T. Donald Otero

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 09-71420 TG
Chapter 13
T. DONALD OTERO,
Debtor.
_______________________________/
MEMORANDUM AND ORDER DISMISSING CASE
The 	above-captioned 	chapter 	13 	case 	was 	filed 	on 	November 	30,
2009. 	On 	the 	same 	day, 	the 	above-captioned 	debtor 	(the 	“Debtor”)
filed 	a 	motion 	for 	a 	temporary 	waiver 	of 	the 	pre-petition 	credit
counseling 	requirement 	pursuant 	to 	11 	U.S.C. 	§ 	109(h)(1). 	In 	his
declaration, the Debtor stated that he filed his bankruptcy petition
on November 30, 2009 to stop the foreclosure sale of his home which
was 	scheduled 	to 	take 	place 	that 	day, 	at 	1:30 	p.m. 	He 	stated 	that
he 	contacted 	a 	credit 	counseling 	agency 	45 	minutes 	before 	the
scheduled 	foreclosure 	sale 	and 	was 	advised 	that 	the 	counseling
process 	would 	take 	45 	minutes 	if 	done 	over 	the 	Internet. 	However,
he 	did 	not 	have 	access 	to 	the 	Internet. 	He 	was 	advised 	that 	the
process 	would 	take 	longer 	if 	conducted 	by 	other 	means. 	Under 	the
circumstances, 	the 	Debtor 	stated, 	he 	was 	forced 	to 	file 	for
Signed: February 12, 2010
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
February 12, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-71420 Doc# 23 Filed: 02/12/10 Entered: 02/12/10 13:59:07 Page 1 of 5

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bankruptcy 	prior 	to 	completing 	the 	counseling 	in 	order 	to 	save 	his
home. 	On December 23, 2009, the Debtor filed a Certificate of Credit
Counseling, indicating that he had completed the counseling process
that day.
On 	January 	15, 	2010, 	the 	chapter 	13 	trustee 	(the 	“Trustee”)
filed 	an 	objection 	to 	the 	Debtor’s 	motion. 	The 	objection 	asserted
that 11 U.S.C. § 109(h)(3) acknowledges that the pre-petition credit
counseling requirement may be waived due to “exigent circumstances.”
However, according to the objection, 11 U.S.C. § 109(h)(4) delineated
the 	circumstances 	under 	which 	the 	requirement 	may 	be 	waived: 	i.e.,
incapacity, disability, or active military duty in a military combat
zone. 	Since 	the 	Debtor 	satisfied 	none 	of 	these 	circumstances, 	the
Debtor was not entitled to the requested waiver.
On January 27, 2010, the Debtor filed a reply to the Trustee’s
objection. 	In 	the 	reply, 	the 	Debtor 	noted 	that 	he 	was 	not 	seeking
a permanent waiver of the credit counseling requirement pursuant to
11 	U.S.C. 	§ 	109(h)(4), 	merely 	a 	temporary 	waiver 	pursuant 	to 	11
U.S.C. § 109(h)(3). 	He contended that the circumstances that he had
described 	qualified 	as 	“exigent 	circumstances” 	as 	required 	by 	§
109(h)(3). 	In support of this contention, he cited In re Romero, 349
B.R. 	616 	(Bankr. 	N.D. 	Cal. 	2006). 	In 	Romero, 	the 	bankruptcy 	court
held 	that 	filing 	to 	halt 	an 	imminent 	wage 	garnishment 	qualified 	as
an “exigent circumstance.” 	The Debtor contended that, if Romero was
correct, the imminent foreclosure of one’s home should also qualify
as an “exigent circumstance.”
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Section 	109(h)(3) 	provides 	that 	the 	debtor 	may 	obtain 	credit
counseling post-petition provided he:
...submits 	to 	the 	Court 	a 	certification 	that-
(i) describes exigent circumstances that merit
a waiver of the [pre-petition credit counseling]
requirements...;
(ii) 	states 	that 	the 	debtor 	requested 	credit
counseling 	services 	from 	an 	approved 	nonprofit
budget 	and 	credit 	counseling 	agency, 	but 	was
unable 	to 	obtain...[pre-petition 	credit
counseling] during the 5-day period beginning on
the date on which the debtor made that request;
and
(iii) is satisfactory to the court.
11 	U.S.C. 	§ 	109(h)(3). 	Thus, 	there 	are 	three 	prongs 	that 	a 	debtor
must satisfy to obtain a temporary waiver of the pre-petition credit
counseling 	requirement. 	The 	Court 	agrees 	with 	the 	Debtor 	that 	the
imminent 	foreclosure 	of 	one’s 	home 	satisfies 	the 	first 	prong 	of 	§
109(h)(3). 	However, 	the 	Debtor 	is 	unable 	to 	satisfy 	the 	second
prong.
In 	Romero, 	the 	debtors 	stated 	that 	they 	first 	contacted 	a
credit 	counseling 	three 	days 	before 	the 	petition 	date 	and 	were
informed 	that 	they 	could 	not 	obtain 	credit 	counseling 	agency 	for 	a
week. 	This 	would 	have 	been 	too 	late 	to 	stop 	the 	wage 	garnishment.
The Romero court held that this satisfied 11 U.S.C. § 109(h)(3) and
granted them a temporary waiver. 	Thus, under the approach taken by
the Romero court, the Debtor would be entitled to a temporary waiver
of 	the 	pre-petition 	credit 	counseling 	requirement 	if 	the 	credit
counseling 	agency 	had 	stated 	that 	it 	could 	not 	provide 	counseling
within five days even though the request was made only 45 days before
the petition was filed.
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The Court reads § 109(h)(3) somewhat differently than the Romero
court. 	The Court reads the statute to require the request to be made
at least five days before the bankruptcy filing. 	However, even under
the Romero reading of the statute, the Debtor would not qualify for
a 	temporary 	waiver. 	The 	credit 	counseling 	agency 	contacted 	by 	the
Debtor was willing and able to provide counseling within five days.
Thus, 	the 	Debtor 	is 	unable 	to 	satisfy 	the 	second 	prong 	of 	§
109(h)(3).
The 	Court 	concludes 	that 	the 	above-captioned 	case 	must be
dismissed due to the Debtor’s failure to obtain pre-petition credit
counseling and his failure to qualify for a temporary waiver of this
requirement 	pursuant 	to 	11 	U.S.C. 	§ 	109(h)(3). 	Based 	on 	the
foregoing, it is
SO ORDERED.
END OF DOCUMENT
Case: 09-71420 Doc# 23 Filed: 02/12/10 Entered: 02/12/10 13:59:07 Page 4 of 5

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COURT SERVICE LIST
T. Donald Otero
102 Marsala Court
Hercules, CA 94547
James A. Shepherd
Law Offices of James Shepherd
514 El Cerrito Plaza
El Cerrito, CA 94530-4006
Martha G. Bronitsky
P.O. Box 5004
Hayward, CA 94540-5004
Case: 09-71420 Doc# 23 Filed: 02/12/10 Entered: 02/12/10 13:59:07 Page 5 of 5