Maria Katherine Steve Mason

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARIA KATHERINE STEVENSON
MASON,
Debtor.
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Case No. 09-00510
(Chapter 13)
For Publication in West’s
Bankruptcy Reporter
MEMORANDUM DECISION RE DENYING EXEMPTION UNDER 11 U.S.C.
§ 109(h)(3) AND DISMISSING CASE BASED ON 11 U.S.C. § 109(h)(1)
The debtor Mason requests an exemption under section
109(h)(3) of the Bankruptcy Code (11 U.S.C.) from the requirement
of 11 U.S.C. § 109(h)(1) to obtain prepetition:
an individual or group briefing (including a briefing
conducted by telephone or on the Internet) that
outlined the opportunities for available credit
counseling and assisted such individual in performing a
related budget analysis.
Mason does not contend (as is required by § 109(h)(3)(A)(ii) for
an exemption to be available) that she was unable to obtain a
briefing of the specified type within five days of her requesting
credit counseling services. 	Instead, she contends that she could
not obtain such a briefing prepetition within five days after
making the request because she was forced to file her petition
fewer than five days after making the request in order to stay a
The document below is hereby signed.
Signed: August 05, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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foreclosure sale. 	She relies on In re Giambrone, 365 B.R. 386
(Bankr. W.D.N.Y. 2007), in contending that this satisfied the
statute. 	Finding the reasoning of In re Giambrone in this regard
to be unpersuasive, I conclude that the debtor is barred from
obtaining an exemption under § 109(h)(3). 	Accordingly, this case
must be dismissed.
I
Section 109(h)(1) provides that, generally, an individual
debtor is ineligible to be a debtor in a bankruptcy case if the
debtor has not obtained a certain type of briefing.
Specifically, § 109(h)(1) provides, with exceptions of which only
§ 109(h)(3) is of relevance here, that an individual may not be a
debtor under the Bankruptcy Code:
unless such individual has, during the 180-day period
preceding the date of filing of the petition by such
individual, received from an approved nonprofit budget
and credit counseling agency . . . an individual or
group briefing 	(including a briefing conducted by
telephone or on the Internet) that outlined the
opportunities for available credit counseling and
assisted such individual in performing a related budget
analysis.
Mason concedes that she did not obtain the required briefing
prepetition, but asserts that the court should relieve her of
that requirement pursuant to 11 U.S.C. § 109(h)(3), which
provides:
(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--
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(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
(iii) is satisfactory to the court.
[Emphasis added.]
Section 109(h)(1) provides both (1) a very lengthy and
specific description of the type of services, a specified type of
briefing, that an individual debtor must obtain from an approved
agency and (2) a specific prepetition time-frame within which
that briefing must be obtained in order to satisfy the
requirements of § 109(h)(1). 	In turn, § 109(h)(3)(A)(ii) imposes
as a requirement for a § 109(h)(3) exemption that the debtor have
been unable to obtain “the services referred to in paragraph (1)”
within a specified five-day period. 	To describe the services in
question, Congress commendably elected in § 109(h)(3)(A)(ii) to
refer to the “services referred to in paragraph (1) [i.e.,
§ 109(h)(1)]” rather than repeating verbatim the specific type of
briefing that § 109(h)(1) requires. 	The reference in
§ 109(h)(3)(A) to “services referred to in paragraph (1)” is not
to just any services provided by a credit counseling agency but,
specifically, is a reference to a briefing of the character
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specified in § 109(h)(3)(A).
II
Facing an imminent foreclosure sale of her home, Mason
retained her attorney on Friday, June 12, 2009, to file the case.
Her attorney immediately put her in touch with a credit
counseling agency, but she was unable to complete the required
briefing by the close of business on June 12. 	Mason told her
attorney that she would complete the course on Monday, June 15,
2009, but the foreclosure sale of her home was scheduled to be
held on that Monday at 10:35 a.m. 	As explained by Mason, the
foreclosure sale’s being set early for the morning of Monday,
June 15, 2009, made the filing of the petition an emergency
situation as there was no guarantee that Mason could complete a
§ 109(h)(1) briefing prior to the foreclosure sale. 	Accordingly,
without having obtained such a briefing, she proceeded to file
her petition on the afternoon of Saturday, June 13, 2009, thereby
causing an automatic stay to arise under 11 U.S.C. § 362(a) that
stayed the foreclosure sale. 	She obtained a briefing of the
character required by § 109(h)(1) nine days later, on June 22,
2009.
The chapter 13 trustee has moved to dismiss the case based
on ineligibility under § 109(h)(1). 	The debtor has responded by
filing a motion seeking an exemption under § 109(h)(3).
