Carlietha Maria Murphy

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
CALIETHA M. MURPHY,
Debtor.
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Case No. 06-00014
(Chapter 13)
DECISION RE PENDING MOTIONS
The outcome of two pending motions depends on the date and
time of the filing of the debtor’s petition under 11 U.S.C. § 301
to commence this case. Even though the debtor’s counsel, as an
authorized electronic filer of case papers, electronically opened
a docket reflecting this case as commenced on January 17, 2006,
she did not file the debtor’s petition until January 18, 2006.
The court will treat the petition as effective to commence a
bankruptcy case at the time of its filing, and as not relating
back to the opening of the docket on the previous day.
The belated filing of the petition mandates denial of the
chapter 13 trustee’s motion to dismiss on the basis of 11 U.S.C.
§ 109(h). Because the debtor’s petition was filed only on
January 18, 2006, and does not relate back to January 17, 2006,
The decision below is hereby signed. Dated:
February 22, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 The mortgagee is Deutsche Bank National Trust Company,
which was secured by mortgage in the form of a deed of trust
recorded against the debtor’s home. The foreclosure sale was a
non-judicial sale by the trustees under the deed of trust.
2
the debtor received credit counseling on January 17, 2006, which
was “during the 180-day period preceding the date of filing of
the petition” as required by § 109(h).
By the same token, however, the belated filing of the
petition requires granting of the motion of a mortgagee1 for
relief from the automatic stay to permit the purchaser at a
foreclosure sale of the debtor’s home to obtain a deed pursuant
to that sale and to evict the debtor from her home. Although a
case had been electronically docketed on January 17, 2006, that
opening of the case was not the filing of a petition giving rise
to an automatic stay under 11 U.S.C. § 362(a), and no automatic
stay was in effect when the foreclosure sale was held.
I
On January 17, 2006, at 7:13 p.m. EST, the debtor’s
attorney, Juaria L. Nelson, electronically filed in this court an
unsigned Notice to Individual Consumer Debtor under § 342(b) of
the Bankruptcy Code which listed Carlietha Maria Murphy as the
debtor. Nelson thought she was filing a petition under chapter
13 of the Bankruptcy Code on behalf of Murphy, and as part of the
electronic filing transaction paid the filing fee required for
such a case and submitted a docket text which reads:
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Chapter 13 Voluntary Petition. Fee Amount $189 Filed by
Carlietha Maria Murphy Mailing Matrix due 01/20/2006.
(Nelson, Juaria).
The docketing of the filing as a petition resulted in the opening
of a case docket showing Murphy as the debtor under the new case
number of 06-00014. Nelson received a notice of her filing
reciting the time of filing and the docket text she had placed on
the docket and apparently did not realize that what she had filed
was not a petition.
On January 17, 2006, Nelson also electronically filed on the
debtor’s behalf in the newly opened case three other documents:
a chapter 13 plan bearing Nelson’s signature;
a Statement of Social Security Number bearing Murphy’s
signature as the debtor; and
a certificate reciting that Murphy had received credit
counseling under 11 U.S.C. § 109(h) on January 17, 2006.
On January 18, 2006, the clerk issued to the debtor through
electronic transmission to Nelson a notice reciting:
ELECTRONIC DEFICIENCY NOTICE. Filer is hereby notified
that the document entry linked hereto contains an error
which requires corrective action. THE ATTACHED PDF
RELATES TO A DIFFERENT DOCUMENT. PLEASE FILE AN AMENDED
PLEADING WITH THE CORRECT PDF LINKING IT TO THE
ORIGINAL PLEADING (Re: Related Document #: 1 Chapter 13
Voluntary Petition). YOU HAVE UNTIL 1/18/2006 TO
CORRECT THIS DEFICIENCY. IF YOU FAIL TO DO SO, THE
SUBMISSION MAY BE STRICKEN.
Nelson filed the debtor’s signed petition on January 18, 2006,
but sometime after the foreclosure sale had already been held.
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II
Section 109(h) does not simply require the debtor to obtain
credit counseling before she files her bankruptcy petition.
Instead, it specifies that credit counseling must be obtained
prior to “the date of the filing of the petition.” 11 U.S.C. §
109(h)(1). “It is settled that when a statute requires an act to
be done within a specified number of days prior to a fixed date,
the last day, namely, the fixed date, is to be excluded . . . in
making the calculation.” State v. Zaller, 50 N.E.2d 991, 991-92
(Ohio 1943); accord Stein Supply & Supply Co. v. Tate, 95 S.E.2d
437, 438-39 (Ga. Ct. App. 1956); Baugh v. Rural High School Dist.
No. 5, 340 P.2d 891, 898 (Kan. 1959); Murchison v. Darden, 171
S.W.2d 220, 221 (Tex. Ct. App. 1943). Accordingly, the latest
that the debtor could have obtained credit counseling under
§ 109(h) was the date prior to her petition date. The trustee
mistakenly believed that because the docket reflects that a
petition was filed on January 17, 2006, the debtor’s credit
counseling on January 17, 2006, did not satisfy the statute.
However, the petition was not filed until January 18, 2006, and
thus the debtor (inadvertently) complied with the statute.
III
Because the debtor’s petition was not filed until after the
foreclosure sale was held, no automatic stay was in place to stay
the sale. Once the gavel fell at the foreclosure sale, only the
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purchaser’s rights arising from the sale remained to be enforced.
This court’s decisions in In re Flowers, 94 B.R. 3 (Bankr. D.D.C.
1988), and In re Bobo, 246 B.R. 453 (Bankr. D.D.C. 2000), warrant
granting relief from the automatic stay to permit the purchaser
to obtain a foreclosure sale deed and to evict the debtor from
the real property sold.
IV
The court writes further to distinguish a decision, relied
upon by the mortgagee, which could be read as requiring treating
the petition as a nullity. In In re Marion, Case No. 05-67816
JPK (Bankr. N.D. Ind. Jan. 5, 2006), the debtor’s attorney filed
a mailing matrix and erroneously docketed it as a petition
commencing a case. The court entered an order dismissing the
case, as no petition had been filed to commence a case. The next
day, the debtor’s attorney filed a petition in the case and was
notified that “Case Dismissed on 10/24/05. Document cannot be
processed.” Three days later, the debtor’s attorney filed a
motion to reconsider the dismissal of the case. The court ruled
that there was no case pending in which to consider permitting an
amended petition.
The instant case is different. The clerk permitted the
debtor’s attorney to correct the mistake in opening the case and
a petition was filed before the court took any action to dismiss
the case for lack of a petition. The petition, although labeled
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6	O:\JUDGTEMP\Murphy Decision re Case Only Effective Once Petition Filed.wpd
an amended petition, was effective to commence a case. Although
the docket for the case was prematurely opened on the preceding
day, there is no reason to require the debtor’s attorney to open
a new docket and pay a new filing fee related to the petition.
The filing fee paid with the premature filing was for commencing
a bankruptcy case, but when no case was actually commenced until
the petition was filed the next day, the filing fee may be
treated as paid towards the filing of that petition.
Appropriate orders follow.
[Signed and dated above.]
Copies to: Trustee; Debtor; Debtor’s counsel; Jeffrey B. Fisher.
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