§ 20.4     Prepetition Request
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 20.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

To qualify for temporary exemption from the prepetition briefing requirement,1 § 109(h)(3)(A)(ii) mandates a certification from the debtor2 that states: “[T]he debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services referred to in paragraph (1) during the 7-day3 period beginning on the date on which the debtor made that request[.]”4 Detailed above,5 this necessary condition for temporary relief from the prepetition briefing requirement is in addition to the condition in § 109(h)(3)(A)(i) that the certification “describes exigent circumstances that merit a waiver.”6 If these two conditions are met, then the certification will warrant temporary exemption from the prepetition briefing requirement only if the certification is also “satisfactory to the court.”7

[2]

The condition in § 109(h)(3)(A)(ii) is enigmatically worded. The issues of interpretation include: What services must be requested? Who can make the request? How many requests are necessary? When must the request be made? What does it mean to be “unable” to get services? How do you count the seven-day requirement? Then there is a complicated interaction between the prepetition request requirement in § 109(h)(3)(A)(ii) and its conjunctive sibling in § 109(h)(3)(A)(i)—exigent circumstances that merit temporary waiver of the prepetition briefing requirement.8

[3]

Section 109(h)(3)(A)(ii) states that the debtor must have requested “credit counseling services” from an approved nonprofit budget and credit counseling agency (NBCCA). We know from § 111 that credit counseling services provided by an NBCCA include analysis of financial condition, analysis of factors that caused the debtor’s financial condition, counseling with respect to how a debtor can develop a plan to respond to credit problems “without incurring negative amortization of debt” and the creation and management of budgeting plans over time, including the safekeeping and payment of client funds.9 Credit counseling services are a broad menu of financial counseling activities.

[4]

In contrast, § 109(h)(1) requires for eligibility a prepetition “briefing . . . that outline[s] the opportunities for available credit counseling.”10 In other words, § 109(h)(3)(A)(ii) states as a condition for temporary exemption from the briefing requirement that the debtor must request “credit counseling services” but then be “unable to obtain” a briefing that outlines the opportunities for available credit counseling.

[5]

This is a little weird. To have a shot at temporary exemption from the prepetition briefing requirement the debtor has to request something else—credit counseling services—but then be unable to get a briefing about opportunities for the very something else the debtor already had to request. There is slim logic here: a debtor who has requested credit counseling services can be temporarily excused from a briefing that outlines opportunities for available credit counseling because the debtor, obviously, already knows where to find credit counseling services.

[6]

But § 109(h)(3)(A)(ii) requires the debtor to be unable to obtain a briefing that outlines the opportunities for available credit counseling after the debtor has requested credit counseling services from an NBCCA. It seems likely that a request to an NBCCA for a § 109(h) briefing would satisfy the requirement in § 109(h)(3)(A)(ii) that there be a request for “credit counseling services.” It is not equally clear that a more general request for credit counseling services would satisfy § 109(h)(3)(A)(ii) unless, incongruously, that request renders the debtor unable to obtain a briefing with respect to opportunities for available credit counseling.

[7]

What about the debtor who requests and receives “credit counseling services” but those services do not include an outline of opportunities for available credit counseling services? This could easily happen to an individual seeking credit counseling not in contemplation of bankruptcy or to a putative debtor who just asks for the wrong credit counseling services. This debtor has actually received credit counseling services without getting a prepetition briefing and without satisfying the condition for temporary exemption in § 109(h)(3)(A)(ii). The same Neverland could result when the putative debtor asks for a prebankruptcy briefing but the NBCCA delivers an experience that doesn’t satisfy § 109(h)(1).11

[8]

What kind of certificate will this debtor get from the NBCCA? There is a certificate specific to the § 109(h)(1) briefing that must be filed under § 521(b) in every Chapter 13 case in which a permanent waiver of the prepetition briefing requirement is not available.12 A debtor who receives “ordinary” credit counseling presumably won’t be offered a certificate that satisfies § 521(b) because the debtor has not completed a § 109(h)(1) briefing. Without the right certificate, the debtor cannot check the first box in Part 5 of Official Form 101.13 Can the debtor instead certify that a request for “credit counseling services” was made and the debtor was unable to obtain a “briefing”?

[9]

It makes no sense that a debtor requesting honest to goodness credit counseling services who does not receive a briefing of the sort contemplated by § 109(h)(1) will then neither be able to certify compliance with § 109(h)(1) nor be able to certify inability to obtain a § 109(h)(1) briefing.

[10]

What if the agency to which the request for services was made is a lapsed NBCCA or never was “approved” by the U.S. trustee?14 The test of these words in the statute was presented to the United States Court of Appeals for the District of Columbia Circuit in an odd way in Burns v. George Basilikas Trust.15 The debtor in Burns was “elderly and unsophisticated” and facing foreclosure when she consulted counsel. She apparently told her lawyer that she had attempted credit counseling “at her church and online,” but counsel did not verify that either involved an NBCCA as required by § 109(h)(3)(A)(ii).16 The attorney filed a Chapter 13 petition and checked the box for a temporary exemption from the prepetition briefing requirement which certified that the debtor had requested credit counseling “from an approved agency.”17

[11]

The standing trustee, joined by a creditor, moved to dismiss alleging failure to satisfy the prepetition briefing requirement or the conditions for temporary exemption. The debtor allowed the dismissal—having solved the pending foreclosure problem by refinancing. The creditor pressed ahead successfully to get sanctions against the debtor’s attorney under Bankruptcy Rule 9011(b) based on counsel’s failure to verify that the debtor’s prepetition effort at a briefing involved “an approved agency.”

[12]

On appeal, the D.C. Circuit reversed the sanctions award based on the proposition that requesting a prepetition briefing from a “nonaccredited agency” could satisfy § 109(h). The D.C. Circuit panel found this logic in a somewhat controversial district court decision from California, Kistler v. Meza (In re Meza):18

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—in the sense of the array of interpretations accepted by courts—was therefore mistaken, and its award of sanctions an abuse of discretion.19
[13]

Burns is good news for debtors who try but fail to comply with the many technical traps in the temporary exemption from the prepetition briefing requirement in § 109(h)(3). The statute could not be clearer that the request for a prepetition briefing must be to an “approved” agency, but Burns is one circuit saying that a request to an agency that is not an NBCCA can suffice. Would the same logic excuse the flat tire in the examples below? Or a debtor who files six days after a request? Worth a try when all you have is bad facts.

