to dismiss. Too often, the reported challenges seem to come from the court, sua sponte, sometimes after someone in the clerk’s office invisibly rejected a “deficient” certification or signaled the absence of a certification.20

[16]

With or without a motion and under all of the various Official Forms since 2005, one sure way to fail the exigent circumstances temporary exemption is to fail to file something that looks like a certification. Several courts have dismissed petitions when no prepetition briefing was obtained and no certification was timely filed with respect to exigent circumstances.21

[17]

Filing Part 5 of Official Form 101 with the right box checked and the correct swearing is a good start on the temporary exemption in § 109(h)(3) but hardly out of the woods. You have to get the content of the certification correct and you have to figure out upon whom to serve these documents.

[18]

For all the wrong reasons, service is the easy part. At this writing, neither the Code nor the Rules specify upon whom to serve the certification of exigent circumstances. The same was true with respect to the separate motion required prior to 2008. As stated by the bankruptcy court in In re Henderson:22

Neither Section 109 of the Bankruptcy Code nor the Interim Bankruptcy Rules require[ ] a putative debtor to serve his or her request for a temporary exemption from the budget and credit counseling eligibility requirement on parties in interest. . . . Nor does BAPCPA or the Interim Bankruptcy Rules contemplate that a putative debtor’s request for a temporary exemption will be considered at a hearing, so that the putative debtor’s statements are not tested in an adversary process or subject to cross-examination.23
[19]

There is little comfort for debtors in this absence of guidance. Demonstrated below,24 too many courts have reported decisions “finding” a putative debtor’s certification of exigent circumstances to be insufficient after no discernible hearing or after a process initiated by the clerk’s office or court, not by a party in interest. That § 109(h)(3)(A)(i) requires exigent circumstances that “merit a waiver” and § 109(h)(3)(A)(iii) requires the certification to be “satisfactory to the court” have led some courts to conduct “show cause” style inquiries into the certifications filed by Chapter 13 debtors.25 Notwithstanding—or perhaps because of—the absence of clear procedure, Chapter 13 debtors are drawn into litigation with bankruptcy judges with respect to the merits of exigent circumstances certifications.

[20]

Not all bankruptcy courts have undertaken to police the content of exigent circumstances certifications. Some courts treat the certification under § 109(h)(3) like any other litigated matter—requiring the debtor to serve the certification and/or a motion on all parties in interest with notice and opportunity for objection. Other courts require only notice to the U.S. trustee and Chapter 13 trustee. The procedural vacuum has invited uncertainty. This would be a good subject for further rulemaking.

[21]

Detailed below,26 the courts are badly fractured with respect to which circumstances are exigent and which exigent circumstances merit a temporary exemption from the prepetition briefing requirement. Some lessons can be drawn from this debate. Section 109(h)(3)(A)(i) requires that the certification describe exigent circumstances. A certification that fails to describe exigent circumstances is fatally defective.27 Section 109(h)(3)(A)(ii) adds that the certification must state the debtor requested “credit counseling services” from an approved NBCCA but was unable to obtain the services during the seven days after the request. A certification that does not specifically state the debtor requested credit counseling services from an approved NBCCA and was unable to obtain the services within seven days of that request—or a certification that shows the debtor didn’t satisfy this seven-day requirement—will not support a temporary exemption from the briefing requirement.28

[22]

The seven-day period in § 109(h)(3)(A)(ii) was five days prior to amendment in 2009.29 The full force of this “technical” change was felt by the debtor in In re Williams.30 The debtor in Williams certified that she requested “counseling” on April 2, 2010, and completed counseling on April 7, five days later. The case was filed after the five-day period in § 109(h)(3)(A)(ii) was extended to seven days. The certification was interpreted by the bankruptcy court as a confession that the debtor could not satisfy the seven-day requirement and was not eligible for Chapter 13.

