Jeffrey Di Pinto

IN THE U NITED S TATES B ANKRUPTCY C OURT
FOR THE E ASTERN D ISTRICT OF P ENNSYLVANIA
IN RE 	: C HAPTER 13
:
JEFFREY D IPINTO 	: BANKRUPTCY N O . 06-10112
D EBTOR 	:
OPINION
By: 	STEPHEN RASLAVICH , UNITED STATES BANKRUPTCY JUDGE .
Introduction
Before the Court is a Certification of the Debtor’s Counsel for Waiver of Credit
Counseling Requirement Pursuant to 11 U.S.C. Sec. 109(h)(3). For the reasons set
forth below, the request for a waiver will be denied and the Debtor’s petition will be
dismissed.
Factual Background
The Debtor filed this Chapter 13 petition on January 10, 2006 without having first
obtained credit counseling as required by recent changes to the Bankruptcy Code. In
lieu of a certificate reflecting completion of credit counseling, Debtor’s counsel filed a
request for a waiver of that requirement. It is asserted that exigent circumstances
entitle the Debtor to a waiver. The Certificate recites that a Sheriff’s Sale of the
Debtor’s property was scheduled for January 10 but that he had a “commitment to sell
th[at] property.” Certification, ¶¶1,2. 	The Certificate further recites that the Debtor first
contacted counsel regarding filing a bankruptcy at 7:30 p.m. on January 9, 2006, but
was told by counsel that he needed credit counseling in order to commence a case. 	Id.
¶ 3. The Debtor thereafter contacted a credit counseling service by telephone, seeking
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 1 of 14

2
to obtain counseling but, according to the Certificate, was informed that the earliest date
available was January 31. Id. ¶¶ 4,5. Counsel then told the Debtor to try to obtain
counseling sooner. Id. ¶ 6. This is the basis upon which the Debtor makes the present
request.
Credit Counseling
Under the BAPCPA
The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) has
added a new eligibility requirement to §109 of the Bankruptcy Code. New subsection
(h) provides that a person intending to file bankruptcy must first undergo credit
counseling:
Subject to paragraphs (2) and (3), and notwithstanding any
other provision of this section, 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.
11 U.S.C. § 109(h)(1). Because Congress placed this requirement in §109, the section
that govern the fundamental eligibility to “be a debtor,” this new provision has been
described as a “first level requirement for someone seeking bankruptcy relief.” In re
Wallert, 332 B.R. 884, 890-91 (Bankr.D.Minn.2005). As the Court in Wallert noted
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.
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 2 of 14

3
332 B.R. at 889. However, the requirement is not without its exceptions. For example,
paragraph (3) of subsection (h) provides:
(3)(A) Subject to subparagraph (B), the requirements of
paragraph (1) shall not apply with respect to a debtor who
submits to the court a certification that--
(i) describes exigent circumstances that merit a waiver of the
requirements of paragraph (1);
(ii) states that the 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 5-day period
beginning on the date on which the debtor made that
request; and
(iii) is satisfactory to the court.
(B) With respect to a debtor, an exemption under
subparagraph (A) shall cease to apply to that debtor on the
date on which the debtor meets the requirements of
paragraph (1), but in no case may the exemption apply to
that debtor after the date that is 30 days after the debtor files
a petition, except that the court, for cause, may order an
additional 15 days.
11 U.S.C. § 109(h)(3). These elements are stated in the conjunctive, meaning that
each element must be satisfied before the court can permit the extension of time. In re
Graham, 2005 WL 3629925 *2 (Bankr.W.D.Ky.) 	The Court will examine whether the
record before it supports the Debtor’s request for a waiver.
Has the Debtor
Provided a Certification?
The Court begins with the threshold requirement of this exception: that the
Debtor “certify” his unsuccessful efforts to obtain credit counseling. For a written
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 3 of 14

