Magali Barbaran

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MAGALI BARBARAN,
Debtor.
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Case No. 06-00457
(Chapter 13)
For Publication in West
Bankruptcy Reporter.
MEMORANDUM DECISION REGARDING TRUSTEE’S
MOTION TO DISMISS BASED ON 11 U.S.C. § 109(h) INELIGIBILITY
Under 11 U.S.C. § 109(h), a provision added to the
Bankruptcy Code (11 U.S.C.) by the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-
8, 119 Stat. 23 (2005), an individual debtor, with exceptions of
no relevance here, must obtain a credit counseling agency
briefing “during the 180-day period preceding the date of filing
of the petition by such individual” in order to be eligible to be
a debtor. 	The debtor in this case obtained such a briefing on
the day of, but prior to the time of, the filing of the petition
that commenced this bankruptcy case. 	In In re Mills, 341 B.R.
106 (Bankr. D.D.C. 2006), I interpreted § 109(h) as requiring the
debtor to obtain the required briefing no later than the day
The Memorandum Decision below is hereby signed.
Dated: March 29, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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before the filing of the debtor’s bankruptcy petition. 	Based on
Mills, the chapter 13 trustee has moved for dismissal of the
case. 	The debtor has responded by asking the court to reconsider
Mills in light of arguments that were not advanced in Mills, and
in light of case law that has developed since Mills was decided.
I will deny the trustee’s motion to dismiss because I am now
convinced that in § 109(h), Congress failed to accord the term
“date” (in the clause “date of filing of the petition”) its usual
meaning of calendar day, and instead intended “date” to mean the
moment of the filing of the petition.
I
In deciding Mills, I looked to state court decisions holding
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.’” 	In re Mills, 341 B.R. at 107 (quoting State v.
Zaller, 142 Ohio St. 186, 50 N.E.2d 991, 991-92 (1943)); see also
Stein Steel & Supply Co. v. Tate, 94 Ga. App. 517, 95 S.E.2d 437,
438-39 (1956) (cited in In re Mills, 341 B.R. at 107); Baugh v.
Rural High Sch. Dist. No. 5, 185 Kan. 123, 340 P.2d 891, 898
(1959) (same); Murchison v. Darden, 171 S.W.2d 220, 221 (Tex.
Civ. App. 1943) (same). 	However, the first three decisions I
cited dealt with fixing the starting calendar day of the
statutory period, and not with whether the act can be done on the
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fixed date. 	The other decision I cited dealt with a statute that
required that absentee ballots be cast not less than three days
prior to the date of the election (and hence obviously not on the
date of the election). 	Section 109(h) does not purport to place
a minimum number of days before the “date of filing of the
petition” within which a credit counseling agency briefing must
be obtained. 	In contrast, 11 U.S.C. § 1308(a) (also enacted by
BAPCPA) does impose such a minimum (of “[n]ot later than the day
before the date on which the meeting of the creditors is first
scheduled to be held”) with respect to the filing of tax returns.
Accordingly, the cited decisions do not bear directly on the
proper interpretation of § 109(h) in the case of a briefing
conducted on the date of the filing of the petition.
Nevertheless, these cases do bear indirectly on that issue
because they suggest that § 109(h) should be read as excluding
the date of filing of the petition in interpreting § 109(h).
Consider a debtor who files a petition at 2:00 p.m. on the 181st
day of a calendar year, and obtained a briefing at 9:00 a.m. on
the first day of the calendar year. 	Would that debtor be
eligible to file a bankruptcy petition? 	If the term “date” in
§ 109(h) is interpreted as “calendar day,” the answer would be
yes, as she would have obtained a briefing within 180 days prior
to the calendar day on which she filed her petition. 	If the term
“date” in § 109(h) is interpreted as the moment of the filing of
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the petition, and if a day is any 24-hour period, the answer
would arguably be no, as 180 days prior to the moment of the
filing of the petition would be at 2:00 p.m. on the first day of
the year.