[14]

Who must make the request to the NBCCA? Section 109(h)(3)(A)(ii) contemplates a certification that “the debtor requested credit counseling services.”20 Can the debtor’s attorney or a paralegal make the call? The bankruptcy court in In re Hubbard21 addressed the question directly and concluded that an attorney’s request can satisfy the condition for temporary exemption in § 109(h)(3)(A)(ii), but not just any request:

[A]n attorney may act as a debtor’s agent and request credit counseling services on behalf of a debtor. Such a request may satisfy the requirement in 11 U.S.C. § 109(h)(3)(A)(ii) if the attorney requested the services on behalf of a particular debtor. . . . [G]eneral inquiries by an attorney concerning the availability of credit counseling . . . are insufficient.22
[15]

Hubbard suggests office procedures that customize briefing arrangements for prospective debtors. A phone call to an NBCCA that results in briefing availability delayed more than seven days satisfies the condition for temporary exemption in § 109(h)(3)(A)(ii) only for the debtor for whom that call was made. The next debtor gets a new call.

[16]

The Hubbard view implicitly recognizes that two prospective debtors requesting credit counseling services through an attorney’s office at or about the same time might or might not both be unable to obtain a prepetition briefing within seven days for purposes of § 109(h)(3)(A)(ii). The use of different NBCCAs or requests to the same NBCCA at different times could produce different circumstances. The same briefing offer from the same NBCCA will produce different outcomes with respect to the ability of different debtors to “obtain” an offered briefing.

[17]

As you chew through the troubled case law below, remember that Congress increased the time period in § 109(h)(3)(A)(ii) from five days to seven days in 2009.23 This change came in a “technical” amendments act intended to align time periods throughout the Bankruptcy Code, but it was hardly a technical amendment in this context. Some courts, discussed below, have characterized the seven-day period and its predecessor five-day period as a “waiting period” which must pass after a debtor’s request to an NBCCA before a bankruptcy petition can be filed that would be eligible for the temporary exemption from the briefing requirement in § 109(h)(3). That extra two days has snared unsuspecting debtors and their attorneys.24

[18]

Section 109(h)(3)(A)(ii) does not explicitly say so, but many courts have read the section to require that the request for credit counseling services be made before the Chapter 13 petition is filed.25 Many courts have faulted § 109(h)(3)(A)(ii) certifications that were not precise that the debtor requested credit counseling services from an NBCCA and was unable to obtain those services before filing the petition.26 Arguably, a request to an NBCCA after the petition satisfies the logic of § 109(h)(3)(A)(ii) if the NBCCA responds that a § 109(h)(1) briefing was not available for at least seven days had the request been made before the petition. But don’t count on any court’s buying that logic. The briefing in § 109(h)(1) must be received before the petition.27 It is not unreasonable that courts would read into § 109(h)(3)(A)(ii) that temporary exemption from the prepetition briefing requirement is not available if the debtor did not attempt compliance with § 109(h)(1) before filing the petition.

[19]

The relative unanimity with respect to the implied prepetition request quickly evaporates when the issue becomes whether the debtor must wait to file the petition after making an unrequited request for a briefing. If the debtor is offered a briefing in fewer than seven days, the courts have no trouble concluding that the condition for temporary exemption in § 109(h)(3)(A)(ii) is not present.28 But if the NBCCA responds that a briefing is not available for seven days or more, must the debtor wait seven days (or more) before filing the petition? Put another way, does the request to an NBCCA have to be made at least eight29 days before the petition is filed?

[20]

The statute is not clear whether the seven days during which the debtor is unable to obtain a prepetition briefing must actually pass before the petition is filed or whether it suffices that upon request an NBCCA has stated that briefing services are not available for at least seven days.

[21]

There are reported decisions supporting both views. In In re DiPinto,30 the bankruptcy court observed, perhaps in dicta, that the (then) five days need not be prepetition days:

A literal reading of the statute clearly does not require that the five days during which the debtor is unable to get counseling after having requested it be 5 days prior to the anticipated bankruptcy filing date. . . . [W]hile the Court finds merit to the argument that the requirement probably should be five prepetition days, the Court cannot conclude that the plain reading of the statute supports that result.31
[22]

Other courts require at least an attempt to obtain a briefing five days (now, seven days) before the petition. As explained in In re Afolabi:32

Arguably, § 109(h)(3)(A)(ii) is awkwardly worded, making it unclear whether a debtor is required merely to request credit counseling prior to filing for bankruptcy relief or whether such request must be made at least five days prior to filing. . . . [T]he most logical reading of the statute dictates that debtors must attempt to obtain credit counseling at least five days in advance of filing. . . . To hold otherwise would render the statute’s reference to a “5-day period” nonsensical.33
[23]

Courts finding in § 109(h)(3)(A)(ii) a mandate that the request for credit counseling services be made at least seven days before the petition impose a waiting period on all debtors that is not well anchored in the statute and raises further issues of interpretation. Imagine a prospective debtor requests services from an NBCCA and is told that an in-person briefing is not available for 10 days. How long must this debtor wait to file a Chapter 13 petition?

[24]

If the seven days in § 109(h)(3)(A)(ii) are the minimum waiting period, then this debtor can safely file bankruptcy without a briefing during the window between eight and nine days after the request. This rewards a new form of precision bankruptcy planning that probably does not exist in this universe.

[25]

If § 109(h)(3)(A)(ii) can be satisfied without physically waiting, then the petition could be filed during the nine days after the NBCCA signals that it will be ten days before the debtor can obtain a briefing. Discussed below, this analysis becomes too uncertain for the real world unless courts agree on an interpretation of the requirement that the debtor is “unable to obtain” a briefing during the seven-day period after the request.

[26]

How many requests must the debtor make to NBCCAs to satisfy § 109(h)(3)(A)(ii)? The section itself states the debtor must request credit counseling services “from an approved nonprofit budget and credit counseling agency.”34 Arguably, “an” is singular, but there is the rule of construction in § 102(7) that “the singular includes the plural.”35

[27]

The reported cases stake out inconsistent positions on this issue. Several courts, including the Bankruptcy Appellate Panel for the Eighth Circuit, have read § 109(h)(3)(A)(ii) literally to require one request to one NBCCA.36 On a different track, the bankruptcy court in In re DiPinto37 held that the debtor created an exigent circumstance that did not merit a temporary exemption by waiting until 24 hours before a sheriff’s sale and then contacting only one NBCCA. The court noted, “There are . . . 13 other approved credit counseling agencies in this District. . . . To allow the Debtor under these circumstances to fulfill his obligation by contacting but a single credit counselor would reward token effort.”38

[28]

It is not clear from DiPinto whether two or three or more requests would have been sufficient given the immediacy of the sheriff’s sale. But DiPinto suggests that facts and circumstances of individual cases may affect whether one request is enough.