[23]

A significant number of courts by opinion, general order or local rule have prescribed with unusual specificity the content of the exigent circumstances certification. These lists of required information put a significant burden on debtors and their counsel to pack the content of the certification. For example, in the Bankruptcy Court for the District of Idaho, “a boiler-plate allegation, merely reciting the statutory language, is inadequate” and a debtor’s certification of exigent circumstances “should forthrightly address the extent of his or her knowledge of the credit counseling requirement; the contacts if any with lawyers, petition preparers or others providing advice, and whether such advice included information regarding the counseling requirement; and the nature and timing of the event(s) that create the exigency for filing.”31 In the Southern District of Indiana, the certification should “ideally ‘set forth the facts underlying any alleged exigent circumstances, the date(s) on which the debtor requested credit counseling, which agencies were contacted to render the services, why the debtor believes that the services could not be obtained before the filing, and when the services were reasonably likely to be obtained.’”32

[24]

Some of these courts want information relevant to barriers to the debtor’s receiving a prepetition briefing; other courts are focused on the facts surrounding the debtor’s financial circumstances at the time of the petition.33 These focuses are very different and reflect that the statute is not clear whether “exigent circumstances” means difficulties with respect to obtaining a briefing or difficulties in life more generally.34

[25]

Remember that prior to replacement on December 1, 2015, Exhibit D to (former) Official Form 1 offered one line and a half on which the debtor was instructed to “summarize exigent circumstances here.”35 The accompanying motion that debtors were (prior to 2008) also instructed to file was not considered by all courts to be part of the “certification that . . . describes exigent circumstances” required by the statute36—especially if the motion was signed by an attorney and not signed by the debtor, under oath or penalty of perjury. The cases requiring robust certifications of exigent circumstances created a minefield for debtors who had to respect Exhibit D but couldn’t risk a certification that only summarized and a motion that wasn’t a certification. The courts and the forms drafters were not on the same page and debtors were bound to get hurt.

[26]

After December 1, 2015, Part 5 of Official Form 101 instructs debtors seeking the temporary exemption based on exigent circumstances at check box 3 to “attach a separate sheet.” The instructions say that the separate sheet should explain “what efforts you made to obtain the briefing, why you were unable to obtain it before you filed for bankruptcy, and what exigent circumstances required you to file this case.” These instructions are somewhat less detailed than required by some of the courts cited above. It remains to be seen whether this change in the form will increase or reduce the traps discussed above.

[27]

Burns v. George Basilikas Trust37 illustrates just how sticky a wicket the certification of exigent circumstances is in § 109(h)(3)—for debtors and for their attorneys. In Burns an “elderly, unsophisticated” debtor contacted a bankruptcy law firm on the morning of a scheduled foreclosure. As related by the opinion from the United States Court of Appeals for the District of Columbia Circuit, “During the pre-filing interview, [the debtor] explained that she had attempted to receive credit counseling at her church and online.”38 Based on this, debtor’s counsel checked the third box in Exhibit D to (former) Official Form 1, which is the certification that the debtor “requested credit counseling services from an approved agency” but was unable to obtain a briefing during the five (now seven) days after that request.

[28]

The Chapter 13 trustee moved to dismiss. The debtor conceded dismissal,39 but the trustee persisted to obtain sanctions against debtor’s counsel under Bankruptcy Rule 9011(b) based on the false certification under § 109(h)(3). The bankruptcy court specifically found that the check box 3 certification was false because the debtor never told counsel that the credit counseling she requested before the petition was from an “approved” NBCCA. Technical, but quite a ditch for debtor’s counsel.

[29]

Citing Kistler v. Meza (In re Meza),40 the D.C. Circuit reversed the sanction award on the odd logic that requesting a prepetition briefing from even an unapproved agency could satisfy § 109(h)(3):

Meza held that § 109(h)(1) could be satisfied through substantial compliance even though the debtor never sought credit counseling from an approved agency. By holding that counseling with an unapproved agency can satisfy § 109(h)(1), Meza supports Burns’s position that requesting counseling from such an agency can satisfy § 109(h)(3). The bankruptcy court’s view of the law . . . was therefore mistaken, and its award of sanctions an abuse of discretion.41
[30]

Burns is remarkable at several levels. An “unpublished” district court decision from another circuit got the debtor’s counsel off the Rule 9011 hook based on the (startling) proposition that counseling by an unapproved agency can satisfy some aspect of the prepetition briefing requirement in § 109(h). Meza was a district court Chapter 7 decision on facts that straddled the enactment of BAPCPA. The Chapter 7 debtor in Meza was counseled by an ordinary credit counseling agency more than 180 days before filing a Chapter 7 petition. BAPCPA intervened between that unholy briefing and the petition and the district court found that the debtor had “substantially complied” with § 109(h) by participating in a prepetition repayment plan supervised by a credit counseling agency that was not an NBCCA. In Burns, that holding morphed into excuse from Bankruptcy Rule 9011 sanctions when the debtor never requested a prepetition briefing from an approved NBCCA, but counsel certified otherwise.

