In re Hubbard, 05-95017-H1-13.

• Decision Date: 31 October 2005
• Docket Number: No. 05-95017-H1-13.,05-95017-H1-13.
• Citation: In re Hubbard, 332 B.R. 285 (Bankr. S.D. Tex. 2005)
• Parties: In re Yvonne HUBBARD, Debtor.
• Court: U.S. Bankruptcy Court — Southern District of Texas

332 B.R. 285

In re Yvonne HUBBARD, Debtor.

No. 05-95017-H1-13.

United States Bankruptcy Court, S.D. Texas, Houston Division.

October 31, 2005.

COPYRIGHT MATERIAL OMITTED

James B. Heston, The Heston Law Firm PC, Houston, TX, for Debtor.

David G. Peake, Houston, TX, Chapter 13 Trustee.

ORDER DENYING MOTION TO EXTEND TIME TO PROVIDE VERIFICATION OF CREDIT COUNSELING

MARVIN ISGUR, Bankruptcy Judge.

This chapter 13 case was filed on October 26, 2005. On October 27, 2005, the Debtor filed her Motion to Extend Time to Provide Verification of Credit Counseling.

On October 17, 2005, most of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 became effective. Among those provisions was a requirement that the Debtor obtain credit counseling. The requirement that a debtor obtain credit counseling is contained in § 109(h). That section provides:

(h)(1) Subject to paragraphs (2) and (3), and notwithstanding any other provision of this section, 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 (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.

(2)(A) Paragraph (1) shall not apply with respect to a debtor who resides in a district for which the United States trustee (or the bankruptcy administrator, if any) determines that the approved nonprofit budget and credit counseling agencies for such district are not reasonably able to provide adequate services to the additional individuals who would otherwise seek credit counseling from such agencies by reason of the requirements of paragraph (1).

(B) The United States trustee (or the bankruptcy administrator, if any) who makes a determination described in subparagraph (A) shall review such determination not later than 1 year after the date of such determination, and not less frequently than annually thereafter. Notwithstanding the preceding sentence, a nonprofit budget and credit counseling agency may be disapproved by the United States trustee (or the bankruptcy administrator, if any) at any time.

(3)(A) Subject to subparagraph (B), the requirements of paragraph (1) shall not apply with respect to a debtor who submits to the court a certification that —

(i) describes exigent circumstances that merit a waiver of the requirements of paragraph (1);

(ii) states that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services referred to in paragraph (1) during the 5-day period beginning on the date on which the debtor made that request; and

(iii) is satisfactory to the court.

(B) With respect to a debtor, an exemption under subparagraph (A) shall cease to apply to that debtor on the date on which the debtor meets the requirements of paragraph (1), but in no case may the exemption apply to that debtor after the date that is 30 days after the debtor files a petition, except that the court, for cause, may order an additional 15 days.

(4) The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and 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 required under paragraph (1).

11 U.S.C. § 109(h).

There are no reported opinions dealing with § 109(h). Consequently, the Court will interpret § 109(g) in accordance with traditional principles. "The plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989).

The Court sees no ambiguity in the statute. Subparagraph (1) requires the debtor to receive credit counseling, subject to the exceptions in subparagraphs (2) and (3). Subparagraph (4) makes subparagraph (1) inapplicable to certain debtors (i.e., those suffering from incapacity, disability, or active military duty in a military combat zone).

There is no allegation that the debtor is incapacitated, disabled or in active military duty in a combat zone. Accordingly, subject to subparagraphs (2) and (3), the debtor must receive credit counseling.

The debtor alleges that she attempted to obtain credit counseling, but she was unable to get "signed up" with a counselor. The motion alleges that the credit counseling agencies were "swamped the week before and after the law change and unable to respond to inquiries." The debtor requests a 45 day extension.

For the following reasons, the motion is denied without prejudice.

Subparagraph (2) makes an exception from subparagraph (1) for debtors who reside in a district for which the United States trustee determines that the approved agencies are not reasonably able to provide the credit counseling services....