[29]

Then there is In re Postlethwait,39 in which the debtor made two unsuccessful attempts to be briefed by telephone followed within an hour by a petition that was five days before a creditor’s sale. The bankruptcy court found “[u]nder the right circumstances, two unsuccessful attempts at obtaining prepetition counseling may be all that is necessary to merit a waiver of the prepetition counseling requirement.”40 Just not on these facts.

[30]

This sort of uncertainty is troubling for debtors’ attorneys. A prospective debtor who has contacted one NBCCA and cannot obtain a briefing within seven days does not know whether it is necessary to try a second or a third NBCCA absent a bright-line rule. One request to one NBCCA looks defensible under the statute and offers the simple route to certainty.

[31]

Some of the cases addressing whether one request is enough for § 109(h)(3)(A)(ii) purposes link that question to the requirement that the debtor is “unable to obtain” the prepetition briefing during the seven days after the request. It is not clear what unable to obtain a briefing means in this context. Does inability to obtain a briefing mean that the NBCCA was unable to provide a briefing? Or does it mean that the debtor was unable to attend or participate? Perhaps more importantly, is a debtor “unable” to obtain a briefing within seven days if an “exigent circumstance”41—foreclosure, for example—will occur in fewer than seven days? There are differences here that matter.

[32]

The easiest case is when the debtor requests a briefing and is told by the NBCCA that it cannot accommodate within seven days. The bankruptcy court in In re Rodriguez42 concluded that an NBCCA’s inability to provide a briefing within (then) five days satisfies § 109(h)(3)(A)(ii).43 But it has been held that inability to pay the $50 fee requested by an NBCCA does not render the debtor unable to obtain briefing services when the debtors could have budgeted to pay the fee or requested free briefing services.44 When an incarcerated debtor presented no evidence that arrangements could not be made to obtain credit counseling services by telephone, the debtor could not satisfy § 109(h)(3)(A)(ii).45 That illness and work demands prevented the debtor from completing a prepetition briefing did not demonstrate that a briefing was unavailable during the seven days before the petition.46

[33]

Suppose the debtor requests credit counseling services and the NBCCA responds that the first available in-person appointment is in 10 days but an Internet briefing is available immediately. On similar facts, the bankruptcy court in Dixon v. LaBarge (In re Dixon)47 implicitly determined the debtor was unable to obtain a briefing when the debtor certified that he did not have a computer and had no access to the Internet.48 In contrast, in In re England,49 the bankruptcy court found a certification stating that the debtor could not complete a briefing on the day requested because of lack of Internet access does not satisfy the condition that a briefing be unavailable for seven days. What if the NBCCA offers an in-person briefing within seven days, but the debtor comes down with the flu and cannot attend for a week? Does “fault” figure into whether the debtor is unable to obtain an offered briefing?

[34]

The bankruptcy court in In re Graham50 suggested a fact-intensive rule of reasonableness to assess whether a debtor is unable to obtain briefing services:

[T]he Court finds no express requirement in § 109(h) that a debtor exhaust all credit counseling options or that a debtor absolutely accept any offer of counseling, no matter how inconvenient or onerous. Rather, the Court believes that whether credit counseling can be “obtained” by a debtor within the requisite time period should be judged by what a debtor can reasonably accomplish in light of his or her particular, and likely exigent, circumstances. Conversely, whether credit counseling can be “obtained” should not be determined simply by looking at what a credit counseling agency offers a debtor. . . . [A] motion seeking an extension under § 109(h) must contain a statement describing the debtor’s efforts to contact one of the approved credit counseling agencies and the facts and circumstances that rendered the debtor unable reasonably to accept or complete the credit counseling offered within the requisite five-day period.51
[35]

The case-specific calculus in Graham produces uncertain outcomes for debtors and their attorneys who must decide in advance whether the debtor is “enough” unable to obtain a briefing. Imagine the debtor accepts an offer from an NBCCA for an in-person briefing in eight days but a flat tire prevents the debtor from keeping that appointment. Must the debtor make a new request, or is § 109(h)(3)(A)(ii) satisfied by the original request that could not have been fulfilled within seven days? What if the NBCCA offered an in-person briefing four days after the request but a flat tire prevented the debtor from keeping that appointment? If the debtor makes no further request and seven days pass, it looks like the debtor was unable to obtain a briefing for seven days after the request, but only by hindsight. If the debtor asks and no new appointment is available until day eight, is the seven-day condition satisfied, or has the clock started over with the second request? Once a debtor has been told by an NBCCA that no briefing is available for at least seven days, does the debtor make a second (third?) request only at risk of forfeiting temporary exemption from the prepetition briefing requirement?

[36]

The seven-day inability to obtain a briefing requirement creates wicked synergies with the other conditions for temporary exemption from the prepetition briefing requirement—that exigent circumstances merit a waiver52 and a certification satisfactory to the court. Suppose a foreclosure sale is scheduled in 10 days and the debtor requests an in-person briefing from an NBCCA whose first available session is eight days after the request. If the debtor files Chapter 13 on the day of the request and certifies the foreclosure sale as an exigent circumstance, there is technical compliance with § 109(h)(3)(A)(ii). But in some courts, the debtor will be hard pressed to win the argument that one request was sufficient, or that a foreclosure in 10 days is “exigent” when a briefing is available in eight. The cases suggest that some courts would obligate the debtor to risk forfeiting the seven-day condition by questing further for a briefing.

[37]

When the debtor waits until fewer than seven days before a foreclosure sale to request credit counseling services, some courts find a “self-created emergency” that drains the exigent circumstance of merit.53 But if the debtor asks for a briefing 20 days before foreclosure and is told a briefing is available in 10 days, the debtor must risk waiting until day 10 to thread the needle between too far before foreclosure to be “exigent” and too close to the foreclosure to merit a waiver. What is the rule here?

[38]

There are too many uncertainties in § 109(h)(3) with respect to the temporary exemption from the prepetition briefing requirement. This is an eligibility issue, too fundamental to Chapter 13 practice to be so convoluted. The first decade of case law demonstrates that debtors cannot be certain how many days before a filing they must request credit counseling services to safely know whether they will obtain a briefing or be unable to obtain a briefing for a long enough time and under just the right circumstances to merit a temporary exemption from the prepetition briefing requirement. We don’t know how to count the (now) seven days in § 109(h)(3)(A)(ii), so a debtor waits (or doesn’t) with uncertain risk after a request to an NBCCA produces delay. Both waiting too long and not waiting long enough have risks in this context. Eligibility for bankruptcy relief should not be a guessing game.