[31]

Burns could be read to approve the legal proposition that “substantial compliance” in § 109(h)(3) suffices. It was conceded in Burns that the debtor did not request a prepetition briefing from an approved NBCCA, and there is no evidence that a briefing was unavailable for the five-day period then applicable for purposes of the exigent circumstances temporary exemption in § 109(h)(3). Counsel escaped by a thin hair. Burns is a good place to look when the debtor has messed up the prepetition briefing but needs an exigent circumstances certification to get immediate bankruptcy relief.42 Don’t count on all appellate courts’ being as sympathetic as the D.C. Circuit was in Burns to the difficulties bankruptcy attorneys face satisfying the certification requirement in § 109(h)(3).

[32]

Debtors and their counsel are best advised to cover all bases in the certification of exigent circumstances: describe why the debtor was not able to get a briefing before filing the petition and describe the urgency with respect to filing the petition. Too little detail with respect to either issue could be fatal. That many courts and now Part 5 of Official Form 101 impose an oath or penalty of perjury condition on the exigent circumstances certification makes it imperative that debtors and counsel pay attention to the certification. A robust statement of facts may be necessary to satisfy the content requirements and counsel must vet that statement carefully to be sure of both content and accuracy.


 

1  See § 21.1  In General, § 21.2  Timing, Procedure and Form, § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services and § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

2  See § 18.1  In General, § 19.1  What is a Briefing?, § 19.2  Timing of Briefing and § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

3  See § 20.1  In General.

 

4  See § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b) and § 36.25  Briefing Requirement and Certificate. Official Form 101 became effective on December 1, 2015. It replaced Official Form 1.

 

5  Between October 17, 2005, and December 1, 2009, the seven-day period in 11 U.S.C. § 109(h)(3)(A)(ii) was five days. See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, 123 Stat. 1607 (May 7, 2009).

 

6  Part 5, Official Form 101, discussed below in this section and in § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

7  See § 19.1  What is a Briefing?.

 

8  See below in this section, and see § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

9  See, e.g., In re Sukmungsa, 333 B.R. 875 (Bankr. D. Utah Nov. 23, 2005) (Boulden) (Debtor not entitled to Rule 60 relief from clerk’s order of dismissal when no box on petition was checked with respect to prepetition briefing.).

 

10  In re Rodriguez, 336 B.R. 462, 469 (Bankr. D. Idaho Dec. 9, 2005) (Myers).

 

11  28 U.S.C. § 1746 (emphasis added).

 