4
statement to have any evidentiary effect in a federal court, such statement must contain
at least the following:
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law,
any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing
of the person making the same (other than a deposition, or
an oath of office, or an oath required to be taken before a
specified official other than a notary public), such matter
may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such
person which is subscribed by him, as true under penalty of
perjury, and dated, in substantially the following form:
(1) If executed without the United States: "I declare (or
certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is
true and correct. Executed on (date).
(Signature)".
(2) If executed within the United States, its territories,
possessions, or commonwealths: "I declare (or certify, verify,
or state) under penalty of perjury that the foregoing is true
and correct. Executed on (date).
(Signature)".
28 U.S.C. § 1746. See In re La Porta, 332 B.R. 879, 881 (Bankr.D.Minn.2005) (“Under
federal law, a "certification" must be "subscribed," i.e., signed by the declarant. It also
must contain the declarant's statement that the content of the document is true and
correct, with an acknowledgment that the declarant is under the penalty of perjury in
making the statement.” quoting 28 U.S.C. § 1746); In re Hubbard, 332 B.R. 285, 289
(Bankr.S.D.Tex.2005) (finding that unverified motion is not a certification for purposes of
§ 109(h)(3)). In this case, the Debtor made no certification or statement whatsoever; it
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 4 of 14

1See, e.g., In re Davenport, 2005 WL 3292700 (M.D.Fla.) (repossession of family’s only
means of transportation constitutes exigent circumstances); In re Graham, 2005 WL 3629925 *3
(holding that impending creditor action constitutes exigence circumstances); In re Valdez, 2005 WL
3526495 (Bankr.S.D.Fla.) (foreclosure sale constitutes exigent circumstances); Miller, supra, *2
(sheriff’s sale constitutes emergency); In re Hubbard, 333 B.R. 377 , 384 (Bankr.S.D.Tex.2005)
(loss of family home unless immediate relief granted is exigent circumstances).
5
was his counsel whose signature appears on the document entitled “Certification.” The
Court, then, has no statement from the Debtor – sworn to or otherwise – attesting to his
efforts to obtain credit counseling. The Debtor’s request, accordingly, must be denied
on this basis alone.
Whether The Exigent
Circumstances Merit a Waiver
But even had the Debtor submitted a proper certification, his claimed exigency
does not persuade. The “exigent circumstances” which the Debtor points to in support
of a waiver is the imminent Sheriff’s sale of his property. Courts interpreting this term
agree that an imminent foreclosure sale or repossession constitutes an exigency. 1 But
that is not the end of the inquiry. Significant is the language which follows: “exigent
circumstances [must] merit a waiver.” In a case with strikingly similar facts, the
Bankruptcy Court for the Western District of Missouri explained that the analysis must
delve deeper:
Here, the Debtor alleges that she first consulted counsel and
sought credit counseling at approximately 5:00 p.m. on the
afternoon prior to the date of the scheduled foreclosure sale
on her residence. At first blush, the imminence of the
proposed sale would appear to satisfy the exigent
circumstances requirement. See, e.g., In re Hubbard, 333
B.R. 377, 384-85 (Bankr.S.D.Tex.2005). Upon closer
examination, this Court has some doubt on the issue. The
statute requires that the Court find that there are exigent
circumstances that "merit a waiver" of the requirement that
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 5 of 14

2 As previously noted, the Debtor first appeared at counsel’s office at 7:30 p.m, 2
½ hours after the close of normal business hours on the evening before the Sheriff sale of
his property.
6
the debtor obtain counseling services prior to filing. This
suggests that the Court should consider all the facts and
circumstances relating to the debtor's alleged inability to
obtain credit counseling prior to filing a petition for relief. In
other words, the focus should be not so much on the
imminence of the event that threatens the debtor with loss of
property and requires filing of the petition for relief in order to
invoke the automatic stay, but on the reasons why the debtor
was unable to obtain the required credit counseling prior to
having to file for relief.
In re Talib (I), 2005 WL 3272411 *3 (Bankr.W.D.Mo.) In examining the Certification
offered by the debtor, the Court in Talib found that
[t]he Debtor offers no explanation, however, as to why it
would not have been possible for her to request the required
credit counseling well in advance of the scheduled
foreclosure sale. In the absence of such an explanation, the
Court finds it difficult to determine whether the
circumstances are such that a waiver of the prepetition credit
counseling requirement is merited. Assuming the holder of
the deed of trust on Debtor's residence complied with
Missouri law (and its publication and notice requirements)
the Debtor has been apprised of the date of the pending
foreclosure sale for several weeks … Based on the
Certification submitted, the Court would be justified in finding
that the exigent circumstances which make it necessary for
the Debtor to request authorization to file without having first
obtained credit counseling were of the Debtor's own making
… Put another way, the Certification would not be
"satisfactory to the Court."
Id. Similar to the above, even assuming that the document entitled Certification was
satisfactory in form, its substance is lacking. The present Debtor, like the debtor in Talib
(I), waited until much less than 24 hours prior to a Sheriff’s Sale to first attempt to
arrange for credit counseling. 2 The Debtor clearly could not have just learned of the
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 6 of 14

