- Category: Filing Without An Attorney
- Published on 06 June 2008
- Written by Chief Deputy
- Hits: 5996
NOTICE TO ALL DEBTORS
READ THIS BEFORE YOU FILE YOUR CASE!
READ THIS BEFORE YOU FILE YOUR CASE!
Did you (and your spouse, if preparing to file a joint petition) obtain a briefing (also called credit counseling) that outlined the opportunities for available credit counseling and assisted you in performing a related budget analysis within the last 180 days from a United States Trustee-approved nonprofit budget and credit counseling agency? See 11 U.S.C. § 109(h)(1) (section 109(h)(1) of the Bankruptcy Code (title 11, U.S. Code)), a copy of which may be examined at the Clerk’s Office.
See Obtaining Credit Counseling below for information regarding obtaining such credit counseling.
WARNING REGARDING CONSEQUENCES OF NOT HAVING OBTAINED SUCH CREDIT COUNSELING: If you have not completed such credit counseling before you file your petition (and no earlier than 180 days before you file your petition) and you do not meet the requirements for an extension to complete the credit counseling after filing (or for being exempted from being required to obtain such a credit counseling), your case will be dismissed and you will not receive a discharge of your debts. In some cases, you may not be allowed to file another case for 180 days. Even, if you file another case within one year after your first case was dismissed, your protection under the Bankruptcy Code’s automatic stay from your creditors may be limited to thirty (30) days after filing the new case, or may be eliminated entirely depending on your prior filing history.
Under the bankruptcy laws (see 11 U.S.C. § 109(h)(3) ), the Court can only allow you to complete the credit counseling after filing if you meet all of the following conditions.]:
1) You must have requested the required credit counseling from an approved nonprofit budget and credit counseling agency, but were unable to obtain the required services during the 5-day period beginning on the date on which you made that request; and
2) There are exigent (emergency) circumstances that the court determines merit a waiver of the requirement of obtaining the credit counseling before filing the case; and
3) You must file a certification stating the facts regarding the conditions listed above in paragraphs (1) and (2) with your petition, and the certification must be satisfactory to the court.
Please be advised – most debtors will not be able to meet these conditions because credit counseling is readily available in this District.
The decision to file your petition is up to you, but if you file without having obtained credit counseling, you are risking dismissal of your case. The Clerk (and the judges and their chambers staff) cannot provide legal advice or predict in advance how a judge will decide your request for an extension to complete this requirement.
Obtaining Credit Counseling. To locate an approved agency that can provide you pre-bankruptcy credit counseling, obtain from the Clerk’s Office a list of U.S. Trustee approved credit counseling agencies or go to the U.S. Trustee website listed below:
The Federal Trade Commission’s Before You File for Personal Bankruptcy: Information About Credit Counseling and Debtor Education (found at http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre41.shtm ) has more information in this regard.
Some things to bear in mind:
- You may conduct the counseling on a computer. If you don’t have a computer, your public library may allow you use of their computers. You may also obtain the counseling by telephone, or in person.
- Be sure you take credit counseling from a U.S. Trustee-approved credit counseling agency and that you make clear to that agency that you need the counseling for purposes of filing a bankruptcy case.
- Ask the credit counseling agency for a certificate describing the credit counseling services provided toyou, and a copy of any debt repayment plan developed through the agency. You will need to file those in your bankruptcy case. (See 11 U.S.C. 521(b) ).
- The safest way to be sure you got the required type of credit counseling is to obtain a certificate before you file your bankruptcy case. The certificate should be on a form like the Example of Credit Counseling Certificate attached here.
- Be sure that your certificate reflects that you got your credit counseling within 180 days before you file your petition. If you got the credit counseling more than 180 days ago, that credit counseling is too old and will not satisfy the statutory requirement.
- Some courts interpret the general statutory requirement in 11 U.S.C. § 109(h)(1) that the debtor have obtained credit counseling “during the 180-day period preceding the date of filing of the petition” as meaning that credit counseling obtained on the day of filing the petition does not satisfy the requirement (even if the counseling preceded the filing of the petition).
- If you obtained so-called debtor education from an approved debtor education provider, that is not the same thing as prepetition credit counseling.
An example of a certificate of credit counseling appears on the next page.
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