Keywords: procedure . credit counselling . dismissal .
Procedure > Credit Counseling Requirement Procedure: Failure to compete credit counseling within 180 days of filing requires dismissal6 Cases , IssueID 48 |
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Topic Description:BAPCPA new requirement, that a debtor must complete credit counseling within 180 days prior to filing, is for the most part, and inflexible rule Lines of Cases:
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The court said, "there are three prongs that a debtor must satisfy to obtain a temporary waiver of the pre-petition credit counseling requirement. The Court agrees with the debtor that the imminent forclosure of one's home satisfies the first prong of Section 109(h)(3). However, the debtor is unable to satisfy the second prong" [i.e. that debtor sought credit counseling at least five days prior to filing and was unable to obtain an appointment]. Because of this, the court dismissed debtor's case.
Debtor in prison was denied waiver or exemption from required pre-petition credit counseling. Court held that section 109(h) is to be narrowly construed to include only incapacity, disability, or active military duty.
The section reads: "an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis."
Attorney must disgorge $2,000 fee paid by debtor where case had to be dismissed because debtor had not completed credit counseling, requiring the court to dismiss the case. Although the forms said counseling had been completed, there was no certificate of completion. Counsel was lax in failing to confirm that debtor had, indeed, attended credit counseling and got the certificate.
Debtor's attorney screwed up by computing 180 day credit counseling period to be "six months" rather than 180 days. Debtor had completed counseling 181 days before filing, and then did a makeup 4 days after filing. Court said that it had no choice but to dismiss the case.
The debtors obtained credit counseling 181 days before filing for bankruptcy, and the court ruled it had no discretion but to dismiss the case unless debtors obtained counseling within 180 days of filing.
Although debtor must seek credit counseling at least one day BEFORE filing, failure of creditor to raise objection until plan confirmation means objection has been waived.
Debtor in prison was denied waiver or exemption from required pre-petition credit counseling. Court held that section 109(h) is to be narrowly construed to include only incapacity, disability, or active military duty.
The section reads: "an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis."
The court said, "there are three prongs that a debtor must satisfy to obtain a temporary waiver of the pre-petition credit counseling requirement. The Court agrees with the debtor that the imminent forclosure of one's home satisfies the first prong of Section 109(h)(3). However, the debtor is unable to satisfy the second prong" [i.e. that debtor sought credit counseling at least five days prior to filing and was unable to obtain an appointment]. Because of this, the court dismissed debtor's case.
Attorney must disgorge $2,000 fee paid by debtor where case had to be dismissed because debtor had not completed credit counseling, requiring the court to dismiss the case. Although the forms said counseling had been completed, there was no certificate of completion. Counsel was lax in failing to confirm that debtor had, indeed, attended credit counseling and got the certificate.
Debtor's attorney screwed up by computing 180 day credit counseling period to be "six months" rather than 180 days. Debtor had completed counseling 181 days before filing, and then did a makeup 4 days after filing. Court said that it had no choice but to dismiss the case.
The debtors obtained credit counseling 181 days before filing for bankruptcy, and the court ruled it had no discretion but to dismiss the case unless debtors obtained counseling within 180 days of filing.
Although debtor must seek credit counseling at least one day BEFORE filing, failure of creditor to raise objection until plan confirmation means objection has been waived.
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