12  See In re Wilson, 346 B.R. 59 (Bankr. N.D.N.Y. June 5, 2006) (Gerling) (Certification of exigent circumstances was inadequate because “extension request” was executed only by debtors’ attorney and was not affirmed under penalty of perjury.); In re Cobb, 343 B.R. 204, 207–08 (Bankr. E.D. Ark. May 22, 2006) (Mixon) (Certification of exigent circumstances must be under oath. “This Court interprets ‘Certification’ to mean that the facts contained in the statement must be sworn to under oath. . . . The document in question has no heading and is only signed by each of the debtors and dated; it is not a certification.”); In re DiPinto, 336 B.R. 693, 696 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich) (Waiver of briefing requirement is denied because certification was filed by attorney, not by debtor, and was not under oath. Citing 28 U.S.C. § 1746, “[T]he Debtor made no certification or statement whatsoever; it was his counsel whose signature appears on the document entitled ‘Certification.’”); In re Rodriguez, 336 B.R. 462, 469–70 (Bankr. D. Idaho Dec. 9, 2005) (Myers) (Certification of exigent circumstances must be under oath. Certification under § 109(h)(3) was signed by the debtor’s attorney. After the petition, the debtors filed certifications under oath. “[T]he Court cannot conclude that § 109(h)(3)(A) authorizes the use of a simple motion, signed only by counsel, making allegations about the possible claim to an exemption from the § 109(h)(1) requirements. . . . There would be no reason for Congress to specifically require a certification if it intended a garden-variety motion signed by counsel to suffice. . . . [A] request for an order under § 109(h)(3) must be ‘certified’ by debtors personally in a form consistent with 28 U.S.C. § 1746(2), even if they are represented by an attorney.”); In re Hubbard, 333 B.R. 377, 383 (Bankr. S.D. Tex. Nov. 16, 2005) (Isgur) (Motions for extension of time failed certification requirement in § 109(h)(3) because motions were not executed consistent with 28 U.S.C. § 1746 and did not contain required specificity. “Congress has defined what type of document will suffice when a law requires that a matter contain a certification . . . . 28 U.S.C. § 1746.”); In re Hubbard, 333 B.R. 373 (Bankr. S.D. Tex. Nov. 8, 2005) (Isgur) (“Certification” of exigent circumstances under § 109(h)(3) requires compliance with 28 U.S.C. § 1746.); In re Hubbard, 332 B.R. 285 (Bankr. S.D. Tex. Oct. 31, 2005) (Isgur) (Motion to extend time under § 109(h)(3) fails because it is not verified.). See also In re Dansby, 340 B.R. 564 (Bankr. D.S.C. Feb. 10, 2006) (Waites) (Court considers certification of exigent circumstances signed by the debtor and counsel but not signed under penalty of perjury; court notes that in future cases an oath will be required.); In re Cleaver, 333 B.R. 430 (Bankr. S.D. Ohio Nov. 17, 2005) (Walter) (Motion for waiver of briefing signed by debtor “marginally” satisfies certification requirement.).

 

13  See § 36.25  Briefing Requirement and Certificate.

 

14  See In re Williams, No. 3:05-BK-40153 E, 2005 WL 3752226, at *1 (Bankr. E.D. Ark. Dec. 1, 2005) (unpublished) (Evans) (“Motion to Waive Requirement and Extend Time to File Certificate of Credit Counseling” is denied with leave to file a “Certificate of Credit Counseling, or Certification of Exigent Circumstances” as required by local rules. “[I]f the Debtor seeks a waiver or exemption under [§ 109(h)(3)(A)], the Debtor should check the box provided on the bankruptcy petition providing for a waiver due to exigent circumstances, and proceed to docket the required Certification Regarding Exigent Circumstances (a separate document prepared by the Debtor’s counsel which describes the exigent circumstances that prevented the Debtor from obtaining the required Certificate of Credit Counseling) using the ECF event labeled ‘Exigent Circumstances re: Credit Counseling’ (under miscellaneous events). This procedure eliminates any need to file a motion requesting additional time to obtain credit counseling.”).

 

15  See, e.g., In re Henderson, 339 B.R. 34, 38 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong) (“A request for a temporary exemption is not signed under the penalties of perjury.”); In re Graham, 336 B.R. 292, 296 (Bankr. W.D. Ky. Dec. 21, 2005) (Fulton) (“[U]se of the term ‘certification’ does not require adherence to the formal requirements of [28] U.S.C. § 1746. . . . [‘C]ertification’ simply means that a debtor must sign his or her motion requesting the extension.”); In re Childs, 335 B.R. 623, 626 (Bankr. D. Md. Dec. 19, 2005) (per curiam) (“[A] certificate of exigent circumstances . . . need not be under oath.”); In re Talib, 335 B.R. 417, 420 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow) (Certification of exigent circumstances need not be under oath but must detail alleged exigent circumstances. “This Court is not convinced that [28 U.S.C. § 1746] requires that a certification seeking a waiver under § 109(h)(3) must be signed under penalty of perjury.”).

 

16  335 B.R. 417 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow).

 

17  In re Talib, 335 B.R. at 420.

 

18  In re Talib, 335 B.R. at 420.

 

19  See, e.g., In re Scofield, No. 10-063683, 2010 WL 3430446 (Bankr. N.D. Ohio Aug. 31, 2010) (unpublished) (Kendig) (Dismissal was required when debtor checked box 3 on Official Form 1, Exhibit D, but did not file a motion requesting waiver.); In re Johnson, No. 07-00465, 2007 WL 2990563 (Bankr. D.D.C. Oct. 11, 2007) (Teel) (Pro se debtor checked all three boxes on Exhibit D to the petition but did not file a motion or otherwise set forth circumstances with respect to exigent circumstances.); In re King, No. 07-60392, 2007 WL 656406, at *1 (Bankr. N.D. Ohio Feb. 27, 2007) (unpublished) (Kendig) (Chapter 13 debtor checked box 3 on Exhibit D to Official Form 1 but did not file a motion requesting waiver. “She has failed both procedurally and substantively to appropriately request a temporary waiver of the credit counseling requirement.”).

