Charlene A Francisco

1 See, for example, Richard P. Feynman, QED: The Strange
Theory of Light and Matter (Princeton University Press 1985) (an
entertaining exposition of the nature of matter and light and the
interaction between them).
2 Or not. 	In re Moore, 359 B.R. 665, 668 (Bankr. M.D. Tenn.
2006).
3 Unless otherwise indicated, all statutory references are
to the Bankruptcy Code as amended by the Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-
08, 119 Stat. 23 (“BAPCPA”).
Page 1 of 	22
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
CHARLENE A. FRANCISCO,
Debtor. 	No. 13-07-12810 SF
MEMORANDUM OPINION IN SUPPORT OF ORDER DISMISSING CASE
FOR FAILURE TO OBTAIN BUDGET AND CREDIT COUNSELING
PRIOR TO DATE OF FILING OF PETITION
Nothing is simple.
That proposition is not surprising when applied to, say,
quantum electrodynamics 1; it is more so when applied to
§109(h)(1) 2. 	Nevertheless, a growing body of conflicting case
law discloses clearcut disagreements about the interpretation of
§109(h)(1) and what to do about perceived violations.
Section 109(h)(1) 3 provides in relevant part as follows:
[A]n individual may not be a debtor under this title
unless such 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 described in section 111(a) an individual or
group briefing (including a briefing conducted by
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4 Compare In re Enriquez, 07-13048-m7 slip op. at 1 (Bankr.
D.N.M. 2008) doc 14 (Order Setting Aside Order to Show Cause Why
Case Should Not be Dismissed for Failure to Obtain Budget and
Credit Counseling Services and Debt Repayment Plan During the 180
Day Period Preceding the Petition Date), in which the debtor
obtained the requisite counseling in October 2007 but received a
certificate stating the counseling took place December 3, 2007
because it was not until that latter date that debtor paid the
budget and credit counseling agency for the session (certificate
– doc 7; minutes – doc 13). 	Compare also In re Warren, 339 B.R.
475, 477 (Bankr. E.D. Ark. 2006) (free counseling session
occurred on October 27 but certificate not issued until November
15 when debtor paid the $30 certificate issuance fee; certificate
was dated November 15 but correctly stated that counseling
session occurred on October 27).
5 Order to Show Cause Why Case Should Not Be Dismissed for
Failure to Complete Credit Counseling Required Under 11 U.S.C.
§109(h)(1) Within 180 Days Prior to Filing (doc 8).
6 In a previous case the Court found itself sua sponte
refusing to award prepetition attorney fees in the face of
unanimous opposition from the chapter 13 trustee, debtor’s
attorney and others offering their views to the Court. 	The Court
Page 2 of 	22
telephone or on the Internet) that outlined the
opportunities for available credit counseling and
assisted such individual in performing a related budget
analysis.
(Emphasis added.)
The facts are not in dispute. 	Debtor Charlene A. Francisco
obtained the requisite counseling during a session which took
place on November 7, 2007. 4 	She then filed her petition that
same day. 	The question, raised by the Court on its own, 5 is
whether Debtor may continue her case or whether her petition must
be dismissed or stricken. 	Debtor’s counsel and the chapter 13
Trustee argued that the case could and should continue. 	No party
appeared to argue otherwise 6 , although it is apparent from
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“lost” on appeal. 	In re Busetta-Silvia, 300 B.R. 543, on
reconsideration 308 B.R. 537, rev'd, 314 B.R. 218 (10th Cir. BAP
2004).
7 In cases in which an attorney represents the debtor and
which are dismissed because the counseling does not take place
within (whether before or after) the 180-day period, the Court
has adopted the practice of requiring (if necessary) the attorney
to reimburse the debtor for the filing fee and to assist the
debtor at no charge in refiling the case (if the debtor chooses
to use that attorney again), including filing any stay motion
that may be required pursuant to §363(c)(3) or (4). 	Certainly no
order is required in this case.
