§ 36.25     Briefing Requirement and Certificate
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 36.25, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Detailed above,1 § 109(h), as amended by BAPCPA, imposes a new eligibility requirement on individuals seeking Chapter 13 relief: during the 180 days preceding the date of the petition,2 the debtor must receive from an approved nonprofit budget and credit counseling agency (NBCCA) a “briefing” that “outlined the opportunities for available credit counseling and assisted . . . in performing a related budget analysis.”3 This new eligibility requirement does not apply in three circumstances: (1) when the U.S. trustee has determined that approved NBCCA services in a district are not reasonably able to provide adequate briefing services;4 (2) when the debtor submits a certification of exigent circumstances that merits a waiver of the briefing requirement;5 and (3) when the court determines that the debtor is unable to complete the briefing requirement because of incapacity, disability or active military duty in a military combat zone.6

[2]

To implement this new eligibility requirement, § 521(b) provides:

(b) In addition to the requirements under [§ 521(a)], a debtor who is an individual shall file with the court—
(1) a certificate from the approved nonprofit budget and credit counseling agency that provided the debtor services under section 109(h) describing the services provided to the debtor; and
(2) a copy of the debt repayment plan, if any, developed under section 109(h) through the approved nonprofit budget and credit counseling agency referred to in paragraph (1).7
[3]

Section 521 is titled “Debtor’s Duties,” and the duty to file the certificate in § 521(b)(1) appears mandatory for every Chapter 13 debtor. Oddly, § 521(b) seems not to acknowledge the three circumstances specified in § 109(h) when debtors either will not have the certificate required by § 521(b) or will be excused from filing the certificate.

[4]

The Interim Bankruptcy Rules addressing the § 109(h) prepetition briefing and § 521(b) certificate have quickly evolved in important ways. The October 2005 version of Interim Rule 1007(b)(3) provided:

Unless the United States trustee has determined that the credit counseling8 requirement of § 109 does not apply in the district, an individual debtor must file the certificate and debt repayment plan, if any, required by § 521(b), a certification under § 109(h)(3), or a request for a determination by the court under § 109(h)(4).9
[5]

The October 2005 version of Interim Rule 1007(b)(3) reflected that § 109(h) imposes on many but not all debtors a requirement to obtain a prebankruptcy briefing. The 2005 version of Interim Rule 1007(b)(3) gave the debtor three filing alternatives: (1) a certificate, and debt repayment plan, if any, from the NBCCA that provided the prepetition briefing; or (2) a certification that exigent circumstances merited a waiver of the briefing requirement; or (3) a motion to determine whether the debtor was unable to complete the briefing requirement because of incapacity, disability or active military duty in a military combat zone.

[6]

The time for filing either a certificate, a certification or a motion to satisfy Interim Rule 1007(b)(3) was specified in the October 2005 version of Interim Rule 1007(c): “The documents required by subdivision (b)(3) shall be filed with the petition in a voluntary case.”10 Other parts of Interim Rule 1007(c) permit the debtor to satisfy filing requirements under § 521 by filing “with the petition . . . or . . . within 15 days thereafter.”11 For example, the schedules and Statement of Affairs may be timely filed within 15 days after the petition if the petition is accompanied by a list of creditors and addresses. No 15-day grace period was provided in the October 2005 version of Interim Rule 1007(c) for the filing of an appropriate document with respect to the prebankruptcy briefing.

[7]

In October 2006, the Judicial Conference adopted amendments to Interim Rule 1007 that were transmitted to the bankruptcy courts for adoption as local rules in the same manner the first round of Interim Rules were circulated and adopted in October 2005. It is anticipated that most courts will adopt the amended version of Interim Rule 1007, perhaps designated as “October 2006.”

[8]

As amended in 2006, Interim Rule 1007(b)(3) reads as follows:

Unless the United States trustee has determined that the credit counseling requirement of § 109(h) does not apply in the district, an individual debtor must file a statement of compliance with the credit counseling requirement, prepared as prescribed by the appropriate Official Form which must include one of the following:
(A) an attached certificate and debt repayment plan, if any, required by § 521(b);
(B) a statement that the debtor has received the credit counseling briefing required by § 109(h)(1) but does not have the certificate required by § 521(b);
(C) a certification under § 109(h)(3); or
(D) a request for a determination by the court under § 109(h)(4).12
[9]

The October 2006 version of Interim Rule 1007(b)(3) contains the same misleading reference to “credit counseling requirement” as the former version. The revised Interim Rule provides more choices with respect to the prepetition briefing and these choices are translated into five check boxes on a new Exhibit D to Official Form 1.13 The October 2006 version of Interim Rule 1007(b)(3) more realistically recognizes that the § 521(b) certificate may not be available for filing with the petition, even though the debtor obtained a prepetition briefing consistent with § 109(h)(1).