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III
Mason contends that she could not obtain prepetition the
services referred to in § 109(h)(1) within five days after making
her request because she was forced to file her petition fewer
than five days after making her request in order to stay a
foreclosure sale. 	In light of these circumstances, Mason
contends that she has satisfied the requirement of
§ 109(h)(3)(A)(ii) to qualify for exemption. 	Mason points to In
re Giambrone, 365 B.R. 386, 391 (Bankr. W.D.N.Y. 2007), in which
the court stated that the test is “not whether the agency can
provide a counseling session within five days, but whether in the
context of their circumstances, the debtors can complete within
five days the counseling that must otherwise occur prior to that
exigent moment when a bankruptcy filing is necessary.” 	The court
in In re Giambrone, 365 B.R. at 391, noted that
§ 109(h)(3)(A)(ii) requires that the debtor have been unable “to
obtain the services referred to in paragraph (1) during the 5-day
period,” and noted, in turn, that the services referred to in the
cited paragraph, § 109(h)(1), is a briefing “during the 180-day
period preceding the date of filing of the petition . . . . ”
From this, the Giambrone court reasoned that under
§ 109(h)(3)(A)(ii), the debtor is only required to show that she
requested credit counseling services prepetition, and that she
was unable to obtain prepetition a § 109(h)(1) briefing within
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five days of making her request, because exigent circumstances
forced her to file her petition before the expiration of five
days.
IV
The reasoning of In re Giambrone violates well-established
rules of statutory interpretation. 	As stated in United States v.
Wilson, 290 F.3d 347, 352-53 (D.C. Cir. 2002):
We begin our analysis with the language of the statute.
See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S.
438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). 	“Our
first step in interpreting a statute is to determine
whether the language at issue has a plain and
unambiguous meaning with regard to the particular
dispute in the case. 	Our inquiry must cease if the
statutory language is unambiguous and ‘the statutory
scheme is coherent and consistent.’” 	Robinson v. Shell
Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136
L.Ed.2d 808 (1997) (quoting United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026,
1030, 103 L.Ed.2d 290 (1989)). 	In determining the
“plainness or ambiguity of statutory language” we refer
to “the language itself, the specific context in which
that language is used, and the broader context of the
statute as a whole.” 	Id. at 341, 117 S.Ct. at 846
(citing Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379
(1992); McCarthy v. Bronson, 500 U.S. 136, 139, 111
S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991)).
Under that approach, In re Giambrone erred in treating the
requirement of an inability “to obtain the services referred to
in paragraph (1) [i.e., § 109(h)(1)]” as a reference to not only
a briefing of the character required by § 109(h)(1), but also to
the requirement in § 109(h)(1) that the services be obtained
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1 	It is obvious, however, that the required request for
services must have been made prepetition, as eligibility is
tested as of the date of the filing of the case.
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prepetition. 1 	First, that conclusion of the Giambrone court is
at odds with the plain and unambiguous language of the statute
when viewed in the context of the statute as a whole, and,
second, that conclusion is inconsistent with another provision in
the statute. 	Nor is the conclusion justified by a disparity
perceived by the Giambrone court in the treatment of similarly
situated debtors.
A.
The language of the statute is plain and unambiguous. 	The
requirement of § 109(h)(3)(A)(ii) that the debtor be unable to
obtain credit counseling during the specified five-day period and
the exigency requirement of § 109(h)(3)(A)(i) are separate and
independent requirements. 	The requirement in § 109(h)(3)(A)(ii)
of an inability “to obtain the services referred to in paragraph
(1) [i.e., § 109(h)(1)]” is not tied in any way to the exigent
circumstances that prompted the filing. 	Both requirements must
be met, and the existence of an exigency does not relieve a
debtor from the requirement of showing that he was unable to
obtain the required briefing for the specified five-day period.
“Congress chose not to link the availability of credit counseling
to the event which might require the Debtor to file, but rather
to the date of the debtor's request for credit counseling.” 	In
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re Talib, 335 B.R. 424, 427 (Bankr. W.D. Mo. 2005). 	Accordingly,
if an imminent foreclosure sale, of which a debtor had notice
well in advance, is an exigent circumstance (an issue as to which
courts disagree), the filing of a petition under chapter 13 of
the Bankruptcy Code prompted by that exigency cannot alter the
five-day requirement. 	Congress, it may be inferred, expected
some modicum of diligence on the part of individual debtors, and
contemplated that even in exigent circumstances, an individual
ought not file a bankruptcy case without first obtaining the
services referred to in § 109(h)(1) if the required briefing was
available within the five-day period commencing on the date of
requesting credit counseling.