That would be an odd result. 	However, the state court
decisions I cited in Mills employ a convention of statutory
interpretation under which the term “day” in § 109(h) would mean
a full calendar day when the issue is counting backwards to fix
the date that is 180 days prior to the date of the filing of the
petition. 	It is thus possible, on the one hand, to read the term
“date” in § 109(h) to mean the moment of the filing, while, on
the other hand, to read the term “180 days” as consisting of
only full calendar days in calculating the start of the 180-day
period preceding that moment of filing. 	Under this approach, a
briefing obtained 180 calendar days beforehand would satisfy the
§ 109(h) eligibility requirement even if the briefing were at an
earlier time of day than the time of day of the filing of the
petition 180 calendar days later. 	In contrast, when it comes to
fixing the latest point in time to act, the convention of
disregarding the part of the statutory time frame that is not a
full calendar day would not apply, and the required briefing
would be timely if obtained on the day of, but prior to, the
filing of the petition.
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Accordingly, I agree with the subsequent decision in In re
Hudson, 352 B.R. 391 (Bankr. D. Md. 2006), that the issue is not
the measurement of the 180-day period in § 109(h) (that is, the
fixing of the earliest day on which a credit counseling agency
briefing can be obtained and still satisfy the § 109(h)
eligibility requirement), see id. at 395, and respectfully
disagree with In re Cole, 347 B.R. 70 (Bankr. E.D. Tenn. 2006),
which followed Mills and placed emphasis on decisions dealing
with the measurement of the length of a statutory period for
accomplishing an act.
II
When a contract contains a provision using a term that has a
usual meaning, and the provision itself indicates no reason not
to follow that meaning, a court nevertheless will interpret the
term differently if it is accorded an eccentric or unusual
meaning elsewhere in the contract. 	The same approach applies to
statutory interpretation. 	I agree with Hudson, 352 B.R. at 393,
and In re Moore, 2006 WL 3692640 (Bankr. E.D. Tenn. 2006), that
the term “date” in § 109(h) must be interpreted in light of the
use of the term “date” elsewhere in the Bankruptcy Code.
For reasons discussed in Moore, the term “date” in several
provisions of the Bankruptcy Code must have been used to mean the
precise moment of the filing of the bankruptcy case, otherwise
absurd results, contrary to the congressional purpose of the
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1 	The provision was correctly quoted in Moore, but was mis-
cited as § 1307(c)(1).
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provisions, would ensue. 	Moore, 2006 WL 3692640 at *5-6
(discussing 11 U.S.C. §§ 522(p), 1307(c)(11), 1 1308(b)(1),
1325(a) (the “hanging paragraph” at the end thereof), and
1325(a)(8)). 	All of these provisions were added to the
Bankruptcy Code by the same statute, BAPCPA, that added § 109(h)
to the Bankruptcy Code, thus strengthening the propriety of
relying on them in interpreting § 109(h).
The court in Hudson engaged in a similar survey of the
Bankruptcy Code to reach the conclusion that the term “date” in
§ 109(h) does not necessarily refer to a calendar day. 	Among
other provisions, the court identified § 348(f)(1)(A) as a pre-
BAPCPA provision that uses “date” to mean a precise moment in
time instead of a calendar day. 	352 B.R. at 393. 	Although
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2 	Under § 348(f)(1)(A), property of the estate in a case
converted from chapter 13 generally consists of “property of the
estate, as of the date of filing of the petition, that remains in
the possession of or is under the control of the debtor on the
date of conversion.” 	When a case is a case under a chapter other
than chapter 13, the provisions of chapter 13 do not apply to
that chapter. 	11 U.S.C. § 103(i). 	Consequently, the reference
to “property of the estate, as of the date of the filing of the
petition” could be read to mean property of the estate as
determined without reference to chapter 13 of the Bankruptcy
Code. 	Under this meaning, the term would refer to property of
the estate as fixed by § 541, and would not include property
added to property of the estate under § 1306(a).
Because § 541(a) generally limits property of the estate to
the debtor’s interests in property as of the commencement of a
case (that is, as of the filing of the petition), property of the
estate, with exceptions of no relevance here, would not include
property acquired postpetition on the date of the petition. 	In
that event, § 348(f)(1)(A) would not shed any light on the
meaning of the term “date” because § 541 (with exceptions of no
relevance) already restricts the property of the estate to the
debtor’s property as of the commencement of the case, which
occurs at the moment of the filing of the petition.
