Taal v.Sumski (In re Sumski)
- Summarized by Guy Moss , Riemer & Braunstein LLP
- 9 years 1 month ago
- United States Bankruptcy Appellate Panel for the First Circuit, No. 13-041 (January 30, 2014)
- Code sec. 109(h)(1) requires that any individual debtor shall have received credit counseling from an approved agency within 180 days of the filing of a case. There was no abuse of discretion in the bankruptcy judge ordering dismissal of a Chapter 13 case for failure of the Debtor to comply with this section because the Debtor's counseling was not on its face timely and the Debtor failed to qualify for any of the exemptions in secs. 109(h). In particular, to qualify for the exigent circumstances exemption of sec.109(h)(3)(A), which at best allows only a temporary deferral up to 45 days, a debtor must show that all three elements have been met, including (as was not present here) that he requested counseling but was unable to obtain the services within a 7-day period after the request was made. Of interest, the decision noted that (i) without deciding, an inability to pay for counseling might constitute "exigent circumstances," and (ii) there was no need to address the related issue of whether dismissal is mandated by a failure to satisfy the counseling requirement or is subject to the court's discretion. Affirmed.
- Procedural context:
- Appeal from the United States Bankruptcy Court for the District of New Hampshire of an order dismissing a Chaper 13 petition because of the Debtor's failure to obtain credit counseling within the requisite statutory time period. Affirmed.
- The Debtor received credit counseling 259 days prior to his filing a Chapter 13 petition. After filing a false Form 1 stating that he had obtained counseling within the 180 day statutory period, he then completed a second counseling course five days after the petition date. The Chapter 13 trustee moved for dismissal on the ground that the Debtor was ineligible to be a debtor for failure to comply with Code sec. 109(h)(1). In opposing dismissal, the Debtor argued that (i) he had in fact received the counseling prior to the hearing on the motion, and (ii) he was exempt from the requirement because of exigent circumstances.
- Boroff, Hillman and Godoy
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