3 Even before the mortgage company filed its foreclosure complaint, it was required to give
the Debtor at least 30 days notice (known as an “Act 6 Notice”) of its intention to foreclose. 41 P.S.
§ 403(a). Likewise at least another month would pass before a judgment could be obtained and
the Sheriff’s Sale scheduled. 	The Debtor, thus, had ample time to seek prepetition credit
counseling.
7
sale; due process requires that property owners in danger of losing their assets to
judicial sales be notified well in advance. 3 As one Bankruptcy Court has explained:
Foreclosures do not come without a good deal of advance
notice. To a lesser degree, neither do garnishments or
executions on judgments. Impending trial dates and other
similar motivators also do not spring up overnight.
Nonbankruptcy law has myriad procedural protections for
debtors, providing advance notice of what might occur and
when. Waiting, therefore, until the eve of creditor action
before addressing the § 109(h) prerequisite for filing
bankruptcy makes the exigency rather self-inflicted.
In re Rodriguez, 2005 WL 3676825 *8 (Bankr.D.Idaho). 	In the opinion of this Court, it
does not suffice for present purposes for the Debtor to simply say that he had found a
last minute buyer for his property. See In re Randolph, 2005 WL 3408043 *1
(Bankr.M.D.Fla.) (finding it “highly unlikely that if Debtor had prioritized obtaining
counseling, then she would have been unable to meet that requirement.”); In re Talib II,
2005 WL 3429224 *3 (Bankr.W.D.Mo.) (finding that the debtor bore some responsibility
for the inability to obtain counseling having failed to address the situation until the day
before the sale). The credit counseling industry itself deems two days to be the time
period between which a request for counseling is made and the actual counseling
occurs. See Leslie E. Linfield, Strange Bedfellows: Bankruptcy Reform and Mandatory
Credit Counseling, 24 Am. Bankr.Inst. J. 12, n. 9 (May 2005) (citing the Best Practices
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 7 of 14

4See the U.S. Trustee’s website, www.usdoj.gov/ust/eo/bapcpa/ccde/cc_approved.htm.
511 U.S.C. § 109(h)(1).
8
Guidelines published by the Association of Independent Consumer Credit Counseling
Agencies which calls for such agencies to offer an appointment within two business
days of a request).
In sum, under these circumstances, the Court concludes that the present
Debtor’s exigency does not merit a waiver.
The Efforts to
Obtain Counseling
Aside from the lack of an excuse for the delay, the Debtor’s efforts to obtain
credit counseling are, in the opinion of the Court, both deficient and suspect. It is
alleged that the Debtor contacted one credit counselor, CCCS, but was informed that he
could not be given an appointment for 22 days. Certification, ¶ 5. There are, however,
13 other approved credit counseling agencies in this District.4 See In re Booth, 2005
WL 3434776 *1 (Bankr.N.D.Fla.) (noting that the UST has approved 7 agencies for
credit counseling in that District) but also see, contra, In re Hubbard, 333 B.R. at 387
(holding that BAPCPA does not require Debtor to contact more than one credit
counseling agency). Although the Sheriff’s Sale was to occur within a matter of hours,
the Debtor certainly could have tried to contact other credit counseling agencies.
Moreover, the new law specifically allows a prospective debtor to obtain the counseling
via the internet or telephone 5 so it is quite possible that this could have been completed
instantly, in a matter of hours, or first thing the next morning. See Booth, supra *1; Talib
I *5; see also 2 Collier on Bankruptcy ¶ 109.09[3] (Matthew Bender 15th Ed. Revised)
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 8 of 14

