Richard Philip Kaufman

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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
IN RE:
: Chapter 13
RICHARD PHILIP KAUFMAN, :
:
Debtor(s) : Bky. No. 08-11087ELF
M E M O R A N D U M
I.
On February 14, 2008, Debtor Richard Phillip Kaufman (“the Debtor”) acting pro se,
filed a bankruptcy petition under chapter 13 of the Bankruptcy Code. By Order dated March 5,
2008, this court dismissed the bankruptcy case. The Debtor has filed a Motion for
Reconsideration of the Dismissal of the Case (“the Motion”).
Because the Debtor misunderstands the reason why the case was dismissed and has
presented no valid basis for reconsideration of the Dismissal Order, the Motion will be denied.
II.
The flaw in the Debtor’s bankruptcy filing stems from the requirement found in 11 U.S.C.
§109(h) that, in order to be eligible to be a bankruptcy debtor, an individual must obtain an
individual or group briefing from an approved non-profit budget and credit counseling agency
during the 180 period prior to the filing of the bankruptcy petition. Section 109(h)(3) further
provides that a Debtor may be exempted temporarily from the “credit counseling” requirement
and fulfill that requirement 30 days a bankruptcy petition has been filed, but only if certain
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requirements are met. In order to be permitted to fulfill the credit counseling requirement after
filing a bankruptcy petition, the debtor must submit a certification known as a “Certification of
Exigent Circumstances” that:
(1) describes “exigent circumstances” that merit a temporary waiver of the credit
counseling requirement;
(2) states that the Debtor requested credit counseling from an approved agency but
was unable to obtain the services during the five (5) day period beginning on the
date the request was made; and
(3) is satisfactory to the Court.
In this case, on February 14, 2008, when the Debtor filed his bankruptcy petition, he also
filed a statement titled “Exigent Circumstances.” In that statement, the Debtor represented that
he was facing a sheriff’s sale in the “Delaware County Courthouse” scheduled for February 15,
2008. The statement was silent on the question whether the Debtor attempted unsuccessfully to
obtain credit counseling before filing the petition.
By Order dated February 20, 2008, the court notified the Debtor that it could not
determine from his Certification of Exigent Circumstances whether all of the requirements of 11
U.S.C. §109(h)(3) had been satisfied. Specifically, the court ordered the Debtor to file a
Supplement to the Certification of Exigent Circumstances providing further details concerning
the date(s), if any, on which the Debtor tried to obtain credit counseling and what happened when
the Debtor attempted to obtain credit counseling. The February 20, 2008 Order set a deadline of
February 29, 2008 for the filing of the Supplement to the Certification of Exigent Circumstances.
The Debtor did not file a Supplement to the Certification of Exigent Circumstances by
February 29, 2008. On March 3, 2008, the Debtor filed a Certificate of Credit Counseling, which
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stated that the Debtor participated in an individual or group briefing with an approved agency on
February 28, 2008, fourteen (14) days after the filing of the bankruptcy petition.
On March 5, 2008, the Court issued the Order dismissing the case. The case was
dismissed because the Debtor filed the bankruptcy petition without receiving a prepetition credit
briefing as required by 11 U.S.C. §109(h)(1) and did not file a Certification satisfying the
requirements of 11 U.S.C.§109(h)(3). Although the Order was not explicit on this point, as
should be obvious from the recitation set forth above, the Debtor never provided a Certification
of Exigent Circumstances satisfying the requirements of 11 U.S.C. §109(h)(3)(A)(ii): i.e., that
the Debtor attempted to obtain credit counseling services but was unable to do so prior to the
filing of the bankruptcy case for a five (5) day period beginning on the date on which the Debtor
made the request for credit counseling services.
III.
In the Motion, the Debtor asks for reconsideration of the Dismissal Order on the
following grounds:
Insomuch as Debtor had filed the requested Certificate of Credit Counseling on
March 3, 2008 as required by Judge Frank’s Order of February 26, 2008, Debtor
submits the Motion for Reconsideration to reverse Judge Frank’s Order of March
5, 2008 in which Debtor’s bankruptcy case was dismissed based on Judge Frank’s
inaccurate belief that Debtor had failed to filed the required certificate of credit
counseling.
Debtor’s Motion ¶8.
The Debtor’s request for reconsideration is based on an erroneous premise. The Debtor
appears to believe that obtaining credit counseling and filing a Certificate of Credit Counseling
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after the commencement of the bankruptcy case cures the defect in filing the bankruptcy case
without first obtaining counseling. It does not. Under the statute, the Debtor is eligible to be a
bankruptcy debtor based upon his receipt of post-bankruptcy credit counseling services only if he
submits a satisfactory Certificate of Exigent Circumstances. A Certificate of Exigent
Circumstances has a least two (2) components: (1) that there be some emergency compelling the
filing of the bankruptcy case before credit counseling has been obtained; and (2) that the Debtor
made an attempt to obtain credit counseling prior to the filing of the bankruptcy case and was
unable to obtain the counseling within five (5) days.
The Certification filed by the Debtor may have satisfied the first requirement, but not the
second. The Debtor has made no representation that he attempted to obtain credit counseling
services prior to the filing of the bankruptcy case. Therefore, under 11 U.S.C. §109(h), he is not
entitled to a deferral of his obligation to obtain credit counseling to a date thirty (30) days after
the filing of the bankruptcy petition. Because he is not entitled to the deferral of the obligation
and did not obtain prepetition credit counseling, he is not eligible to be a bankruptcy debtor (even
though he obtained credit counseling services after he filed the bankruptcy case). His lack of
eligibility provides cause for dismissal of the case. See 11 U.S.C. §1307(c).
For these reasons, the Motion does not persuade the court that the Dismissal Order of
March 5, 2008 was erroneous and the Motion will be denied.
Date: March 14, 2008
ERIC L. FRANK
U.S. BANKRUPTCY JUDGE
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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF PENNSYLVANIA
IN RE: : Chapter 13
RICHARD PHILIP KAUFMAN, :
Debtor(s) : Bky. No. 08-11087ELF
O R D E R
AND NOW, upon consideration of the Debtor’s Motion for Reconsideration of Dismissal
of Bankruptcy Case (“the Motion”), and for the reasons stated in the accompanying
Memorandum, It is hereby ORDERED that the Motion is DENIED.
Date: March 14, 2008
ERIC L. FRANK
U.S. BANKRUPTCY JUDGE
cc: Richard Philip Kaufman
311 Ivy Lane
Glen Mills, PA 19342
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