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In re: SHAUN M. RUCKES, Debtor.

06-58969-Ws Chapter 13 Debtor. If nothing else, this case points out the potential pitfalls of pro se filings and reliance on non-professional advice. Signed on March 07, 2007 s Walter Shapero Walter Shapero United States Bankruptcy Judge


In re:
SHAUN M. RUCKES, Case No. 06-58969-WS
Chapter 13
Debtor. Hon. Walter Shapero

Debtor, acting pro se, filed this chapter 13 case on December 20, 2006. Included among the then filed papers was an Exhibit D being the Debtor’sStatement of Compliance with Credit Counseling Requirement which was signed by Debtor and dated November 21, 2006, and stated that Debtor had received the required pre-filing credit counseling briefing. The required certificate issued and signed by the credit counseling service provider was NOT, however, attached as the form instructed it to be. The Debtor thereafter sought and obtained an order permitting the case filing fee to be paid in installments, the first one of which was due on January 16, 2007. There is a docket notation stating that the required pre-filing credit counseling certificate (signed by the service provider) was to be filed by January 4, 2007. It was not filed by that date. Accordingly on January 9, 2007, an order was entered dismissing the case for failure to have filed that particular certificate and notice of its entry was sent to Debtor. On January 29, 2007, Debtor filed a document asking for reinstatement of the case saying, “we have made the first installment for the filing on January 17, 2007, as indicated on record.” Apparently the Debtor did not read or understand the Order Dismissing the Case and thought the case had been dismissed because the first filing fee installment  was not paid or paid timely. That reinstatement request was set for a hearing on February 27, 2007. On February 20, 2007, the Debtor filed a Certificate of Debtor Education which in fact was the pre- discharge personal financial management course certificate required by code section 727(a)(11). It was NOT the prefiling credit counseling briefing certificate signed by the service provider required  by code section 109(h), the failure to file which occasioned the Dismissal Order. That filed certificate  states that the personal financial management course involved was taken on January 10, 2007. At the reinstatement motion hearing, the Court at least did not then fully appreciate that the certificate  filed by the Debtor on February 20, 2007, was NOT the missing 109(h) prefiling credit counseling  certificate and dealt with the motion assuming that it was. On that assumption, the issue discussed  at the hearing was whether or not the Debtor’s stated ignorance of the prefiling requirement (in light  of a consultation with apparently a non-lawyer friend about the requirement) met the statutory  standard of “exigent circumstances that merit the waiver” of that prefiling requirement. However,  more careful post hearing review of the file indicated, as noted, that the filed certificate was NOT in  fact the required one. So, what we have here is that (1) at the time the case was filed while the  Debtor signed and filed a statement saying that the Debtor had received the required pre-filing credit  counseling briefing, Debtor has yet to produce a certificate to that effect signed by the briefing  provider; (2) the certificate actually filed by the Debtor was a different one, which is to be filed post  petition and predischarge, which certified Debtor received the instructional course concerning  personal financial management; and, (3) the Debtor, perhaps not fully appreciating the certificate filed  was the wrong one, argued that ignorance of the prefiling credit counseling requirement was the  reason it did not occur and believed the requirement had by then been fulfilled which should thereby  permit reinstatement of the case.  Post filing, Debtor apparently came to recognize the need to have fulfilled the, or a,  requirement but then took the wrong course or briefing. Why Debtor took the indicated particular  3  financial management course at the indicated time or why or under what circumstances or by whose  advice or direction Debtor did so is not clear from the record and it need not be at this point. What  is clear is that while the Debtor did aver in a pleading the correct pre-filing briefing was received,  Debtor has failed to produce the required certificate to that effect from the provider and has had  ample opportunity to do so, and, given Debtor’s argument and position, it is likely it did not in fact  occur at all. If nothing else, this case points out the potential pitfalls of pro se filings and reliance on  non-professional advice.  It should be noted that all of the initially filed (on December 20, 2006) bankruptcy documents,  including the indicated Exhibit D certificate signed by Debtor, were dated either November 20 or 21,  2006, and thus presumably prepared some 30 days before the case was actually filed. The Exhibit  D certificate and form signed and filed by the Debtor specifically says, “Attach a copy of the  certificate,” (referring obviously to the one to be signed by the agency supplying the required  briefing). That same document talks about a prefiling “credit counseling” requirement both in its title  and at least in three or more other places, in language a lay person can understand, and does so  “under penalty of perjury,” - all of which should direct and call a debtor’s attention to what that  document is saying and referring to or at least heighten the need for further inquiry. Thus in sum,  while Debtor may have been in fact actually cognitively ignorant of the prefiling briefing requirement,  that ignorance arose from the fact that Debtor failed to read and understand the clear language in the  very document Debtor signed and what it said. Its very language put any reasonably literate person,  even a lay person, on notice of the prefiling briefing requirement, and in this case, in plenty of time  for the Debtor to have fulfilled that requirement or to at least ask questions about it of a  knowledgeable person. While our Court should and properly does accommodate filings by debtors  4  without counsel, that does not thereby mean that it can or should extend or stretch that  accommodation to the breaking point to even a well meaning, good faith debtor under the recited  facts. Even if the Court were willing to accept Debtor’s argued ignorance, and even if what Debtor  took and filed was the correct briefing, absent materially more, such would not in any event constitute  the “exigent circumstances meriting the waiver” of the prepetition filing requirement the statute  requires. The word “exigent,” by definition essentially contemplates the existence of a situation of emergency or immediacy which offers few if any options. That is simply not the case here. To decide  otherwise would be to essentially read the prefiling requirements totally out of the statute in almost  every such pro se case. Regardless of what a Court might think of the statutory requirement itself,  it is not free to go that far.

Accordingly, the motion for reinstatement is DENIED.
Signed on March 07, 2007
/s/ Walter Shapero
Walter Shapero
United States Bankruptcy Judge

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