[10]

The October 2006 version of Interim Rule 1007(b)(3)(A) requires the debtor to attach to the petition the NBCCA certificate and “debt repayment plan” required by § 521(b) if the debtor received a prepetition briefing and if a debt repayment plan was developed. Section 109(h)(1) requires a “related budget analysis,” not a “debt repayment plan.”14 Section 521(b) incongruously requires the filing of any debt repayment plan developed through the NBCCA that provided the prepetition briefing.15

[11]

Interim Rule 1007(b)(3)(B) now refers to a “credit counseling briefing required by § 109(h)(1)”—a hybrid of the briefing that is required by § 109(h)(1) and the “credit counseling” that is not required by § 109(h)(1).

[12]

The October 2006 version of Interim Rule 1007(c) changed the deadlines for filing the statements and certificates described in revised Interim Rule 1007(b)(3). If the debtor files the statement described in revised Interim Rule 1007(b)(3)(B)—that the debtor has received “credit counseling briefing” required by § 109(h)(1) but does not have the certificate required by § 521(b)—then the necessary documents “shall be filed within 15 days of the order for relief.”16 Under the 2005 version of Interim Rule 1007(c), the § 521(b) certificate from the NBCCA had to be filed with the petition; the October 2006 version of 1007(c) permits the debtor to file that certificate within 15 days of the petition if the debtor certifies under penalty of perjury that the debtor received a prepetition briefing but doesn’t have the certificate. This is an improvement over the prior Interim Rule. A year’s experience demonstrated that some debtors obtained the prepetition briefing required by § 109(h)(1) but for various reasons were unable to file with the petition the certificate from the NBCCA that provided the briefing.17

[13]

Don’t be confused by the similar words “certificate” and “certification” in §§ 109(h) and 521(b) and in Interim Rule 1007(b)(3). Section 521(b) requires the filing of a “certificate” from an approved NBCCA.18 There is a very different “certification” in § 109(h)(3) when the debtor submits exigent circumstances that merit a temporary exemption from the prepetition briefing requirement.19 The certificate required by § 521(b)(1) sounds like a diploma or similar paper from the approved NBCCA that provided the prepetition briefing. This certificate must describe the services provided to the debtor. The briefing certificate may be a real paper document or it may be an electronic document or file. In an ECF district, the certificate from the NBCCA must be deliverable in a digital format. Debtor’s counsel may have to scan the certificate to file it with the petition. This could be problematic in districts that discourage filing scanned documents to commence a bankruptcy case.

[14]

The certification of exigent circumstances under § 109(h)(3) is a different use of a similar word. As discussed below, this certification has morphed into a check box on the 2006 version of Exhibit D to Official Form 1 and has expanded to include a motion for determination by the court that exigent circumstances merit a temporary exemption from the prepetition briefing requirement.20 In summary, the “certificate” required by § 521(b)(1) is filed by a debtor who actually received a prepetition briefing; the “certification” contemplated by § 109(h)(3) is used by a debtor who did not obtain a prepetition briefing but claims a temporary exemption.

[15]

Interim Rules 1007(b)(3) and (c) and §§ 109(h) and 521(b) have been implemented by instructions and check boxes on Official Form 1, the voluntary petition. Between October 2005 and October 2006, Official Form 1 contained an area with the heading “Certification Concerning Debt Counseling by Individual/Joint Debtor(s).” There were two check boxes, the first stating the debtor “received approved budget and credit counseling during the 180-day period preceding the filing of this petition” and the second stating the debtor “request[s] a waiver of the requirement to obtain budget and credit counseling prior to filing based on exigent circumstances.”21 If the second box was checked, the form instructed: “must attach certification describing.”

[16]

This formulation of the requirements in §§ 521(b)(1) and 109(h)(1) was odd. Prior to amendment in October 2006, Official Form 1 seemed to treat the briefing certificate as a statement by the debtor, not an attestation by the approved NBCCA that provided a briefing to the debtor. The certificate in the 2005 form did not supply the description of services required by § 521(b)(1). There was no explanation in the Committee Notes why the form departed from the statute with respect to both source and content of the briefing certificate.

