Amber L. Silva

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
AMBER L. SILVA,
Debtor. 	No. 7-07-11640 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 Amber L. Silva (“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 July 9,
2007; her certificate of prepetition budget and credit counseling
certified that she received the counseling that same day. 	Thus
Debtor has not complied with §109(h) and is therefore ineligible
to be a debtor under the Bankruptcy Code, and this case must be
dismissed.
At the hearing, Debtor informed the Court that, having
received from her bankruptcy petition preparer most of the
documents needed to successfully file a chapter 7 bankruptcy
petition, she (Debtor) appeared in the Clerk’s office to initiate
her case on July 9. 	The Clerk’s office personnel, pursuant to
standard operating procedures, reviewed the documents, and
informed Debtor that she did not have the certificate for the
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1 The copy of the certificate has a tiny blotch at this
spot, but it appears clearly enough that Central Daylight Time is
indicated. 	This time would also be consistent with Debtor’s
account of what happened.
2 Sic. 	In the circumstances of this case, “completed” would
be a more precise term.
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prepetition budget and credit counseling. 	The Clerk’s office
suggested she obtain the counseling and the accompanying
certificate and then return to file her petition. 	Debtor
complied immediately. 	Her paper petition is file stamped 3:38
p.m. (which would be Mountain Daylight Time). 	The certificate
recites that “I certify that on July 9, 2007, at 4:19 o’clock PM
CDT 1 Amber L. Silva received 2 from Allen Credit and Debt
Counseling Agency....” 	Doc 9. 	Thus the documents show that
Debtor completed her prepetition counseling nineteen minutes
prior to filing her petition, and on the same day.
At the hearing, Debtor justifiably expressed considerable
frustration with the advice she received from the Clerk’s office
and the result ultimately obtained. 	In response to this case,
the Clerk’s office has revised its procedures and some of the
filing instructions posted on the court website and in the 10 th
floor hall in the courthouse. 	Unfortunately, Debtor is not
entitled to relief due to receiving the incorrect advice. 	See
Bowles v. Russell, __ U.S. __, 127 S. Ct. 2360, 2366 (2007)
(reliance on trial judge’s incorrect allowance of additional time
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3 The wording of the form – “2. Within the 180 days before
the filing of my bankruptcy case, I received a briefing....”
(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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for appeal not grounds for permitting late appeal in habeas
corpus proceeding).
Exhibit D to a 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 3 but
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 3, 2007.
Unless Debtor had previously obtained a counseling session in
addition to the one she obtained on July 9, 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
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4 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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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
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. 4 	In any event, it appears that Ms. Holland is
probably not chargeable with having failed to adequately inform
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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
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
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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
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:
Amber L. Silva
906 Dolores Dr. NW
Albuquerque, NM 87105
Yvette Gonzales
Trustee
PO Box 1037
Placitas, NM 87043-1037
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United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
Teresa Holland
1100 Alvarado SE, #112
Albuquerque, NM 87108
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