Tujuana Deneen Hawkins

1 This case was commenced after October 17, 2005, and the
Act’s provisions, with exceptions of no relevance, apply to cases
commenced on or after October 17, 2005.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
TUJUANA DENEEN HAWKINS,
Debtor.
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Case No. 06-00057
(Chapter 7)
ORDER DENYING MOTION TO EXTEND TIME TO FILE CREDIT
COUNSELING CERTIFICATE AND DIRECTING THE DEBTOR TO SHOW
CAUSE WHY THE CASE OUGHT NOT BE DISMISSED WITHOUT PREJUDICE
The court will deny the debtor’s motion for an extension of
time to file a certificate of credit counseling under 11 U.S.C.
§ 109(h)(1) and will direct the debtor to show cause why her case
ought not be dismissed without prejudice.
I
As relevant here, the amendments to the Bankruptcy Code (11
U.S.C.) made by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (“the Act”) apply to this case. 1 The Act
added to the Bankruptcy Code a new provision, 11 U.S.C. § 109(h),
which, with exceptions not shown to be of relevance here,
provides that:
The order below is hereby signed.
Signed: March 20, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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an 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 by such
individual, received from an approved nonprofit budget
and credit counseling agency described in section
111(a) an individual or group briefing . . . that
outlined the opportunities for available credit
counseling and assisted such individual in performing a
related budget analysis.
This provision makes clear that the briefing must occur on a date
prior to the filing of the debtor’s petition. 	Under 11 U.S.C.
§ 521(b), a debtor is required to file:
(1) a certificate from the approved nonprofit
budget and credit counseling agency that provided the
debtor services under section 109(h) describing the
services provided to the debtor; and
(2) a copy of the debt repayment plan, if any,
developed under section 109(h) through the approved
nonprofit budget and credit counseling agency referred
to in paragraph (1).
This court has adopted as part of its Local Bankruptcy Rules the
Interim Rules promulgated to implement the provisions of the Act.
Interim Rule 1007(b)(3) provides:
(3) Unless the United States trustee has
determined that the credit counseling requirement of
§ 109 does not apply in the district, an individual debtor
must file the certificate and debt repayment plan, if any,
required by § 521(b), a certification under § 109(h)(3), or
a request for a determination by the court under
§ 109(h)(4).
[Emphasis added.] 	In turn, Interim Rule 1007(c) provides in
relevant part:
(c) TIME LIMITS. . . . 	The documents required by
subdivision (b)(3) shall be filed with the petition in
a voluntary case. . . . 	Except as provided in
§ 1116(3) of the Code, any extension of time for the filing
of the schedules, statements, and other documents may be
granted only on motion for cause shown and on notice to the
United States trustee and to any committee elected under
§ 705 or appointed under § 1102 of the Code, trustee,
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examiner, or other party as the court may direct . . . .
[Emphasis added.]
II
The debtor has moved for an extension of time to file a
certificate of credit counseling, explaining that:
Prior to filing the petition, the Debtor, on the advice
of counsel, contacted Consumer Credit Counseling
Service (“CCCS”), which is on the U.S. Trustee’s list
of approved credit counselors, and scheduled what she
believed to be a pre-bankruptcy counseling session.
Ms. Hawkins attended that session on January 26, 2006,
and received a confirmation letter, a copy of which is
attached as Exhibit “A.” 	Both counsel and the Debtor
were under the impression that she had completed the
appropriate session. 	In response to this Court’s Order
concerning deficient filing, the undersigned contacted
CCCS, and requested a copy of the Debtor’s Certificate.
At that time, counsel was informed that Debtor had
inadvertently signed up for a “regular” counseling
session, not pre-bankruptcy counseling. 	CCCS advised
the undersigned that Debtor could have her session
converted to a pre-bankruptcy session and Debtor
requested CCCS to do so immediately. 	On the morning of
March 15, 2006, CCCS advised the Debtor that counsel
was given misinformation, and her session could not be
converted, and that she would have to sign up for a
completely new session. 	Debtor has requested the first
available session to complete the requirement and
obtain a Certificate as soon as possible.
The court has no choice but to deny the requested extension. 	The
debtor’s motion makes clear that the counseling for which a
certificate would be filed would take place postpetition.
Section 109(h)(1) mandates that the counseling take place on a
date prior to the filing of the petition. 	Accordingly, it would
do no good to extend the time to file a certificate.
Moreover, the debtor is ineligible under § 109(h)(1) to be a
debtor if she failed to obtain the required briefing on a date
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2 The debtor has not filed a certification under
§ 109(h)(3) or a request for a determination by the court under
§ 109(h)(4), and she concedes that § 109(h)(1) applies because
approved nonprofit budget and credit counseling agencies are
available for debtors in this district.
3 The failure to file a certificate might not be a basis
for dismissing the case if the debtor received the briefing
contemplated by § 109(h)(1) on a date prior to the filing of the
petition and the agency nevertheless refuses to issue a
certificate. 	However, the agency takes the position that it did
not engage in the briefing contemplated by § 109(h), the debtor
has not contested the agency’s position, and litigating the issue
might prove time consuming and expensive. 	Nor has the debtor
suggested that all interested parties have agreed to waive the
eligibility requirement (which can be waived as not
jurisdictional). 	Given the United States Trustee’s position in
other cases involving § 109(h), such an agreement is unlikely to
occur.
4 Section 362(c)(3), a provision added by the Act,
essentially provides that if an individual debtor files a case
within one year after the dismissal of a prior case, the
automatic stay of 11 U.S.C. § 362(a) expires on the 30th day
after the filing of the new case unless the court, after notice
and a hearing completed before the expiration of the 30-day
period, extends the stay.
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prior to the filing of the petition, 2 and the debtor has not
contended that the counseling she received prepetition met the
requirements of the statute. 3 The court will thus require the
debtor to file a memorandum showing cause why the case ought not
be dismissed without prejudice by March 28, 2006.
The court is sympathetic to the debtor’s plight. 	It seems
senseless to require the debtor to incur the expense of filing a
new case. 	Moreover, although the debtor is ineligible to be a
debtor, this case counts as a bankruptcy case for purposes of 11
U.S.C. § 362(c)(3) 4 because the eligibility requirement is not
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5 Indeed, 11 U.S.C. § 362(b)(21), a provision added by the
Act, makes clear that, with only limited exceptions, an automatic
stay under 11 U.S.C. § 362(a) arises in a case in which the
debtor is not eligible to be a debtor. 	Accordingly, the court
cannot treat the case as a nullity.
5	O:\JUDGTEMP\Hawkins (Tujuana) Order Denying Extesnion to File 109(h) Certificate.wpd
jurisdictional. 5 Accordingly, in a new case filed within one
year after the dismissal of this case, § 362(c)(3) would result
in the automatic stay of 11 U.S.C. § 362(a) expiring after 30
days unless the debtor were to take steps to have the court,
after notice and a hearing completed before the expiration of the
initial 30 days of the case, order that the automatic stay
continue in place beyond the initial 30 days. 	However,
§ 109(h)(1) is harsh, allowing the court no discretion to permit
a debtor to become an eligible debtor via a postpetition budget
and credit briefing, and leaves the court’s hands tied.
It is thus
ORDERED that the debtor’s Motion to Extend the Time to File
Credit Counseling Certificate is DENIED. 	It is further
ORDERED that by March 28, 2006, the debtor shall file a
memorandum showing cause why this case ought not be dismissed
without prejudice.
[Signed and dated above.]
Copies to: Debtor; Debtor’s Attorney; chapter 7 trustee; Office
of the United States Trustee.
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