[17]

From the start, the Interim Rules and forms have used the phrase “credit counseling” instead of the statutory word “briefing.” This is more than a simple difference in terminology. There is uncertainty with respect to the content of the “briefing” required for eligibility by § 109(h)(1).22 For no apparent good reason, the rules drafters abandoned the statutory requirement of a prepetition briefing and have substituted something else entirely—credit counseling.

[18]

Prior to October 2006, there was no box to check on Official Form 1 if the debtor was unable to satisfy the briefing requirement because of incapacity, disability or military duty in a combat zone pursuant to § 109(h)(4).23 Presumably, if the debtor claimed inability to complete the briefing requirement consistent with § 109(h)(4), counsel had to file a “request” with the petition to satisfy the 2005 version of Interim Rule 1007(b)(3) and (c).

[19]

In October 2006, Official Form 1 was substantially revised to better address both the prepetition briefing in § 109(h) and the certificate in § 521(b)(1). A new two-page Exhibit D appeared titled “Individual Debtor’s Statement of Compliance with Credit Counseling Requirement.”24 The body of Official Form 1 now requires every individual debtor to complete and attach Exhibit D to the petition. Joint debtors are cautioned that each spouse must file a separate Exhibit D.

[20]

New Exhibit D has five check boxes. These options roughly reflect the requirements of §§ 109(h), 521(b)(1) and Interim Rule 1007(b)(3). Debtors are instructed to check one of the five boxes and “attach any documents as directed.”

[21]

Check box 1 is for a debtor who “received a briefing25 from a credit counseling agency”26 within the 180 days before filing the petition. Check box 1 states that the briefing “outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis.” This, of course, is a quotation from § 109(h)(1) and its inclusion at check box 1 on Exhibit D sounds a note of caution for debtors and their attorneys. At the end of Exhibit D, there is a certification under penalty of perjury that must be signed by the debtor. The debtor will be certifying under penalty of perjury that the briefing included an outline of opportunities for available credit counseling and assistance in performing a related budget analysis. These are not trivial swearings. The content of briefings supplied by NBCCAs varies widely across the country and, at this writing, is not effectively policed by anyone.27 Before advising a debtor to check box 1 and sign Exhibit D to Official Form 1, counsel should confirm that the briefing included an outline of the opportunities for available credit counseling and assistance in performing a related budget analysis.

[22]

Check box 1 also states that the debtor has a certificate from the NBCCA describing the services provided to the debtor. In other words, check box 1 is only for a debtor who both obtained a prepetition briefing from an NBCCA and has in hand a certificate that describes the services provided.

[23]

Check box 1 instructs the debtor to attach a copy of the certificate and a copy of “any debt repayment plan developed through the agency.” Debt repayment plan is an undefined phrase. This additional filing requirement mimics § 521(b) and reflects the disconnect between the briefing requirement and § 521(b).28 There is a “related budget analysis” included in the description of the briefing in § 109(h)(1);29 there is no “debt repayment plan” mentioned anywhere in § 109(h). Section 521(b)(2)—and check box 1 on Exhibit D to Official Form 1—require a copy of any debt repayment plan “developed under section 109(h),” but § 109(h) does not require the development of any debt repayment plan in the prepetition briefing.

[24]

If the NBCCA developed anything that might be a debt repayment plan, it should be able to produce a copy to file with the certificate under § 521(b)(1) and (2). This could be a little tricky, for example, if the prepetition briefing was by telephone or Internet as contemplated by § 109(h)(1).30 Debtor’s counsel will have to capture a copy of the debt repayment plan if one was developed through the § 109(h)(1) briefing in a form that can then be attached to Exhibit D and filed with the petition.

[25]

Reported cases reveal there have been problems for debtors getting the certificate contemplated by check box 1 on Exhibit D to Official Form 1.31 Some NBCCAs willingly supply a prepetition briefing but require full payment of the agency’s fee before supplying a certificate that can be filed with the petition as required by check box 1 on Exhibit D. It has been held that a facsimile from an NBCCA evidencing that the debtor completed a briefing but would not receive a certificate until the $50 fee was paid was not a certificate that satisfied § 521(b).32 Remember: eligibility under § 109(h) is not dependent upon the filing of a certificate from the NBCCA; the § 521(b) requirement that the debtor file a certificate has a different enforcement mechanism and different consequences than the briefing requirement for eligibility in § 109(h).33

[26]

Check box 2 on Exhibit D to Official Form 1 offers an option to file the certificate from the NBCCA within 15 days after the petition if the debtor certifies receipt of a qualifying briefing before the petition. Check box 2 on Exhibit D is for a debtor who obtained a prepetition briefing consistent with § 109(h)(1) but cannot satisfy § 521(b) because the debtor doesn’t have a certificate from the NBCCA. The 15-day period allowed by check box 2 is consistent with the October 2006 amendments to Interim Rule 1007(c).

