Yvonne H Fendall

O:\JUDGTEMP\Fendall Decision re Dismissal.wpd
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
YVONNE H. FENDALL,
Debtor.
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)
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Case No. 06-00083
(Chapter 13)
DECISION RE MOTION TO DISMISS
Based on the decision in In re Mills, Case No. 06-00079
(Bankr. D.D.C. Apr. 20, 2006) (copy attached), the court rejects
the arguments presented in opposition to the trustee's motion to
dismiss. Moreover, the court must deny the debtor's request to
grant relief under 11 U.S.C. § 109(h)(3) as the debtor plainly
cannot satisfy 11 U.S.C. § 109(h)(3)(A)(ii) (because she did
obtain credit counseling within 5 days of requesting it). The
court will thus dismiss the case.
[Signed and dated above.]
Copies to: Debtor; Debtor's Attorney; Trustee.
The decision below is hereby signed. Dated: April
20, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	The trustee’s motion also requested dismissal with
prejudice pursuant to 11 U.S.C. § 109(g) due to the debtor’s
failure to disclose three previous bankruptcy cases filed by the
debtor over the past four years. 	The trustee appears to have
withdrawn this request in her reply memorandum in support of
dismissal (D.E. No. 23, filed April 18, 2006).
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
SAMUEL I. MILLS, JR.,
Debtor.
)
)
)
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Case No. 06-00079
(Chapter 13)
DECISION REGARDING MOTION TO DISMISS WITH PREJUDICE
The chapter 13 trustee has filed a motion to dismiss the
debtor’s case pursuant to 11 U.S.C. § 109(h) due to the debtor’s
failure to obtain credit counseling of the kind described in
§ 109(h) on a date prior to the date on which the debtor filed
his petition. 1 	The debtor opposes the trustee’s motion and
suggests in the alternative that the court strike the debtor’s
petition without dismissing his case if the court concludes that
the debtor is ineligible for title 11 relief under § 109. 	For
the reasons that follow, the court must dismiss the debtor’s case
The decision below is hereby signed. Dated: April
20, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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pursuant to § 109(h).
I
Section 109(h) provides in pertinent part that
an individual may not be a debtor under this
title unless such individual has, during the
180-day period preceding the date of the
filing of the petition by such individual,
received from an approved nonprofit budget
and credit counseling agency . . . an
individual or group briefing . . . that
outlined the opportunities for available
credit counseling and assisted such
individual in performing a related budget
analysis.
11 U.S.C. § 109(h)(1) (emphasis added).
As the court explained in an unpublished order in another
case:
Section 109(h) does not simply require that
the debtor 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)
(emphasis added).
“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. 	As the certificate of
credit counseling is dated [the same date
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that the petition was filed], the court must
dismiss the debtor’s case pursuant to
§ 109(h).
In re Mitchell, Case No. 06-00026, order at 2 (Bankr. D.D.C.
February 17, 2006).
Since the court entered its unpublished order in Mitchell,
at least one court has issued a published decision contradicting
directly the rationale set forth above. 	In In re Warren, 2006 WL
701144 (Bankr. E.D. Ark. March 20, 2006), the bankruptcy court
concluded that credit counseling received on the same day that
the debtor filed his petition satisfied the timing requirement of
§ 109(h) by “interpret[ing] the words ‘date of filing’ as used in
[§] 109(h)(1) to mean the specific day, month, year, and time of
day the petition was filed.” 	Id. at *4. 	The Warren court cited
to state court precedent and the legislative history of § 109(h)
in support of its position. 	Id. at **4-5.
This court respectfully disagrees with the ruling of the
court in In re Warren. 	First, the primary case relied upon by
the Warren court in support of its holding, Anderson v. State
Personnel Bd., 162 Cal. Rptr. 865 (Cal. Ct. App. 1980),
contradicts rather than supports the conclusion in In re Warren.
In Anderson, the California Court of Appeal considered the firing
of a state employee pursuant to a notice mailed to her after the
close of business on March 15, 1977, which indicated that the
firing was “effective at the close of business on March 15,
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2 	See also Connors v. B & H Trucking Co., Inc., 871 F.2d
132, 135 (D.C. Cir. 1989) (observing that the “common usage is
that the date on which something happens is the day on which it
happens” in construing statute which referred to the “date” of
cessation of operations).
4
1977.” 	The employee contended that the notice failed to comply
with a statutory requirement that notice of termination be sent
“on or prior to the effective date specified” because the notice
was sent after the time--the close of business--on March 15,
1977, specified by the notice as the effective time of the
termination of her employment on that day. 	Id. at 867-68. 	The
employee argued that “‘date’ and ‘day’ are not synonymous and
that ‘date’ refers to the particular time of a transaction rather
than the calendar day on which it occurs.” 	Id. at 867.
The Anderson court explicitly rejected the employee’s
proposed distinction between the terms “date” and “day,”
concluding instead that “[t]he word ‘date’ in its common and
accepted statutory meaning refers simply to the day, month and
year.” 	Id. at 868. 2 	The court distinguished this “statutory
meaning” from the meaning of the term in business contracts,
where “transactions require adherence to an exact time schedule
and application of a time limitation to the term ‘date’ . . . .”
Id. at 868. 	In other words, where a contract specifies a time
within a day as the “date” for performance of certain aspects of
a contract and then refers to that “date” elsewhere in the
contract, the reference should be read as encompassing the time
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limitation as well. 	Id.