 

1  See 11 U.S.C. § 109(h)(3)(A), discussed in § 20.1  In General.

 

2  See § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances for discussion of the form and content of the certification.

 

3  Prior to December 1, 2009, this time period was “5-day[s].” See Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, 123 Stat. 1607 (May 7, 2009).

 

4  11 U.S.C. § 109(h)(3)(A)(ii).

 

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

 

6  11 U.S.C. § 109(h)(3)(A)(i), discussed in § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?.

 

7  11 U.S.C. § 109(h)(3)(A)(iii).

 

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

 

9  11 U.S.C. § 111(c)(1) & (2).

 

10  See 11 U.S.C. § 109(h)(1), discussed in § 19.1  What is a Briefing?.

 

11  See § 19.1  What is a Briefing?.

 

12  The § 521(b) certificate is discussed in § 18.1  In General, § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b) and § 36.25  Briefing Requirement and Certificate. Permanent waiver of the § 109(h)(1) briefing requirement is discussed in § 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.

 

13  See § 18.1  In General and § 36.25  Briefing Requirement and Certificate.

 

14  See § 19.1  What is a Briefing? and § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b) for further discussion of NBCCAs.

 

15  599 F.3d 673 (D.C. Cir. Mar. 26, 2010) (Rogers, Tatel, Williams).

 

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

 

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

 

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

 

19  Burns v. George Basilikas Trust, 599 F.3d at 678.

 

20  11 U.S.C. § 109(h)(3)(A)(ii).

 

21  333 B.R. 377 (Bankr. S.D. Tex. Nov. 16, 2005) (Isgur).

 

22  In re Hubbard, 333 B.R. at 385–87.

 

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

 

24  See, e.g., In re Williams, No. 10-00621, 2010 WL 2635077, at *1 & n.2 (Bankr. D.D.C. June 26, 2010) (unpublished) (Teel) (Debtor who requested a prepetition briefing on April 2, filed Chapter 13 on April 5 and received a briefing on April 7 cannot satisfy seven-day provision in § 109(h)(3)(A)(ii). “In her motion, the debtor concedes that she requested counseling on April 2, 2010, and was able to complete that counseling on April 7, 2010, five days later. The debtor having completed the counseling within five days of making the request, she cannot also certify that she was unable to obtain the necessary services within seven days of making the request.” In a note: “the debtor filed Exhibit D using an outdated form that failed to account for the fact that, effective December 1, 2009, 11 U.S.C. § 109(h)(3)(A)(ii) was amended by the [S]tatutory Time-Periods Technical Amendments Act of 2009, Pub.L. 111-16, changing the 5-day period during which the debtor must have been unable to obtain the necessary services to a 7-day period.”).

 