8 In Moore, 359 B.R. at 667, one of the debtors began her
session on September 4 between 10:30 and 11:30 pm and concluded
it on September 5 at 1:41 am, and filed her petition on the
afternoon of September 5. 	The court considered that the debtor
had received her counseling the same day she filed her petition.
That fact pattern does not present itself in this case and
therefore the Court does not address it.
Page 3 of 	22
hearings in other cases that any number of attorneys and parties
side with the Debtor and the Trustee. 7 	For the reasons set out
below, the Court rules that the counseling session must be
conducted 8 no later than the day before the petition is filed,
and that the or case should be dismissed rather than the petition
stricken.
Analysis
INTERPRETATION OF “DATE”
This dispute centers on the interpretation of the language
“the 180-day period preceding the date of filing of the
petition”, and more specifically on the interpretation of the
word “date”. 	There is a split of authority on the issue.
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Page 4 of 	22
One line of cases (the short one) consists of at least five
decisions, two of them now rejected by their author, which hold
that “date” means the day on which the petition is filed, and the
counseling session must occur within the 180 days immediately
preceding the day that the petition is filed. 	In re Mills, 341
B.R. 106 (Bankr. D. Dist. Col. 2006); In re Murphy, 342 B.R. 671
(Bankr. D. Dist. Col. 2006); In re Cole, 347 B.R. 70 (Bankr. E.D.
Tenn. 2006); In re Gossett, 369 B.R. 361 (Bankr. N.D. Ill. 2007);
and In re Silva, 2007 WL 3232556 (Bankr. D.N.M. 2007). 	In In re
Barbaran, 365 B.R. 333 (D.Dist. Col. 2007), Judge Teel
reconsidered the conclusions he reached in the Mills (and by
extension the Murphy) cases; nevertheless, those cases are still
extant. 	The focus of the decision in Silva was on the bankruptcy
petition preparer more than on the timing as such of the
counseling, and so that decision provides little useful guidance
on the interpretation of “date”.
The Cole court, relying in part on the Mills and Murphy
cases and especially on Black’s Law Dictionary and the bankruptcy
rules, found that the language of the statute was clear and in
particular that the word “date” meant a day rather than a time.
347 B.R. at 73-76. 	That court also examined the legislative
history of the debtor education provisions, saying that Congress’
intention of having debtors informed of their options and then
providing some time for them to think about the options before
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Page 5 of 	22
filing would be thwarted by permitting debtors to file petitions
the same day as they received the counseling. 	Id. at 76-77.
In Gossett, the court focused particularly on the
instructions in Rule 9006 F.R.B.P. for measuring time. 	369 B.R.
at 368-71; cf. Cole, 347 B.R. at 76 (analogizing to Rule 9006).
The Gossett court pointed out that the bankruptcy rules govern
the practice and procedure in cases under Title 11 and must be
followed unless inconsistent with the Code, citing 28 U.S.C.
§2075 and United New Mexico Bank v. Wilferth (In re Wilferth), 57
B.R. 693, 694 (Bankr. D.N.M. 1986). 	Id. at 369. 	Rule 9006(a),
which sets out the method of calculating any period of time
prescribed or allowed by the statute, 10 Alan N. Resnick and
Henry J. Sommer, Collier on Bankruptcy ¶9006.04 at 9006.10 (15 th
ed. Rev. 2007), provides in relevant part as follows:
In computing any period of time prescribed or allowed
by these rules, by the local rules, by order of court,
or by any applicable statute, the day of the act,
event, or default from which the designated period of
time begins to run shall not be included.
In fact the use of Rule 9006(a) is more of an analogy than a
direct application, since fundamentally Rule 9006(a) applies to
the proceedings within a title 11 case once it has been commenced
rather than to determining when such a case will begin. 	Moore,
359 B.R. at 675 (citing Martin v. First National Bank of
Louisville (In re Butcher), 829 F.2d 596, 601 (6 th Cir. 1987),
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9 Debtor’s counsel made clear the statute did not refer to
an oblong fleshy fruit enclosing a hard seed, and counsel also
agreed with the Court that the statute was not referring to a
romantic engagement.
