Michal Swiatkowski

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In re: 	Case No. 805-70035-511
MICHAL SWIATKOWSKI, 	Chapter 13
Debtor.
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DECISION
(Re: Motion to Dismiss for Lack of Credit Counseling)
APPEARANCES:
Marianne DeRosa, Esq.
100 Jericho Turnpike Quadrangle
Jericho, NY 	11753
Chapter 13 Trustee
William B. Schiller, Esq.
Schiller & Knapp, LLP
950 New Loudon Road Suite 310
Latham, NY 	12110
Counsel for CitiMortgage
Roy J. Lester, Esq.
Lester & Weitz, PC
600 Old Country Road Suite 229
Garden City, NY 	11530
Counsel for the Debtor
HON. MELANIE L. CYGANOWSKI, United States Chief Bankruptcy Judge:
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Before the Court are four related matters: (A) a motion to dismiss that was filed by
the Chapter 13 Trustee on September 28, 2006 (the “Trustee’s Motion”); (B) a hearing to consider
whether the Debtor’s proposed Chapter 13 plan should be confirmed (the “Confirmation hearing”);
(C) a motion by CitiMortgage, Inc., the secured creditor of the Debtor, that was filed on January 3,
2006 which seeks relief from the automatic stay (the “Lift/Stay Motion”); and (D) a motion by the
Debtor that was filed on January 13, 2006 which seeks to object, reclassify, reduce or expunge the
claim filed by CitiMortgage (the “Debtor’s Motion”). 	Each of these matters are contested and
papers in opposition have been filed with respect to each. 	The Court heard oral argument this
morning. At that time, the Office of the U.S. Trustee also appeared in support of the Trustee’s
motion and in opposition to the Debtor’s request that the case be “stricken” in the event that the
Court granted the Trustee’s motion.
For the reasons set forth herein, the Trustee’s Motion is granted and the case is
dismissed. Because of this ruling, the Court need not reach the other matters pending before it.
Background of the Case
The Debtor, Michal Swiatkowski, filed a voluntary petition seeking relief under
Chapter 13 on November 4, 2005.
This was not the first time that he sought bankruptcy protection. On September 1,
1999, he and his wife, Lidia Swiatkowski, filed a joint Chapter 13 petition. See Case No. 99-87493.
He and his wife were represented by counsel. During the course of this first case, the Swiatkowskis
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objected to the secured claim of Citicorp Mortgage. After hearing, the objection was denied. The
case was later dismissed upon the Debtors’ application on July 20, 2000.
Three months later, the Debtor filed another petition seeking relief under Chapter 13
on October 25, 2000. See Case No. 00-87034. Once again, he was represented by counsel. This
second case was dismissed upon the Trustee’s motion for failure to make all necessary payments
under the proposed Chapter 13 plan by Order dated January 22, 2001.
The third case was filed by the Debtor’s spouse, Lidia, on March 7, 2001. See Case
No. 01-81497. 	This case also sought relief under Chapter 13 of the Bankruptcy Code. 	Lidia
Swiatkowski was represented by the same counsel who had represented her and her husband in the
prior two cases. This third case was also dismissed upon the Trustee’s motion, with prejudice as to
both of the Swiatkowskis, by Order entered on November 6, 2001.
By the time that the Debtor filed the instant petition on November 4, 2005, the laws
had changed. 	The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
(“BAPCPA”) was passed by Congress and became effective on October 17, 2005. 	One of the
requirements of the BAPCPA is that prior to filing, persons seeking bankruptcy protection must
obtain credit counseling from an approved nonprofit budget and credit counseling agency. See 11
U.S.C. § 109(h). On the second page of his petition, the Debtor declined to indicate whether he had
received such counseling or whether he was requesting a waiver of this requirement. Nonetheless,
the Debtor acknowledged that he was required to obtain such counseling when he signed the “Notice
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to Individual Consumer Debtor Under § 342(b) of the Bankruptcy Code” on November 3, 2005. See
the Petition filed by the Debtor (Doc. No. 1 on the Court Docket).
According to the Court docket, the Debtor did not make any motion seeking to extend
the time within which to obtain credit counseling until 74 days after he filed his petition, on January
17, 2006. The Debtor never filed a notice of motion seeking a hearing. This motion was never ruled
upon by the Court. In his request for a “30-day” extension pursuant to 11 U.S.C. § 109(h)(3)(A),
the Debtor stated that the “exigent” circumstance meriting a 30-day extension was that the course
that he requested was not scheduled to take place until January 23, 2006. On January 26, 2006, he
filed a Certificate of Credit Counseling.
On November 17, 2005, the Debtor filed Official Form 23 certifying that no personal
financial management course is required because he is “incapacitated or disabled, as defined in 11
U.S.C. § 109(h).” 	The personal financial management requirement is distinct from the credit
counseling requirement. Compare 11 U.S.C. § 109(h) with 11 U.S.C. § 727(a)(11). Form 23 does
not constitute a request for exemption from the credit counseling certificate and the Court will not
treat it as such.
