Thomas Michael Ebert, Jr and Mary Margaret Ebert

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

|S] RUSS KENDIG

Russ Kendig
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHAPTER 13
CASE NO. 08-63527

)
)
JUDGE RUSS KENDIG
)
)
)

IN RE:

THOMAS MICHAEL EBERT, JR.
AND MARY MARGARET EBERT,

Debtors.
MEMORANDUM OF OPINION
(NOT FOR PUBLICATION)

This case is before the court sua sponte. The court is faced with a situation where a
power-of-attorney completed the financial management course for one of the debtors. The
court must consider whether it is legally permissible for an agent to complete the financial
management course to satisfy the pre-discharge requirements under the bankruptcy code.

The court has jurisdiction of this proceeding pursuant to 28 U.S.C. § 1334 and the
general order of reference entered in this district on July 16, 1984. Venue in this district
and division is proper pursuant to 28 U.S.C. § 1409. This is a core proceeding under 28

U.S.C. § 157(b)(2)(A).

This opinion is not intended for publication or citation. The availability of this
opinion, in electronic or printed form, is not the result of a direct submission by the
Court.

FACTS

On July 21, 2010, a Form 23 was filed by each debtor certifying completion of the
postpetition financial management course. Debtor Thomas Ebert signed his form and
also signed his wife’s form as her power-of-attorney. On November 14, 2011, a copy of
the power of attorney was filed with the court. Based on these filings, it appears Debtor
Mary Ebert did not personally complete the financial management course.

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ANALYSIS

The court previously considered the similar situation involving the pre-filing
credit counseling requirement. See In re Clendenin, 2008 WL 4367844 (Bankr. N.D.
Ohio 2008). The question framed in that decision was “whether it is legally permissible
for an agent designated as an attorney-in-fact to satisfy the credit counseling requirement
of the Bankruptcy Code in the place of his principal(s).” Id. at *1. The court answered in
the negative, tinding that it was a non-delegable duty. The court’s position was primarily
based on two conclusions. First, Federal Rule of Bankruptcy Procedure 9010 cannot
reasonably be read to “permit essentially anyone to do anything by proxy,” but must be
read in a manner that prevents absurdity. Id. at *1-2. Second, the Bankruptcy Code
clearly provides exceptions to the credit counseling requirement, providing those who are
incapacitated or disabled a means to be excused from the requirement. See 11 U.S.C.

§ 109(h)(4).

The court finds no basis to reach a different result with regard to the postpetition
financial management course. The purpose of requiring a debtor’s participation in the
financial management course is to ‘hopefully avoid future financial distress.’ In re Hall,
347 B.R. 532, 535 (Bankr. N.D. W.Va. 2006) (citing Report of the Committee on the
Judiciary, House of Representatives, to Accompany S. 256, H.R.Rep. No. 109-31, Pt. 1,
109" Cong., 1‘ Sess. (2005)). Allowing an agent to take the financial management course
would not further this purpose. The better policy is to excuse the debtor from the
requirement under the procedures and for the reasons specifically outlined in the

Bankruptcy Code.

Although a power-of-attorney is frequently given in situations involving
incapacity or disability, that overlap is not imperative to the grant of authority. An agent
can be appointed for an abled, non-capacitated debtor. Allowing the agent to complete
the financial management course would therefore not equip the debtor with information
aimed at preventing future financial hardship, thereby defeating the purpose of the
requirement. The alternative, requiring a debtor to seek to be excused from the
requirement based on a permissible exemption, squarely serves “to excuse those debtors
for whom a financial management course would serve no meaningful purpose or would
be impossible.” In re Ferrell, 391 B.R. 292, 293 (Bankr. D.S.C. 2008) (citing In re Hall,

347 BLR. at 535-36).

As aresult of this conclusion, the court rejects the Form 23 filed by Debtor Mary
Ebert and finds that her failure to complete the financial management course renders her
ineligible for a discharge in this case. Debtor will be provided an opportunity to file a
motion for an exemption from the requirement.

An order shall be issued forthwith.
# # #

Service List:

Thomas J Budd, II
128 Church St
Ashland, OH 44805-2105

Toby L Rosen

400 W Tuscarawas St
Charter One Bank Bldg
4th Floor

Canton, OH 44702

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