 

20  See, e.g., In re Scofield, No. 10-063683, 2010 WL 3430446 (Bankr. N.D. Ohio Aug. 31, 2010) (unpublished) (Kendig) (On court’s own motion, dismissal was required when debtor checked box 3 on Official Form 1 but did not identify exigent circumstances and did not file a motion requesting a waiver.).

 

21  See, e.g., Duncan v. LaBarge (In re Duncan), 418 B.R. 278, 281–82 (B.A.P. 8th Cir. Nov. 5, 2009) (Kressel, Federman, Venters) (Failure to file certification that described exigent circumstances and demonstrated request for credit counseling services before the petition is fatal to any argument on appeal that bankruptcy court erred in dismissing case for lack of eligibility. “There was no Exhibit D . . . . There was no description of exigent circumstances nor any allegation that they requested counseling before they filed and were unable to obtain it within five days.”); In re Coley, No. 09-31249-DHW, 2009 WL 2030435 (Bankr. M.D. Ala. July 6, 2009) (Williams) (Failure to file certification under § 109(h)(3)(A) until more than 30 days after petition is fatal to effort to prove exigent circumstances exception to prepetition briefing requirement.); In re Swiatkowski, 356 B.R. 581, 584 (Bankr. E.D.N.Y. Nov. 16, 2006) (Cyganowski) (“Although a debtor may request a temporary exemption from the credit counseling requirement . . . Debtor did not file a request to obtain a temporary exemption until . . . well over two months after having filed the petition.”).

 

22  339 B.R. 34 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong).

 

23  In re Henderson, 339 B.R. at 37–38.

 

24  See below in this section, and see § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

25  See § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

26  See § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

27  See, e.g., In re Scofield, No. 10-063683, 2010 WL 3430446, at *1 (Bankr. N.D. Ohio Aug. 31, 2010) (unpublished) (Kendig) (On court’s own motion, dismissal was required when debtor checked box 3 on Official Form 1, Exhibit D, but did not identify exigent circumstances and did not file motion requesting waiver. “Debtor failed to summarize the exigent circumstances underlying his request. He has failed both procedurally and substantively to appropriately request a temporary waiver of the credit counseling requirement. Consequently, debtor cannot prove that he is entitled to be excepted from the requirements of section 109.”); In re Johnson, No. 07-00465, 2007 WL 2990563 (Bankr. D.D.C. Oct. 11, 2007) (Teel) (Pro se debtor checked all three boxes on Exhibit D to the petition but did not file a motion or otherwise set forth circumstances with respect to exigent circumstances.); In re King, No. 07-60392, 2007 WL 656406, at *1 (Bankr. N.D. Ohio Feb. 27, 2007) (unpublished) (Kendig) (Chapter 13 debtor who checked box 3 on Exhibit D to Official Form 1 but did not describe exigent circumstances and did not file motion requesting waiver is not eligible. “In spite of the clear direction, debtor failed to file a motion and failed to summarize the exigent circumstances underlying her request. She has failed both procedurally and substantively to appropriately request a temporary waiver of the credit counseling requirement. Consequently, debtor cannot prove that she is entitled to be excepted from the requirements of section 109.”); In re Kelly, No. 06-71019-JB, 2006 WL 6591613 (Bankr. N.D. Ga. Nov. 28, 2006) (Bihary) (Request for exigent circumstances exemption from prepetition briefing requirement was deficient because request did not explain the exigent circumstances, did not show that debtor tried to obtain counseling before he filed the case and did not state that debtor was unable to obtain briefing within five days after making request.); In re Swiatkowski, 356 B.R. 581, 584 (Bankr. E.D.N.Y. Nov. 16, 2006) (Cyganowski) (“[A]bsent from the request is any statement of exigent circumstances that prevented the Debtor from receiving credit counseling prior to the petition.”); In re Mingueta, 338 B.R. 833 (Bankr. C.D. Cal. Feb. 13, 2006) (Carroll) (Pro se debtor(s request for waiver of briefing requirement filed in response to show-cause order is denied because debtor filed no statement of exigent circumstances.); In re Wallace, 338 B.R. 399 (Bankr. E.D. Ark. Mar. 9, 2006) (Mixon) (Failure to file a certification that described exigent circumstances is fatal to waiver of prepetition briefing.).

