§ 20.3     Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 20.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

An individual not qualified for one of the permanent waivers of the prepetition briefing requirement in § 109(h)(2) or (h)(4)1 must either receive a § 109(h)(1) briefing before filing the Chapter 13 petition2 or seek a temporary exemption from the briefing requirement under § 109(h)(3).3 Check box 3 in Part 5 of Official Form 101 is the current version of the “certification” of exigent circumstances required to seek temporary exemption from the prepetition briefing requirement in § 109(h)(3)(A).4 After marking check box 3 in Part 5 of Official Form 101,5 the debtor is required by § 109(h)(3)(A)(i) to “describe[ ] exigent circumstances that merit a waiver of the requirements of [§ 109(h)(1)].”6 Part 5 of Official Form 101 instructs the debtor to “attach a separate sheet explaining . . . what exigent circumstances required you to file this case.”7 Prior to December 1, 2015, the check box to signal an exigent circumstances request for temporary exemption from the prepetition briefing requirement was check box 3 on Exhibit D to Official Form 1. The instructions on this superseded form were different than the instructions in Part 5 of the current Official Form 101. In the superseded Exhibit D, debtors were required to “summarize exigent circumstances here” in a space too small for the task.8 Prior to 2008, debtors were also instructed to file a separate motion for the court to determine whether the exigent circumstances summarized on Exhibit D were sufficient to merit temporary exemption.9 Some of the odd conclusions by the courts discussed below appear driven, at least in part, by difficulties created or exacerbated by the earlier versions of the form.

[2]

The predicate to temporary relief from the prepetition briefing requirement in § 109(h)(3)(A)(i) is really two conditions: the putative debtor must describe “exigent circumstances” and those circumstances must “merit a waiver” of the prepetition briefing requirement in § 109(h)(1). Perhaps the use of the word “waiver” here is odd. Waiver connotes permanent relief from a condition or requirement.10 A subsection later, § 109(h)(3)(B) differently describes this temporary relief from the prepetition briefing requirement as “an exemption under subparagraph (a).”11

[3]

“Exigent circumstances that merit a waiver” are not the only hurdles to temporary exemption from the prepetition briefing requirement. Conjunctively, § 109(h)(3)(A)(ii) also requires the certification in support of a temporary exemption to “[s]tate that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services . . . during the 7-day12 period beginning on the date on which the debtor made that request.”13 These (four?) preconditions—exigent circumstances that merit a waiver and a prepetition request that can’t be filled for seven days—are each necessary but not sufficient conditions for a temporary exemption from the prepetition briefing requirement. This leads to some complicated logic within § 109(h)(3).

[4]

The dissection begins with “exigent circumstances that merit a waiver.” BAPCPA did not define “exigent circumstances.” The structure of the sentence demands that “exigent circumstances” is a separate, necessary condition to a temporary exemption. That exigent circumstances must “merit a waiver” signals that not all exigent circumstances will satisfy the condition.

[5]

There is no useful legislative history to help divine the meaning of “exigent circumstances” or the content of the subset of exigent circumstances that will “merit a waiver.” The undefined phrase “merit a waiver” invites bankruptcy courts to exercise discretion; that § 109(h)(3)(A)(iii) separately requires the certification in support of a temporary exemption to be “satisfactory to the court” is somewhat redundant but certainly confirms the statutory grant of discretion.14 Reported decisions acknowledge that the determination whether circumstances are exigent and whether exigent circumstances merit temporary exemption compels a subjective, case-by-case analysis of each debtor’s facts and how those facts impact the prepetition briefing.15

[6]

Resort to the dictionary continues an unsatisfying search for concrete meaning of exigent circumstances. When used as an adjective, exigent means “urgent; critical; pressing; requiring immediate aid or action . . . requiring more than is reasonable; demanding; exacting.”16 Many of these synonyms have temporal content signaling that exigent circumstances are matters requiring immediate attention. But the dictionary reaches further to include conditions that create unreasonableness, not necessarily just the press of time.

[7]

What does “merit” mean here? Section 109(h)(3)(A)(ii) relates the phrase “merit a waiver” to the “requirements of [§ 109(h)(1)].” Section 109(h)(1) states that an individual may not be a debtor under Title 11 unless the individual received a prepetition briefing from an NBCCA.17 To “merit a waiver” an exigent circumstance must relate to the prepetition briefing. Without trying to be silly, only exigent circumstances that impact or relate materially to the prepetition briefing can merit a temporary exemption from the prepetition briefing requirement.

[8]

Circumstances that could fit the definition of “exigent” and that relate to or impact the prepetition briefing requirement might be grouped in four categories: (1) physical or mental conditions or characteristics of the debtor; (2) limits on availability of briefing services; (3) events that interrupt receipt of a briefing; and (4) events that will render bankruptcy relief less effective. Exploring the meaning of “exigent” and of “merit a waiver” in each of these contexts may shed some light on the exigent circumstances predicate for temporary exemption from the prepetition briefing requirement.

1.  Physical or Mental Conditions or Characteristics of Debtor

[9]

It is easy to conceive of conditions or characteristics of a debtor that would impact the prepetition briefing requirement in § 109(h)(1). A physically or mentally handicapped debtor, a debtor with limited language or comprehension skills, a debtor uncomfortable with computers—all might experience difficulties receiving a prepetition briefing from an NBCCA. Can such circumstances be “exigent” and merit a temporary exemption from the prepetition briefing requirement?

[10]

The answer is more complex than perhaps first appears. BAPCPA separately provides a permanent waiver of the prepetition briefing requirement “with respect to a debtor whom the court determines . . . is unable to complete [the prepetition briefing requirement] because of incapacity, disability or active military duty in a military combat zone.”18 The statute defines “incapacity” and “disability” in detail and, some would say, narrowly.19 A debtor with a mental or physical condition or characteristic less or other than “incapacity” or “disability” might claim an “exigent circumstance” that merits a temporary exemption under § 109(h)(3)(A).

[11]

Imagine a debtor who only understands a foreign language that will require translation services to receive a meaningful briefing. Language skills are not obviously an incapacity or disability for purposes of the permanent waiver in § 109(h)(4).20 The need for a translator would certainly be “critical” for this hypothetical debtor; can it be said that a translator is “urgent” or “pressing” in the sense of “requiring immediate aid or action”?

[12]

Depending on the definition of “exigent” one chooses, a physical or mental condition or characteristic could be an “exigent” circumstance. It would certainly relate to or impact materially upon the receipt of a briefing, but reasonable minds will differ whether a physical or mental condition or characteristic short of incapacity or disability merits a temporary exemption from the briefing requirement absent other timing considerations with respect to the filing of bankruptcy.

[13]

Would an incarcerated debtor without access to a phone or computer merit an exigent circumstances exception? Incarceration certainly creates physical impediments to obtaining services of an NBCCA. The courts have not been receptive to exigent circumstances arguments from prisoners. In In re McBride,21 an incarcerated debtor failed to request a prepetition briefing and could not satisfy the separate condition in § 109(h)(3)(A)(ii).22 The court made the broader observation that “incarceration has no bearing on the exigency of his need to file a petition for bankruptcy nor as it relates to the need for credit counseling as a prerequisite for filing.”23 The bankruptcy court in In re Johnson24 held that an incarcerated pro se debtor failed to state exigent circumstances when the debtor did not allege that there was no access to a telephone while in prison. In contrast, in In re Patasnik,25 the bankruptcy court held that incarceration was not a physical impairment for purposes of the permanent waiver of the briefing requirement in § 109(h)(4),26 but incarceration could be sufficient excuse to temporarily suspend the prepetition briefing requirement under § 109(h)(3)—aided by a bankruptcy court order that prison officials allow the debtor to make a telephone call to a counseling agency.