3 	Section 348(f)(2) provides that if the debtor converts
her case from chapter 13 in bad faith, the property of the estate
in the converted case “shall consist of the property of the
estate as of the date of conversion,” obviously referring to
property of the estate that had become property of the estate
pursuant to § 1306 as well as property that is property of the
estate under § 541. 	If the term “date of conversion” is taken to
mean calendar day, as though the conversion is not effective
until the end of the day, then property that the debtor obtains
after the moment of the debtor’s filing his notice of conversion
would be included in the property of the estate by reason of §
1306 when § 348(f)(2) applies. 	It is therefore likely that
Congress intended “date” in § 348(f)(2) to mean the precise
moment of conversion.
7
§ 348(f)(1)(A) is arguably equivocal on that point, 2 the use of
the term “date” in § 348(f)(2) makes clear that the term “date”
is used in both instances in § 348(f) to mean a precise moment in
time, and not a calendar day. 3
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To be sure, there is at least one instance in the Bankruptcy
Code where Congress clearly uses the phrase “before the date of
the filing of the petition” in the ordinary sense of “before the
calendar day of the filing of the petition.” 	Under 11 U.S.C.
§ 547(b)(4)(A), a transfer of property of the debtor generally
cannot be avoided as a preference unless it was made “on or
within 90 days before the date of the filing of the petition.”
As discussed below, Congress recognized in § 547(b)(4)(A) the
distinction between transfers occurring on the day of the filing
of the petition versus those occurring before the day of the
filing of the petition, and used “date” in § 547(b)(4)(A) to mean
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4 	The word “date” in the clause of § 547(b)(4)(A) reading
“within 90 days before the date of the filing of the petition”
must mean “calendar day,” not “the moment of the filing of the
petition” because “on the moment of the filing of the petition”
would make no sense. 	Instead, “on . . . the date of the filing
of the petition” must mean “on the day of the filing of the
petition.” 	This latter interpretation makes sense because it
allows the trustee to recover transfers made on the same day as
(but before the moment of) the filing of the petition.
The court in Hudson reached the opposite conclusion with
respect to this provision, reasoning that the term “date” in
§ 547(b)(4)(A) must refer to a specific moment in time because
otherwise transfers made on the same calendar day as the filing
of the petition but after the moment of the filing would fall
under the rubric of § 547. 	352 B.R. at 393-94. 	But any property
held by the debtor becomes property of the estate under § 541 as
soon as the petition is filed. 	Such property, if conveyed by the
debtor after the moment of the filing of the petition, would not
constitute a conveyance of property of the debtor, but would
instead constitute a postpetition transfer subject to 11 U.S.C.
§ 549. 	Thus, it was unnecessary to specify in § 547(b)(4)(A)
that, to qualify as a preference, a transfer on the day of the
filing of the petition must occur before the moment of the filing
of the petition.
Nevertheless, it must be conceded that my reading of
§ 547(b)(4)(A) does not provide a completely satisfactory answer
to the extreme hypothetical of a debtor who obtains property
after filing the petition and transfers that property to a
creditor on the same date. 	But for reasons that need not be
explored here, § 547 can be interpreted as being inapplicable to
such transfers without the necessity of interpreting the term
“date” in § 547(b)(4)(A) to mean the moment of the filing.
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the day of the filing of the petition. 4
Nevertheless, the fact that Congress expressed in almost
flawless terms an intention that day-of-filing acts be covered by
§ 547(b)(4)(A) does not mean that the court should assume that
Congress will flawlessly express its intention in unambiguous
terms everywhere in the Bankruptcy Code. 	As demonstrated by the
courts in Moore and Hudson, Congress has used the phrase “before
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5 	Other examples of precise references in the Bankruptcy
Code to an exact moment in time abound. 	See, e.g., 11 U.S.C. §
101(10) (defining “creditor” as including an entity “that has a
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the date of filing of the petition” to refer to the moment when
the petition is filed, not the calendar day of the filing.
Moreover, even references in the Bankruptcy Code to the phrase
“before the date of filing of the petition” that refer to a
calendar date, such as the reference in § 547(b)(4)(A), are
interpreted in that manner because it makes sense to do so.