Page 6 of 	22
abrogated on other grounds Bartlik v. U.S. Dept. of Labor, 62
F.3d 163 (6th Cir. 1995)).
The other line of cases comes to the opposite conclusion.
These other cases all rule, explicitly or implicitly, that the
term “date” is ambiguous and can be interpreted as the time that
an action takes place rather than merely the day. 	In re Warren,
339 B.R. at 479-480; In re Spears, 355 B.R. 116 (Bankr. E.D. Wis.
2006); In re Toccaline, 2006 WL 2081517 (Bankr. D. Conn. 2006);
In re Hudson, 352 B.R. 391, 393-94, 396 (Bankr. D. Md. 2006); In
re Moore, 359 B.R. at 671-72; In re Swanson, 2006 WL 3782906
(Bankr. D. Idaho 2006); and In re Barbaran. 	The rationales these
court use in coming to the opposite conclusion are not at all
unreasonable. 	It is just that this Court, respectfully, does not
find them persuasive.
First, while “date” is used in many ways in the English
language 9, reference to a dictionary suggests that the day
something happens rather than the time fits the concept of the
statute more closely. 	Perhaps the best example of that is the
quotation of Black’s Law Dictionary (8 th ed. 2004) in Moore, 359
B.R. at 671, which states:
date. 	1. The day when an event happened or will happen
<date of trial>. 2. A period of time in general <at a
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Page 7 of 	22
later date>. 3. An appointment at a specified time <no
dates are available>.
Although the Moore court concluded that either the first or the
third definition could fit the statute, id. at 371, this Court
finds that the first definition fits the statute in a more
commonsense manner. 	Compare Hudson, 352 B.R. at 393 (suggesting
“date” more commonly means a day rather than a time). 	It seems
to this Court that the notion of an “appointment” (a certain time
on a certain date) does not hew as closely to the purpose of the
statute as does the notion of the day on which an event did
happen or will happen (the filing of the petition).
Second, several of these cases survey the use of the word
“date” in other parts of the Code with the interpretive maxim in
mind that a term should have the same meaning in one section of
the Code as in all the others. 	Hudson, 352 B.R. at 393-94;
Moore, 359 B.R. at 672; and Barbaran, 365 B.R. at 335-37. 	An
elaboration of that rule – that the same term must have the same
meaning everywhere in the Code - is that administration of the
Code requires a “bright line” test for the date of the filing of
the petition, since the “bright line” marks the precise moment
when, among other things, certain protections begin for the
debtor. 	In other words, in the context of when the automatic
stay begins, for example, the exact time of the filing of the
petition is required rather than merely the day. 	And because the
“date” of the filing requires that precision in other parts of
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10 All the decisions listed in this opinion take the
“holistic” approach, albeit with opposing results.
Page 8 of 	22
the statute, the term “date” must be similarly circumscribed in
connection with the deadline for the credit and budget
counseling. 	Warren, 339 B.R. at 480; Spears, 355 B.R. at 118-19;
and Hudson, 352 B.R. at 395.
To begin with, “canons of construction are no more than
rules of thumb that help courts determine the meaning of
legislation....” 	Connecticut National Bank v. Germain, 503 U.S.
249, 253 (1992). 	Thus a court need not rigorously adhere to a
certain interpretive maxim if it does not make sense otherwise.
Further, decisions from the Supreme Court have not uniformly
followed the rule of statutory construction that a term must have
the same definition throughout the statute; e.g., Dewsnup v.
Timm, 502 U.S. 410, 417 n. 3 (“[W]e express no opinion as to
whether the words [at issue] have different meaning in other
provisions of the Bankruptcy Code.”), quoted disapprovingly by
Mr. Justice Scalia in his concurrence in Patterson v. Shumate,
504 U.S. 753, 766-67 (1992). 	“Statutory construction, however,
is a holistic endeavor.” 	United Savings Assoc. of Texas v.
Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371
(1988). 10 	The meaning of a term may be clarified by the
remainder of the statutory scheme, id., or in this case, by
looking at the various contexts in which the term appears and the
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11 It is ironic, but surely a tribute to the authors of
these various opinions, that this Court’s decision is based in
good part on the reasoning in the cases that reach the opposite
conclusion.
Page 9 of 	22
uses to which the term is put. 	So, for example, when calculating
preference periods under §547(b)(4)(A) (“on or within 90 days
before the date of the filing of the petition”), courts use the
day rather than the time in making those decisions. 	E.g.,
Barnhill v. Johnson, 503 U.S. 393 (1992) (time of preferential
transfer when payment is by check).
The plainness or ambiguity of statutory language is
determined by reference to the language itself, the
specific context in which that language is used, and
the broader context of the statute as a whole. 	It is a
fundamental canon of statutory construction that the
words of a statute must be read in their context and
with a view to their place in the overall statutory
scheme. 	A court must therefore interpret the statute
as a symmetrical and coherent regulatory scheme, and
fit, if possible, all parts into an harmonious whole.
Moore, 359 B.R. at 670-71. 	(Internal punctuation and citations
omitted.) 	Barbaran, 365 B.R. at 336-38, illustrates well how the
term “date” is not used exactly the same way throughout the Code,
but instead is interpreted in a way that makes sense to do so in
each context. 	Id. at 337. 11
Nevertheless, interpreting §109(h)(1) to refer to a day
rather than a time within a day certainly provides a bright-line
test for anyone that wants it. 	It means that the counseling must
take place before midnight of the day of the filing. 	This
answers the argument that because the issue addressed by the
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Page 10 of 	22
statute was not time per se but a deadline (for determining
eligibility), it makes sense to use the meaning of “date” that
provides for a precise moment (a time) by which to measure
compliance. 	Hudson, 352 B.R. at 395-96, cited by Moore, 359 B.R.
at 671.
It is true that interpreting the statute this way could lead
to an odd result; for example, a debtor could, through the
wonders of the internet and CM/ECF, complete the counseling
session at 11.59 p.m. and file a petition two minutes later at
12.01 a.m. 	See Hudson, 352 B.R. at 396. 	That scenario would not
leave much time for a debtor to contemplate the consequences of
filing a bankruptcy petition, a result which does seem somewhat
at odds with what Congress professed its purpose to be in this
portion of BAPCPA:
Congress's goal seems to be to discourage the practice
of hastily filing for bankruptcy, even if that be in
the face of foreclosure, repossession, or garnishment,
and to discourage debtors from deferring their first
consideration of bankruptcy until the very eve of such
decisive events in the exercise of creditors'
remedies....
In re Toccaline, 2006 WL 2081517 at *3 (refusing to find exigent
circumstances).
The Spears court suggests that a debtor does not necessarily
need much time to think about whether to file once the counseling
session is completed. 355 B.R. at 119. 	The Swanson court
concurs. 	2006 WL 3782906 *2. 	These courts make a good point:
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12 Cole quotes that history as follows:
“Noting that due to the increase in bankruptcy filings over
the past several years, ‘there is a growing perception that
bankruptcy relief may be too readily available and is sometimes
used as a first resort,’ H.R. Rep. No. 109-31(1) (2005),
reprinted in 2005 U.S.C.C.A.N. 88, 90, Congress sought ‘to
improve bankruptcy law and practice by restoring personal
responsibility and integrity in the bankruptcy system and ensure
that the system is fair for both debtors and creditors.’ H.R.
Rep. No. 109-31(1) (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89.
“One method implemented by which to achieve this purpose is
the counseling requirement. As stated in the House Report of the
Judiciary Committee dated April 8, 2005, BAPCPA ‘requires debtors
to receive credit counseling before they can be eligible for
bankruptcy relief so that they will make an informed choice about
bankruptcy, its alternatives, and consequences.’ H.R.Rep. No.
109-31(1) (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89.