[14]

Then there was the pro se debtor in In re Henderson,27 who claimed the need for legal advice was an exigent circumstance that merited a temporary exemption from the prepetition briefing requirement. The court concluded that lack of knowledge of bankruptcy law was neither urgent nor sufficiently different from the general population to constitute an exigent circumstance that merits a waiver:

At a minimum, “exigent circumstances” should be particular to the putative debtor, and should support the conclusion that the putative debtor was confronted with an urgent situation that rendered him or her unable to comply with the budget and credit counseling requirement before commencing his or her bankruptcy case. . . . [W]hile the Petitioner has stated that she has needs to be advised of her legal rights, that does not, standing alone, distinguish her circumstances from the circumstances of thousands of debtors who, in this District and elsewhere, are required to pursue bankruptcy relief without the benefit of legal advice.28
[15]

What about the debtor unaware of the briefing requirement? Not surprisingly, this was a more common condition in the early years after the enactment of § 109(h) in 2005. Ironically, debtors who didn’t know or didn’t understand the briefing requirement regularly confessed themselves right out of bankruptcy court.

[16]

For example, in In re Wright,29 the debtor faced an impending foreclosure sale that the bankruptcy court recognized ordinarily would qualify as an exigent circumstance, temporarily excusing the prepetition briefing requirement. Unfortunately, the debtor honestly certified that he was unaware of the prepetition briefing requirement. Discussed in detail elsewhere,30 to qualify for the temporary exemption from the prepetition briefing requirement, the statute required the debtor, at the time, to request a prepetition briefing and be unable to complete the briefing during five days after that request. By certifying that the debtor was unaware of the prepetition briefing requirement, the debtor proved that no request for briefing was made before the petition and thus the temporary exemption was not available.31

2.  Limits on Availability of Briefing Services

[17]

Briefing services from approved NBCCAs are obviously not unlimited. An in-person or telephone briefing will not always be immediately available.32 Not all briefings will be available in a language other than English. The education or comprehension levels of debtors will not always match the briefing delivered by an NBCCA. Sheer volume of demand for briefing services may delay receipt of a briefing. Briefing services for free or for reduced fees are supposed to be available but aren’t always offered or known to debtors33 with no money.

[18]

Can a limit on the availability of briefing services be an “exigent circumstance” that merits a temporary exemption from the prepetition briefing requirement? Not unlike the language-specific debtor imagined immediately above, consider the debtor who calls an NBCCA and is told that an in-person briefing is first available in 10 days. Can the debtor file a Chapter 13 petition before receiving that briefing and successfully be briefed after the petition under the temporary exemption in § 109(h)(3)? Does the debtor have to demonstrate some circumstance other than just the availability of the briefing itself to satisfy the “exigent circumstances that merit a waiver” requirement in § 109(h)(3)(A)(i)?

[19]

This question reveals a complicated dynamic between § 109(h)(3)(A)(i) and (ii). As mentioned above, there is a separate necessary condition for temporary exemption from the prepetition briefing requirement in § 109(h)(3)(A)(ii) that the debtor requested “credit counseling services” from an approved NBCCA before the petition and was unable to obtain the services during the (now) seven-day period beginning on the date of the request.34 Can a request for a prepetition briefing that can’t be filled within seven days satisfy the necessary condition in subparagraph (ii) and also be an exigent circumstance that merits a waiver for purposes of subparagraph (i)? If no briefing is available for more than seven days after a request, can the debtor qualify for a temporary exemption without showing some other exigent circumstance? Or does the specific timing consideration in subparagraph (ii) preclude the use of a limit on briefing availability as an exigent circumstance that merits a temporary exemption from the prepetition briefing requirement?

[20]

It seems unlikely that courts will consider limits on the availability of briefing services to be an exigent circumstance that merits temporary exemption from the prepetition briefing requirement absent evidence of other circumstances impelling the debtor toward bankruptcy. To satisfy the necessary condition in subparagraph (ii), every debtor must request briefing services before the petition. Absent some compelling other circumstance, if some limit on the availability of briefing services is declared and the debtor’s request satisfies the seven-day condition in § 109(h)(3)(A)(ii), the debtor can simply wait and receive the briefing when offered without first filing the petition. For example, one debtor’s allegation that she attempted to obtain a briefing but was unable to get “signed up” because NBCCAs were “swamped the week before and after the law change” did not describe exigent circumstances that merited a waiver in the Bankruptcy Court for the Southern District of Texas.35

[21]

Does what the debtor requested from the NBCCA matter? For example, it is easy to imagine a potential debtor with no computer skills who requests an in-person or telephone briefing from one NBCCA that is understaffed and can’t supply that form of briefing for 10 days. That same NBCCA could supply an online briefing immediately, but no such request was made by the debtor. Add that other NBCCAs in the district were more robustly staffed and could have supplied an immediate in-person or telephone briefing had the debtor made that additional request. Should every debtor’s attorney have a reserve list of NBCCAs that includes at least one agency that can be counted on to be understaffed?36

[22]

Technically, the debtor in this example requested a briefing and was unable to obtain the services that would satisfy § 109(h)(1) within seven days of the request. Is “merit” of this hypothetical request at issue or only whether the request was made and unfulfilled? If a foreclosure is scheduled tomorrow, would only the merit of the impending foreclosure be measured by § 109(h)(3)(A)(i)? Does the fact that the debtor in this hypothetical contacted only one NBCCA matter with respect to the “merit” or “satisfaction” of the court? Limitations on the availability of briefing services are a tricky component of “exigent circumstances” because actions and conditions of the debtor can affect the availability of appropriate briefing services. It is inevitable that bankruptcy courts exercising discretion whether to grant temporary exemption from the prepetition briefing requirement will penalize debtors with “self-inflicted” wounds that limit the availability of briefing services. We will see this again below with respect to impending foreclosures.37

[23]

Does this analysis change when the limitation on the availability of briefing services is that no “reasonable” briefing services are available? Given that Internet briefing services are available from NBCCAs in all judicial districts, a “permanent” limitation on the availability of briefing services is going to be rare. The statute separately addresses the possibility that the U.S. trustee (or bankruptcy administrator) will determine that approved NBCCA services for a district are “not reasonably able to provide adequate services.”38 But there remains the possibility that a debtor will request a prepetition briefing, none will be available and the debtor is in a district with respect to which the U.S. trustee has not determined that approved NBCCA services are inadequate. A debtor without computer skills or computer access might fall in this category in a district that does not have in-person briefing services.39 A temporary waiver would not obviously help because the problem is that no briefing service appropriate for the debtor is available before or after the filing of a bankruptcy petition. A compelling argument can be made that such a debtor should be permanently exempted from the briefing requirement, but no trail to that conclusion exists in § 109(h) absent a declaration by the U.S. trustee or bankruptcy administrator under § 109(h)(2).40

[24]

What about the debtor who is too broke to pay for a briefing and doesn’t know to ask for a free or reduced fee service? In In re Piontek,41 the certification of exigent circumstances stated the Chapter 13 petition was filed to stop a sheriff’s sale of the debtors’ home and the debtor and her husband could not afford two $50 briefings at the same time. The court concluded the impending sale together with the inability to pay for a prepetition briefing could constitute exigent circumstances that merit waiver of the prepetition briefing requirement but not on the facts presented:

