Understand the complexities and nuances of the Bankruptcy Code to better advise clients and prepare for court.
By Diane Davis
Dec. 2 — A debtor filing for bankruptcy protection isn't required to sign a statement of credit counseling under penalty of perjury, the U.S. Bankruptcy Appellate Panel for the Eighth Circuit held Nov. 30.
Judge Thomas L. Saladino said the bankruptcy court correctly found that debtor Patricia A. Segraves' certificate of counseling was sufficient to meet the statutory requirements of Bankruptcy Code Section 109(h) when she filed her Chapter 13 bankruptcy petition. Chapter 13 allows individuals receiving regular income to obtain debt relief while retaining their property.
Section 109(h)(1), the BAP said, provides that an individual may not be a debtor unless such individual has, “during the 180-day period ending on the date of filing of the petition … received from an approved nonprofit budget and credit counseling agency … an individual or group briefing … that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.”
The “language of section 109(h) is plain,” the BAP said. It doesn't require that a debtor sign a credit counseling certificate under penalty of perjury as argued by creditor Alan Boyd Curtis, the BAP said.
Section 521(b)(1), which requires an individual debtor to file with the court “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 …,” doesn't require that either, the BAP said.
The creditor argued that Section 521(b)(1) requires a signature by the debtor under penalty of perjury, but there is no such requirement, the BAP said. It doesn't require a signature of the debtor at all, but only a certificate from the credit counseling agency, the BAP said.
The bankruptcy court correctly applied the law and denied the creditor's motion to dismiss the debtor's Chapter 13 petition, the BAP said.
The bankruptcy court found that the Bankruptcy Code “merely requires the debtor to establish that she had received a briefing regarding credit counseling in compliance” with Section 109(h)(1).
Judges Robert J. Kressel and Anita Louise Shodeen joined the opinion.
Kimber Houpt Baro, Baro Law Firm, Florissant, Mo., represented the debtor Patricia A. Segraves, fka Patricia A. Curtis, aka Patricia L. Seagraves; Chapter 13 Trustee, John V. LaBarge, Jr., St. Louis, Mo.
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