Natalie C. Bolling

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
NATALIE C. BOLLING,
Debtor.
)
)
)
)
)
)
Case No. 08-00746
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION RE
MOTION TO RECONSIDER ORDER FOR DISGORGEMENT OF FEES
The debtor’s attorney, Keith J. Smith, seeks reconsideration
of the order requiring him to disgorge his fees to the clerk of
the court.
I
The trustee and the court raised the issue of dismissing the
case based on 11 U.S.C. § 109(h), and Smith opposed that motion.
But Smith did not oppose the trustee’s motion that sought to
require Smith to disgorge fees for filing a petition when the
debtor had not obtained prepetition credit counseling as
generally required by 11 U.S.C. § 109(h).
II
In any event, the opposition to the motion to dismiss, even
if it were treated as an opposition to the motion to disgorge,
The document below is hereby signed.
Signed: February 06, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 08-00746 Doc 39 Filed 02/09/09 Entered 02/09/09 08:30:35 Desc Main
Document Page 1 of 4

2
made clear that Smith violated Rule 9011 in filing the petition.
It recites that even though the debtor began her credit
counseling at 12:10 p.m., she did not complete it until 1:36 p.m.
In the meantime, Smith, who had spoken to the debtor at 12:10
p.m., filed the petition at 12:28 p.m. to stop a foreclosure set
for 1:00 p.m. 	Smith’s justification for filing the petition is
that the debtor told him “at 12:10 p.m. that she was completing
the counseling class,” and that he “believed requirements for
eligibility were met by the time he filed the Petition for
bankruptcy protection at 12:28 p.m.” 	Filing a bankruptcy case
upon the assumption that credit counseling begun eighteen minutes
ago would have been completed within that eighteen minutes does
not satisfy the requirements of Rule 9011.
III
In the motion for reconsideration, Smith states that he
relied upon the debtor’s good faith assertion that her counseling
was complete (presumably meaning an assertion made to Smith
before he filed the petition, but that is not clearly stated).
That is inconsistent with his representation, in the opposition
to the motion to dismiss, that the debtor told him that she “was
completing” the credit counseling (not that she had completed the
credit counseling). 	Moreover, it behooves counsel under Rule
9011 to probe any such assertion that the counseling was complete
to assure that the debtor is not operating under a misconception
Case 08-00746 Doc 39 Filed 02/09/09 Entered 02/09/09 08:30:35 Desc Main
Document Page 2 of 4

3
of what “completing” counseling means. 	Here the credit
counseling was not completed, and a modicum of inquiry would
likely have revealed that it was not completed. 	Smith has not
explained how, in the midst of counseling begun at 12:10 p.m. and
concluded at 1:36 p.m., the debtor could have told him before
12:28 p.m. that the credit counseling was completed.
In any event, Smith has raised this new contention without
any justification for having failed timely to file an opposition
to the motion to disgorge. 	Moreover, on the day after filing the
petition, Smith filed the credit counseling certificate revealing
that the counseling was completed at 1:36 p.m., more than an hour
after the petition was filed. 	Yet, Smith continued to advocate
that the petition was valid, in violation of Rule 9011, and
prolonged this case.
IV
Section 109(h) is a harsh statute when it comes to a debtor
who has overlooked seeking credit counseling until the last
moment before a bankruptcy petition would have to be filed in
order to stop a foreclosure sale. 	The statute is plain that,
with exceptions of no relevance here, a petition cannot be filed
without prepetition credit counseling. 	Reasonable inquiry here
would have led to the conclusion that the debtor had not obtained
credit counseling and was not yet eligible to file a bankruptcy
petition. 	Counsel violated his Rule 9011 obligations by
Case 08-00746 Doc 39 Filed 02/09/09 Entered 02/09/09 08:30:35 Desc Main
Document Page 3 of 4

4	O:\TEEL\Judge Temp Docs\Bolling (Natalie) Mem Decsn re Mtn to Reconsider Order to Disgorge Fees.wpd
proceeding nevertheless to file the petition. 	The motion for
reconsideration will be denied. 	An order follows.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Office
of U.S. Trustee.
Case 08-00746 Doc 39 Filed 02/09/09 Entered 02/09/09 08:30:35 Desc Main
Document Page 4 of 4