“Discussed under the subtitle “Consumer Creditor Bankruptcy
Protections,” the Judiciary Committee Report states the following
with respect to the pre-petition counseling requirement:
Most importantly, S. 256 requires debtors to
participate in credit counseling programs before filing
for bankruptcy relief (unless special circumstances do
not permit such participation). The legislation's
credit counseling provisions are intended to give
consumers in financial distress an opportunity to learn
about the consequences of bankruptcy-such as the
potentially devastating effect it can have on their
credit rating-before they decide to file for bankruptcy
Page 11 of 	22
any number of debtors will be able to decide quickly or at least
within hours about whether to file, and making these debtors wait
until the next day may have no impact at all on their decision.
The consequence of this approach is that debtors who are able to
make up their minds quickly should be allowed to file right away
(while presumably those who need to think about it more can and
should wait before filing). 	This is admittedly an eminently
reasonable approach. 	And there is nothing in the legislative
history which counsels against this approach as such. 12 What the
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relief.
H.R.Rep. No. 109-31(1) (2005), reprinted in 2005 U.S.C.C.A.N. 88,
104.” 	(Citations omitted.)
13 The Cole court finds support, by implication, in the
legislative history for requiring debtors to wait until the next
day before filing a petition. 	347 B.R. at 76-77. However, most
of the cases agree that while the legislative history makes clear
that Congress wanted debtors to think before filing a petition,
it said nothing specific one way or the other about a waiting
period. 	Warren, 339 B.R. at 480; Spears, 355 B.R. at 119; Moore,
359 B.R. at 673; Swanson, 2006 WL 3782906 *2; see Barbaran, 365
B.R. at 338 (nothing in the legislative history suggests Congress
intended “date” to mean a calendar day).
Page 12 of 	22
legislative history makes clear is only that Congress did want
every debtor to think about the consequences of filing before
doing so. 13
On the other hand, Congress could have simply deleted the
words “the date of” from the statute, so it read “within the 180-
day period preceding the filing of the petition....” 	Congress
knew how to write such clear language, as demonstrated by
§362(a): “[A] petition filed ... operates as a stay....” 	Of
course, the nature of this exercise is that courts and parties
deal with the statute as written and not as they wish it were
written, but it is of some import that the statute could have
been written much more clearly if Congress had not intended for
there to be any waiting period. 	See, e.g., Ali v. Federal Bureau
of Prisons, 2008 WL 169359 *7 (U.S. January 22, 2008):
Had Congress intended to limit §2680(c)’s reach as
petitioner contends, it easily could have written “any
other law enforcement officer acting in a customs or
excise capacity.” 	Instead, it used the unmodified,
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14 In saying this, the Court is aware that various Supreme
Court cases seem to impose precisely that exacting standard on
Congress; e.g., Ron Pair Enterprises, 489 U.S. at 241-42
(placement of comma important determinant of meaning of §506(a)).
Page 13 of 	22
all-encompassing phrase “any other law enforcement
officer.”
(Emphasis in original.)
And in any event merely because the statute as written might
not accomplish the Congressional goal as well as if it were
written another way (say, by explicitly requiring a 24-hour
waiting period) does not mean the statute is unworkable or should
not be interpreted as written. 	E.g., Lamie v. United States
Trustee, 540 U.S. 526 (2004) (apparent drafting error that did
not allow chapter 7 debtor’s attorney to be compensated from
estate, unless the attorney is employed by the trustee, was part
of statute and therefore was to be enforced). 	Lamie illustrates
the application of the rule that “courts must presume that a
legislature says in a statute what it means and means in a
statute what is says there.” 	Connecticut National Bank v.
Germain, 503 U.S. at 253-54, citing Ron Pair Enterprises, 489
U.S. at 241-42.
In this case there is an additional consideration. 	In
reality, and to be fair to Congress, it is too much to expect
Congress to legislate with complete precision in every
instance. 14 	As anyone knows who has tried drafting legislation
or even just rules, perfectly clear language that achieves a
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Page 14 of 	22
targeted result can be quite difficult even on supposedly simple
matters. 	For example, even portions of the Code enacted in 1978
as a product of careful and systematic analysis and debate
contained ambiguities that had to be amended. 	Compare 11 U.S.C.