[T]he Court has assumed that the circumstances surrounding the commencement of the debtors’ bankruptcy case (i.e., to stay a Sheriff’s sale) constitute “exigent circumstances.” . . . [T]he issue . . . is whether the debtors’ alleged inability to pay for credit counseling is a sufficient reason for the Court to ignore the Congressional mandate found in 11 U.S.C. § 109(h)(3). . . . As a general proposition . . . a debtor who lacks sufficient resources to pay for credit counseling may, under the right circumstances, have a de facto “inability” to obtain pre-bankruptcy credit counseling for purposes of 11 U.S.C. § 109(h)(3)(A)(ii). Indeed, such “inability” to pay for credit counseling may be a “satisfactory” reason for the Court to grant a temporary waiver of the credit counseling requirements mandated by BAPCPA. . . . [I]n this case . . . the Court finds that the debtors’ inability to pay defense is not credible and is not persuasive. . . . [M]atters beyond the debtors’ control did not impede Ms. Burke’s ability to seek out and obtain the requisite credit counseling . . . . Ms. Burke had the ability to pay the credit counseling fee. . . . [D]ebtors remitted . . . $400 retainer to their bankruptcy counsel, of which $274.00 was used to pay the filing fee . . . . [D]ebtors surely had the ability to utilize $50 of the retainer to fund payment to the credit counseling agency prior to the bankruptcy and then defer payment of at least $50 of the bankruptcy filing fee for such additional time as may be permitted by the Bankruptcy Rules. . . . Schedule I reflects various monthly expenses, including $55.00 per month for cable television . . . . [T]he debtors could have also temporarily foregone [sic] such discretionary expenditures in order to have the funds necessary to accomplish the pre-bankruptcy credit counseling mandated by Congress. . . . [T]he debtors did not request that the credit counseling agency provide credit counseling on a pro bono or reduced fee basis. . . . [W]hen no request is first made (and improperly denied), the Court cannot conclude that Ms. Burke’s inability to obtain the credit counseling was due to circumstances beyond her reasonable control.42
[25]

Piontek at least opens the door to the possibility that inability to pay for the prepetition briefing could be a satisfactory reason for temporary exemption from the prepetition briefing requirement. “Circumstances beyond the reasonable control” of the debtor appears to be this court’s surrogate for “merit.” A fair number of reported cases conclude on one logic or another that inability to pay for the services of an NBCCA is not an exigent circumstance sufficient to temporarily exempt the debtor from § 109(h)(1).43 Many of these inability-to-pay decisions fault the debtors for failing to ask for free services or describe debtors who made bad choices that left no money to pay for a prepetition briefing. “Debtors at fault” is the theme.

[26]

An attractive construction of § 109(h)(3) is that once the separate necessary condition in § 109(h)(3)(A)(ii) is satisfied—the debtor made a request for briefing services and was unable to obtain those services for at least seven days after the request—some separate “exigent circumstance” that “merits a waiver” of the prepetition briefing requirement must be demonstrated to satisfy § 109(h)(3)(A)(i). In other words, the availability of briefing services is entirely addressed by subparagraph (ii) and is not appropriately revisited for purposes of subparagraph (i).

[27]

That § 109(h)(3)(A)(ii) specifically sets a standard for what effort the debtor must make to satisfy one of the necessary conditions for temporary relief from the prepetition briefing—the debtor must request and be unable to obtain a briefing within seven days of that request—supports the view that “exigent circumstance” in § 109(h)(3)(A)(i) deals with something other than requesting and receiving the briefing itself. The standards are different in the statute. The “unable” standard for assessing the debtor’s prepetition effort to get a briefing in § 109(h)(3)(A)(ii), together with the specific seven-day measurement in that subsection, suggests that § 109(h)(3)(A)(i) relates to something other than the prepetition request.

[28]

A problem with this analysis arises because § 109(h)(3)(A)(i) ties the exigent circumstances that merit a waiver to “paragraph (1)”— the prepetition briefing requirement in § 109(h)(1). In other words, the statute prescribes two conditions that both relate to obtaining the prepetition briefing—the request and seven-day test in § 109(h)(3)(A)(ii); and exigent circumstances that merit a waiver in § 109(h)(3)(A)(i)—setting the stage for overlap or conflict between the two conditions. It could certainly be true that a request for a prepetition briefing that was unfulfilled for seven days would satisfy subparagraph (ii) without establishing an exigent circumstance that merits a temporary waiver of the prepetition briefing requirement. Similarly, if not more likely, debtors will describe exigent circumstances that merit a temporary waiver of the prepetition briefing requirement, but because they fail to request a briefing before filing the petition, the necessary condition in subparagraph (ii) cannot be satisfied.

[29]

But completely separating the two conditions produces the odd possibility that a debtor who makes a request and is put off by the NBCCA for at least seven days consistent with § 109(h)(3)(A)(ii) can then miss the (delayed) opportunity for a briefing but still satisfy the necessary conditions for a temporary waiver of the prepetition briefing requirement when and if a separate “exigent circumstance” arises. In other words, a complete disconnection of the availability of briefing services and exigent circumstances perhaps leads to an absurd result.

[30]

The hurricanes in 2005 illustrate some of these issues. Discussed elsewhere,44 the Department of Justice through the U.S. trustee considered the impact of Katrina on the availability of prepetition briefing services and granted permanent waivers in certain districts consistent with § 109(h)(2). What about a debtor affected by Katrina who resides in a district other than a district identified by the U.S. trustee for permanent waiver under § 109(h)(2)? Could it be an “exigent circumstance” for § 109(h)(3) purposes if Katrina limited the availability of briefing services in a district that was not determined by the U.S. trustee to lack sufficient NBCCA services?

[31]

Notice that if the U.S. trustee determines that NBCCA services are not reasonably available in a district under § 109(h)(2), debtors can file bankruptcy in that district without a prepetition briefing and without regard to whether there are “exigent circumstances” impelling the debtors toward bankruptcy. But if the debtor resides in a district that has not been so designated by the U.S. trustee, the same impediment to briefing services—a hurricane, for example—does not provide even temporary relief from the briefing requirement unless the debtor separately demonstrates “exigent circumstances that merit a waiver.” If exigent circumstances must relate to a matter other than the availability of briefing services, then a hurricane has a significantly disparate effect on similarly situated debtors.

[32]

Obviously, the availability of briefing services raises issues that overlap the discussion immediately above of the physical or mental condition or characteristics of the debtor. A debtor with special language or cognitive characteristics is more likely to be unable to receive adequate NBCCA services within seven days (or any other time) of a request. Logically, the temporary exemption from prepetition briefing services should extend to accommodate special debtors who make unusual demands on the available NBCCA services. If the “exigent circumstances that merit a waiver” condition is narrowly construed to address only issues other than the availability of briefing services, then the temporary waiver is not effective with respect to some of the neediest potential debtors based on circumstances—a limitation on the availability of briefing services—that are not of the debtors’ making.

3.  Events That Interrupt Receipt of a Briefing

[33]

There will be circumstances unrelated to the availability of briefing services that interfere with receipt of a briefing. Examples that come to mind are broken-down cars, a sick baby, a snowstorm—anything that prevents a debtor from receiving a briefing when briefing services are available and the debtor is willing.

[34]

This category of circumstances that impact or relate to briefing services overlaps the categories immediately above, but the point here is that random problems arise that will defeat even the best efforts of debtors and their attorneys to obtain briefing services. Can the debtor safely file Chapter 13 with a certification of exigent circumstances when a temporary event has interrupted receipt of the prepetition briefing?

[35]

Temporary circumstances particular to a debtor or location are not likely to overlap the incapacity or disability addressed in § 109(h)(4)45 or the permanent waiver of prepetition briefings in a district allowable by the U.S. trustee or bankruptcy administrator under § 109(h)(2).46

[36]

The obvious question is, can an impediment to a prepetition briefing “merit a waiver” if by its nature the impediment is temporary? Or must there be some other compelling circumstance driving the debtor toward bankruptcy? Imagine an aspiring debtor who is told that a briefing is available in 10 days. The debtor accepts that scheduling and on the way to that briefing has a flat tire. These facts probably satisfy the necessary condition for a temporary exemption in § 109(h)(3)(A)(ii).47 Can the flat tire also be an exigent circumstance that merits a waiver, or must the debtor show something different—for example, an impediment to rescheduling the briefing?