9
(noting that if services are available over the Internet and by telephone, then there will
rarely be a situation in which the debtor cannot obtain the necessary briefing within
hours of seeking it). 	To allow the Debtor under these circumstances to fulfill his
obligation by contacting but a single credit counselor would reward token effort. In sum,
the Court finds wholly unsatisfactory both the Debtor’s claim of exigent circumstances
and his efforts to obtain counseling despite the late hour. His request for a waiver will,
therefore, be denied.
The Timing of the
Request For Counseling/
Threshold Requirement
In the interest of completeness, the Court will consider whether, if the Debtor had
filed a proper certification which described exigent circumstances that merited a waiver,
and was satisfactory to the Court, the Debtor would have also satisfied the requirement
of unsuccessfully contracting a counseling agency that could provide him with
counseling within five days of the date of his request. The statute at § 109(h)(3)(A)(ii)
requires the Debtor’s certification to state that the credit counseling agency contacted
by the Debtor informed him that counseling could not be furnished within the 5 day
period beginning on the date on which the Debtor made the request. Some think it is
less than completely clear whether this provision requires the request to have been
made 5 days prior to the date of the commencement of the Bankruptcy case, or whether
the 5 day period can straddle the date on which the bankruptcy case is commenced.
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. Yet, if the prepetition counseling requirement is
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 9 of 14

10
not interpreted that way it is easy to see how inconsistencies might follow. Consider, for
example, the case of two individuals who intend to file bankruptcy because their homes
are scheduled for Sheriff’s Sale in fewer than five days. Assume that one of the two
contacts a credit counselor 4 days prior to the sale. Assume that this individual is told
that he cannot be counseled until five days later: that is one day after the sale date, but
one day too soon to qualify for the counseling waiver– if the statute requires a 5
prepetition day request. That person would be barred from filing because he is not
exempt from the counseling requirement. Assume that the second individual is told that
the first available appointment for counseling is 6 days later: that is also later than the
date of the sale of his home, but it is more than 5 days after the request was made for
counseling. The second person thus qualifies for a counseling waiver (assuming all of
the other conditions of 109(h)(3) are met). Here then would be two prospective debtors,
neither of whom, admittedly, is particularly diligent in attending to their financial
problems; still, the less proactive of the two obtains critical relief denied to the other.
This is arguably an unfair result, given the de minimis difference between the two
scenarios. Interpreted in this fashion the statute, ironically, could reward the
prospective debtor who waits until the last minute to seek counseling and is fortunately
unable to obtain it within 5 days! As noted, this portends some potentially unfair
outcomes. As one Court has explained:
The statute does nothing more than mandate debtors to
recognize and start dealing with their straits of insolvency
squarely, at least a week before they will bloom out to an
actual, permanent economic loss. As Congress clearly
contemplated, within that week one would either lay the
eligibility issue to rest by snagging the counseling agency's
certificate, or would qualify for the temporary exemption and,
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 10 of 14