§546(a) (1978) with §546(a) (as amended 1994) (clarifying
deadlines for filing avoidance actions) and 11 U.S.C. §550 (1978)
with §550(c) (as amended 1994) (limiting preference recoveries
against insiders in order to overrule cases such as Levit v.
Ingersoll Rand Financial Corp. (In re V.N. DePrizio Construction
Co.), 874 F.2d 1186 (7 th Cir. 1989) and Manufacturers Hanover
Leasing Corp. v. Lowrey (In re Robinson Brothers Drilling), 892
F.2d 850 (10 th Cir. 1989)). 	Thus, it is not surprising that the
same words in a statute might result in slightly different
effects depending on what the context of the words are. 	In this
instance, the Court interprets the statute the way it is written
but at the same time in the context of the statute (i.e.,
holistically) and in a commonsense manner. 	See Barbaran, 365
B.R. at 337 (“[R]eferences 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.”).
For the foregoing reasons, the Court concludes that a debtor
must obtain the budget and credit counseling prior to the date –
day – of the filing of the petition.
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15 There are literally dozens of decisions on this issue.
One court, as of almost two years ago (March 6, 2006), had found
34 (of which 31 favored dismissal). 	In re Seaman, 340 B.R. 698,
706 n. 3 (Bankr. E.D.N.Y. 2006).
Page 15 of 	22
DISMISSING THE CASE OR STRIKING THE PETITION
Debtor argues that the Court, having decided that this case
must be terminated, should strike the petition rather than
dismiss the case. 	The statute does not explicitly mandate either
dismissal or striking. 	In consequence, the arguments for one or
the other arise by implication and policy. 	Debtor’s argument is
twofold. 	First, the statute deals with eligibility to be a
debtor (“§109. Who may be a debtor”; “[A]n individual may not be
a debtor under this title....”). 	These provisions are to be
distinguished from those in, say, §521(a), which call for the
dismissal of the case because the debtor fails to do certain
things after the petition has been (legitimately) filed. 	Second,
BAPCPA has mandated consequences of dismissal that are now so
much more severe that striking the petition is more appropriate,
in particular deprivation of stay relief upon filing a subsequent
petition after a dismissal. 	§362(c)(3) and (4). 	Despite
counsel’s tempting arguments, however, the Court finds that
dismissal is the proper remedy.
The argument for striking is presented in the most detail in
two carefully reasoned decisions. 15 	In re Thompson, 344 B.R. 899
(Bankr. S.D. Ind. 2006), aff’d by the District Court, appeal
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Page 16 of 	22
vacated as moot, 2997 WL 2859795 (7 th Cir. 2007), and In re
Elmendorf, 345 B.R. 486 (Bankr. S.D.N.Y. 2006).
Thompson, 344 B.R. at 904-05, emphasizes the exact wording
of the statute as the starting premise for an extended syllogism;
to wit: §109(h)(1) says an “uncounseled” debtor (this Court’s
shorthand) “may not be a debtor”; a petition that successfully
initiates a case may only be filed by “an entity that may be a
debtor”, §§301 and 302; therefore an “uncounseled” debtor may not
file a petition that successfully initiates a case and thus the
petition should be stricken.
As attractive as syllogisms are to courts and lawyers, they
are not always applicable. 	As the Court has already stated,
Congress has not crafted the statute with that much semantic
precision. 	There is certainly no evidence that Congress located
the counseling requirement in §109 for any more subtle reason
than it was a convenient place to put it. 	An example of this
semantic imprecision from BAPCPA is Congress’s use of the term
“waiver” in §109(h)(3) to describe a process whereby a debtor can
“defer” but not avoid obtaining the counseling. 	In that sense
the attribution by these courts of a specific significance to the
“may not be a debtor” language brings to mind the classical
practice of examining animal entrails for guidance; it’s just not
there. 	This Court concedes that it must attribute significance
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Page 17 of 	22
to the “may not be a debtor” language, but it does so by
dismissing the case.