[37]

One reported case might give debtors some hope that an interruption of the briefing process can be enough to merit temporary exemption from the prepetition briefing requirement. In In re Denson,48 the debtor was a physician who attempted to obtain a prepetition briefing—according to the opinion, “she took the step of attending the course, only to be drawn away by her occupational obligations.”49 The bankruptcy court found that the pressure of the debtor’s employment schedule was “satisfactory to the court” and merited a temporary waiver of the prepetition briefing requirement:

Given the nature of her occupational services, the Court is convinced that her reason for not completing the counseling was that the service was not available to her at a time she could complete it during a seven-day period. . . . Ms. Heath is a licensed physician . . . . Ms. Heath has completed the course during the thirty-day period post-petition and has filed a certificate affirming the same.50
[38]

Denson notwithstanding, it seems unlikely that temporary events that interrupt receipt of a prepetition briefing will have much traction in the exigent circumstances calculus. But even a temporary event may (unintentionally) generate the separate condition for a temporary exemption in § 109(h)(3)(A)(ii).51

4.  Events That Will Render Bankruptcy Relief Less Effective

[39]

This is the 800-pound gorilla in the universe of exigent circumstances: foreclosures, repossessions, garnishments, evictions—events in the lives of (most) potential debtors that will be prevented or whose effects will be dampened by a Chapter 13 petition. These are the events that provoke consideration of bankruptcy and that impel debtors to consider filing sooner rather than later.

[40]

There is attraction to the thought that a circumstance cannot be “exigent” or, perhaps, cannot “merit” a waiver of the prepetition briefing requirement unless it relates to the effectiveness of bankruptcy relief. Because some of the dictionary definitions of “exigent” have temporal content—“urgent,” “critical,” “pressing”—only a circumstance that would be affected by the timing of a bankruptcy filing can relate to whether the briefing occurs before or after the petition. By this logic, an exigent circumstance must make material that the debtor files bankruptcy sooner. Circumstances that interfere with access to or availability of briefing services, however “exigent,” would not merit a waiver unless the effectiveness of bankruptcy relief is impaired. For example, the flat tire offered above prevents the debtor from receiving a scheduled prepetition briefing but would not be an exigent circumstance that merits a waiver unless delay in filing bankruptcy materially impacts the effectiveness of bankruptcy relief.

[41]

There are a great many nuanced facts and circumstances that impact the effectiveness of bankruptcy relief and a huge expanse of discretion within which bankruptcy courts would assess the merits of those circumstances.

[42]

It is, of course, almost always true that individuals don’t contemplate bankruptcy unless there is some adverse financial circumstance happening or soon to happen. It is also almost always true, though a bit more complicated after BAPCPA,52 that the passage of time works to the disadvantage of the debtor in the sense that filing later allows collection action to proceed, typically at some loss of money, property or psychological well-being to the debtor. If personal bankruptcy is almost always inspired by some impending creditor collection action that bankruptcy can halt, when, if ever, can collection action be “exigent” and meritorious of temporary relief from the prepetition briefing requirement?

[43]

On nearly identical facts, the bankruptcy courts in In re Rodriguez53 and In re Cleaver54 came to opposite conclusions with respect to the content of “exigent circumstances” when there are events pending that will render bankruptcy relief less effective. In Rodriguez, the debtor faced a wage garnishment and attempted an Internet briefing. The debtor was told by a counselor that someone would call to schedule an appointment for the briefing. Fearing garnishment, the debtor filed a Chapter 13, then asked for a temporary exemption from the prepetition briefing requirement. The court concluded that the impending garnishment was not an exigent circumstance that merited a temporary waiver of the prepetition briefing requirement:

[T]he circumstances presented obviously have to relate in some way to the urgency and need to file. And they must establish something sufficiently different from or more pressing than the usual or typical motivations to file bankruptcy so as to justify dispensing with the requirement of prefiling counseling. . . . It is hard to imagine an exigent circumstance sufficient to motivate an immediate bankruptcy filing that does not concern creditor collection activity of some sort. . . . Congress did not, in § 109(h), grant each and every debtor a pass on the counseling requirement due to an impending foreclosure, garnishment, trial or other filing motivator. It is clear that § 109(h)(3)(A) exemptions are intended to be the exception, not the rule.55
[44]

In contrast, the debtor in Cleaver faced a sheriff’s sale that admittedly had crept up on the debtor. The court found the foreclosure sale to be exactly what § 109(h)(3)(A)(i) contemplated:

[T]he common reality is that many debtors file at the last minute just before foreclosure sale or the loss of their money or possessions to creditors. . . . [I]t is difficult to conceive of any exigent circumstances related to bankruptcy that would not involve impending creditor action. . . . [T]he immediacy of the foreclosure sale in this case appears to be exactly the sort of exigent circumstance contemplated by the statute.56
[45]

Rodriguez and Cleaver are not easily reconciled and the differences are hugely important to Chapter 13 practitioners. If an event that will reduce the effectiveness of bankruptcy relief can be an exigent circumstance that merits a temporary exemption only if the event is “more pressing than the usual or typical motivations to file bankruptcy,” then the necessary condition for temporary relief from the prepetition briefing requirement in § 109(h)(3)(A)(i) becomes a formidable barrier for debtors. Consistent with Rodriguez, several decisions interpreting § 109(h)(3)(A)(i) have reasoned that a foreclosure sale, sheriff’s sale or repossession is not an exigent circumstance that merits a waiver of the prepetition briefing requirement if state law required notice and the debtor waited until late in the notice period to seek a briefing. The poster child for these “self-inflicted wound” cases is Dixon v. LaBarge (In re Dixon).57

[46]

In Dixon, foreclosure loomed at 12:00 noon on November 10. The debtor contacted an attorney at 6:30 p.m. on November 9 and was advised to obtain a prepetition briefing. The debtor contacted an approved NBCCA and was told it would be two weeks before a telephone briefing was available and 24 hours before a briefing by Internet could be arranged. The debtor filed Chapter 13 without a prepetition briefing, certifying that he did not have a computer and did not have access to the Internet.

[47]

The bankruptcy court “reviewed the certificate and determined that the certificate did not describe exigent circumstances which merited a waiver of the statutory requirement of obtaining a prepetition briefing.”58 The Bankruptcy Appellate Panel for the Eighth Circuit read the bankruptcy court’s decision as a finding that the debtor’s circumstances were exigent but concluded that it was not an abuse of discretion for the bankruptcy court to find no merit in the debtor’s exigent circumstances:

“[E]xigent” indicates that the debtor finds himself in a situation in which adverse events are imminent and will occur before the debtor is able to avail himself of the statutory briefing. Virtually, all of the cases . . . will, in fact, involve exigent circumstances. . . . The real question for the court in such certifications will usually be whether or not those exigent circumstances merit the statutory waiver. . . . [T]he bankruptcy court found that the certificate filed by the debtor did not merit a waiver. The bankruptcy court observed that [state law] requires twenty days[’] notice of foreclosure . . . . [T]he bankruptcy court determined that [the debtor’s] exigent circumstances did not merit the waiver of the prebankruptcy briefing requirement. We cannot say that the bankruptcy court abused its discretion in making that determination.59
[48]

In contrast to Dixon, a substantial number of decisions interpreting § 109(h)(3)(A)(i) have held or embraced the possibility that a foreclosure sale or similar impending collection action is an exigent circumstance that merits temporary exemption from the prepetition briefing requirement.60 These decisions reveal less inclination to find individualized fault in debtors facing financial Armageddon. These courts do not demand explanation of the delay in seeking a briefing when there was notice of impending collection action, or at least these courts are more forgiving of procrastination than the bankruptcy court and BAP in Dixon.

[49]

There is much confusing language in cases on both sides of this debate with respect to the focus of the exigent circumstances inquiry in § 109(h)(3)(A)(i). The bankruptcy court in In re Valdez61 “conceded” the impending foreclosure on the debtor’s home was an exigent circumstance but reasoned that an exigent circumstance can merit temporary waiver of the prepetition briefing requirement only if it prevented the briefing:

However, the term exigent circumstances, as used in Section 109 of the Bankruptcy Code, does not appear to refer to a prospective debtor’s problems or situation, but rather it appears to refer to the circumstances preventing the person from obtaining the required budget and credit counseling and the certificate confirming same. It seems from the language of the statute that the debtor must certify that “exigent circumstances” prevented the Debtor from obtaining counseling, but that such counseling was attempted and the debtor was unable to obtain the services within 5 days of the attempt.62
[50]

The distinction attempted by the Valdez court—between a debtor’s “problems or situation” and circumstances that prevented the debtor from obtaining a prepetition briefing—will be hard for debtors and their attorneys to navigate. The flat tire imagined above might prevent the debtor from obtaining a briefing, but does it follow that no other “problem[ ] or situation” need be present to constitute a meritorious exigent circumstance? In Valdez, the debtor did not request a briefing before filing the Chapter 13 petition to stop a foreclosure sale scheduled two days later. If the debtor had attempted but been unable to obtain services within seven days, could it be said that the foreclosure sale “prevented” the debtor from obtaining a prepetition briefing?

