Louis I. Wander

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re
LOUIS I. WANDER
Debtor
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Case No. 06-10356
Chapter 13
Judge Hopkins
ORDER STRIKING CASE
By this order, the Court is striking the Debtor's case because the Debtor is not
eligible to be a debtor. Specifically, the Debtor failed to comply with the prepetition credit
briefing requirement set forth in 11 U.S.C. § 109(h).
FACTS
This case was filed on February 21, 2006. 	On the same date, the Debtor filed a
Certification Of Exigent Circumstance ("Certification") (Doc. 5). The Certification is not a
motion. It is simply a pleading, signed by the Debtor's attorney and not the Debtor, that
states:
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: April 27, 2006
____________________________________________________________
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Case No. 06-10356
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The undersigned case attorney for the above-named debtor does
hereby certify under penalty of perjury that the Debtor Louis I. Wander was
unable to obtain credit counseling prior to the filing as he does not own a
computer and was unable to make an in-person appointment for counseling
by February 22nd , his filing deadline due to a pending sheriff sale concerning
his residence real estate, scheduled for February 23, 2006 at 11 a.m.
The pleading does not contain a certificate of service. Because it was filed, however, it was
automatically served upon the United States Trustee and the chapter 13 trustee by email.
On March 27, 2006, the Debtor filed a Certificate Of Counseling (Doc. 24), which
reflects that the Debtor received a "briefing . . . that complied with the provisions of 11
U.S.C. § 109(h)" on March 15, 2005.
On April 18, 2006, counsel for the Debtor uploaded a proposed order which "finds
that exigent circumstances did exist relieving Debtor of the requirement of budget and
credit counseling prior to the filing and said exigent circumstances is [sic] satisfactory to the
court."
LAW & ANALYSIS
The February 21, 2006 Certification appears to be an attempt to obtain a 30-day
exemption from the § 109(h)(1) briefing requirement. Section 109(h)(3) provides for such
an exemption.
(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
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Case No. 06-10356
1 Although this may seem harsh, especially for pro se debtors, it may actually protect the debtor in the
long run. Otherwise, a creditor might later file a motion to dismiss based upon 109(h) ineligibility, arguing that
it did not receive notice or an opportunity to be heard on the issue.
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(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). Nonetheless, there are at least six reasons why this case must be
stricken for failure to comply with § 109(h)(3).
1. Section 109(h)(3) relief must be requested by motion.
Implicit within § 109(h)(3)(A)(iii) is the idea that a court must make a ruling on the
certification. Bankruptcy courts make administrative rulings by court order. Consistent with
the foregoing, the Debtor has uploaded a proposed order for signature.
However, Fed. R. Bankr. P. 9013 provides that "[a] request for an order . . . shall be
by written motion, unless made during a hearing." Thus, relief under § 109(h)(3) cannot
be obtained by merely filing a certification and then presenting a proposed order granting
a § 109(h)(3) exemption.
2. The § 109(h)(3) motion must be served on all creditors.
LBR 9013-3(b) mandates service of a motion "upon any party directly affected by
the relief sought." A § 109(h)(3) motion raises the issue of whether the movant is eligible
to be a debtor. Under these circumstances, all creditors are "affected" by the motion and
should be afforded an opportunity to be heard. 1
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Case No. 06-10356
2 The Court realizes that this means the debtor may incur the time and expense of a postpetition
briefing, to ensure it is completed within the first thirty days of the case, only to find that the § 109(h)(3) motion
is denied. That is simply all the more reason for the debtor and counsel to make certain that there is good
cause for § 109(h)(3) relief before the petition is filed.
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3. The motion should contain a 20 day notice.
LBR 9013-1(a) requires a twenty-day notice to be served with all motions. 	A
§ 109(h)(3) motion is no exception to this rule.2
4. A paper copy of the motion must be served on the U.S. Trustee and the case
trustee.
Lest counsel forget, the Court's administrative procedures mandate service of a
paper copy of any initial motion that commences a contested matter under Fed. R. Bankr.
P. 9014. See ECF Procedure 9(a)(1). The motion's certificate of service should reflect the
same. 	See LBR 9013-3(e)(3). 	Therefore, counsel cannot rely upon email service of a
§ 109(h)(3) motion on the U.S. Trustee and the case trustee.
5. Section 109(h)(3) certifications must be made by the debtor, not counsel.
A debtor's attorney cannot make the certification on the debtor's behalf. See In re
DiPinto, 336 B.R. 693 (Bankr. E.D. Pa. 2006).
6. 	The certification should set forth: (1) the date on which the briefing was
requested; (2) the first date on which the briefing could be obtained; and (3)
the names of the agencies that were contacted.
It is difficult to determine if a briefing could have been obtained within five days of
request unless the certification includes the date on which a request was made and the first
date on which the briefing could be obtained. 	Similarly, it is difficult to determine if the
debtor contacted an approved agency unless the certification identifies the name of the
agency contacted. 	See In re Hubbard, 332 B.R. 285, 289 (Bankr. S.D. Tex. 2005)
("Normally, the certification should set forth the facts underlying any alleged exigent
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circumstances, the date(s) on which the debtor requested credit counseling, which
agencies were contacted to render the services, why the debtor believes that the services
could not be obtained before the filing, and when the services are reasonably likely to be
obtained."); see also In re Talib, 335 B.R. 417, 421 (Bankr. W.D. Mo. 2005) (adopting
Hubbard standard).
CONCLUSION
Because the Certification does not comply with any of the foregoing requirements,
the case is hereby STRICKEN without prejudice to refiling.
Copies to:
ALL CREDITORS
Louis I. Wander
9170 Trelawney Circle
Cincinnati, OH 45251-3034
Monica R. Bohlen
mbohlen@fuse.net
Margaret A. Burks
Cincinnati@cinn13.org
U.S. Trustee
ustpregion09.ci.ecf@usdoj.gov
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