6 [W]here, as here, the statute's language is plain, ‘the sole function of the courts
is to enforce it according to its terms.’" United States v. Ron Pair Enterprises, Inc., 489 U.S.
235, 241, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) quoting Caminetti v. United
States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). The Supreme Court
recently interpreted Caminetti to mean that “[its] task is to give effect to the will of
Congress, and where its will has been expressed in reasonably plain terms, that language
must ordinarily be regarded as conclusive.” United States v. One “Piper” Aztec “F” Deluxe
11
in tandem, lay the groundwork to get the briefing and
counseling promptly after filing for bankruptcy
Wallert, 332 B.R. at 890. There are no reported decisions holding that the five day
period of § 109(h)(3)(ii) must elapse prepetition. However, one court has noted in dicta,
at least, that the statute must be read that way. See In re Cleaver, 333 B.R. 430, 435
(Bankr.S.D.Ohio 2005) (noting in dicta that 109(h)(3)(ii) would appear to require a five-
day waiting period before a debtor could file a petition together with their certification).
This Court is respectfully constrained to disagree.
The Court suspects that the likely intention of Congress was to impose a five
prepetition day counseling attempt. Although it cannot conclude so to a certainty, given
the language adopted. Moreover, legislative history is of no help on this point. As
noted above, a contrary reading could reward dilatory conduct. Credit counseling,
furthermore, will arguably be of little benefit if it is received by an individual mere hours
before a sheriff sale of the individual’s residence. Indeed, one purpose of the
counseling is presumably to assist individuals in identifying whether there are feasible
alternatives to bankruptcy. Nevertheless, if a five prepetition day requirement was what
Congress intended, it simply did not put that requirement in the statute. Where the
statue is unambiguous the Court must interpret it as it is written, not as it thinks it should
have been written. 6 Thus, while the Court finds merit to the argument that the
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 11 of 14

Model 250 Aircraft, 321 F.3d 355, 358 (3d Cir.2003) quoting Negonsott v. Samuels, 507
U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). 	Where the meaning is
unambiguous, the Court should make no further inquiry unless the literal application of the
statute will end in a result that conflicts with Congress's intentions. See Armstrong World
Industries, Inc., 432 F.3d 507, 512 (3d Cir. 2005) citing Ron Pair at 242, 109 S.Ct. at 1031.
12
requirement probably should be five prepetition days, the Court cannot conclude that
the plain reading of the statute supports that result.
Summary
To summarize the present request for a waiver of the new Bankruptcy Code
requirement of prepetition credit counseling must be denied as it fails to satisfy two of
the three part conjunctive test for the entitlement to such a waiver. To recapitulate
these: 1) the Debtor failed to file a sufficient certification; 2) the pending foreclosure sale
of the Debtor’s residence, while constituting an exigent circumstance is not one which
merits a waiver due to the Debtor’s dilatory conduct; and 3) the Debtor’s nominal effort
to secure prepetition credit counseling prior to the sale of his property renders the
certification otherwise unsatisfactory to the Court.
An appropriate order follows.
By the Court:
____________________________________
Stephen Raslavich
United States Bankruptcy Judge
Dated: 	January 30, 2006
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 12 of 14

IN THE U NITED S TATES B ANKRUPTCY C OURT
FOR THE E ASTERN D ISTRICT OF P ENNSYLVANIA
IN RE 	: C HAPTER 13
:
JEFFREY D IPINTO 	: BANKRUPTCY N O . 06-10112
:
D EBTOR 	:
ORDER
AND NOW, upon consideration of the Certification of the Debtor’s Counsel for
Waiver of Credit Counseling Requirement Pursuant to 11 U.S.C. Sec. 109(h)(3) and for
the reasons set forth in the attached Opinion, it is hereby
ORDERED that the request for waiver of the credit counseling requirement is
Denied; and it is further
ORDERED that this case is dismissed.
By the Court:
STEPHEN RASLAVICH,
United States Bankruptcy Judge
Dated: January 30, 2006
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 13 of 14

2
MAILING LIST:
George Conway, Esquire
Office Of The U.S. Trustee
950W Curtis Center
7th & Sansom Streets
Philadelphia PA 19106
John H. Croom, Esquire
Law Office of John H. Croom
1616 Walnut Street
18th Floor
Philadelphia, PA 19102
Jeffrey DiPinto
4307 Oakmont Street
Philadelphia, PA 19136
Frederick L. Reigle, Esquire
Chapter 13 Trustee
2901 St. Lawrence Avenue
P.O. Box 4010
Reading PA 19606
Case 06-10112-sr Doc 9 Filed 01/30/06 Entered 01/31/06 12:21:03 Desc Main
Document Page 14 of 14