[27]

Check box 3 on Exhibit D to Official Form 1 is for debtors who have not obtained a prepetition briefing but made a request for “credit counseling services” and assert exigent circumstances that merit temporary exemption from the prepetition briefing requirement consistent with § 109(h)(3).34 Check box 3 describes a “temporary waiver of the credit counseling requirement” notwithstanding that the “requirement” is that the debtor obtain a “briefing” and § 109(h)(3)(B) describes this as an “exemption,” not a “waiver.” The parenthetical instructions at check box 3 state the petition “must be accompanied by a motion for determination by the court.”35 Section 109(h)(3)—the temporary exemption from the prepetition briefing requirement—is not worded in terms of “after notice and a hearing.”36 There is no requirement in any version of Interim Rule 1007(b)(3) that the debtor file a motion for a determination of the temporary exemption in § 109(h)(3). The statutory requirement that the certification of exigent circumstances be “satisfactory to the court”37 has been implemented by the forms drafters with an instruction to file a motion with the petition when box 3 is checked on Exhibit D.

[28]

There is also an instruction at check box 3 on Exhibit D that the debtor “summarize exigent circumstances here.” Notwithstanding the mandate to file a motion, debtors should not skimp on the summary of exigent circumstances. The summary is necessary in Exhibit D because § 109(h)(3)(A) requires a “certification” that “describes exigent circumstances” and the accompanying motion may not satisfy the requirements of form to be a “certification.”38 Any debtor seeking temporary exemption from the prepetition briefing requirement on the basis of exigent circumstances should check box 3 on Exhibit D and include a robust summary of exigent circumstances directly on the exhibit.

[29]

The certification at check box 3 requires some additional focus. To qualify for temporary exemption, § 109(h)(3)(A)(ii) specifies that the debtor must have requested credit counseling services from an approved NBCCA before filing the petition and been unable to obtain the briefing referred to in § 109(h)(1) during the five-day period after the request.39 The statute uses both phrases—briefing and credit counseling services. Giving meaning to both phrases, the debtor must have requested credit counseling services, not a § 109(h)(1) prebankruptcy briefing, to truthfully check box 3 on Exhibit D. Perhaps courts will conclude that credit counseling services and the prepetition briefing described in § 109(h)(1) are the same thing in this context—in which case it will be safe to check box 3 on Exhibit D when the debtor requested a prebankruptcy briefing and was unable to obtain a briefing within five days. At check box 3, Exhibit D is true to the language of the statute; it is the statute that creates a potential trap for debtors who must certify under penalty of perjury that they requested one thing (credit counseling services) to qualify for temporary exemption from a completely different requirement (a prebankruptcy briefing that outlined the opportunities for available credit counseling).

[30]

Just below check box 3 on Exhibit D to Official Form 1, there is a boldface statement: “If the court is satisfied with the reasons stated in your motion, it will send you an order approving your request.”40 This statement may be inconsistent with your local practice. In some districts, a certification of exigent circumstances in support of temporary exemption from the briefing requirement under § 109(h)(3) triggers “notice and hearing” procedures applicable to motions in general. Debtor’s counsel may be responsible for giving notice of the certification and motion. The nature of that notice and of any subsequent hearing may vary from district to district.41

[31]

The boldface instruction after check box 3 continues with an odd reminder that the debtor must “obtain the credit counseling briefing” within 30 days after the petition and “promptly file a certificate” from the NBCCA together with a copy of any “debt management plan” developed through the agency. The combination of “credit counseling” and “briefing” in this instruction is further evidence of confusion with respect to the briefing requirement in § 109(h)(1).42 That the debtor must “promptly” file a certificate appears nowhere in the statute or in any version of the Interim Rules.43 Section 521(b)(2) requires the debtor to file a copy of any “debt repayment plan,” not “debt management plan.” It is hoped that these are just stylistic issues. There is no good to come from a form that instructs debtors in words and phrases that are different from the words and phrases used by the statute.