The Warren court misreads severely the opinion in Anderson
to conclude that because a time limitation within a calendar day
can be inferred where “‘impairment of property or other interests
would occur if absolute adherence to the time specification was
not achieved,’” In re Warren, 2006 WL at *4 (quoting Anderson,
162 Cal. Rptr. at 868), the time limitation in § 109(h) can be
extended outside the calendar date set forth in that statute
because “[i]n bankruptcy, the exact time of filing is a critical
bright line in determining property rights of debtors and
creditors.” 	Id. 	Nothing in Anderson supports this
interpretation of the statutory text, and nothing in Anderson
contradicts the case law cited by this court in In re Mitchell.
Second, this court sees nothing in the legislative history
of § 109(h) to support the conclusions drawn by the Warren court.
The excerpt of the House Report quoted in In re Warren states
that a debtor must “receive credit counseling within the 180-day
period preceding the filing of the bankruptcy case.” 	H.R. Rep.
No. 109-31, at 54 (2005). 	Elsewhere, the report states that
[t]he legislation’s credit counseling
provisions are intended to give consumers in
financial distress an opportunity to learn
about the consequences of bankruptcy--such as
the potentially devastating effect it can
have on their credit rating--before they
decide to file for bankruptcy relief.
Id. at 18. 	These excerpts do not suggest a position one way or
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the other with respect to the language of timing contained within
§ 109(h).
“Congress ‘says in a statute what it means and means in a
statute what it says there . . . .’” 	Hartford Underwriters Ins.
Co. v. Union Planters Bank (In re Hen House Interstate, Inc.),
530 U.S. 1, 6 (2000) (quoting Conn. Nat’l Bank v. Germain, 503
U.S. 249, 254 (1992)). 	The court is obliged to apply § 109(h) as
it was written by Congress, not as Congress theoretically could
have intended for it to have been written. 	And it certainly
cannot ignore the plain meaning of the statutory text based on
the absence of legislative history supporting that plain meaning.
Congress does not need to repeat in a House Report what it has
already said in the statute itself.
For all these reasons, the court concludes that its holding
in In re Mitchell was the correct one. 	A person must obtain
credit counseling of the kind described in § 109(h) on a date
prior to the petition date to be eligible for relief under title
11. 	As the debtor in this case obtained credit counseling on the
same date that she filed her petition, she is ineligible for such
relief.
II
The debtor requests in the alternative that the court
“strike” the debtor’s case as void ab initio rather than dismiss
it outright. 	A number of courts have adopted this approach,
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reasoning that a petition filed by a person ineligible to be a
debtor does not “commence[]” a case for purposes of 11 U.S.C.
§ 301(a). 	See, e.g., In re Valdez, 335 B.R. 801, 803-04 (Bankr.
S.D. Fla. 2005); In re Rios, 336 B.R. 177, 179-80 (Bankr.
S.D.N.Y. 2005); In re Hubbard, 333 B.R. 377, 388 (Bankr. S.D.
Tex. 2005). 	Other courts have rejected this approach. 	See,
e.g., In re Seaman, 2006 WL 988271, **9-11 (March 30, 2006); In
re Taylor, Case No. 05-35381DM, slip op. at 3-4 (Bankr. N.D. Cal.
March 9, 2006); In re Tomco, 339 B.R. 145, 157-61 (Bankr. W.D.
Pa. 2006); In re Ross, 338 B.R. 134, 135-36 (Bankr. N.D. Ga.
2006).
In a recent decision entered in yet another case before this
court involving § 109(h), the court concluded that § 109(h)
imposes a jurisdictional prerequisite as well as a condition of
debtor eligibility because debtor eligibility is a prerequisite
to this court’s jurisdiction under a plain reading of 28 U.S.C.
§§ 1334 and 157 and 11 U.S.C. § 301(a). 	In re Hawkins, Case No.
06-00057, slip op. at 2-10 (Bankr. D.D.C. April 20, 2006). 	The
court also noted that § 362(b)(21)(A) of the Bankruptcy Code,
which provides that the automatic stay does not arise with
respect to an act to enforce a lien against or a security
interest in real property “if the debtor is ineligible under
[§] 109(g) to be a debtor in a case under this title,” would be
rendered superfluous if a case commenced in error were considered
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void ab initio. 	Id. at 5.
The court reconciled this apparent inconsistency between the
plain language of the Bankruptcy Code’s jurisdictional provisions
and § 362(b)(21)(A) by recognizing that a case commenced
improperly by a person ineligible to be a debtor created a case
for the limited purpose of determining whether the court lacked
subject matter jurisdiction over the case. 	Id. at 9-10. 	During
the pendency of that determination, the automatic stay would be
in effect unless the § 362(b)(21)(A) exception applied. 	Once the
court determined that it lacked subject matter jurisdiction, it
would dismiss the case, thereby terminating the automatic stay.
Id.
The court’s exegesis of the Bankruptcy Code’s automatic stay
provisions in Hawkins was not essential to its ruling, but it is
central to this case. 	If the court were to “strike” the debtor’s
case as void ab initio, it would make § 362(b)(21)(A) unnecessary
because the automatic stay would never arise in a case commenced
(however improperly) by a person ineligible to be a debtor.
Because this court has a “duty ‘to give effect, if possible, to
every clause and word of a statute,’” Duncan v. Walker, 533 U.S.
167, 174 (2001) (quoting United States v. Menasche, 348 U.S. 528,
538-539 (1955)) (further citation omitted), it must reject this
approach and dismiss the debtor’s case outright.
An order follows.
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9	O:\Andrew Fausett\Mills_109(h)_motion to dismiss_decision_v2.wpd
[Signed and dated above.]
Copies to: Debtor; counsel for the debtor; chapter 13 trustee;
Office of the U.S. Trustee
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