Related to that argument is that the words “entity that may
be a debtor” have been in the statute from the outset. 	Those
words referred to, for example, a railroad that may not file a
chapter 7 petition or an insurance company that may not file a
petition at all. 	§§ 109(b)(1)-(3) and (d). 	Thus there is a
usage for that language that predates the enactment of §109(h)(1)
and does not mandate striking the petition for a violation of
§109(h)(1).
When Congress passed BAPCPA, it was legislating against a
background of (1) cases under various chapters dismissed for
ineligibility pursuant to §109, Seaman, 340 B.R. at 701-02, and
(2) cases not found void ab initio for violations of §109(g);
e.g., In re Flores, 291 B.R. 44 (Bankr. S.D.N.Y. 2003). 	Congress
is presumed to be aware of how a statute is interpreted when it
amends a statute. 	Lorillard v. Pons, 434 U.S. 575, 581 (1978).
One could reasonably expect that if Congress intended a result
for cases filed by uncounseled debtors other than dismissal, when
dismissal has been the norm, it would have provided so more
clearly in the text of the statute or at least in the legislative
history. 	See Timbers of Inwood, 484 U.S. at 379.
In re Rios, 336 B.R. 177, 180 (Bankr. S.D. N.Y. 2005),
argues that Congress surely did not mean to deprive various
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16 §342(b) (warning to debtors not to commit fraud); 28
U.S.C. §586(f) (debtor audits).
17 §526(c)(2) (specification of liability of debtor’s
counsel).
18 §527(b) (Attorney required to deliver written statement
to potential debtor that “[a]lthough bankruptcy can be complex,
many cases are routine.”). 	The use of the word “routine” is
accurate but misleading to the extent it connotes the concept of
“simple”; for example, electing exemptions is a routine part of
every consumer bankruptcy but one that almost certainly requires
legal advice and analysis.
19 §521(a) and (i)(1) (automatic dismissal after 45 days if
§521(a) information not timely filed).
20 §521(i)(1) and (3) (subsection (3) permits debtor to
request extension of time but subsection (1) does not authorize
court to grant the request).
Page 18 of 	22
debtors of the protections of the bankruptcy code simply for
failure to obtain the counseling. 	In fact, as the legislative
history quoted above makes clear, one of Congress’ stated
intentions was to reduce the number of filings. 	And various
provisions of BAPCPA that challenge the integrity of debtors 16
and their counsel 17 (but of no other parties in interest), that
encourage debtors not to hire counsel 18 , that increase the filing
burdens for debtors and set time limits that lead to automatic
dismissal of their cases 19 (perhaps without even allowing a court
to grant the debtor an extension of time 20 ), and other
provisions, belie any notion that Congress wrote BAPCPA to
benefit debtors. 	In short, a swift loss by non-conforming
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Page 19 of 	22
debtors of their bankruptcy rights is exactly what BAPCPA
contemplates or even encourages.
Debtor also correctly argues that BAPCPA has made more dire
the potential consequences of dismissal. 	Specifically,
§§362(c)(3) and (4) make the stay not so “automatic” for refiling
debtors. 	First, the evidence (admittedly anecdotal) is that
debtors have had relatively little difficulty in extending the
stay, and that creditors have largely greeted their new leverage
with complete indifference. 	More important, the fact that the
consequences of a dismissal are potentially more dire does not by
itself warrant a change in what leads to dismissals. 	The Court
understands that Debtor’s argument is slightly different; namely,
that the Court should re-examine the issue of dismissal in order
to “get it right” now that the impact of dismissal is serious
enough to incentivize debtors to raise the issue. 	The Court has
done that, and still concludes that dismissal of the case is the
required disposition.
The most comprehensive argument for dismissal is set out in
Seaman, 340 B.R. 698. 	It is also the most persuasive case on the
issue. 	A number of other cases discuss the issue and come to the
same conclusion. 	In re Ross, 338 B.R. 134 (Bankr. N.D. Ga.
2006); In re Tomco, 339 B.R. 145 (Bankr. W.D. Pa. 2006); In re
Racette, 343 B.R. 200 (Bankr. E.D. Wis. 2006); Gossett, 369 B.R.
