Jessica D. Gurule

1 The wording of the form – “2. Within the 180 days before
the filing of my bankruptcy case, I received a briefing....”
(continued...)
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
JESSICA D. GURULE
aka Jessica D. Juarez,
Debtor. 	No. 7-07-12371 SA
MEMORANDUM OPINION AND ORDER
DISMISSING CASE WITHOUT PREJUDICE FOR
NON-COMPLIANCE WITH PREPETITION BUDGET AND CREDIT COUNSELING
REQUIREMENT OF 11 U.S.C. §109(h) AND
SETTING HEARING DIRECTED TO BANKRUPTCY PETITION PREPARER
On its own motion the Court conducted a hearing concerning
the compliance by Debtor Jessica D. Gurule (“Debtor”) with the
requirement for prepetition budget and credit counseling mandated
by §109(h). 	That section requires a debtor to obtain the
counseling “during the 180-day period preceding the date of
filing of the petition....” 	Debtor filed her petition September
26, 2007 (doc 1); the certificate says she obtained the
counseling October 1, 2007 (doc 9). 	Thus Debtor has not complied
with §109(h) and is therefore ineligible to be a debtor under the
Bankruptcy Code.
Exhibit D to the bankruptcy petition constitutes the
certification by debtor and the bankruptcy petition preparer
concerning the status of the prepetition budget and credit
counseling. 	Debtor’s petition has the second box checked, which
recites in summary form that Debtor has obtained the requisite
counseling within 180 days before the filing of the petition 1 but
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1(...continued)
(emphasis in original) -- is somewhat ambiguous, since it does
not make clear that the 180-day period expires the day before the
petition date. 	The language of the statute, on the other hand,
is quite clear: “...such individual has, during the 180-day
period preceding the date of filing of the petition by such
individual, received [a briefing]....” 	§109(h)(1).
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does not have the provider’s certificate describing the services
rendered. 	Exhibit D has been signed by both Debtor and the
bankruptcy petition preparer, and it is dated July 13, 2007.
Unless Debtor had previously obtained a counseling session in
addition to the one she obtained on October 1, 2007 (there has
been no suggestion that she did), Exhibit D is blatantly
incorrect. 	Exhibit D was prepared by the bankruptcy petition
preparer, and delivered to Debtor for Debtor’s signature and
submission to the Bankruptcy Court for filing.
Theresa Holland was the bankruptcy petition preparer for
Debtor, charging $275 for her services. 	As a bankruptcy petition
preparer, she implicitly represented to (the then potential)
Debtor that she would correctly prepare the documents that Debtor
needed to file a bankruptcy petition. 	That a case prepared by a
bankruptcy petition preparer might have been dismissed because of
a defect at the initial filing stage raises the question about
how well the preparer performed.
Without question Ms. Holland had no obligation to provide
legal advice to Debtor; indeed, a bankruptcy petition preparer is
explicitly forbidden to provide legal advice. 	§110(e)(2). 	And
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2 The statute in some senses is quite deceptive, but the
Court has no authority to correct it; only Congress can do that
if it wishes to do so. 	Rather, the Court must, except in rare
circumstances not applicable here, apply the statute as Congress
wrote it. 	E.g., Lamie v. United States Trustee, 540 U.S. 526,
534 (2004). 	(Citation omitted.)
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advising Debtor about what documents to submit to the Court is
clearly legal advice. 	A careful review of what duties a
bankruptcy petition preparer can legally perform suggests that
preparers are entitled to perform the function of a typist or
data entry clerk, and little more. 	Thus, although the statute
(§110) that Congress has written makes it appear that debtors can
rely on bankruptcy petition preparers to provide them with
documents and, essentially, the advice needed to file a petition
successfully, another part of the statute forbids the preparer
from doing that. 2 	In any event, it appears that Ms. Holland is
probably not chargeable with having failed to adequately inform
Debtor that Debtor needed to obtain the prepetition budget and
credit counseling prior to the date of filing her petition.
On the other hand, as a bankruptcy petition preparer
offering to help Debtor prepare the forms to file a bankruptcy,
Ms. Holland was obligated to fill out Exhibit D correctly as of
the date that she and Debtor executed it. 	Performing that duty
would not have constituted providing legal advice, even if the
questions Ms. Holland needed to ask Debtor to fill in Exhibit D
correctly would probably have led Debtor to obtain the requisite
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Page -4-
counseling timely. 	It appears from the documents that Ms.
Holland did not correctly perform her duty as a bankruptcy
petition preparer, in that Debtor had not obtained the requisite
counseling at the time that Exhibit D was signed, contrary to
what Exhibit D says. 	It is therefore incumbent on the Court to
inquire into what happened, and perhaps take some appropriate
action, such as requiring the refund of the fees charged to
Debtor, or perhaps requiring Ms. Holland to pay the filing fee
for another petition.
IT IS THEREFORE ORDERED that this chapter 7 case is
dismissed without prejudice to Debtor filing another case (that
is, the Debtor may file another bankruptcy case).
IT IS FURTHER ORDERED that this chapter 7 case will not be
closed so that the Court can inquire of the bankruptcy petition
preparer concerning the circumstances of how it came to be that
Exhibit D was filled out and submitted to the Bankruptcy Court
the way it was, and what consequences might flow from any such
determination.
IT IS FURTHER ORDERED that the bankruptcy petition preparer
Theresa Holland shall appear in person or by telephone** before
the Honorable James Starzynski in the Dennis Chavez Federal
Building and United States Courthouse, 13th floor, Room 13102,
500 Gold Avenue SW, Albuquerque, New Mexico, on November 26, 2007
at 11:00 a.m. to explain the circumstances of how it came to be
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Page -5-
that Exhibit D was filled out and submitted to the Bankruptcy
Court the way it was.
IT IS FURTHER ORDERED that Debtor may appear in person or by
telephone at the hearing if she wishes; she has no obligation to
do so if she does not want to.
**Counsel/parties may appear by telephone if a written request is received in
the Court’s Chambers by 5:00 P.M. of the business day prior to the hearing. 	Requests
to appear by telephone may be faxed to (505) 348-2432 (this fax number may be used
only for this purpose), or may be sent by email only to Judge Starzynski’s chambers at
starzynski@nmcourt.fed.us. 	The email must have a subject heading that includes the
word “telephone”, correctly spelled. 	The text of the request must contain your name,
the case name, date and time of hearing, and the number at which you can be reached
when we call you for the hearing. 	Do not send your request to the Clerk’s office and
do not file your request as a pleading.
James S. Starzynski
United States Bankruptcy Judge
COPY TO:
Jessica D. Gurule
PO Box 385
Peralta, NM 87042
Yvette Gonzales
Trustee
PO Box 1037
Placitas, NM 87043-1037
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Teresa Holland
1100 Alvarado SE, #112
Albuquerque, NM 87108
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