[51]

In contrast to Valdez, the bankruptcy court in In re Tomco63 focused on the characteristics and condition of the debtor to determine whether exigent circumstances merited a waiver. In Tomco, the debtor did not request a prepetition briefing and the court held that a temporary exemption from the briefing requirement was not available. Along the way, the Tomco court had this to say about the focus of § 109(h)(3)(A):

The focus under sub-paragraph (i) of § 109(h)(3)(A) is not whether a putative debtor hypothetically had enough time to obtain the briefing . . . . [B]ut rather the focus of the inquiry is a subjective one. Namely, the inquiry is whether the debtor was actually precluded by his or her circumstances from obtaining the briefing. This is a fact specific inquiry into the good faith efforts of the debtor to comply with the credit counseling requirements . . . . The debtor’s knowledge of the law (or lack thereof) may be relevant . . . . How well educated are the debtors? What is their financial situation?64
[52]

You can readily see that the exigent circumstances hearing in the Tomco court invites a very different evidence presentation than Valdez suggests. A debtor’s lack of knowledge of the law is relevant to whether an impending foreclosure sale merits a temporary exemption from the briefing requirement in the Western District of Pennsylvania,65 but a pro se debtor’s plea for legal advice is not an exigent circumstance in the Eastern District of New York.66

[53]

The courts that link notice of creditor collection action to the merits of an impending circumstance deliver an ambiguous message with respect to the meaning of exigent circumstances in § 109(h)(3)(A)(i). If the debtor has 20 days’ notice of a foreclosure sale, does the passage of time render the foreclosure more or less exigent? Put another way, when and for how long does notice of a foreclosure merit a waiver and at what point does it stop meriting a waiver because it is a self-inflicted wound?

[54]

Imagine a debtor who has 20 days’ notice of foreclosure and requests a briefing 19 days before the sale. If the debtor is told a briefing is available in eight days, the debtor has satisfied the separate necessary condition in § 109(h)(3)(A)(ii)67 notwithstanding that there are 11 additional days between the scheduled briefing and the foreclosure sale in which the debtor could obtain a prepetition briefing.

[55]

If the debtor is prevented by some event—perhaps a flat tire or a snowstorm—from attending the scheduled briefing, must the debtor request another briefing or has an exigent circumstance occurred that merits a temporary exemption from the prepetition briefing requirement? Does the existence of 11 days before the foreclosure preclude a finding of exigent circumstances or would waiting deeper into the 11 remaining days threaten the debtor’s claim of exigent circumstances?

[56]

Change the facts just a little. If the briefing requested 19 days before the foreclosure sale was scheduled the day before the foreclosure sale and a random event prevented the debtor from completing that briefing, is the immediacy of the foreclosure sale an exigent circumstance that merits a waiver or an exigency created by the debtor’s choice to accept a briefing 18 days after the request?

[57]

The reported decisions are hopelessly fractured with respect to whether the effectiveness of bankruptcy relief is relevant to which circumstances are exigent and which exigent circumstances merit temporary exemption from the prepetition briefing requirement. In some courts, an impending event that will render bankruptcy relief less effective is exigent and merits temporary waiver. Other courts want to know why the event presses against the briefing requirement and if the answer is procrastination by the debtor, then circumstances can’t be exigent, or don’t merit a waiver, or both. The bar here is relatively low if the debtor’s burden is to show that some event threatens to marginalize bankruptcy relief. If that event has to be “fault free” or if it must “prevent” a briefing rather than impair the content of bankruptcy relief, then § 109(h)(3)(A)(i) is a wall around the temporary exemption from the prepetition briefing requirement.

[58]

One final admittedly less than helpful thought: What does the statutory condition add that the description of exigent circumstances must be “satisfactory to the court”?68 As mentioned above, this separate condition at least reinforces the discretion of bankruptcy courts with respect to the meaning of “exigent circumstances” and “merit” in subparts (i) and (ii) of the same section. This separate condition seems unavoidably to overlap in part the conditions just discussed. Is it just the “certification” that must be satisfactory to the court—in other words, just the form of the certification itself?69 This seems an unlikely reading, but what then is the meaning of “satisfactory” that would be different from the meaning of “merit” with respect to the debtor’s description of exigent circumstances?

[59]

Could the exigent circumstances described by the debtor in Part 5 of Official Form 101 merit a temporary exemption for purposes of § 109(h)(3)(A)(ii) yet the certification not be “satisfactory” to the court for purposes of § 109(h)(3)(A)(iii)? Perhaps this category would be populated by debtors facing foreclosures who made “unsatisfactory” requests for briefing services for purposes of § 109(h)(3)(A)(ii). In the examples above, a debtor capable of obtaining an Internet briefing who requested only an in-person briefing on the eve of a foreclosure sale—but was unable to obtain an in-person briefing within seven days of the request—may have technically satisfied the conditions in subpart (ii), yet some courts would not be satisfied by this certification. Wheels within wheels in § 109(h)(3)(A).


 

1  See 11 U.S.C. § 109(h)(2) & (h)(4), discussed in § 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? and § 19.2  Timing of Briefing.

 

3  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.

 

4  See § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

5  See § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances and § 36.25  Briefing Requirement and Certificate.

 

6  11 U.S.C. § 109(h)(3)(A)(i).

 

7  Part 5, Official Form 101 (Dec. 2015), discussed in § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances and § 36.25  Briefing Requirement and Certificate.

 

8  See further discussion of this problem in § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

9  See § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

10  See, e.g., In re Elmendorf, 345 B.R. 486 (Bankr. S.D.N.Y. July 18, 2006) (Morris) (“Section 109(h)(1)(B) indicates however that the credit counseling requirement must be satisfied within 45 days at the outside—making the relief provided in that subsection an ‘extension’ in this Court’s opinion. A ‘waiver’ is defined by Black’s Law Dictionary as ‘[t]he voluntary relinquishment or abandonment—express or implied—of a legal right or advantage.’ An exemption is defined as ‘[f]reedom of a duty, liability or other requirement; an exception.’ For instance, if an attorney were to be told by a CLE provider that they merited a ‘waiver’ of the cost of the program, the attorney would not expect to receive a bill 30 days later stating that the ‘waiver’ had expired, and payment was due. That isn’t a waiver at all; it is an extension.” (internal quotations omitted)); In re Thompson, 344 B.R. 899, 902 n.6 (Bankr. S.D. Ind. June 5, 2006) (Metz) (noting that the waiver found in § 109(h)(3) is actually a deferral).

 

11  11 U.S.C. § 109(h)(3)(B) (emphasis added).

 

12  Prior to December 1, 2009, this seven-day period was five days. See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, 123 Stat. 1607 (May 7, 2009).

 

13  11 U.S.C. § 109(h)(3)(A)(ii), discussed in § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances and § 20.4  Prepetition Request.

 

14  11 U.S.C. § 109(h)(3)(A)(iii). See In re Tomco, 339 B.R. 145, 154 (Bankr. W.D. Pa. Feb. 27, 2006) (Deller) (“Congress granted to the bankruptcy courts broad discretion to determine whether a debtor’s certificate of ‘exigent circumstances’ is both ‘satisfactory’ and ‘merits a waiver’ of the pre-petition credit counseling.”); In re Rodriguez, 336 B.R. 462, 473 (Bankr. D. Idaho Dec. 9, 2005) (Myers) (“[A] debtor’s submissions must be ‘satisfactory to the court.’ . . . This certainly implicates judicial discretion.”).