25  See, e.g., Taal v. Sumski (In re Taal), 504 B.R. 682, 686 (B.A.P. 1st Cir. Jan. 30, 2014) (Hillman, Boroff, Godoy) (Assuming lack of funds to pay for briefing could be exigent circumstance, failure to allege request and inability to obtain briefing for seven days is fatal to § 109(h)(3) temporary exemption. “[A]ssuming (without deciding) that an inability to afford the cost of credit counseling could constitute an ‘exigent circumstance’ under § 109(h)(3)(A)(i), the Debtor nowhere indicated that he had requested, and been unable to receive, credit counseling services within 7 days of his request. Accordingly, the bankruptcy court did not abuse its discretion when it rejected the Debtor’s claim of entitlement to the exigent circumstances exemption under § 109(h)(3).”); Duncan v. LaBarge (In re Duncan), 418 B.R. 278 (B.A.P. 8th Cir. Nov. 5, 2009) (Kressel, Federman, Venters) (Dismissal for lack of eligibility was appropriate when debtors did not file Exhibit D certificate and there was no evidence that debtors requested counseling before they filed and were unable to obtain it for five days.); In re Prater, 445 B.R. 424 (E.D. Pa. July 13, 2010) (Coleman) (Pro se debtor’s failure to make prepetition request for credit counseling is fatal to waiver application; untruthful Exhibit D to Official Form 1 is not excused by debtor’s ignorance of § 109(h)(3) requirements.); In re Wise, No. 15-60934, 2015 WL 3424733, at *1 (Bankr. N.D. Ohio May 27, 2015) (unpublished) (Kendig) (Ninety-three-year-old debtor’s failure to allege a prepetition attempt to satisfy § 109(h) briefing requirement is fatal to request for temporary exemption. “[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 [the next day]. . . . [T]his case completely fails to demonstrate compliance with § 109(h)(3)(A)(ii). The Bankruptcy Code requires a debtor to make an attempt to obtain the counseling and Debtor references no such attempt.”); In re Koo, No. 12-00121, 2012 WL 692578 (Bankr. D.D.C. Mar. 2, 2012) (Teel) (Failure to allege inability to obtain briefing within seven days of request is fatal to any waiver under § 109(h)(3)(A).); In re Holsinger, 465 B.R. 775, 777 (Bankr. W.D. Va. Feb. 27, 2012) (Krumm) (“No matter the circumstances, the Debtor must have made an effort to seek credit counseling[.]”); In re Coley, No. 09-31249-DHW, 2009 WL 2030435 (Bankr. M.D. Ala. July 6, 2009) (unpublished) (Williams) (Failure to make prepetition request for briefing is fatal to eligibility and cannot be cured by postpetition request that court find exigent circumstances; bankruptcy court is without discretion to waive requirement that debtor requested counseling but was unable to obtain the services during the five-day period following the request.); In re Wright, 412 B.R. 767, 769 (Bankr. E.D. Va. Oct. 10, 2008) (Mitchell) (When certification states debtor did not know about prepetition briefing requirement, there was no request for a briefing before the petition and there is no discretion to grant deferment “no matter how compelling the circumstances”; case must be dismissed.); In re Sherry, No. 08-62658, 2008 WL 3876595 (Bankr. N.D. Ohio Aug. 20, 2008) (unpublished) (Kendig) (Failure to reference attempts to obtain prepetition briefing is fatal to request for temporary exemption.); In re Mahjor, No. 08-13958-SSM, 2008 WL 2775708, at *2 (Bankr. E.D. Va. July 14, 2008) (unpublished) (Mitchell) (“[I]n the absence of a request for counseling services and the inability to receive it within five days of the request, the court cannot grant a deferment no matter how compelling the circumstances and has no choice but to dismiss the case.”); In re Bain, No. 08-13395-SSM, 2008 WL 2570831 (Bankr. E.D. Va. June 23, 2008) (unpublished) (Mitchell) (Failure to allege that debtor requested briefing before petition and was unable to obtain briefing within five days is fatal to extension of time to obtain briefing under § 109(h).); In re Rios, No. 07-66047-PWB, 2007 WL 7136473 (Bankr. N.D. Ga. Nov. 5, 2007) (unpublished) (Bonapfel) (Failure to request prepetition briefing before filing petition is fatal to any exigent circumstances argument under § 109(h); however, trustee’s failure to prosecute motion to dismiss on eligibility grounds for five months waived the (nonjurisdictional) defect.); In re Falcone, 370 B.R. 462 (Bankr. D. Mass. May 31, 2007) (Hillman) (Whether court applies strict standard or exercises discretion, § 109(h)(1) is not satisfied when debtor did not request credit counseling before petition was filed.); In re Mancilla, No. 6:07-bk-00941-ABB, 2007 WL 4348081 (Bankr. M.D. Fla. Apr. 12, 2007) (unpublished) (Briskman) (Because debtors did not attempt to obtain a briefing prepetition, they cannot meet requirements for temporary exemption under § 109(h)(3)(A).); In re Swiatkowski, 356 B.R. 581, 584 (Bankr. E.D.N.Y. Nov. 16, 2006) (Cyganowski) (“Debtor did not file a request to obtain a temporary exemption until January 17, 2006—well over two months after having filed the petition. Moreover, the request simply stated that the Debtor had not previously taken the credit counseling because the course was not scheduled to take place until January 23, 2006. This date is obviously not within the ‘5-day’ period preceding the filing of the petition on November 4, 2005. . . . Nor is there any statement that the Debtor had even requested credit counseling prior to filing the petition.”); In re Carr, 344 B.R. 776 (Bankr. N.D. W. Va. June 9, 2006) (Flatley) (Debtor who did not request a briefing before filing petition is not eligible for exemption in § 109(h)(3)(A).); In re Wilson, 346 B.R. 59 (Bankr. N.D.N.Y. June 5, 2006) (Gerling) (Debtors cannot show compliance with five-day requirement in § 362(c)(3)(A)(ii) because debtors made no effort to request credit counseling before petition. Court rejects suggestion in In re DiPinto, 336 B.R. 693 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich), that five-day requirement in § 362(c)(3)(A)(ii) can be satisfied by a postpetition request.); In re Latovljevic, 343 B.R. 817 (Bankr. N.D. W. Va. May 9, 2006) (Flatley) (Incarcerated debtor made no request for a § 109(h) briefing before filing sixth Chapter 13 petition and is not eligible for extension of time in § 109(h)(3)(A)(ii); debtor presented no evidence that he was incapacitated, and prison counselor indicated that telephone time could be allotted to allow an inmate to obtain credit counseling services.); In re Tomco, 339 B.R. 145, 153–56 (Bankr. W.D. Pa. Feb. 27, 2006) (Deller) (“The plain language of the statute provides that any debtor seeking to fall within the exigent circumstances safe harbor must also certify to the court that (1) the debtor (prior to the commencement of the bankruptcy case) requested credit counseling services from an approved nonprofit budget and credit counseling agency, and (2) the debtor was unable to obtain the services of such an agency during the 5-day period beginning on the date upon which the debtor made the request.”); In re Rodriguez, 336 B.R. 462 (Bankr. D. Idaho Dec. 9, 2005) (Myers) (The request for a briefing must be made before the filing of the petition and the agency must advise that it cannot accommodate the request within five days.); In re Booth, No. 05-45002-LMK, 2005 WL 3434776 (Bankr. N.D. Fla. Oct. 19, 2005) (unpublished) (Killian) (Failure to request credit counseling before the petition is fatal to motion for exemption.); In re Curington, No. 05-38188, 2005 WL 3752229 (Bankr. E.D. Tenn. Dec. 7, 2005) (unpublished) (Stair) (Certification did not comply with § 109(h)(3)(A), due to failure to state that debtors attempted to obtain credit counseling but agency could not provide services within five days.); In re Davenport, 335 B.R. 218, 220–21 (Bankr. M.D. Fla. Dec. 6, 2005) (May) (Failure to make a prepetition request for a briefing is preclusive of exigent circumstances exemption. “The debtor acknowledges . . . that she did not request credit counseling before filing. . . . [T]o become a ‘debtor,’ an individual must establish that a request was made for credit counseling before the petition was filed.”); In re Cleaver, 333 B.R. 430 (Bankr. S.D. Ohio Nov. 17, 2005) (Walter) (Motion for waiver of briefing fails because it does not mention any prepetition request for a briefing.); In re Gee, 332 B.R. 602 (Bankr. W.D. Mo. Oct. 26, 2005) (Dow) (Motion to vacate order rejecting certification of exigent circumstances is denied because neither original certification nor motion to vacate indicates that debtor requested credit counseling services prepetition and was unable to obtain them during the five-day period after the request. Debtor’s failure to request credit counseling services before filing a petition precludes relief under § 109(h)(3)(A)(ii).).

 

26  See, e.g., In re Dansby, 340 B.R. 564, 565, 567 (Bankr. D.S.C. Feb. 10, 2006) (Waites) (Certification that debtor “requested but could not obtain Counseling in the five (5) days prior to filing” is not sufficient for a temporary exemption under § 109(h)(3)(B) because debtor did not certify that he requested counseling at least five days before the petition. Debtor consulted counsel on December 14 and missed a first appointment with a credit counselor on December 18. Debtor missed a second appointment on December 20—apparently due to a lack of funds to pay the counselor’s charge. Petition was filed on December 31 with the certification quoted above. “A debtor seeking a temporary waiver of prepetition credit counseling must specifically show that the debtor requested counseling but was unable to obtain it within the five-day period following the debtor’s request.”); In re Burrell, 339 B.R. 664, 666–67 (Bankr. W.D. Mich. Mar. 23, 2006) (Stevenson) (“[A]lthough vague, the Debtor states that she made a pre-petition request for credit counseling services from approved agencies . . . . But the Debtor fails to state that she was unable to obtain the services during the 5-day period beginning on the date on which the debtor made the request. The Debtor only attested that she was unable to get credit counseling ‘prior to the filing of the petition to stop the pending foreclosure.’ . . . This is not enough to meet the requirement for the exemption.”); In re Booth, No. 05-45002-LMK, 2005 WL 3434776, at *1 (Bankr. N.D. Fla. Oct. 19, 2005) (unpublished) (Killian) (Statement 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 Gee, 332 B.R. 602 (Bankr. W.D. Mo. Oct. 26, 2005) (Dow) (Neither certification nor motion to vacate order rejecting certification indicates that debtor requested credit counseling services prepetition and was unable to obtain them during the five-day period after the request.); In re Hubbard, 332 B.R. 285, 289 (Bankr. S.D. Tex. Oct. 31, 2005) (Isgur) (Motion to extend time under § 109(h)(3) fails because it does not state a request for credit counseling before the petition. The debtor’s motion alleged that she attempted to obtain credit counseling but was unable to get “signed up” because credit counseling agencies were “swamped the week before and after the law change.” “The debtor must . . . demonstrate that the debtor requested credit counseling services, but was unable to obtain the services during the five day period beginning on the date on which the debtor made the request. The motion makes no such allegation.”).

