Edna Ruth Robinson

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
EDNA R. ROBINSON,
Debtor.
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Case No. 06-00103
(Chapter 13)
DECISION REGARDING DEBTOR’S RESPONSE TO ORDER TO SHOW CAUSE
The debtor in this case has filed a series of responses to
an order to show cause entered by the court and a motion to
dismiss filed by the chapter 13 trustee (D.E. Nos. 32-33 & 34-35,
filed on May 5, 2006, and May 9, 2006, respectively). 	Both the
order to show cause and the motion to dismiss require that the
debtor explain why her case ought not be dismissed due to the
debtor’s apparent ineligibility for title 11 relief under 11
U.S.C. § 109(h), which requires individuals to obtain credit
counseling on a date prior to the petition date to qualify as a
The decision below is hereby signed. Dated: May 11,
2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	In addition to the reasons listed in the court’s order to
show cause, the chapter 13 trustee argues that the debtor’s
request for a temporary waiver of the credit counseling
requirement of § 109(h) should be denied because the “exigent
circumstances” alleged by the debtor--imminent foreclosure on the
debtor’s house--are only “exigent” due to the debtor’s dalliance
in seeking bankruptcy relief. 	Compare In re DiPinto, 336 B.R.
693, 697-98 (Bankr. E.D. Pa. 2006) (imminent sheriff’s sale
constitutes “exigent circumstances,” but those circumstances do
not “merit a waiver” where the debtor had proper notice of the
sale and failed to act until the last minute) with In re Childs,
335 B.R. 623, 630 (Bankr. D. Md. 2005) (standard for “exigent
circumstances” is “not one of ‘excusable neglect’ that would
require the [c]ourt to delve into the reasons why the exigent
circumstances occurred”). 	The court has not yet had occasion to
address this difficult issue, see In re Jones, Case No. 05-02409,
slip order at 6 (Bankr. D.D.C. Jan. 20, 2006) (assuming without
deciding that imminent foreclosure constitutes “exigent
circumstances”), and declines to do so here where there are
other, more obvious reasons to dismiss the debtor’s case.
2 	The debtor filed a certificate of credit counseling on
May 9, 2006, indicating that she received counseling on April 24,
2006--twelve days after she filed her petition for bankruptcy.
Thus, if the court were to grant the debtor the temporary waiver
that she seeks, the debtor would be in compliance with § 109(h).
2
“debtor.” 1 	The debtor concedes that she did not receive the
required credit counseling prior to the petition date, but argues
strenuously that she should be granted a temporary waiver of the
requirement pursuant to 11 U.S.C. § 109(h)(3). 2
As the court explained in its show cause order, one of the
prerequisites for a temporary waiver under § 109(h)(3) is that
“the debtor certifies that she requested credit counseling
services from an approved non-profit budget and credit counseling
agency before she filed her petition, but was unable to obtain
the necessary services within five days of the request” (Order at
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2). 	The court explained in some detail how the debtor failed to
satisfy this requirement:
In her certificate, the debtor states that
she contacted two credit counseling services,
neither of which could provide telephonic
service to the debtor right away. The debtor
does not, however, state that these agencies
could not assist her within five days of her
request, as required by § 109(h)(3). Instead,
she states that representatives from both
services promised to “have someone get in
touch with” her (Cert. of Waiver ¶ 5).
The debtor’s averment that representatives
from two credit counseling providers could
not counsel her at the very instant
that she called them is by no means proof
that the credit counseling providers could
not have assisted the debtor within five days
of her request. Under the circumstances, the
debtor should have either (1) obtained
confirmation from the credit counseling
providers that they could not assist her for
at least five days or (2) waited five days
for a return call from the credit counseling
providers before filing for bankruptcy. The
debtor’s failure to take such action renders
her certificate infirm.
(Order at 2-3).
Rather than dismiss the debtor’s case outright, the court
allowed the debtor fifteen days to show cause why the debtor’s
case ought not be dismissed. 	There were essentially two ways for
the debtor to avoid dismissal of her case. 	First, she could have
demonstrated that she actually received credit counseling prior
to the petition date. 	Failing that, she could have qualified for
a temporary waiver under § 109(h)(3) by showing that she “(1)
obtained confirmation from the credit counseling providers that
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they could not assist her for at least five days or (2) waited
five days for a return call from the credit counseling providers
before filing for bankruptcy” (Order at 3).
The debtor’s response establishes none of these things.
Instead, the debtor argues that § 109(h)(3) should apply “where
[the] debtor first seeks credit counseling within 5 days before
some ‘crisis’ event (e.g., foreclosure, eviction, seizure of
property, etc.), cannot obtain such counseling before that event
is scheduled to occur, and files a [p]etition at least one day
after the attempt, but before the expiration of the 5 day period
from the attempt” (Response at 2-3). 	In other words, the debtor
asks the court to suspend the timing requirement set forth in
§ 109(h)(3)(A)(ii) whenever the debtor’s “exigent circumstances”
require immediate bankruptcy relief.
The court declines to accept the debtor’s proffered reading
of § 109(h). 	Simply put, there is nothing in the text of the
statute to support the notion that the timing requirement of
§ 109(h)(3)(A)(ii) is itself waivable according to the dictates
of the debtor’s circumstances. 	To the contrary, the statutory
language makes quite clear that a debtor must demonstrate both
that there are exigent circumstances requiring deferral of the
required credit counseling and that the debtor could not obtain
credit counseling within five days of her request. 	This is not a
“tortured reading” of the statute (Response at 3); it is the only
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one. 	See In re Wallert, 332 B.R. 884, 888 (Bankr. D. Minn. 2005)
(holding that five-day period set forth in § 109(h)(3) must be
observed even where sheriff’s sale was imminent and debtor could
not obtain counseling prior to sale).
Finally, the debtor asks the court to “be []mindful of the
practical effect” of dismissing the debtor’s case with respect to
both the debtor and the court’s administration of the case
(Response at 3). 	The court has noted on several occasions that
its fidelity to the text of § 109(h) can sometimes lead to
“harsh” results. 	In re Hawkins, Case No. 06-00057, slip order at
5 (Bankr. D.D.C. March 21, 2006); see also In re Beard, Case No.
05-02408, slip order at 2 (Bankr. D.D.C. February 16, 2006). 	But
the court has also recently concluded that eligibility under
§ 109(h) is necessary for this court to assert subject matter
jurisdiction over a case, and that the statute’s provisions
cannot be ignored whenever the court finds it convenient to do
so. 	See In re Hawkins, 2006 WL 1071682, **1-4 (Bankr. D.D.C.
April 20, 2006).
The debtor failed to obtain the credit counseling required
by § 109(h)(1) on a date prior to the petition date and cannot
demonstrate that credit counseling was unavailable for five days
after her initial request. 	Under the plain language of § 109(h),
she is ineligible for relief under title 11 and her case must be
dismissed. 	However impractical or unfair the debtor perceives
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this result to be, that is the law as set forth by Congress, and
this court will abide by it.
A separate order follows.
[Signed and dated above.]
Copies to: Debtor; debtor’s counsel; chapter 13 trustee
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