Bernard Hall

1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IN RE: )
)
BERNARD HALL, SR., ) CASE NO. 5:05-bk-06746
)
Debtor. )
MEMORANDUM OPINION
This case comes before the court on the renewed motion of Bernard Hall, Sr. (the “Debtor”), to
excuse himself from the requirement of 11 U.S.C. § 727(a)(11) that he complete an instructional course
concerning personal financial management before being entitled to a Chapter 7 discharge.
For the reasons stated herein, the court will grant the motion.
I. BACKGROUND
The Debtor is 81 years old, physically limited, hearing impaired, and suffers from serious health
issues, including prostrate cancer, which limits the Debtor’s ability to ambulate to a scooter. When the
Debtor contacted his counsel to file his October 18, 2005 Chapter 7 bankruptcy, his counsel assisted him
in an attempt to obtain the pre-petition, non-profit, budget and credit counseling services required by 11
U.S.C. § 109(h)(1). Counsel relates that such sessions generally last one-hour, but the Debtor’s lasted
three hours, with the Debtor still not understanding what had transpired and his credit counselor giving up
in frustration. Counsel also relates that the Debtor has limited mental capacity, and that the Debtor simply
stated at his credit counseling session that he “would be dead before [he] could get another credit card.”
Despite the difficulties that the Debtor had in completing and understanding the pre-petition credit
counseling, he did obtain the required certificate.
On May 18, 2006, the Debtor filed his first motion to excuse himself from the instructional course
concerning personal financial management. The court held a hearing on the motion on June 13, 2006, at
Dated: Friday, August 04, 2006 4:45:36 PM
Case 5:05-bk-06746 Doc 41 Filed 08/10/06 Entered 08/10/06 16:11:36 Desc Main
Document Page 1 of 4

2
which the Debtor appeared in person. At that time, the court’s observation of the Debtor confirmed his
counsel’s representation concerning his physical and mental condition; however, the court denied the
motion without prejudice and instructed the Debtor to attempt the required instructional course before filing
a second motion with the court.
II. DISCUSSION
The Debtor filed this renewed motion to excuse himself from the instructional course concerning
personal financial management on July 26, 2006, representing to the court that he attempted to complete
the course but was unable to do so due to his physical and mental condition.
Section 727(a)(11) of the Bankruptcy Code provides: “The court shall grant the debtor a
discharge, unless . . . (11) after filing the petition, the debtor failed to complete an instructional course
concerning personal financial management described in section 111, except that this paragraph shall not
apply with respect to a debtor who is a person described in section 109(h)(4).” 11 U.S.C. § 727(a)(11).
In turn, § 109(h)(4) exempts a debtor from compliance under limited circumstances:
The requirements of [§ 727(a)(11)] shall not apply with respect to a debtor whom the
court determines, after notice and a hearing, is unable to complete those requirements
because of incapacity, disability, or active military duty in a military combat zone. For the
purposes of this paragraph, 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; and 'disability' means that the debtor
is so physically impaired as to be unable, after reasonable effort, to participate in an in
person, telephone, or Internet briefing . . . .
§ 109(h)(4).
The purpose of the exemption is to avoid “the absurd situation in which a debtor would be required
to obtain a briefing even if suffering from Alzheimer's disease or some other disability that would make the
briefing meaningless or even impossible.” 2 Collier on Bankruptcy ¶ 109.09[4] (Alan N. Resnick &
Henry J. Sommer eds. 15t h ed. rev. 2006). As outlined by Judge Brooks in regard to a “disability”
exemption from the pre-petition, non-profit, budget and credit counseling services of § 109(h)(1), a debtor
generally must demonstrate three elements to be entitled to an exemption: “(1) the debtor is severely
physically impaired; (2) the debtor has made a reasonable effort, despite the impairment, to participate in
the prepetition credit counseling; and (3) the debtor is unable, because of the impairment, to participate
Case 5:05-bk-06746 Doc 41 Filed 08/10/06 Entered 08/10/06 16:11:36 Desc Main
Document Page 2 of 4