 

27  See 11 U.S.C. § 109(h)(1), discussed in § 19.2  Timing of Briefing.

 

28  See, e.g., In re Otero, No. 09-71420 TG, 2010 WL 580033, at *2 (Bankr. N.D. Cal. Feb. 12, 2010) (Tchaikovsky) (Contacting counseling agency 45 minutes before foreclosure sale did not satisfy prepetition request requirement in § 109(h)(3) when debtor was advised that Internet counseling would take 45 minutes but debtor did not have access to the Internet. “The credit counseling agency contacted by the Debtor was willing and able to provide counseling within five days. Thus, the Debtor is unable to satisfy the second prong of § 109(h)(3).”); In re Talib, 335 B.R. 417, 423 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow) (Request for a briefing one day before foreclosure does not merit a waiver when NBCCA offered a briefing within two days. “[T]he Debtor . . . sought credit counseling services for the first time only the day prior to the scheduled foreclosure sale. The Debtor was told that she could obtain credit counseling within two days from the date of her request, well within the five-day window established by the statute. Accordingly, her Certification fails to comply with the objective requirement for a waiver contained in § 109(h)(3)(A)(ii).”). See also In re Wallert, 332 B.R. 884, 889 (Bankr. D. Minn. Nov. 17, 2005) (Kishel) (Court notes hypothetically, “where . . . a debtor could not obtain the briefing and counseling service until, say, four days from today—one day too late to interpose the automatic stay in bankruptcy against the foreclosure sale, but nonetheless one day short of the five-day turnaround period contemplated by § 109(h)(3)(A)(ii) . . . the debtor would not qualify for the temporary exemption.”).

 

29  See In re Wallert, 332 B.R. 884, 890 (Bankr. D. Minn. Nov. 17, 2005) (Kishel) (“[The statute in] application admittedly falls heavily on the debtor who acts less proactively, but what does that say? Only that a sand-stuck posture, star-gazing for fear of confronting the basilisk, or any other sort of avoidance behavior—the failure to think proactively and to consult attorney and credit counselor with at least a six-day horizon—will likely deprive such debtors of eligibility to muster bankruptcy remedies against the very creditor action that so threatens them.”).

 

30  336 B.R. 693 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich).

 

31  In re DiPinto, 336 B.R. at 699–700. See also In re Giambrone, 365 B.R. 386, 391 (Bankr. W.D.N.Y. Mar. 29, 2007) (Bucki) (“I reject an interpretation of section 109(h)(3)(A)(ii) that would compel debtors to delay a bankruptcy filing for up to five days . . . .”); In re Henderson, 364 B.R. 906, 911–12 (Bankr. N.D. Tex. Mar. 27, 2007) (Jernigan) (“Substantial compliance” with § 109(h)(3)(A) consisted of attempts to receive an Internet counseling session from one NBCCA over three- or four-day period before petition. Chapter 13 case was filed on February 5, 2007, by counsel under mistaken belief that debtors obtained credit counseling over weekend. Foreclosure was scheduled for February 6. “[W]hat is arguably ambiguous is the ‘5-day rule’ in Section 109(h)(3)(A). Does it mean that the debtor must have diligently attempted credit counseling for a full 5 days unsuccessfully before ‘pulling the trigger’ and filing bankruptcy? Or could it be enough that the debtor simply requested/attempted the credit counseling prepetition but was nevertheless unable to get it at a point during the course of or in the 5-day period following his first request? . . . If the correct interpretation of Section 109(h)(3)(A) is that a debtor may qualify for a temporary waiver if the debtor has requested/attempted credit counseling prepetition but was unable to get it at a point during the course of or in the 5-day period following the first request, then [debtors] fit within the statute—as they requested/attempted credit counseling on February 3, 2007 and could not get it at a point during the course of February 3 through 7, 2007.”).

 

32  343 B.R. 195 (Bankr. S.D. Ind. June 2, 2006) (Coachys).

 

