To be an eligible debtor in a Chapter 7 bankruptcy filing in Minneapolis, Minnesota, a debtor must complete a credit counseling course within 180 days prior to the bankruptcy filing. The event that prompts the 180-day period is the filing of a petition for relief, not the completion of the credit counseling.
11 U.S.C. § 109(h)(1)
(A)n individual may not be a debtor under this title unless such individual has, during the 180-day period ending on 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 (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.
The Individual Debtor's Statement of Compliance with Credit Counseling Requirement on the petition certifies that, within 180 days before filing their petition, the debtor received a briefing from a credit counseling agency approved by the United States Trustee that outlined the opportunities for available credit counseling and assisted them in performing a related budget analysis. The Bankruptcy Code requires that a debtor file a certificate from the approved nonprofit budget and credit counseling agency.
The Bankruptcy court has noted that the requirements of section 109(h) are plain and mandatory. With certain limited exceptions, failure to complete the credit counseling briefing within the 180-day period prior to the date the petition is filed is a "fatal flaw" rendering debtors ineligible for bankruptcy relief.
There are three limited exceptions to the credit counseling requirement.
- The first exception applies when there are no approved credit counseling agencies reasonably able to provide adequate services to the debtors.
- The second exception applies when debtors are unable to complete the credit counseling briefing during the 180-day period due to incapacity, disability or active military duty.
- The final exception requires debtors to submit a certification that: (1) describes exigent circumstances that merit a waiver of the requirements of the section; (2) states that the debtors requested the required counseling but was unable to obtain the counseling required during the seven-day period which begins on the date of debtor's request; and (3) is satisfactory to the court.
In the Hedquist case, the court stated "bankruptcy courts have no discretion but to dismiss the case when the debtor fails to file a certification in compliance with its (The Bankruptcy Code’s) provisions." In re Hedquist, 342 B.R. at 300. Once a bankruptcy court determines that the certificate was not filed in the 180 days preceding the filing and the debtor has not provided an exception to the requirement, the individual filer is not eligible to be a debtor and dismissal of the bankruptcy case is appropriate. Courts have dismissed cases with credit counseling courses obtained 182 days before the filing because the debtors did not comply with the technical requirements of the section 109.
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Dismissal is a harsh remedy. But the bankruptcy court has taken the position that they have no authority to waive a debtor’s noncompliance of the unambiguous Bankruptcy Code provisions that set forth the eligibility requirements for being a bankruptcy debtor. Want to file Chapter 7 Bankruptcy in Minneapolis, MN? Contact the attorneys at LifeBackLaw and see us at www.LifeBackLaw.com and let us help you get your life back.