Section 109(h) would stand out like a sore thumb were it to be
interpreted as imposing a one-day waiting requirement for no
reason whatsoever.
It could also be argued that Congress would have used a more
precise phrase than “before the date of the filing of the
petition” if it had intended to allow debtors to obtain credit
counseling on the same calendar day that they filed their
petitions. 	For example, the Bankruptcy Code refers in various
sections of the Bankruptcy Code to the “commencement of the
case,” which plainly means the moment of the filing of the
bankruptcy petition. 	See, e.g., 11 U.S.C. §§ 101(7) (“claim that
arose before the commencement of the case”); 341(e) (addressing
plan acceptances solicited “prior to the commencement of the
case”); 362(a)(6) (staying enforcement of claim “that arose
before the commencement of the case”); and 541(a) (defining
property of the estate). 5 	One must wonder why Congress could not
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claim against the debtor that arose at the time of or before the
order for relief”).
6 	Section 503(b)(9) uses the term “before the date of
commencement of a case” in according administrative priority to
claims for “the value of any goods received by the debtor within
20 days before the date of commencement of a case.” 	It would be
absurd if goods received prepetition on the day of the filing of
the petition would not give rise to an administrative claim but
they would if received the preceding day. 	Thus, as in § 109(h),
it is doubtful that Congress intended to use the term “date” in
§503(b)(9) to mean the calendar day instead of the precise moment
of the specified event.
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have used the same terminology in § 109(h) to denote the moment
of the filing of the petition in lieu of the ambiguous term “date
of filing of the petition.”
But as I have already noted, the precision with which
Congress expresses itself in some sections of the Bankruptcy Code
is missing in others. 	Even the term “commencement of the case”
has been joined with the potentially ambiguous term “date” in at
least one provision of the Bankruptcy Code in a manner that makes
an otherwise straightforward provision unclear. 	See 11 U.S.C.
§ 503(b)(9). 6 	This serves to illustrate that the term “date”
often is, indeed, used to mean an exact moment in time, and that
Congress, being composed of representatives of the various states
rather than the bankruptcy bar, occasionally lapses into
imprecise language that must be read with a view towards the
overall workings of the Bankruptcy Code and a good dose of common
sense. 	In that respect, my decision in Mills could justly be
seen as myopic.
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III
I was not persuaded in Mills that the usual meaning of
“date” should be discarded simply to achieve what one might think
was good bankruptcy policy (i.e., not imposing a burden on
debtors of having to wait until the day after obtaining the
credit counseling agency briefing to file their petitions), and I
remain convinced that it is the duty of this court to look at
statutes as they are written and not how individual judges might
wish they were written. 	But after further study, I have come to
realize that the term “date” is used elsewhere in the Bankruptcy
Code in the non-ordinary sense of an exact moment in time, and
this requires a choice between two conflicting meanings. 	Nothing
in § 109(h) or its legislative history suggests that Congress
intended the term “date” in § 109(h) to refer to a calendar day,
and frankly it would be odd for Congress to require a debtor to
obtain credit counseling on the calendar day before the filing of
the debtor’s petition without at least giving some hint that it
intended to create such a requirement. 	Indeed, as has already
been observed, when, in enacting BAPCPA, Congress intended an act
to take place prior to the calendar date of an event, it knew how
to express that purpose. 	See 11 U.S.C. § 1308(a) (fixing a
deadline for filing tax returns of “[n]ot later than the day
before the date on which the meeting of creditors is first
scheduled to be held”).
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13	O:\Andrew Fausett Temp Docs\Decisions with Related Orders\decision_109(h)_Barbaran_v4.wpd
For all these reasons, I conclude that in § 109(h), Congress
used the term “date” to refer to the moment of the filing of the
petition, as it is used in various other provisions of the
Bankruptcy Code, not as a trap to prevent unwary (and otherwise
qualified debtors) from obtaining title 11 relief. 	My contrary
holding on this specific point in Mills should no longer be
followed in this district unless and until ordered otherwise by a
court of appellate review. 	In accordance with the foregoing, an
order denying the trustee’s motion to dismiss has been signed.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Cynthia A. Niklas, Chapter
13 Trustee; Office of United States Trustee.
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