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No excuse not to have credit counseling course

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In re Houston; Case No. 08-11848; April 11th, 2008

The debtor in this case filed a Chapter 13 without yet having the necessary credit counseling certificate. Instead of this certificate, she filed a certification of exigent circumstances stating that she will be evicted without the court’s protection.

The court cites Bankruptcy Code §109(h)(3)(A) which allows the credit counseling requirement to be waived if the debtor submits to the court a certification that (1) “describes exigent circumstances that merit a waiver” of the credit counseling requirement; (2) “states that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services . . . during the 5-day period beginning on the date on which the debtor made that request,” and (3)”is satisfactory to the court.” Id.

The court reasons that though an impending eviction would generally qualify as an exigent circumstance, the debtor has not certified that sh requested and did not receive credit counseling within the five day period before the filing. The court states that 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 and has no choice but to dismiss the case. In re Watson, 332 B.R. 740 (Bankr. E.D. Va. 2005).

The court grants the dismissal without prejudice, but warns the debtor regarding the need to file a motion to extend the stay under §362(c)(3) and quickly highlights the requirements for a debtor to stop an eviction if the landlord already has a judgment for possession under §362(f). Onerous requirements, indeed.

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