3
meaningfully in an in person, telephone, or Internet briefing prepetition.” In re Tulper, No. 06-11542,
2006 Bankr. LEXIS 1093 at *11 (Bankr. D. Colo. May 22, 2006). This court finds Judge Brooks’s
synopsis of the § 109(h)(4) requirements meritorious and equally applicable to obtaining a “disability”
waiver of the requirement that a debtor complete an instructional course concerning personal financial
management. An instructional course concerning personal financial management, however, is different from
the requirement of pre-petition, non-profit, budget and credit counseling services because the instructional
course must occur post-petition and, by Rule, is to be completed within 45 days of the date first set for the
meeting of creditors. Fed. R. Bankr. P. 1007(b)(7), (c); In re Johnson, No. 06-40028, 2006 Bankr.
LEXIS 1232 at *1-2 (Bankr. N.D. Fla. May 12, 2006) (“[T]he financial management course the Debtors
certify they completed [pre-petition] . . . does not satisfy the requirement that the Debtors complete a
post-petition financial management course.”). Therefore, in the context of obtaining a waiver of the
instructional course concerning personal financial management on the basis of a “disability,” the court would
recast Judge Brooks’s factors as follows:
(1) the debtor is severely physically impaired;
(2) the debtor has made a reasonable effort, despite the impairment, to participate in the
instructional course concerning personal financial management; and
(3) the debtor is unable, because of the impairment, to meaningfully participate in the required
instructional course in an in person, telephone, or Internet briefing.
In proving the above factors, the court notes that whether or not a debtor suffers from a severe
physical impairment is a matter of proof. What constitutes a “reasonable effort,” as is required by § 109(h),
is not defined and is open to a case by case determination. Indeed, a debtor’s physical impairment may
be so severe as to wholly excuse the debtor from making any effort in obtaining the required service under
the premise that the law will not require a futile act. See generally In re San Juan Dupont Plaza Hotel
Fire Litig., 994 F.2d 956, 961 (1st Cir. 1993) (“The law does not require litigants to run fools' errands.
Thus, a party who forgoes an obviously futile task will not ordinarily be held thereby to have waived
substantial rights.”). Also, § 109(h) requires that a debtor be able to “participate in an in person, telephone,
or internet briefing.” What constitutes “participation” is a value judgment, made with reference to the
legislative history, which declares that participation in a financial management instructional course is central
to the purpose behind the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act
Case 5:05-bk-06746 Doc 41 Filed 08/10/06 Entered 08/10/06 16:11:36 Desc Main
Document Page 3 of 4

4
of 2005. Report of the Committee on the Judiciary, House of Representatives, to Accompany S. 256,
H.R. Rep. No. 109-31, Pt. 1, 109th Cong., 1st Sess. (2005) (“The bill also requires debtors, after they
have filed for bankruptcy, to participate in financial management instructional courses so they can hopefully
avoid future financial distress.”). If a debtor cannot meaningfully participate in an instructional course on
personal financial management due to a “disability,”then the course will not aid the debtor in avoiding future
financial distress, and the debtor’s mere physical presence during a course serves no meaningful purpose.
In this case, the Debtor demonstrated a severe physical impairment. He is 81 years old, hearing
impaired, limited to a scooter for mobility, and he suffers from serious health issues, including prostrate
cancer. The Debtor is capable of mobility, however, as demonstrated by his visits to his attorney’s office,
his presence in the courtroom, and his attempt to complete his pre-petition, non-profit, budget and credit
counseling requirement of § 109(h)(1). As instructed by the court at the June 13, 2006 hearing, the Debtor
made a reasonable effort to complete the instructional course concerning personal financial management,
but was unable to do so due to a combination of his limited mental capacity, hearing impairment, and other
physical impairments. In short, the Debtor could not meaningfully participate in the course; thus, it is of no
benefit to the Debtor in avoiding future financial distress.
III. CONCLUSION
For the above-stated reasons, the court concludes that the Debtor cannot reasonably participate
in the instructional course concerning personal financial management as required by 11 U.S.C. §
727(a)(11), and that he is entitled to an exemption from that requirement pursuant to § 109(h)(4).
The court will enter a separate order pursuant to Fed. R. Bankr. P. 9021.
Case 5:05-bk-06746 Doc 41 Filed 08/10/06 Entered 08/10/06 16:11:36 Desc Main
Document Page 4 of 4