Walter F Pease and Sugako J Pease

The court incorporates by reference In this paragraph and adopts as the findings and orders
of this court the document set forth below.
/5/ RUSS KENDIG
Russ Kendig
United State;s Bankruptcy Judge
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
INRE: 	) 	CHAPTER 7
)
WALTER F. PEASE 	) 	CASE NO. 	10-62794
AND SUGAKO J. PEASE, 	)
) 	JUDGE RUSS KENDIG
Debtors. )
) 	MEMORANDUM OF OPINION
) 	(NOT INTENDED FOR
) 	PUBLICATION)
)
This matter is before the Court sua sponte. Debtors filed the instant Chapter 7
petition on June 28, 2010. At that time, they also filed certificates of credit counseling
stating that the requisite credit counseling course had been satisfied by the debtor-wife,
both for herself and for her husband via a power of attorney.
The Court has jurisdiction of this proceeding pursuant to 28 US.c. §§ 1334 and
the general order of reference entered in this district on July 16, 1984. Venue in this
district and division is proper pursuant to 28 US.C. § 1409. This is a core proceeding
under 28 US.c.
§ 157(b)(2)(O).
This opinion is not intended for publication or citation. The availability of this
opinion, in electronic or printed fonnat, is not the result of a direct submission by the
Court.
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FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts in this case are extremely straightforward. In fact, there is only
one: When Debtors filed their Chapter 7 petition, they filed certificates of credit
counseling for each debtor. (Doc. 2.) One certificate states that Sugako J. Pease did in
fact take the required credit counseling course. The other, for her husband, states that
"Sugako Pease POA for Walter Pease received from Hummingbird Credit Counseling
and Education, Inc .... an individual ... briefing that complied with the provisions of 11
U.S.C. §§ 109(h) and IlL"
Because this case arises sua sponte, there is no procedural background. The sole
issue before the Court is whether it is legally permissible for an agent designated as
atton1ey-in-fact to satisfy the credit counseling requirement of the Bankruptcy Code in the
place of his principal(s).
LEGAL ANALYSIS
I.
Walter Pease is ineligible to be a debtor under the Bankruptcy Code. 	Under 11
U.S.C. § 109(h)(l), an individual may not be a debtor unless he or she has completed a credit
briefing outlining the opportunities for available credit counseling and assisting in
performing a related budget analysis. 	This credit counseling briefing must be completed
within the 180-day period prior to filing, subject only to specific exceptions enumerated in
11 U.S.C. § 109(h)(2)-(4). In the instant case, one individual attempting to become a debtor
under the Code did not attend the required credit briefing; he had an agent, to whom he had
granted a legal power of attorney, do so in his stead.
The credit counseling requirement under 11 U.S.C. § 109(h)(I) is not a delegable
obligation. No argument has been advanced to the Court in favor of permitting delegating
this obligation from the principal to one bearing a power of attorney to act for the principal.
The most logical starting point is Fed. R. Bankr. P. 9010 (governing representation,
appearances, and powers of attorney in bankruptcy cases). However, while Fed. R. Bankr.
P. 9010(a)(2) does allow a "debtor, creditor, equity security holder, indenture trustee,
committee or other party" to "perform any act not constituting the practice of law, by an
authorized agent, attorney in fact, or proxy," this does not reach so far as to permit an agent
to satisfy the credit counseling requirement for principals seeking bankruptcy protection,
even ifit was the agent's decision to file bankruptcy on behalf of his principals in the first
place. 	The text of the Rule could conceivably read broadly enough to permit essentially
anyone to do anything by proxy, because it purports to allow "other parties" in addition to
the enumerated ones to "perform any act not constituting the unauthorized practice of law"
via proxy. However, such a broad reading of the rule is absurd on its face.
The Rule is certainly not a n10del of clarity and seems to have escaped the
critical and watchful eye of the Bankruptcy Committee on Rules of Practice
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and Procedure. The Rule was obviously meant to read:
A debtor, creditor, equity security holder, indenture trustee,
committee or other party may (1) appear in a case under the
Code and act in the entity's own behalf, (2) appear in a case
under the Code through an attorney authorized to practice in
the court, (3) appear in a case under the Code through an
authorized agent or attorney in fact, who may perform any act
not constituting the practice of law, or (4) appear in a case
under the Code by proxy.
The Rule permits a creditor to "appear" through an attorney authorized to
practice in the court and/or through an agent, attorney in fact, or by proxy.
The distinction between attorney as used in the Rule from attorney in fact and
the limits of authority of each to "appear" on behalf of a creditor is
significant.
Wilson v. Valley Elec. Membership Corp., 141 B.R. 309,312 (E.D.La.,1992) (Sear, J.).
Judge Sear, significantly, was the Chairman of the Advisory Con1mittee on BankruptcyRules
at the time the current version of Rule 901 O( a) was cani.ed over into the 1986 rules
amendments. Judge Sear's later parsing of the rule eliminates the absurd concatenation of
open-ended clauses that, read literally, would give anyone the power to do anything save
unauthorized practice of law via an authorized agent, attorney in fact, or proxy.
The text and structure of § 109(h) both make absolutely clear that Congress did not
intend agents to be able to take the credit counseling requirement in the place of their
principals, and the improvision of the Advisory Committee on Bankruptcy Rules does not
compel such a counterintuitive rule. 	The strongest evidence of Congress' intent that the
obligation be personal and non-delegable lies not in the requirement itself, but in the
exceptions to that requirement. 	Credit counseling is not required of debtors "unable to
complete [the credit counseling requirement] because of incapacity, disability, or active
111ilitary duty in a con1bat zone," 11 U.S.C. § 109(h)(4), as well as debtors who live in regions
where credit counseling agencies are nonexistent or unable to provide adequate services to
such individuals. 	11 U.S.C. § 109(h)(2). 	None of these would be obstacles to someone
acting with a power of attorney, and powers of attorney are frequently granted by those
suffering from incapacity or disability. If Congress had meant for debtors to either complete
a credit briefing themselves or have someone acting as attorney-in-fact for them do so, there
would have been no reason to exempt debtors suffering from incapacity or disability from
the requirement at all; the responsibility would simply pass to their designated agents. This
compels the common-sense conclusion that the credit counseling requirement is a non
delegable requirement; an agent can no more take a credit counseling class for his principal
than he could take a driver's education course or attend drug rehabilitation sessions for his
principal.
II.
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In the instant case, the debtor-wife remains eligible for a discharge even though her
husband does not. Rather than dismissing the case in its entirety, therefore, the Court will
enter an order dismissing Walter Pease from this case and will then allow this case, with only
the wife remaining as a debtor, to proceed to discharge. 	This Court will enter this order
concurrently with this opinion.
# 	# 	#
Service List:
Walter F Pease
Hanover House
435 Avis Ave. NW
Massillon, OH 44646
Sugako J Pease
615 Applegrove St. NW
N Canton, OH 44720
Arnold F Glantz
4883 Dressler Rd NW
Canton, OH 44718
Anne Piero Silagy, Esq
220 Market Ave S
#900
Canton, OH 44702
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