 

15  See, e.g., In re Tomco, 339 B.R. 145, 155 (Bankr. W.D. Pa. Feb. 27, 2006) (Deller) (“[T]he focus of the inquiry is a subjective one. Namely, the inquiry is whether the debtor was actually precluded by his or her circumstances from obtaining the briefing. This is a fact specific inquiry into the good faith efforts of the debtor to comply with the credit counseling requirements.”); In re Henderson, 339 B.R. 34, 39 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong) (“‘[E]xigent circumstances’ should be particular to the putative debtor.”); In re Graham, 336 B.R. 292, 297 (Bankr. W.D. Ky. Dec. 21, 2005) (Fulton) (“[‘E]xigent circumstances’ should be determined on a case-by-case basis.”); In re Curington, No. 05-38188, 2005 WL 3752229, at *4 (Bankr. E.D. Tenn. Dec. 7, 2005) (unpublished) (Stair) (“The Bankruptcy Code does not define ‘exigent circumstances,’ but Black’s Law Dictionary defines the phrase as ‘a situation that demands unusual or immediate action and that may allow people to circumvent usual procedures[.]’ Black’s Law Dictionary 236 (7th ed. 1999) . . . . It follows that exigent circumstances must be determined on a case by case basis and cannot be uniformly defined. . . . Congress has expressed its intention that something considerably more than mere inconvenience to the debtor is required if the credit counseling briefing is to be waived, even temporarily.”).

 

16  Webster’s New 20th Century Dictionary 641 (unabridged 2d ed. 1983).

 

17  11 U.S.C. § 109(h)(1), discussed in § 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).

 

18  11 U.S.C. § 109(h)(4), discussed in § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

19  See 11 U.S.C. § 109(h)(4), discussed in § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

20  See § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

21  354 B.R. 95 (Bankr. D.S.C. Sept. 1, 2006) (Duncan).

 

22  See § 20.4  Prepetition Request.

 

23  In re McBride, 354 B.R. at 98.

 

24  No. 07-00465, 2007 WL 2990563 (Bankr. D.D.C. Oct. 11, 2007) (Teel).

 

25  425 B.R. 916 (Bankr. S.D. Fla. Apr. 2, 2010) (Olson).

 

26  See § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

27  339 B.R. 34 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong).

 

28  In re Henderson, 339 B.R. at 39–40.

 

29  No. 08-16170-SSM, 2008 WL 4572508 (Bankr. E.D. Va. Oct. 10, 2008) (Mitchell).

 

30  See below in this section, and see § 20.4  Prepetition Request.

 

31  See also In re Thompson, No. 08-01742S, 2008 WL 4493431 (Bankr. N.D. Iowa Sept. 30, 2008) (Edmonds) (Pro se debtors who checked box number 3 on Exhibit D to Official Form 1 but were not aware of prepetition briefing requirement cannot demonstrate exigent circumstances for purposes of § 109(h)(3); warning on Exhibit D told debtors that prepetition briefing was required to commence bankruptcy case and they chose to file without getting briefing.).

 

32  See § 19.1  What is a Briefing?.

 

33  11 U.S.C. § 111(c)(2)(B) and the U.S. trustee’s application process to become an approved NBCCA include that the agency must provide services without regard to ability to pay. See § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

34  11 U.S.C. § 109(h)(3)(A)(iii), discussed in § 20.4  Prepetition Request.

 

35  In re Hubbard, 332 B.R. 285 (Bankr. S.D. Tex. Oct. 31, 2005) (Isgur).

 

36  See § 20.4  Prepetition Request.

 

37  See below in this section.

 

38  11 U.S.C. § 109(h)(2)(A), discussed in § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

39  A debtor on assignment in the military but not in a combat zone might fit this bill. See § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

40  See 11 U.S.C. § 109(h)(2), discussed in § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

41  346 B.R. 126 (Bankr. W.D. Pa. July 5, 2006) (Deller).

 

42  In re Piontek, 346 B.R. at 129–32.

 

43  See In re Wood, No. 13-10480, 2013 WL 1969303, at *1 (Bankr. S.D. Ga. May 13, 2013) (Barrett) (Inability to pay for briefing is not an exigent circumstance for § 109(h) purposes. “Pursuant to 11 U.S.C. § 111[(c)](2)(B), a credit counseling agency is required to provide counseling ‘without regard to the ability to pay.’ . . . The inability to pay the filing fee for credit counseling is not an exigent circumstance.”); In re Nealen, 407 B.R. 194 (Bankr. W.D. Pa. July 9, 2009) (Deller) (Inability to pay $50 does not waive prepetition briefing requirement when agencies that offer briefings are required to provide services regardless of ability to pay and debtor did not ask for free or reduced-fee services.); In re Sherry, No. 08-62658, 2008 WL 3876595 (Bankr. N.D. Ohio Aug. 20, 2008) (unpublished) (Kendig) (Financial hardship is not an exigent circumstance because Bankruptcy Code requires NBCCAs to provide counseling services without regard to ability to pay; that debtor fully paid $274 filing fee rather than paying filing fee in installments rebuts claim of inability to pay for prepetition briefing.); In re Wallace, 338 B.R. 399, 401 (Bankr. E.D. Ark. Mar. 9, 2006) (Mixon) (Debtor who did not get a prepetition briefing or file certification of exigent circumstances was not eligible. Debtor alleged that it would cost 25% of her take-home pay to get credit counseling, that counseling would not solve her problems and that the bankruptcy clerk had not posted a list of approved counseling agencies. “The Debtor . . . failed to file a certificate that described exigent circumstances.”).

 

44  See § 21.1  In General and § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

45  See 11 U.S.C. § 109(h)(4), discussed in § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

46  See 11 U.S.C. § 109(h)(2), discussed in § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

47  See § 20.4  Prepetition Request.

 

48  No. 13-61602-LYN, 2013 WL 5525106 (Bankr. W.D. Va. Oct. 3, 2013) (Stone).

 

49  In re Denson, 2013 WL 5525106, at *2.

 

50  In re Denson, 2013 WL 5525106, at *2.

 

51  See § 20.4  Prepetition Request.

 

52  See § 37.3  Timing Considerations after BAPCPA.

 

53  336 B.R. 462 (Bankr. D. Idaho Dec. 9, 2005) (Myers).

 

54  333 B.R. 430 (Bankr. S.D. Ohio Nov. 17, 2005) (Walter).

 

55  In re Rodriguez, 336 B.R. at 470–75. See also In re Henderson, 339 B.R. 34, 40 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong) (“[W]hile the Petitioner has stated that she has needs to be advised of her legal rights, that does not, standing alone, distinguish her circumstances from the circumstances of thousands of debtors who, in this District and elsewhere, are required to pursue bankruptcy relief without the benefit of legal advice.”).

 

56  In re Cleaver, 333 B.R. at 435. See also In re Childs, 335 B.R. 623, 630 (Bankr. D. Md. Dec. 19, 2005) (per curiam) (“[T]he debtors have satisfied the requirement of demonstrating ‘exigent circumstances’ by asserting the occurrence of a supervening event that precipitated the emergent need to file a bankruptcy petition, to wit, the imminent sale of the debtors’ property at foreclosure and the assertion . . . of . . . imminent eviction . . . . The standard for exigent circumstances set forth in the statute is minimal. It requires only that the debtor state the existence of some looming event that renders prepetition credit counseling to be infeasible. The standard is not one of ‘excusable neglect’ that would require the Court to delve into the reasons why the exigent circumstances occurred.”).

 

57  338 B.R. 383 (B.A.P. 8th Cir. Feb. 17, 2006) (Kressel, Federman, Mahoney).