Moreover, the requirement in § 109(h)(3)(A)(ii) of an
inability “to obtain the services referred to in paragraph (1)”
refers only to the “services referred to in paragraph (1),” not
to the requirement in paragraph (1), which is not a “service,”
that the specified services be obtained prepetition. 	All that
Congress was attempting to do by referring to the “services
referred to in paragraph (1)” was to be concise and to avoid
having to repeat verbatim:
an individual or group briefing 	(including a briefing
conducted by telephone or on the Internet) that
outlined the opportunities for available credit
counseling and assisted such individual in performing a
related budget analysis.
Viewing the reference in that commonsense fashion makes plain
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that it does not also refer to the requirement (which, after all,
is not a “service”) that the specified services be obtained
prepetition.
Without changing the meaning of § 109(h)(3)(A)(ii), Congress
could have written § 109(h)(1) to bar filing:
unless such individual has during the 180-day period
preceding the date of filing of the petition by such
individual, received from an approved nonprofit budget
and credit counseling agency . . . an individual or
group briefing 	(including a briefing conducted by
telephone or on the Internet) that outlined the
opportunities for available credit counseling and
assisted such individual in performing a related budget
analysis, but not if 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 this paragraph (1) during
the 5-day period beginning on the date on which the
debtor made that request, and otherwise qualifies for
an exemption under paragraph (3).
When one reads the exemption language of § 109(h)(3)(A)(ii) in
conjunction with the text of § 109(h) in this fashion, it is
plain that the five-day period specified in § 109(h)(3)(A)(ii)
does not become less than a five-day period when the debtor
files, based on exigent circumstances, before the end of the
five-day period. 	The clause providing for an exemption in the
case of a five-day period of unavailability of “services referred
to in this paragraph (1)” does not refer to the requirement that
the services be obtained prepetition, and would not provide for a
shortening of the five-day period when imminent exigent
circumstances prompt an early filing.
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B.
Even if § 109(h)(3)(A)(ii) were ambiguous, which it is not,
an examination of a companion provision demonstrates that the
provision must be construed as only referring to the specific
services referred to in § 109(h)(1) and not the requirement that
the services be obtained prepetition. 	Section 109(h)(3)(B)
provides that an exemption under § 109(h)(3)(A) “shall cease to
apply to that debtor on the date on which the debtor meets the
requirements of paragraph (1) . . . .” 	That provision is
necessarily referring to the postpetition date on which such
debtor obtains the required services, because it applies
exclusively to debtors who were granted an exemption after
failing to obtain the required briefing prepetition.
Accordingly, when the statute makes reference in
§ 109(h)(3)(B) to “the requirements of paragraph (1),” it is not
referring to the requirement that the briefing mandated by
§ 109(h)(1) be obtained prepetition, but only to the requirement
that the debtor obtain such a briefing.
In comparison, § 109(h)(3)(A)(ii) makes reference to an
inability “to obtain the services referred to in paragraph (1),”
not to an inability “to meet the requirements of paragraph (1).”
Even if the reference in § 109(h)(3)(A)(ii) to “services referred
to in paragraph (1)” could be read as a reference to “the
requirements of paragraph (1),” § 109(h)(3)(A)(ii) would be
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interpreted as referring to only the requirement of obtaining the
required briefing, not the requirement of obtaining the required
briefing prepetition.
This follows because a statutory provision must be read in
light of companion provisions. 	See Williams v. Taylor, 529 U.S.
420, 435-36 (2000); Gutierrez v. Ada, 528 U.S. 250, 255 (2000)
(“[W]ords and people are known by their companions.”); United
States v. Locke, 529 U.S. 89, 105 (2000). 	If § 109(h)(3)(A)(ii)
is read as requiring an inability to meet “the requirements of
paragraph (1),” that reference to the requirements of
§ 109(h)(1), like the reference in § 109(h)(3)(B) to meeting the
requirements of § 109(h)(1), must be read as referring only to
the obtaining of the services, not to the requirement that the
services be obtained prepetition, for there is a strong
presumption that "identical words used in different parts of the
same act are intended to have the same meaning." 	Sullivan v.
Stroop, 496 U.S. 478, 484 (1990) (quotation omitted).
Section 109(h)(3)(A)(ii) imposes a clear requirement of five
days of unavailability of the briefing specified by § 109(h)(1),
and the requirement does not vary depending on when exigent
circumstances cause a debtor to file his petition. 	In other
words, § 109(h)(3)(A)(ii) “focuses on the debtor's ability to
obtain the required credit counseling within the period measured
from the date of her request; it does not exempt her from the
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requirement merely because she was unable to obtain the
counseling prior to the scheduled date of the foreclosure sale.”
In re Talib, 335 B.R. at 428.
C.