[32]

The boldface instruction after check box 3 finally relates that an extension (up to 15 additional days) of the 30-day temporary exemption (“deadline”) can be granted for cause, but a motion for extension “must be filed within the 30-day period.” This requirement does not appear in the statute.44 The statute does not preclude further extension of the 30-day period based on a motion filed after expiration of the initial 30-day period.45

[33]

Check box 4 on Exhibit D to Official Form 1 is used when the debtor claims permanent waiver of the prepetition briefing requirement based on incapacity, disability or active military duty in a military combat zone under § 109(h)(4).46 Discussed elsewhere,47 § 109(h) is poorly worded with respect to the permanent waiver in § 109(h)(4). Check box 4 on Exhibit D assumes that § 109(h)(4) is available and invites the debtor to indicate which basis for permanent waiver is applicable. The instructions at check box 4 require the debtor to file a motion for determination by the court that permanent waiver is appropriate. This makes sense because § 109(h)(4) states that § 109(h)(1) shall not apply when the court determines “after notice and a hearing” that the debtor is unable to complete a prepetition briefing because of incapacity, disability or active military duty in a military combat zone. Noted just above, there is a different requirement in § 109(h)(3)(A)(iii) with respect to the temporary exemption from the prepetition briefing requirement—the certification of exigent circumstances must be “satisfactory to the court.” Exhibit D instructs debtors to file a motion with the petition under either circumstance.

[34]

The definition of “disability” in check box 4 on Exhibit D to Official Form 1 is slightly different from the statutory definition. The form describes physical impairment that renders the debtor unable to participate in a “credit counseling briefing.”48 The statute describes a physical impairment that renders the debtor unable to participate in a “briefing required under [§ 109(h)(1)].”49 Once again, there’s no obvious reason why the form imposes a condition different from that in the statute. Debtors are required by the form to certify under penalty of perjury that the information provided is true. The form should not require the debtor to certify more or different than the statute requires. Notice also that the check box with respect to “incapacity” omits the pronoun “his” that appears in the statute—apparently correcting for the gender issue contained in the statute.50

[35]

The fifth check box on Exhibit D to Official Form 1 signals that “the United States trustee or bankruptcy administrator has determined that the credit counseling requirement of 11 U.S.C. § 109(h) does not apply in this district.” Of course, there is no “credit counseling requirement” in § 109(h).51 Check box 5 should be used when § 109(h)(2)(A) applies: “[§ 109(h)(1)] shall not apply with respect to a debtor who resides in a district for which the United States trustee (or the bankruptcy administrator, if any) determines that the approved nonprofit budget and credit counseling agencies for such district are not reasonably able to provide adequate services[.]”52

[36]

It is a little odd that check box 5 requires the debtor to certify under penalty of perjury that the U.S. trustee has determined that the (nonexistent) credit counseling requirement “does not apply in this district.” Section 109(h)(2)(A) simply states that the § 109(h)(1) prepetition briefing requirement does not apply when the U.S. trustee makes the described determination. There is no “certification” requirement in § 109(h)(2) like the certification of exigent circumstances required by § 109(h)(3).53 It is inappropriate to require debtors to certify under penalty of perjury to a circumstance within the peculiar provenance of the Justice Department or Administrative Office of the United States Courts—particularly when there is no obvious, uniform, reliable source for this information.54

[37]

Finally, the debtor must sign Exhibit D to Official Form 1 under penalty of perjury. For all of the reasons stated above, this is not an idle undertaking. It has to be said the October 2006 version of Exhibit D to Official Form 1 is an improvement over the confusing and less comprehensive certification in the prior version of Official Form 1. However, there are too many places where Exhibit D departs from the language of the statute, creating a certification under penalty of perjury different from and not required by § 109(h).

[38]

There are burden of proof issues here. In both check boxes 3 and 4, the debtor is required by Exhibit D to file a motion for determination by the court. Arguably, the “request” requirement in Interim Rule 1007(b)(3) puts the burden on the debtor to start a process that leads to a court determination when the debtor asserts incapacity, disability or active military duty in a military combat zone under § 109(h)(4).55 Interim Rule 1007 makes no similar “request” requirement with respect to the exigent circumstances temporary exemption from the prepetition briefing requirement in § 109(h)(3), but Exhibit D adds that requirement. Alternatives could be conceived, including that the burden is on a party in interest to object when the debtor asserts the temporary exemption in § 109(h)(3) or the permanent waiver in § 109(h)(4).