 

58  Dixon v. LaBarge (In re Dixon), 338 B.R. at 385.

 

59  Dixon v. LaBarge (In re Dixon), 338 B.R. at 388. Accord In re Wise, No. 15-60934, 2015 WL 3424733, at *1–*2 (Bankr. N.D. Ohio May 27, 2015) (unpublished) (Kendig) (Ninety-three-year-old debtor filing the day before foreclosure did not satisfy exigent circumstances requirement for temporary exemption from the prepetition briefing requirement in § 109(h)(3)(A)(ii). “[The debtor] indicates that she is ninety-three (93) years old and required assistance to take the course but her son and daughter were not available to help her before she filed her case, which was necessitated because a foreclosure sale was scheduled . . . . Allowing a debtor to rely on an imminent foreclosure sale ignores the months prior to the sale when the foreclosure case was pending and the debtor took no action. The debtor’s degree of control is the antithesis of ‘urgent need.’ . . . Debtor offered no explanation concerning her attempts seeking assistance from her children to obtain counseling or an explanation for their unavailability.”); In re England, No. 8:13-bk-05850-MGW, 2013 WL 2467789 (Bankr. M.D. Fla. June 10, 2013) (Williamson) (Imminent tax sale is not an exigent circumstance in fifth bankruptcy case when debtor knew all about the prepetition briefing requirement from prior cases and the tax auction had been pending for several years.); In re Larijani, No. 13-11163-RGM, 2013 WL 1385222 (Bankr. E.D. Va. Apr. 3, 2013) (Mayer) (Imminent foreclosure can be exigent circumstance for § 109(h) purposes but not when debtor and spouse have filed five tandem bankruptcy cases and debtor had at least 14 days’ notice of foreclosure.); In re Shear, No. 10-30971, 2010 WL 3463382, at *1 (Bankr. D.N.D. Sept. 2, 2010) (unpublished) (Hill) (For § 109(h)(3) purposes, that debtors discovered newspaper notice that their residence had been foreclosed on and was being sold at a sheriff’s sale does not constitute an exigent circumstance that would merit waiving briefing requirement. “‘The term “exigent” indicates a situation where adverse events are imminent and will occur if the debtor cannot avail himself of the statutory briefing. . . . Because virtually all cases filed under section 109(h)(3) will involve exigent circumstances for the debtor, the real question is whether the exigent circumstances the debtor finds himself facing merit waiving the statutory requirement of prefiling credit counseling.’ While Debtors argue the primary reason for their filing of a bankruptcy petition was discovery that their residence had been foreclosed on and was being sold at a sheriff’s sale, the Court finds the circumstances do not merit waiving the credit counseling requirement.”); In re Salmeron, No. 10-16833-RGM, 2010 WL 4814399, at *1 (Bankr. E.D. Va. Aug. 17, 2010) (Mayer) (“To stop a foreclosure” is not a satisfactory explanation of need for an extension of time to obtain a briefing when the same excuse was given in a prior Chapter 13 case filed two months earlier. “Given the knowledge of the debtor of the proper procedure, the opportunity to obtain the credit counseling in the first case and within the period after the notice of the second foreclosure was given, and the repetitious nature of the conduct, the excuse the second time is not satisfactory.”); In re Otero, No. 09-71420 TG, 2010 WL 580033 (Bankr. N.D. Cal. Feb. 12, 2010) (Tchaikovsky) (Although imminent home foreclosure satisfies one prong of § 109(h)(3), contact with a credit counseling agency 45 minutes before scheduled foreclosure sale did not satisfy requirement that debtor request credit counseling services and be unable to obtain those services during five-day period before the petition.); In re Magnusson, No. 07-30856, 2007 WL 4877417, at *3 (Bankr. D.N.D. Oct. 23, 2007) (Hill) (That IRS agent was coming to remove debtors from their home did not merit waiver for purposes of § 109(h)(3). “Debtors argue that exigent circumstances exist because an IRS agent was coming . . . to remove them from their home because of a tax lien. While this may have been the case and certainly are exigent circumstances, the circumstances do not merit waiving the credit counseling requirement. At the very least, Debtors would have had 90 days’ notice of a tax deficiency. 26 U.S.C. § 6213(a). In that time-period debtors could have disputed the determination of deficiency by filing a petition with the tax court or used the 90 days to obtain credit counseling. A debtor waiting until the eve of foreclosure to file a bankruptcy petition, when the debtor had ample notice of the foreclosure, does not constitute exigent circumstances meriting the waiver of the prebankruptcy credit counseling requirement.”); In re Falcone, 370 B.R. 462 (Bankr. D. Mass. May 31, 2007) (Hillman) (That debtor did not learn of the scheduled foreclosure sale until two days before filing petition was “not extraordinary” for § 109(h)(1) purposes.); In re Kimsel, No. 06-00539, 2006 WL 2380684, at *1 (Bankr. D. Haw. Aug. 16, 2006) (Faris) (Certification of exigent circumstances not satisfactory because foreclosure sale scheduled for same date as Chapter 13 petition was second scheduling and debtor filed previous Chapter 13 petition on same day as earlier sale. “[T]he foreclosure sale was hardly an unforeseeable event given that the Debtor attempted to deal with it by filing the prior bankruptcy petition . . . . Where a debtor has knowledge of an impending sheriff’s sale or foreclosure and waits until the last minute to seek bankruptcy protection, this ‘self-created emergency does not constitute “exigent circumstances.”’”); In re Wilson, 346 B.R. 59 (Bankr. N.D.N.Y. June 5, 2006) (Gerling) (Arguably in dicta, foreclosure sale scheduled seven days after petition does not constitute an exigent circumstance because under New York law, debtors should have received 30 days’ notice of foreclosure sale.); In re Afolabi, 343 B.R. 195, 198 (Bankr. S.D. Ind. June 2, 2006) (Coachys) (Impending sheriff’s sale that required 21 days’ notice under state law did not prevent briefing and was a self-created emergency. “A sheriff’s sale . . . does not in and of itself merit a deferral of the credit counseling requirement. . . . [T]he proper focus under § 109(h) is not on the circumstances that hastened or precipitated the bankruptcy filing but on whether those circumstances or any other prevented the debtor from being able to obtain credit counseling prior to filing for bankruptcy. . . . In Indiana, sheriff’s sales are scheduled with at least 21 days’ notice . . . . In the absence of any contrary assertion, the Court presumes that Debtor was aware of the sale and the threat it posed to his residence. Yet, it appears that he waited until the last minute to seek legal advice and bankruptcy protection. This self-created emergency does not constitute ‘exigent circumstances.’ . . . Debtor . . . was ‘negotiating’ with his mortgage company on the eve of the sheriff’s sale. . . . [T]he Court cannot conclude that such negotiations prevented him from obtaining credit counseling.”); In re Givhan, No. 06-40389-DRD, 2006 WL 4451481, at *1 (Bankr. W.D. Mo. Mar. 23, 2006) (Dow) (Certification that foreclosure was scheduled in three hours does not satisfy exigent circumstances requirement. “Although the debtor’s home was scheduled for an immediate foreclosure sale which might constitute an exigent circumstance, debtor failed to demonstrate why . . . a deferment of the credit counseling requirement is warranted. Debtor fails to address why she was unable to request and obtain credit counseling services well in advance of the scheduled date of the foreclosure sale. . . . [T]he debtor offers no explanation for not having consulted counsel at an earlier stage to answer her questions about her eligibility for bankruptcy relief and its potential benefits.”); In re Dipinto, 336 B.R. 693, 697–98 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich) (Waiting until 24 hours before sheriff’s sale created an exigent circumstance that did not merit a waiver. “[I]mminent foreclosure sale or repossession constitutes an exigency. But that is not the end of the inquiry. . . . Debtor . . . waited until much less than 24 hours prior to a Sheriff’s Sale to first attempt to arrange for credit counseling. The Debtor clearly could not have just learned of the sale . . . . The credit counseling industry itself deems two days to be the time period between which a request for counseling is made and the actual counseling occurs. . . . Debtor’s exigency does not merit a waiver.”); In re Talib, 335 B.R. 417, 422 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow) (“[T]he focus should be not so much on the imminence of the event that threatens the debtor with loss of property and requires filing of the petition . . . but on the reasons why the debtor was unable to obtain the required credit counseling prior to having to file for relief. . . . Debtor offers no explanation . . . why it would not have been possible for her to request the credit counseling well in advance of the scheduled foreclosure sale. . . . [T]he exigent circumstances which make it necessary for the Debtor to request authorization to file without having first obtained credit counseling were of the Debtor’s own making . . . no case has been made as to why they ‘merit’ a waiver.”).