361; In re Cannon, 376 B.R. 847 (Bankr. M.D. Tenn. 2006).
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21 Thompson, 344 B.R. at 906-08, argues that the automatic
stay is effective even in cases in which the petition is stricken
due to §109(h)(1) ineligibility.
Page 20 of 	22
Seaman not only cites several categories of cases
paralleling this 109(h)(1) case which result in dismissals rather
than strikings, 340 B.R. 701-03 and 707-08. 	It also points out
that §109 is not jurisdictional, citing Tomco, 339 B.R. at 159-
160 (jurisdiction derives from 28 U.S.C. §1334) and therefore
filing a petition commences a case that is not a nullity and that
remains open until the court makes a decision on the debtor’s
eligibility. 	Seaman also illustrates the practical and legal
utility of dismissal as the disposition. 	340 B.R. 707. 	It cites
the legislative history and the purpose of the statute to argue
that Congress could not have intended that a non-compliant debtor
be able to escape the consequences of a dismissed case as
expressed in §362(c)(3) and (4). 	340 B.R. at 708-09. 	And it
points out that striking the petition may not do a debtor any
favors if in the meantime the creditor has repossessed the
collateral because of a “void” filing. 	340 B.R. at 709. 21
Finally, in response to courts that have been concerned about
serial filings, Congress addressed the problem partially by means
of §§362(c)(3) and (4). 	In any event, courts have always had
ample authority to deal with serial filers attempting to, among
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22 One approach this Court has used is to not dismiss such a
petition but to grant stay relief, and then keep the case open
until the stay relief is fully effective, thereby at least
hindering the abusive debtor from filing another case.
Page 21 of 	22
other things, get the automatic stay repeatedly imposed to
protect some property. 22 	Id.
Conclusion (and Epilogue)
For the foregoing reasons, the Court finds that Debtor did
not obtain the budget and credit counseling within the time
specified by §109(h)(1), and that the case must therefore be
dismissed.
As is apparent, this is a case that could and likely would
have gone on to confirmation and perhaps consummation and closing
if the Court on its own motion had not raised the issue of the
timing of the budget and credit counseling. 	The Court did that
for two reasons: concern to adhere to the words of the statute,
at least as the Court reads those words, and concern that a
debtor immediately or years later might find a creditor
collecting a debt on the basis that Debtor was never discharged
in this case. 	Compare Hudson, 352 B.R. at 392 (creditor
unknowingly conducted foreclosure sale on date of filing of
petition and argued for dismissal of the case) and Gossett, 369
B.R. at 364-65 (creditor repossessed vehicle allegedly not
knowing about the automatic stay and, after attempts to return
the vehicle to debtor were met with a motion for sanctions, filed
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Page 22 of 	22
motions to annul the stay and to dismiss the case). 	Indeed the
latter concern is at least part of the reason that the Bankruptcy
Court for the District of New Mexico notifies debtors when they
risk automatic dismissal under §521(i) and, where automatic
dismissal occurs, issues and serves on all parties in interest an
order explicitly saying that.
In light of rulings by other courts, perhaps both concerns
are exaggerated, and in fact this Court would welcome a review of
this decision by the Tenth Circuit Bankruptcy Appellate Panel.
The Court certainly would be pleased if an appellate ruling said
that a counseling session conducted on the date of the filing met
the requirements of §109(h)(1), or that the issue need not even
be considered if no party in interest moves to dismiss the case.
Nevertheless, the Court considers that its duty to uphold the
laws of the United States as written requires the conclusions
reached in this memorandum opinion. 	The Court will therefore
enter an order dismissing this case without prejudice to a
refiling at any time.
James S. Starzynski
United States Bankruptcy Judge
date entered on docket: 	January 25, 2008
COPY TO:
Gerald R Velarde
2531 Wyoming Blvd NE
Albuquerque, NM 87112-1027
Trustee
Kelley L. Skehen
625 Silver Avenue SW
Suite 350
Albuquerque, NM 87102-3111
U.S. Trustee
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
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