The Court docket further reflects that the Debtor received notice that a meeting of
creditors would take place on December 6, 2005. See 11 U.S.C. § 341. The Debtor did not appear
at that meeting. 	At an adjourned meeting of creditors on January 10, 2006, the Debtor’s wife
appeared and advised the Trustee that the Debtor could not appear because he was in Poland. The
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Debtor did appear at the meeting of creditors on February 21, 2006. He was examined and the
meeting was closed.
DISCUSSION
The law is clear that, with limited exceptions, a Debtor must obtain credit counseling
prior to filing in order to be eligible to file a petition in bankruptcy. Specifically, under Section
109(h)(1) of the Bankruptcy Code, an individual may not be a debtor in bankruptcy unless the
individual has, during the 180-day period preceding the date of filing of the petition, received from
an approved nonprofit budget and credit counseling agency a briefing that outlines the opportunities
for available credit counseling and assists the individual in performing a related budget analysis.
Section 521(b)(1) of the Bankruptcy Code further requires a debtor to file a certificate from the
approved nonprofit budget credit counseling agency which describes the nature of the services that
were provided to the debtor under Section 109(h)(1). 	Interim Rule of Bankruptcy Procedure
1007(b)(3) and (c) require that a debtor file the credit counseling certificate with the petition.
Although not in effect until December 1, 2005 (after the Debtor filed the instant petition), the Court
finds the interim rule instructive as to Congress’s intent to require that the credit counseling be
obtained prior to filing the petition.
Although a debtor may request a temporary exemption from the credit counseling
requirement, this request will only be granted if the debtor can show that (a) there are exigent
circumstances that support the request and (b) he or she requested the credit counseling prior to the
filing of the bankruptcy petition but was unable to obtain the services during the 5-day preceding
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1
Under Section 109(h)(4) “incapacity” means “that the debtor is impaired by reason of mental illness or mental
deficiency so that he is incapable of realizing and making rational decisions with respect to his financial
responsibilities.” Under that same section, “disability” is defined as meaning “that the debtor is so physically
impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet
briefing.”
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period beginning on the day the request was made. In this case, the Debtor did not file a request to
obtain a temporary exemption until January 17, 2006 – well over two months after having filed the
petition. Moreover, the request simply stated that the Debtor had not previously taken the credit
counseling because the course was not scheduled to take place until January 23, 2006. This date is
obviously not within the “5-day” period preceding the filing of the petition on November 4, 2005.
Further absent from the request is any statement of exigent circumstances that prevented the Debtor
from receiving credit counseling prior to filing the petition. Nor is there any statement that the
Debtor had even requested credit counseling prior to filing the petition.
At best, the Debtor is somehow arguing that his request on Form 23 to be exempted
from the personal financial management requirement on the basis of a disability or capacity as
defined in Section 109(h), should be deemed a request to be exempted from the credit counseling
requirement as well. As noted, however, the Court is not prepared to deem the Form 23 request to
be a request for exemption from the credit counseling requirement. Moreover, even if the Court
were to consider the Debtor’s request to be one seeking exemption from the credit counseling
requirement based upon disability or incapacity, that request is belied by the facts of this case.1
First, the Debtor did obtain credit counseling on January 23, 2006. His argument that he was so
disabled or incapacitated that he could not attend credit counseling is disingenuous in light of the
fact that he ultimately did obtain that counseling. 	Second, the Court finds the Debtor’s trip to
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Poland in January 2006 is also inconsistent with his argument that he was so disabled or
incapacitated that he could not even pick up the phone to participate in an Internet credit counseling
briefing. Third, as stated in the Memorandum of Law in support of the Trustee’s Motion, the
Debtor appeared on February 21, 2006 ... at which time the Trustee examined the
Debtor and closed the meeting. The Debtor provided detailed information relative
to the schedules and did not allege any disability that would have prevented his
attending that meeting or responding to the Trustee’s questions.
The Debtor’s physical appearance at the 341 meeting and his apparent ability to respond to the
Trustee’s questions is not consistent with his claim that he is so disabled or incapacitated that he
could not complete the credit counseling requirement.
For all of the foregoing reasons, and for the reasons stated by Judge Craig in the case
of Doris Ginsberg, Case No. 42821, dated November 13, 2006, the Court will dismiss the Debtor’s
petition because the Debtor is not eligible to be a debtor pursuant to Section 109(h)(1) of the
Bankruptcy Code because of his failure to comply with the credit counseling requirement. The
Court declines to follow that line of cases which “strike” rather than dismiss petitions for Section
109(h) deficiencies. See In re Seaman, 340 B.R. 698 (Bankr. E.D.N.Y. 2006).
The Court will issue a separate Order consistent with this Decision.
/s/ Melanie L. Cyganowski
HON. MELANIE L. CYGANOWSKI
United States Bankruptcy Judge
DATED: 	Central Islip, New York
November 16, 2006
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