 

28  See, e.g., In re Williams, No. 10-00621, 2010 WL 2635077 (Bankr. D.D.C. June 26, 2010) (unpublished) (Teel) (Debtor who mistakenly certified inability to obtain a briefing within five days is out of luck after the five days were extended to seven days in 2009.); In re Sherry, No. 08-62658, 2008 WL 3876595 (Bankr. N.D. Ohio Aug. 20, 2008) (unpublished) (Kendig) (Checking box 3 on Exhibit D to Official Form 1 and filing motion for exemption from prepetition briefing requirement are insufficient when neither Exhibit D nor motion reveals that debtor made a prepetition request in accordance with § 109(h)(3)(A)(ii).); In re Rios, No. 07-66047-PWB, 2008 WL 7842082, at *1 (Bankr. N.D. Ga. Jan. 11, 2008) (unpublished) (Bonapfel) (Debtor could not prove exigent circumstances exemption from briefing requirement when case was filed on April 16, debtor received briefing on April 19 and residence was scheduled for foreclosure on May 1. “[T]he filing of the case could have been delayed until April 20, after the Debtor had received the briefing, and still prevented the foreclosure. Second, the Debtor’s ability to receive the credit briefing on April 19 proves that he could have received it within five days of a request for it.”); In re Essien, 358 B.R. 286, 288 (Bankr. S.D. Tex. Dec. 6, 2006) (Isgur) (Debtor sanctioned $900—one quarter of a month’s income—for untruthful affidavit in support of motion to extend time for prepetition briefing. Affidavit stated that debtor contacted Money Management International eight times in an effort to obtain prepetition credit counseling. At court’s show-cause hearing, MMI’s records indicated only one attempt to obtain credit counseling. Debtor’s testimony was “continually changing and unsubstantiated.” Debtor testified that he used his cell phone on Labor Day because T-Mobile provides free holiday service. “The Court looked at the T-Mobile website, and could find no plan with such an arrangement.” Court also dismissed case with bar to refiling for 180 days.); In re Kelly, No. 06-71019-JB, 2006 WL 6591613 (Bankr. N.D. Ga. Nov. 28, 2006) (Bihary) (Request for exigent circumstances exemption from prepetition briefing requirement was deficient because request did not explain the exigent circumstances, did not show that debtor tried to obtain counseling before he filed the case and did not state that debtor was unable to obtain briefing within five days after making request.); In re Wallace, 338 B.R. 399, 401 (Bankr. E.D. Ark. Mar. 9, 2006) (Mixon) (Debtor is not eligible for temporary exemption because debtor “has not stated that she requested credit counseling prepetition but was unable to obtain it during the five-day period beginning on the date she made the request.”); In re Rodriguez, 336 B.R. 462, 471 (Bankr. D. Idaho Dec. 9, 2005) (Myers) (“[T]he certification must affirmatively state two things: first, that a request for counseling was made by debtors prior to filing; second, that the counseling could not be provided within five days of that request.”); In re Booth, No. 05-45002-LMK, 2005 WL 3434776, at *1 (Bankr. N.D. Fla. Oct. 19, 2005) (unpublished) (Killian) (Statement in “Motion for Exemption from Credit Counseling, or in the alternative to Extend the Time for Compliance” that “‘[n]o credit counseling agency was available to immediately provide credit counseling’” is not legally sufficient because “there is no certification that the Debtors requested but were unable to obtain the required credit counseling within five days from their request.”); In re Childs, 335 B.R. 623, 626 (Bankr. D. Md. Dec. 19, 2005) (per curiam) (“[A] certificate of exigent circumstances . . . must state that the debtor made a request for credit counseling within 180 days preceding the filing of the petition and was unable to obtain such counseling within five days of making the request.”).

