Preparing to File a Chapter 13 Bankruptcy
§2.5 Once it is determined that the filing of a Chapter 13 bankruptcy case is appropriate, the attorney must begin preparation for the filing of the bankruptcy petition, schedules, and the Chapter 13 plan. It is advisable to determine how legal work will be compensated and obtain the client’s agreement before beginning any work on the client’s behalf.
The Bankruptcy Abuse and Consumer Protection Act of 2005 (BAPCPA) made many changes in consumer law that impact debtors, creditors, attorneys, and trustees. See §1.1 for a summary. The obligation for debtors to obtain credit counseling was a significant change. A purpose of the credit-counseling requirement was to inform individual debtors about the consequences of bankruptcy and foster education regarding nonbankruptcy alternatives. HR Rep No 31, 109th Cong, 1st Sess, Pt I at 2 (2005).
Under BAPCPA, an individual must receive credit counseling within the 180 days before the filing of his or her petition to be eligible to be considered a debtor under the Code. 11 USC 109(h). There are, however, three situations when the credit-counseling requirement does not apply: (1) when the U.S. trustee has determined that a nonprofit credit-counseling service is not available in the debtor’s district, 11 USC 109(h)(2)(A); (2) when the debtor submits a certification of exigent circumstances that satisfies the requirements of 11 USC 109(h)(3)(A); and (3) when the court determines that the debtor can not complete credit counseling because of incapacity, disability, or active military duty in a combat zone, 11 USC 109(h)(4).
Submitting a certification under 11 USC 109(h)(3) provides a limited exception to the credit-counseling briefing requirement. The exception provides for the extension of time to comply with the credit-counseling briefing up to 30 days after filing, and for up to 45 days after for cause. 11 USC 109(h). To satisfy the requirement for an exemption, a debtor must file a written certification with the court contemporaneously with the bankruptcy petition. The certification must describe exigent circumstances that merit a waiver of the prepetition requirement, state that the debtor requested credit-counseling services but could not get the services during the 7-day period beginning from when the request is made, and be acceptable to the court. 11 USC 109(h)(3)(A). All of the requirements of 11 USC 109(h)(3)(A) must be satisfied for the debtor’s certification to be deemed satisfactory to the court.
A standard form certification of exigent circumstances does not exist; however, certification does require more than mere allegations and an unsworn motion. Caselaw has developed guidelines that should be followed when submitting a certification to the court. See, e.g., In re Hubbard, 333 BR 377 (Bankr SD Tex 2005). A certification should include an a signed affidavit or declaration by the debtor stating the facts involving the exigent circumstances, the specifics regarding when and who the debtor contacted requesting credit counseling, the reason why the services were unable to be obtained before filing the petition, and when the debtor will receive the services. Id. at 388; seeIn re Anderson, 397 BR 363 (6th Cir BAP 2008).
The second requirement for receiving an exception to credit counseling contains two aspects. First, it is necessary to state that the debtor requested credit counseling. Second, the request must state that the counseling requested could not be provided within five days of the debtor’s request.
The requirement that the certification be satisfactory to the court provides for judicial discretion. In re Rodriguez, 336 BR 462 (Bankr D Idaho 2005).
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Handling Consumer and Small Business Bankruptcies in Michigan
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