Edward G. Mattingly

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MASSACHUSETTS
__________________________________
In re:
EDWARD G. MATTINGLY, Chapter 7
DEBTOR Case No. 08-10883-WCH
__________________________________
MEMORANDUM OF DECISION
WHEREAS, Edward G. Mattingly (the “Debtor”) filed a skeletal Chapter 7 petition on
February 8, 2008; and
WHEREAS, on February 8, 2008, the Court entered an Order to Update setting the deadline
to file, inter alia, the Certificate of Credit Counseling as February 25, 2008; and
WHEREAS, the Debtor erroneously completed a course on personal financial management
and filed a Certificate of Debtor Education in place of the Certificate of Credit Counseling; and
WHEREAS, neither the Court nor any party in interest timely detected the error; and
WHEREAS, had the defect been detected timely, the Debtor may have been eligible for a
temporary exemption under 11 U.S.C. § 109(h)(3) and cured the defect; and
WHEREAS, the Debtor’s case has now been fully administered and is ripe for discharge;
and
WHEREAS, the credit counseling requirement is not jurisdictional and courts have
discretion to allow the Debtor to cure the eligibility deficiency; See In re Manalad, 360 B.R. 288,
301 (Bankr. C.D. Cal. 2007); and
WHEREAS, when considering whether dismissal for failure to comply with 11 U.S.C. §
109(h) is warranted, courts have identified the following elements:
1. Whether the debtor filed the case in good faith;
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2. Whether the debtor took all reasonable steps to comply with the
statutory requirements;
3. Whether the debtor's failure to comply was the result of
circumstances that were both extraordinary and beyond the control of
the debtor;
4. Whether the debtor's conduct meets the minimum requirements of
§ 109(h);
5. Whether any party would be prejudiced by allowing the case to
proceed; and
6. Whether there are any unique equitable factors that tip the balance
in one direction or another.
In re Hess, 347 B.R. 489, 498 (Bankr. D. Vt. 2006); and
NOW, THEREFORE, the Court finds that the Debtor reasonably attempted to comply with
the statutory provisions but failed due to inadvertently completing the course on personal financial
management instead of credit counseling. As the defect was not discovered until three months after
the maximum allowed exemption under 11 U.S.C. § 109(h)(3), the circumstances of the defect are
extraordinary and beyond the control of the Debtor. Because the late discovery of this defect
precludes any remedial effort by the Debtor, the Court finds the Debtor’s conduct adequately met
the minimum requirements of 11 U.S.C. § 109(h). No party in interest has objected or sought
dismissal of the Debtor’s case based on this defect, and the Court finds that no prejudice would
ensue from allowing the case to proceed. Moreover, given the unique circumstances, dismissal on
these grounds would be inequitable at this late stage in the case. As such, the Court will enter an
order waiving the credit counseling requirement with respect to the Debtor.
______________________________
William Hillman
United States Bankruptcy Judge
Dated: June 23, 2008
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