 

60  See In re Larijani, No. 13-11163-RGM, 2013 WL 1385222 (Bankr. E.D. Va. Apr. 3, 2013) (Mayer) (Imminent foreclosure can be exigent circumstance for § 109(h) purposes but not on facts presented.); In re Stanley, No. 12-78056-MGD, 2012 WL 7009638 (Bankr. N.D. Ga. Nov. 9, 2012) (Diehl) (Imminent foreclosure constitutes an exigent circumstance that merits waiver of the § 109(h) briefing when foreclosure will occur within the seven-day waiting period.); In re Holsinger, 465 B.R. 775 (Bankr. W.D. Va. Feb. 27, 2012) (Krumm) (Foreclosure may be exigent circumstance if would “materially diminish” the debtor’s rights.); In re Wilcher, No. 06-20513, 2008 WL 7390620 (Bankr. S.D. Ga. Aug. 15, 2008) (Dalis) (Threatened home foreclosure and car repossession were exigent circumstances that would have supported a 30-day exemption from prepetition briefing requirement had a timely certification been filed; 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 the petition based on affidavit that debtors had exigent circumstances and requested a prepetition briefing on day of petition but were unable to complete that briefing until the day after the petition.); In re Mahjor, No. 08-13958-SSM, 2008 WL 2775708 (Bankr. E.D. Va. July 14, 2008) (Mitchell) (Although impending foreclosure would qualify as an exigent circumstance, debtor’s failure to request a briefing from an NBCCA before the petition is fatal to request for deferment of briefing requirement.); In re Giambrone, 365 B.R. 386, 389–90 (Bankr. W.D.N.Y. Mar. 29, 2007) (Bucki) (Foreclosure sale is exigent circumstance notwithstanding that debtors sought advice of counsel too late to get briefing before filing petition. “Exigency relates solely to issues of immediacy, and not to any notions of causation, justification, or excusability. Even when circumstances are of a debtor’s own making, they will nonetheless become exigent at the moment when immediate action or aid is required. . . . [A] lay person would not previously have known or understood the precise requirements and time constraints for credit counseling. . . . [W]hile attempting to solve the exigent problem of an imminent foreclosure, [the debtors] encountered the unanticipated requirements of section 109(h). These exigent circumstances fully merit a waiver of the time limits for credit counseling. . . . [Dixon v. LaBarge (In re Dixon), 338 B.R. 383 (B.A.P. 8th Cir. Feb. 17, 2006) (Kressel, Federman, Mahoney),] speaks more to irrelevant attributions to fault than to the sufficiency of exigent circumstances. . . . If debtors reasonably attempt to obtain credit counseling during the interval between learning about this requirement and the occurrence of an exigent event, their exigent circumstances should merit a waiver. Unquestionably, [the debtors] should have sought the advice of counsel at an earlier date. Whether justified or not, their delay created an urgent situation that required immediate action . . . . Because the statute does not require any absence of culpability, the exigency of the debtors’ self-imposed circumstances will satisfy the requirements of 11 U.S.C. § 109(h)(3)(A)(i).”); In re Henderson, 364 B.R. 906, 909 (Bankr. N.D. Tex. Mar. 27, 2007) (Jernigan) (“[I]mminent foreclosure sale scheduled on the family home would generally, in this court’s view, qualify as ‘exigent circumstances.’”); In re Toccaline, No. 06-20218, 2006 WL 2081517, at *2 (Bankr. D. Conn. July 17, 2006) (unpublished) (Krechevsky) (“[T]he sudden collapse of the petitioners’ mortgage negotiations on the eve of the scheduled foreclosure sale constitutes circumstances sufficiently exigent to satisfy the requirements of the first requirement of the three-part test.”); In re Piontek, 346 B.R. 126, 129 (Bankr. W.D. Pa. July 5, 2006) (Deller) (Impending sheriff’s sale of debtors’ home is exigent circumstance. “[T]he Court has assumed that the circumstances surrounding the commencement of the debtors’ bankruptcy case (i.e., to stay a Sheriff’s sale) constitute ‘exigent circumstances.’”); In re Graham, 336 B.R. 292, 297 (Bankr. W.D. Ky. Dec. 21, 2005) (Fulton) (“[M]any people seek bankruptcy relief in order to forestall the repossession of a needed car or prevent the foreclosure of a family home. In both of these instances . . . it is likely that this Court will not have difficulty finding the existence of exigent circumstances.”); In re Childs, 335 B.R. 623, 630 (Bankr. D. Md. Dec. 19, 2005) (per curiam) (“[T]he debtors have satisfied the requirement of demonstrating ‘exigent circumstances’ by asserting the occurrence of a supervening event that precipitated the emergent need to file a bankruptcy petition, to wit, the imminent sale of the debtors’ property at foreclosure and the assertion . . . of . . . imminent eviction.”); In re Davenport, 335 B.R. 218, 220–21 (Bankr. M.D. Fla. Dec. 6, 2005) (May) (Imminent repossession of debtor’s only means of transportation was an exigent circumstance. “The debtor did establish, to the Court’s satisfaction, that exigent circumstances were present at the time she filed her petition. A creditor was actively seeking repossession of the family’s only means of transportation.”); In re Cleaver, 333 B.R. 430, 435 (Bankr. S.D. Ohio Nov. 17, 2005) (Walter) (Allegation of impending sheriff’s sale is an arguably self-created exigency but is accepted by the court. “[T]he immediacy of the foreclosure sale in this case appears to be exactly the sort of exigent circumstance contemplated by the statute.”); In re Hubbard, 333 B.R. 377, 384 (Bankr. S.D. Tex. Nov. 16, 2005) (Isgur) (Repossessions and foreclosure can be exigent circumstances. “An individual facing the immediate and permanent loss of her sole means of transportation generally faces exigent circumstances.”); In re Wallert, 332 B.R. 884, 887 (Bankr. D. Minn. Nov. 17, 2005) (Kishel) (“[A]n impending sheriff’s sale in foreclosure of a mortgage against her homestead . . . in isolation is ‘exigent.’”); In re Gee, 332 B.R. 602 (Bankr. W.D. Mo. Oct. 26, 2005) (Dow) (“Court has little doubt” that foreclosure sale of debtor’s residence scheduled for afternoon of the date of the petition was “exigent.”).

 

61  335 B.R. 801 (Bankr. S.D. Fla. Dec. 13, 2005) (Cristol).

 

62  In re Valdez, 335 B.R. at 803.

 

63  339 B.R. 145 (Bankr. W.D. Pa. Feb. 27, 2006) (Deller).

 

64  In re Tomco, 339 B.R. at 155.

 

65  See In re Tomco, 339 B.R. 145 (Bankr. W.D. Pa. Feb. 27, 2006) (Deller), quoted above.

 

66  See In re Henderson, 339 B.R. 34 (Bankr. E.D.N.Y. Jan. 17, 2006) (Stong). See also In re Valdez, 335 B.R. 801 (Bankr. S.D. Fla. Dec. 13, 2005) (Cristol) (Pro se debtor’s statement that she did not know that the law required a prepetition briefing is not sufficient to establish exigent circumstances when the debtor’s homestead was scheduled for foreclosure in two days.).

 

67  See § 20.4  Prepetition Request.

 

68  11 U.S.C. § 109(h)(3)(A)(iii).

 

69  See § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.