[39]

The flood of § 109(h) cases after the effective date of BAPCPA demonstrates that the prepetition briefing requirement is a significant speed bump on the way to Chapter 13 relief.56 The message for debtors is: The safest route to Chapter 13 Land is to get a prepetition briefing from an NBCCA at least one calendar day before filing the Chapter 13 petition, check box 1 on Exhibit D to Official Form 1 and file a certificate from the NBCCA (together with any debt repayment/management plan) with the petition.57 If the debtor requested a prepetition briefing and was unable to obtain a briefing within five days of that request, then the debtor must check box 3 on Exhibit D to Official Form 1, describe exigent circumstances and file a motion with the petition asking the court to determine that the debtor is entitled to temporary exemption from the prepetition briefing requirement. If the debtor is disabled, incapacitated or active military in a military combat zone, then check box 4 on Exhibit D and file a motion with the petition requesting a determination that permanent waiver of the prepetition briefing requirement is available under § 109(h)(4). If the U.S. trustee or bankruptcy administrator has determined that the approved NBCCAs are unable to provide adequate services in the district, then check box 5 on Exhibit D and file the petition.

[40]

It deserves repeating that eligibility under § 109(h) is not dependent upon filing the certificate required by § 521(b).58 It is an unfortunate fact of Chapter 13 life that some bankruptcy court clerks are poised to pounce on debtors who file Chapter 13 petitions without simultaneously filing a certificate from an NBCCA. The 2005 version of Interim Rule 1007(b)(3) and (c) encouraged this interdiction by requiring the § 521(b) certificate to be filed with the petition. The 2006 version retreats from that position and should quell some of the administrative ardor. Individuals are eligible to be Chapter 13 debtors if they received a prepetition briefing consistent with § 109(h)(1) without regard to whether the NBCCA cooperated to supply the debtor with a certificate that could be filed consistent with § 521(b).


 

1  See § 18.1  In General.

 

2  See § 369.3 [ Timing of Briefing ] § 19.2  Timing of Briefing.

 

3  11 U.S.C. § 109(h)(1), discussed in §§ 369.1 [ In General ] § 18.1  In General369.3 [ Timing of Briefing ] § 19.2  Timing of Briefing.

 

4  11 U.S.C. § 109(h)(2)(A), discussed in § 369.12 [ 11 U.S.C. § 109(h)(2): Inadequate NBCCA Services ] § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

5  11 U.S.C. § 109(h)(3), discussed in §§ 369.5 [ In General ] § 20.1  In General369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

6  11 U.S.C. § 109(h)(4), discussed in § 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

7  11 U.S.C. § 521(b).

 

8  It is strange that the rules drafters substituted “credit counseling” in Interim Rule 1007(b)(3) for the statutory “briefing” in 11 U.S.C. § 109(h)(1). There is no explanation for this sleight of hand in the Committee Notes. See below in this section, and see § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

9  Interim Bankr. R. 1007(b)(3) (Oct. 2005).

 

10  Interim Bankr. R. 1007(c) (Oct. 2005).

 

11  Interim Bankr. R. 1007(c) (Oct. 2005).

 

12  Interim Bankr. R. 1007(b)(3) (Oct. 2006).

 

13  See below in this section, and see § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

14  See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

15  See below in this section, and see §§ 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing? and 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

16  Interim Bankr. R. 1007(c) (Oct. 2006).

 

17  See below in this section, and see § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

18  See 11 U.S.C. § 521(b)(1), discussed in § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

19  See 11 U.S.C. § 109(h)(3), discussed in §§ 369.5 [ In General ] § 20.1  In General369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

20  See below in this section, and see §§ 369.5 [ In General ] § 20.1  In General369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

21  Official Form 1 (prior to amendment in Oct. 2006).

 

22  See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

23  See §§ 369.11 [ Timing, Procedure and Form ] § 21.2  Timing, Procedure and Form and 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

24  Exhibit D to Official Form 1 (Oct. 2006).

 

25  “Briefing” is here correctly used to refer to the prepetition briefing required by § 109(h)(1). See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?. The Interim Rules and forms sometimes use “credit counseling,” sometimes use “briefing” and sometimes use the hybrid “credit counseling briefing” to refer to the briefing required by § 109(h)(1).