33  In re Afolabi, 343 B.R. at 199. See also In re Otero, No. 09-71420 TG, 2010 WL 580033, at *2 (Bankr. N.D. Cal. Feb. 12, 2010) (Tchaikovsky) (Disagreeing with In re Romero, 349 B.R. 616 (Bankr. N.D. Cal. Sept. 8, 2006) (Carlson), contacting counseling agency 45 minutes before foreclosure sale did not satisfy prepetition request requirement in § 109(h)(3) when debtor was advised that Internet counseling would take 45 minutes but debtor did not have access to the Internet. “[U]nder the approach taken by the Romero court, the Debtor would be entitled to a temporary waiver of the pre-petition credit counseling requirement if the credit counseling agency had stated that it could not provide counseling within five days even though the request was made only 45 [minutes] before the petition was filed. The Court reads § 109(h)(3) somewhat differently than the Romero court. The Court reads the statute to require the request to be made at least five days before the bankruptcy filing. However, even under the Romero reading of the statute, the Debtor would not qualify for a temporary waiver. The credit counseling agency contacted by the Debtor was willing and able to provide counseling within five days. Thus, the Debtor is unable to satisfy the second prong of § 109(h)(3).”); In re Mason, 412 B.R. 1, 6–8 (Bankr. D.D.C. Aug. 6, 2009) (Teel) (Rejecting In re Giambrone, 365 B.R. 386 (Bankr. W.D.N.Y. Mar. 29, 2007) (Bucki), debtor is not eligible when petition is filed within five days after request for briefing if briefing was available within five days notwithstanding that debtor filed to stop foreclosure. “The requirement of § 109(h)(3)(A)(ii) that the debtor be unable to obtain credit counseling during the specified five-day period and the exigency requirement of § 109(h)(3)(A)(i) are separate and independent requirements. . . . [T]he existence of an exigency does not relieve a debtor from the requirement of showing that he was unable to obtain the required briefing for the specified five-day period. . . . Congress, it may be inferred, expected some modicum of diligence on the part of individual debtors, and contemplated that even in exigent circumstances, an individual ought not file a bankruptcy case without first obtaining the services referred to in § 109(h)(1) if the required briefing was available within the five-day period commencing on the date of requesting credit counseling. . . . [T]he five-day period specified in § 109(h)(3)(A)(ii) does not become less than a five-day period when the debtor files, based on exigent circumstances, before the end of the five-day period. . . . Section 109(h)(3)(A)(ii) imposes a clear requirement of five days of unavailability of the briefing specified by § 109(h)(1), and the requirement does not vary depending on when exigent circumstances cause a debtor to file his petition.”); In re Givhan, No. 06-40389-DRD, 2006 WL 4451481 (Bankr. W.D. Mo. Mar. 23, 2006) (unpublished) (Dow) (Certification that debtor requested counseling services three hours before scheduled foreclosure sale does not satisfy § 109(h)(3)(A)(ii).); In re Dansby, 340 B.R. 564, 565, 568–69 (Bankr. D.S.C. Feb. 10, 2006) (Waites) (“[T]he request must be made at least five days before the petition date, absent extraordinary circumstances satisfactory to this Court. . . . [T]his Debtor would not be eligible for a waiver because either credit counseling was available within five days of his request or . . . Debtor did not demonstrate that he made the request at least five days before the petition date and that the credit counseling agency was unable to provide counseling within five days from the date of the request.”); In re Wallert, 332 B.R. 884 (Bankr. D. Minn. Nov. 17, 2005) (Kishel) (Failure to certify request for briefing at least five days before petition is fatal to exigent circumstances exemption.).

 

34  11 U.S.C. § 109(h)(3)(A)(ii).

 

35  11 U.S.C. § 102(7).

 

36  Dixon v. LaBarge (In re Dixon), 338 B.R. 383, 387 (B.A.P. 8th Cir. Feb. 17, 2006) (Kressel, Federman, Mahoney) (“Subdivision (3)(A)(ii) requires that the certification state that the debtor requested credit counseling services from one agency, but was unable to receive it within five days.”); In re Graham, 336 B.R. 292, 297 (Bankr. W.D. Ky. Dec. 21, 2005) (Fulton) (“[T]he Court finds no express requirement in § 109(h) that a debtor exhaust all credit counseling options . . . . [A] motion seeking an extension under § 109(h) must contain a statement describing the debtor’s efforts to contact one of the approved credit counseling agencies.”); In re Hubbard, 333 B.R. 377, 387 (Bankr. S.D. Tex. Nov. 16, 2005) (Isgur) (“[Section] 109(h)(3)(A)(ii) only requires a prospective debtor to contact a single agency before filing a certification under § 109(h)(3).”).

 

37  336 B.R. 693 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich).

 

38  In re DiPinto, 336 B.R. at 698–99.

 

39  353 B.R. 428 (Bankr. W.D. Pa. Sept. 12, 2006) (Agresti).

 

40  In re Postlethwait, 353 B.R. at 428.

 

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

 

42  336 B.R. 462 (Bankr. D. Idaho Dec. 9, 2005) (Myers).

 

43  See also In re Holsinger, 465 B.R. 775, 777–78 (Bankr. W.D. Va. Feb. 27, 2012) (Krumm) (Although foreclosure may be an exigent circumstance, failure to allege or prove that counseling agency could not provide services within seven days of request is fatal to § 109(h)(3)(A) request. “No matter the circumstances, the Debtor must have made an effort to seek credit counseling, and may only obtain relief if the credit agency could not provide counseling within seven days of her request. . . . Debtor has provided no evidence that the credit agency was unable to provide credit counseling within seven days of her request, as required by § 109(h)(3).”); In re Bain, No. 08-13395-SSM, 2008 WL 2570831, at *2 (Bankr. E.D. Va. June 23, 2008) (unpublished) (Mitchell) (“[A] debtor who waits until the last minute to seek counseling will not be exempt unless the agency is so backed up that it cannot provide the counseling within five days of the request. In the absence of a request for counseling services and the inability to receive it within five days of the request, the court cannot grant a deferment no matter how compelling the circumstances might otherwise be[.]”).

 

44  See In re Toccaline, No. 06-20218, 2006 WL 2081517 (Bankr. D. Conn. July 17, 2006) (unpublished) (Krechevsky) (“The amended certificate and the attached letter from the credit counseling agency indicate that the required credit briefing was available to the petitioners on the petition date prior to filing, but that the petitioners did not receive it because they ‘were unable to pay the $50.00 fee.’ Thus, the petitioners do not satisfy § 109(h)(3)(A)(ii).”).

 

45  See In re Latovljevic, 343 B.R. 817 (Bankr. N.D. W. Va. May 9, 2006) (Flatley).

 

46  In re King, No. 15-00511, 2015 WL 7251816, at *1–*2 (Bankr. D.D.C. Nov. 13, 2015) (unpublished) (Teel) (“[T]o comply with § 109(h)(3)(A)(ii), a debtor must present evidence that the credit agency was unable to provide credit counseling within seven days of her request. . . . The debtor in her opposition to the motion to dismiss stated: ‘ . . . Debtor was unable to complete the course initially, due to illness and a heavy work schedule. . . . ’ This does not establish that the credit counseling agency was unable to provide credit counseling services to the debtor during the seven days from the time she made her request, and instead demonstrates that she elected not to proceed with obtaining services due to illness and work demands. . . . The debtor’s certification is thus unsatisfactory to the court.”).

 

47  338 B.R. 383 (B.A.P. 8th Cir. Feb. 17, 2006) (Kressel, Federman, Mahoney).

 

48  In re Dixon, 338 B.R. at 388.

 

49  No. 8:13-bk-05850-MGW, 2013 WL 2467789 (Bankr. M.D. Fla. June 10, 2013) (Williamson).

 

50  336 B.R. 292 (Bankr. W.D. Ky. Dec. 21, 2005) (Fulton).