The court in In re Giambrone reasoned that the imposition of
a five-day waiting period would “unfairly impose different
outcomes in situations of identical exigency.” 	In re Giambrone,
365 B.R. at 391. 	But Congress intended that debtors not file
bankruptcy unless the debtor was unable to obtain a briefing of
the type described in § 109(h)(1) for at least five days
commencing on the date of requesting credit counseling services,
and the “unfairness” perceived by the Giambrone court does not
justify giving the statute a contrary interpretation that
disregards the statute’s plain language and structure. 	The
result is not changed by the fact that Congress may have failed
to recognize that the unfairness described in In re Giambrone
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2 	In those courts that hold that, in order to qualify for
an exemption under § 109(h)(3)(A), the debtor must wait until
five days after requesting the required briefing before filing a
petition, there is no disparity in the treatment of debtors who
request the required briefing fewer than five days before filing
their cases: all such debtors are deemed ineligible for the
exemption. 	But some courts view the statute as not imposing a
five-day waiting period after making the request; instead, those
courts permit the filing of a petition prior to the expiration of
the five-day waiting period if the debtor in question is told
that the briefing will not be available until after the five-day
period. 	See In re DiPinto, 336 B.R. 693, 700 (Bankr. E.D. Pa.
2006). 	In those courts, a debtor who requests the required
briefing fewer than five days prior to the date of a foreclosure
sale may luck out, to wit, he may be told that the required
briefing is unavailable during the five-day period beginning on
the date of making his request, and in that case, he would be
eligible to file his petition before the foreclosure sale and
without the necessity of a five-day delay. 	Another debtor might
not be so lucky because the required briefing is available within
the five-day period, but not prior to the foreclosure sale.
Whether Congress failed to recognize that some courts might
interpret § 109(h)(3)(A) as not conditioning eligibility on a
five-day waiting period following a request for a § 109(h)(1)
briefing, or whether it recognized that the statute could be
interpreted that way and was indifferent to there being any such
disparate treatment, either way, any perceived “unfairness” in
this disparate treatment of debtors does not justify a judicial
re-writing of the statute.
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might arise. 2 	“The fact that Congress may not have foreseen all
of the consequences of a statutory enactment is not a sufficient
reason for refusing to give effect to its plain meaning.” 	Union
Bank v. Wolas, 502 U.S. 151, 158 (1991) (citation omitted). 	Or,
stated another way, "the fact that a statute can be applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. 	It demonstrates breadth." PGA Tour, Inc.
v. Martin, 532 U.S. 661, 689 (2001) (internal quotation marks and
citation omitted). 	See also Consumer Elecs. Ass'n v. FCC, 347
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F.3d 291, 298 (D.C. Cir. 2003).
D.
Mason’s inability to obtain the required briefing until
after the scheduled foreclosure sale does not change the fact
that it was available to her in three days, which was within the
five-day period specified by § 109(h)(3)(A)(ii). 	Because she did
not satisfy the requirement of § 109(h)(3)(A)(ii), Mason is not
entitled to an exemption under § 109(h)(3)(A) from the general
eligibility requirement of § 109(h)(1) that she obtain
prepetition the required briefing, and, accordingly, the case
must be dismissed.
V
This court has previously imposed sanctions under Fed. R.
Bankr. P. 9011 on an attorney for filing a case on behalf of a
debtor in almost identical circumstances to those of this case.
Nevertheless, because this court had not previously addressed the
reasoning of In re Giambrone, and Mason’s counsel treated the
filing of the petition as warranted by that decision, he met the
requirement of Fed. R. Bankr. P. 9011(b)(2) that the petition’s
treating Mason as eligible to file a case under the Bankruptcy
Code was “warranted by existing law, or by a nonfrivolous
argument for the extension, modification, or reversal of existing
law or the establishment of new law.” 	But as this decision now
demonstrates, the decision in In re Giambrone is at odds with
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rules of statutory interpretation. 	Moreover, one can only assume
that had the Giambrone court taken into account the significance
of the companion provision, § 109(h)(3)(B), on the proper
interpretation of § 109(h)(3)(A)(ii), it would have reached a
different conclusion. 	When a debtor in a future case in this
district could obtain the required briefing within five days
after making his request for credit counseling but nevertheless
files his petition, in whatever circumstances, prior to obtaining
the required briefing, and attempts to justify the failure to
comply with § 109(h)(1) by invoking § 109(h)(3) and In re
Giambrone, the reliance on that decision will no longer furnish a
basis for treating the petition as complying with Rule 9011. 	In
other words, the deficient reasoning of In re Giambrone will not
be a perpetual pass for attorneys and prospective debtors to
disregard the plain and unambiguous language of
§ 109(h)(3)(A)(ii).
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee.
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