By Kitty J. Lin
When Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (more commonly known as “BAPCPA”), one of the new eligibility requirements to file for bankruptcy was to complete a credit counseling class from a nonprofit organization approved by the United States Trustee within 180 days prior to filing your bankruptcy case. See 11 U.S.C. §109(h). Your bankruptcy attorney will file the certificate completion with the court along with the rest of your bankruptcy paperwork. So what is this credit counseling class and why is it so important?
A lot of people hear the word “class” and shudder. They do not like to take classes and they are afraid they will be tested on information they know nothing about. A credit counseling class is very different. You should know the answers in this class because this class asks information about YOU and your income, expenses and debts. This class is offered in several different mediums: you can take the class in person, by telephone, or even online. Normally people opt for the online version because it is more convenient for them. They can take the class in their pajamas in bed at 1:00 a.m. if they wanted to. The purpose of this class is for you to understand and explore the different options that are available to you besides filing for bankruptcy. There are times when bankruptcy may be the only choice for you due to your financial circumstances but you still need to take the class.
If you took the class and received a certificate of completion, but you are unable to print the certificate and file it along with the rest of your bankruptcy paperwork the court will allow you fourteen days to file the certificate. If you have requested the credit counseling course from an approved credit counseling agency but were unable to complete the class during the seven days from the time you made the request because of an exigent circumstance, you need to provide a certification regarding what the exigent circumstances are. If the court finds that this certification merits a temporary waiver you still need to take the class, but you have 30 days from the date you filed your bankruptcy petition to file the credit counseling certificate with the court. The court may extend an extension of an additional 15 days maximum (making this a total of 45 days from the date you filed your bankruptcy petition).
So what is considered an exigent circumstance? It is something that occurs that is beyond your control that prevents you from taking the course prior to the filing of your bankruptcy petition. The court has the discretion to determine whether your circumstances are considered exigent in nature. A lot of courts have determined that filing your bankruptcy case due to a pending foreclosure sale is not considered an exigent circumstance because you had ample notice that the house was going to be auctioned at a trustee sale. Therefore any exigent circumstances were of your own making. So speak with a bankruptcy lawyer in your area sooner than later. See Dixon v. LaBarge, 338 B.R. 383 (8th Cir. BAP 2006). If the court does find that your circumstances are considered exigent in nature, remember that it is only a temporary waiver and you still need to take the class and file the certificate with the court.
Under 11 U.S.C. §109(h)(4), you can have the credit counseling requirement waived (meaning you do not have to take the course) if: (1) you have a mental illness or mental deficiency that would make you incapable of making rational financial decisions; (2) if you are physically impaired (disabled) and you cannot take the class after a reasonable effort to do so in person, by telephone or on the internet; or (3) you are on active military duty in a military combat zone. If you do not fall in any of these categories you will need to take the credit counseling course. Failure to do so will result in your ineligibility to be a debtor in a bankruptcy case which means that the court will dismiss your case.