 

51  In re Graham, 336 B.R. at 297. Accord In re Stanley, No. 12-78056-MGD, 2012 WL 7009638, at *1 (Bankr. N.D. Ga. Nov. 9, 2012) (Diehl) (Debtors satisfied § 109(h)(3)(A) criteria for waiver of the prepetition briefing requirement when they requested credit counseling but were unable to complete the briefing before filing the petition to stop foreclosure. “Debtors were unable to complete the briefing in advance of filing their chapter 13 petition because they needed to file immediately to stay a foreclosure . . . . ‘[T]he exigent services [sic] waiver would be rendered almost meaningless if this court were to deny bankruptcy relief in circumstances where the exigent event arises within five days of the first request for credit counseling services.’ . . . By its very nature, there would likely be no exigency if such circumstances provided a debtor a 7-day cushion before bankruptcy protection was needed.”); In re Wilcher, No. 06-20513, 2008 WL 7390620 (Bankr. S.D. Ga. Aug. 15, 2008) (unpublished) (Dalis) (Thirty-day exemption from § 109(h) prepetition briefing requirement was justified two years after Chapter 13 petition and one year after conversion to Chapter 7 when affidavit indicated debtors requested briefing on day of petition and were unable to receive briefing until one day after petition but were forced to file by pending home foreclosure and car repossession; court grants exemption “nunc pro tunc” to the date of the petition to render the debtors eligible for discharge in the Chapter 7 case.); In re Giambrone, 365 B.R. 386, 391 (Bankr. W.D.N.Y. Mar. 29, 2007) (Bucki) (When exigent circumstance will occur in less than five days after request for credit counseling, debtor can file petition and satisfy credit counseling requirement after petition. “When exigent circumstances require bankruptcy protection in fewer than five days, the window for completion of counseling must collapse into the amount of time that is available. The test is not whether the agency can provide a counseling session within five days, but whether in the context of their circumstances, the debtors can complete within five days the counseling that must otherwise occur prior to that exigent moment when a bankruptcy filing is necessary. . . . I reject an interpretation of section 109(h)(3)(A)(ii) that would compel debtors to delay a bankruptcy filing for up to five days . . . . When an exigent event will occur within five days, any counseling after a consequential filing is necessarily post-bankruptcy and will not invoke the temporal limitations of section 109(h)(3)(A)(ii). . . . Where two debtors are unable to secure counseling prior to identical exigencies, no further reason exists to distinguish between those who can obtain postpetition counseling within five days of their initial request and those whose access to such services is delayed. . . . [E]xigent circumstances involve an urgent need for immediate action or aid. But circumstances would not be exigent if the debtor could defer bankruptcy for an additional five days. Thus, section 109(h)(3)(A) would be rendered almost meaningless if this court were to deny bankruptcy relief in circumstances where the exigent event arises within five days of the first request for credit counseling services.”).

 

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

 

53  See § 20.3  Which Circumstances Are Exigent and Which Exigent Circumstances Merit a Waiver?. See, e.g., In re Mason, 412 B.R. 1, 6–8 (Bankr. D.D.C. Aug. 6, 2009) (Teel) (Rejecting In re Giambrone, 365 B.R. 386 (Bankr. W.D.N.Y. Mar. 29, 2007) (Bucki), debtor is not eligible when petition is filed within five days after request for briefing if briefing was available within five days notwithstanding that debtor filed to stop foreclosure. “The requirement of § 109(h)(3)(A)(ii) that the debtor be unable to obtain credit counseling during the specified five-day period and the exigency requirement of § 109(h)(3)(A)(i) are separate and independent requirements. . . . [T]he existence of an exigency does not relieve a debtor from the requirement of showing that he was unable to obtain the required briefing for the specified five-day period. . . . Congress, it may be inferred, expected some modicum of diligence on the part of individual debtors, and contemplated that even in exigent circumstances, an individual ought not file a bankruptcy case without first obtaining the services referred to in § 109(h)(1) if the required briefing was available within the five-day period commencing on the date of requesting credit counseling. . . . [T]he five-day period specified in § 109(h)(3)(A)(ii) does not become less than a five-day period when the debtor files, based on exigent circumstances, before the end of the five-day period. . . . Section 109(h)(3)(A)(ii) imposes a clear requirement of five days of unavailability of the briefing specified by § 109(h)(1), and the requirement does not vary depending on when exigent circumstances cause a debtor to file his petition.”); In re Dipinto, 336 B.R. 693 (Bankr. E.D. Pa. Jan. 30, 2006) (Raslavich) (Debtor created an exigent circumstance that did not merit a waiver by waiting until 24 hours before sheriff’s sale and then contacting only one NBCCA.); In re Talib, 335 B.R. 417, 423 (Bankr. W.D. Mo. Dec. 1, 2005) (Dow) (Request for a briefing one day before foreclosure does not merit a waiver when NBCCA offered a briefing within two days. “[T]he Debtor . . . sought credit counseling services for the first time only the day prior to the scheduled foreclosure sale. The Debtor was told that she could obtain credit counseling within two days from the date of her request, well within the five-day window established by the statute. Accordingly, her Certification fails to comply with the objective requirement for a waiver contained in § 109(h)(3)(A)(ii).”); In re Wallert, 332 B.R. 884, 887–90 (Bankr. D. Minn. Nov. 17, 2005) (Kishel) (Failure to certify request for briefing at least five days before petition is fatal to exigent circumstances exemption. “Debtor has not established that she was unable to obtain the pre-petition briefing and counseling services ‘during the 5-day period’ . . . . [T]he Debtor had to attest to being unable to get her briefing and counseling services for at least five days after she requested them from an agency. The Debtor only attested to not being able to get them immediately, ‘on such short notice’ as she was affording in the mid-afternoon of November 2 in light of the sheriff’s sale set for the next day. This is not enough to meet the requirement for the exemption. . . . Congress’s goal seems to be to discourage the practice of hastily filing for bankruptcy, even if that be in the face of foreclosure, repossession or garnishment, and to discourage debtors from deferring their first consideration of bankruptcy until the very eve of such decisive events in the exercise of creditors’ remedies. . . . [W]here . . . a debtor could not obtain the briefing and counseling service until, say, four days from today—one day too late to interpose the automatic stay in bankruptcy against the foreclosure sale, but nonetheless one day short of the five-day turnaround period contemplated by § 109(h)(3)(A)(ii) . . . the debtor would not qualify for the temporary exemption . . . . [The statute in] application admittedly falls heavily on the debtor who acts less proactively, but what does that say? Only that a sand-stuck posture, star-gazing for fear of confronting the basilisk, or any other sort of avoidance behavior—the failure to think proactively and to consult attorney and credit counselor with at least a six-day horizon—will likely deprive such debtors of eligibility to muster bankruptcy remedies against the very creditor action that so threatens them.”).