 

26  A “nonprofit budget and credit counseling agency” “approved” by the U.S. trustee is the statutory description. Not just any “credit counseling agency” will do.

 

27  See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

28  See §§ 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing? and 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

29  See 11 U.S.C. § 109(h)(1), discussed in § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

30  See §§ 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing? and 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

31  See § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

32  See In re Miller, 336 B.R. 232 (Bankr. W.D. Pa. 2006), discussed in § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

33  See § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?§ 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b), and § 152.3  Cause for Dismissal Added or Changed by BAPCPA

 

34  See 11 U.S.C. § 109(h)(3), discussed in §§ 369.5 [ In General ] § 20.1  In General369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

35  Exhibit D to Official Form 1 (Oct. 2006).

 

36  Compare 11 U.S.C. § 109(h)(4), discussed below and in §§ 369.11 [ Timing, Procedure and Form ] § 21.2  Timing, Procedure and Form and 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

37  See 11 U.S.C. § 109(h)(3)(A)(iii).

 

38  See § 369.6 [ Timing, Procedure and Form for Certification of Exigent Circumstances ] § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

39  See 11 U.S.C. § 109(h)(3)(A)(ii), discussed in § 369.8 [ Prepetition Request ] § 20.4  Prepetition Request.

 

40  Exhibit D to Official Form 1 (Oct. 2006).

 

41  See § 369.6 [ Timing, Procedure and Form for Certification of Exigent Circumstances ] § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

42  See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

43  See § 369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

44  See 11 U.S.C. § 109(h)(3)(B), discussed in § 369.9 [ Briefing after Temporary Exemption ] § 20.5  Briefing after Temporary Exemption.

 

45  See also Fed. R. Bankr. P. 9006(b).

 

46  11 U.S.C. § 109(h)(4), discussed in § 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

47  See §§ 369.10 [ In General ] § 21.1  In General and 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

48  Exhibit D to Official Form 1 (Oct. 2006).

 

49  11 U.S.C. § 109(h)(4), discussed in § 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

50  See 11 U.S.C. § 109(h)(4), discussed in § 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

51  See § 369.2 [ What is a Briefing? ] § 19.1  What is a Briefing?.

 

52  11 U.S.C. § 109(h)(2)(A), discussed in § 369.12 [ 11 U.S.C. § 109(h)(2): Inadequate NBCCA Services ] § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

53  See 11 U.S.C. § 109(h)(3), discussed in § 369.6 [ Timing, Procedure and Form for Certification of Exigent Circumstances ] § 20.2  Timing, Procedure and Form for Certification of Exigent Circumstances.

 

54  See § 369.12 [ 11 U.S.C. § 109(h)(2): Inadequate NBCCA Services ] § 21.3  11 U.S.C. § 109(h)(2): Inadequate NBCCA Services.

 

55  See above in this section, and see § 369.13 [ 11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty ] § 21.4  11 U.S.C. § 109(h)(4): Incapacity, Disability or Active Military Duty.

 

56  See § 18.1  In General

 

57  See §§ 369.3 [ Timing of Briefing ] § 19.2  Timing of Briefing and 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b).

 

58  See § 369.4 [ Certificate from NBCCA: 11 U.S.C. § 521(b) ] § 19.3  Certificate from NBCCA: 11 U.S.C. § 521(b). See, e.g., In re Brown, 342 B.R. 248, 255 (Bankr. D. Md. 2006) (“Eligibility under Section 109(h) is not dependent upon the filing of a certificate of credit counseling. . . . Section 521(b) requires the debtor to file a certificate from the approved non-profit budget and credit counseling agency that provided the services required by Section 109(h), as well as a copy of any debt repayment plan developed through the agency. Rule 1007(b) and (c) of the interim rules . . . require that the certificate of credit counseling and debt repayment plan be filed with the petition, or that a certification requesting waiver be filed with the petition. Generally this court will by order dismiss a case for reason of apparent lack of eligibility under Section 109(h) if no certificate of credit counseling, or certification requesting waiver, is filed. However, numerous cases have been filed in this district since the effective date of BAPCPA in which the debtor had received the credit counseling within the 180 days preceding the petition filing as required, but for various reasons including attorney error and/or unfamiliarity with CM/ECF, the filing of the certificate evidencing such prepetition counseling was delayed. In such cases the court may excuse the lateness of the filing of the certificate and vacate any dismissal order because the debtor was eligible.”).