 

29  See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, 123 Stat. 1607 (May 7, 2009).

 

30  No. 10-00621, 2010 WL 2635077 (Bankr. D.D.C. June 26, 2010) (unpublished) (Teel).

 

31  In re Rodriguez, 336 B.R. 462, 474 (Bankr. D. Idaho Dec. 9, 2005) (Myers).

 

32  In re Afolabi, 343 B.R. 195, 197 (Bankr. S.D. Ind. June 2, 2006) (Coachys). Accord In re Burrell, 339 B.R. 664, 666 (Bankr. W.D. Mich. Mar. 23, 2006) (Stevenson) (“To satisfy the exemption requirements, a written certification must be filed with the court by the debtor, at the same time as the bankruptcy petition. . . . This certificate must: (1) describe exigent circumstances that merit a waiver . . . (2) state that the debtor requested credit counseling services from a credit counseling agency but was unable to obtain the services during the five day period beginning on the date of the debtor’s request . . . and (3) be satisfactory to the court.”); In re Curington, No. 05-38188, 2005 WL 3752229, at *4 (Bankr. E.D. Tenn. Dec. 7, 2005) (unpublished) (Stair) (“The certification required by § 109(h)(3) must contain the following necessary elements, which must be satisfactory to 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.”); In re Talib, 335 B.R. 417 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow); In re Hubbard, 332 B.R. 285 (Bankr. S.D. Tex. Oct. 31, 2005) (Isgur).

 

33  See § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

34  See § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

35  See § 36.25  Briefing Requirement and Certificate. After December 1, 2015, Part 5 of Official Form 101 instructs debtors to attach a separate sheet explaining efforts to obtain a prepetition briefing and what exigent circumstances intervened.

 

36  See 11 U.S.C. § 109(h)(3)(A)(i).

 

37  599 F.3d 673 (D.C. Cir. Mar. 26, 2010) (Rogers, Tatel, Williams).

 

38  Burns v. George Basilikas Trust, 599 F.3d at 675.

 

39  Apparently, because of a refinancing.

 

40  No. 2:06cv1307 MCE, 2007 WL 1821416 (E.D. Cal. June 25, 2007) (unpublished) (England).

 

41  Burns v. George Basilikas Trust, 599 F.3d at 676–78.

 

42  See also In re Wilcher, No. 06-20513, 2008 WL 7390620, at *4–*5 (Bankr. S.D. Ga. Aug. 15, 2008) (Dalis) (Two years after Chapter 13 petition and one year after conversion to Chapter 7, court grants 30-day exemption from § 109(h) prepetition briefing requirement “nunc pro tunc” to date of Chapter 13 petition based on affidavit that debtors requested briefing on day of petition but were unable to receive briefing until one day after they failed to stop home foreclosure and car repossession. “I will not penalize the Wilchers for cumulative errors by their lawyer, by the Clerk’s office, and by the Chapter 13 and Chapter 7 trustees when the Wilchers, after two years in bankruptcy, stand at the threshold of receiving a discharge. The Wilchers could have complied with the provisions of § 109(h)(3)(A) at the inception of their case, had their lawyer timely filed a request and a certification. These deficiencies could have been promptly cured had the Clerk’s office exercised proper diligence in opening the case or had the Chapter 13 trustee carefully reviewed the early entries on the docket and filed an objection. Failing that, the deficiencies could have been cured a year ago had the Clerk’s office or the office of the Chapter 7 trustee examined the record when the case was converted. But no one who should have noticed the deficiencies in this case did notice them—and neither, for that matter, did I. There is no question that grounds existed when the case was filed for granting the Wilchers a 30-day exemption from the credit counseling requirement under § 109(h)(3)(B). Exigent circumstances compelled the filing of the bankruptcy case before the Wilchers could get an appointment for credit counseling. The Wilchers completed the required credit counseling at the first available opportunity, one day after the bankruptcy case was filed, and their certificates of credit counseling were filed that same day. It is therefore ORDERED that a 30-day exemption from the requirements of 11 U.S.C. § 109(h)(1) is granted . . . nunc pro tunc from July 25, 2006.” The debtors’ signatures on the affidavit filed two years after the petition satisfy the certification requirement in § 109(h)(3)(A).).