Steven O Fonseca

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
STEVEN O. FONSECA and
KRISTEN L. FONSECA
fka Kristen L. Fuller
fka Kristen L. DeRose,
Debtors. 	No. 7-09-10088 SL
MEMORANDUM OPINION AND ORDER DISMISSING CASE
This matter is before the Court on the Court’s Order to Show
Cause why case should not be dismissed for failure to comply with
credit counseling requirements. 	Debtors appeared through their
attorney Ken Egan. 	Debtors also filed a response brief, and the
Court took the matter under advisement. 	Having reviewed the
brief and the arguments of the Debtors, the Court finds that the
case should be dismissed.
First, Section 109(h) is clear and unambiguous. 	An
individual “may not be a debtor” unless he or she has received
the required credit counseling. 	The statute does not allow the
case to not be dismissed.
Second, this Court has repeatedly interpreted the statute in
this fashion. 	See In re DeHoog, No. 13-08-12312-SF (Bankr. D.
N.M. Sept. 17, 2008); In re Gurule, No. 07-12371-SA (Bankr. D.
N.M. Oct. 31, 2007); In re Smith, No. 07-12269-SA (Bankr. D. N.M.
Oct. 26, 2007). 	In these cases the Court dismissed the cases,
without prejudice. 	Also, in these and other cases, the Court has
required the attorney or petition preparer to refund the filing
fee to the Debtor(s) and assist the Debtor(s) at no charge in
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refiling the case (if the Debtor(s) choose to use the attorney
again), including filing any stay motion that may be required
pursuant to § 363(c)(3) or (4).
Therefore,
IT IS ORDERED that this case is dismissed for failure to comply
with the prepetition credit counseling requirements.
IT IS FURTHER ORDERED that Mr. Egan refund the filing fee to the
Debtors within two weeks of the entry of this Order and, if the
Debtors so desire, assist them to refile at no charge, including
determining whether a stay motion is required under § 363(c)(3)
or (4).
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	February 10, 2009
copies to:
Kenneth G Egan
1111 E Lohman
Las Cruces, NM 88001-3268
Philip J. Montoya
Trustee
PO Box 159
Albuquerque, NM 87103
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Steven O Fonseca
8000 Inca Dove Ave
Las Cruces, NM 88012
Kristen L. Fonseca
8000 Inca Dove Ave
Las Cruces, NM 88012
Case 09-10088-s7 Doc 11 Filed 02/10/09 Entered 02/10/09 10:07:46 Page 2 of 2