In Re Francisco

390 B.R. 700, 59 Collier Bankr. Cas. 2d 1655, 2008 Bankr. LEXIS 1918, 2008 WL 2600714
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedJuly 2, 2008
DocketBAP No. NM-08-019. Bankruptcy No. 07-12810-s13
StatusPublished
Cited by9 cases

This text of 390 B.R. 700 (In Re Francisco) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Francisco, 390 B.R. 700, 59 Collier Bankr. Cas. 2d 1655, 2008 Bankr. LEXIS 1918, 2008 WL 2600714 (bap10 2008).

Opinions

THURMAN, Bankruptcy Judge.

Charlene Francisco (“Debtor”) appeals the dismissal of her Chapter 18 petition.1 Her appeal presents an issue of first impression to this Court under the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) of 2005, which is whether 11 U.S.C. § 109(h)(1)2 is satisfied when an individual debtor obtains the required credit counseling on the same day, but prior to, the filing of the petition for bankruptcy relief. The bankruptcy court held that § 109(h)(1) requires that credit counseling be completed, at the latest, on the calendar day prior to the day on which the petition is filed, and dismissed debtor’s case. For reasons stated more fully hereafter, we REVERSE.

I. BACKGROUND

The facts leading to this appeal were undisputed and straightforward. The Debtor obtained a “credit briefing” from an approved credit counseling agency on November 7, 2007, at 8:50 a.m. Later that same day, she filed a Chapter 18 petition for bankruptcy relief, including the “Certificate of Counseling” issued to her by the credit agency. On November 14, 2007, the bankruptcy court, sua sponte, issued an Order directing the Debtor to show cause why her case should not be dismissed pursuant to § 109(h)(1). A hearing was held on January 15, 2008, and the bankruptcy court issued a memorandum decision and Order dismissing the Debtor’s case on January 25, 2008. The Debtor filed a notice of appeal on February 4, 2008 and, on February 8, 2008, the bankruptcy court granted her request for a stay pending appeal.

[702]*702II. APPELLATE JURISDICTION

This Court has jurisdiction to hear timely-filed appeals from final judgments and orders of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.3 Because the notice of appeal was timely filed within ten days of a final order, and because no party to this appeal has elected to have the appeal heard by the district court, this Court has appellate jurisdiction.

III. ISSUE AND STANDARD OF REVIEW

The single issue presented by this appeal is whether Debtor’s credit briefing satisfies the requirements of § 109(h)(1), and thereby renders her eligible to be a debtor. This is an issue of statutory interpretation, which this Court reviews de novo, giving no special deference to the trial court’s opinion.4

IV. DISCUSSION

Section 109(h)(1), which was added to the Bankruptcy Code by the BAPCPA amendments of 2005, provides as follows:

(h)(1) Subject to paragraphs (2) and (3), and notwithstanding any other provision of this section, an individual may not be a debt or 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. (Emphasis added.)

By this provision, Congress created an additional eligibility requirement for individual debtors seeking bankruptcy protection, which is the receipt of credit counseling within a specified time period.

We are not concerned in this appeal with the outer 180-day boundary to that period. Rather, we concern ourselves solely with the definition of the statute’s inner, or cutoff, boundary. The effort to define that boundary has resulted in two distinct lines of case law. The first line of cases (“Plain Language”) holds that the phrase “the 180-day period preceding the date of filing” requires that the specified action (credit briefing) be obtained no later than the calendar day prior to the day on which the petition is filed.5 The second line of cases (“Bright Line”) holds that § 109(h)(1) is satisfied so long as the credit briefing precedes the filing of the petition, even if both events occur on the same calendar day.6

The Plain Language cases7 define the term “date” by its most commonly used [703]*703meaning, i.e., a time period consisting of a day, a month, and a year. Thus, “the 180-day period preceding the date of filing” ends on the calendar day before the calendar day on which the petition is filed, and credit briefing cannot be obtained on the same calendar day that the petition is filed. Unfortunately, neither side of this issue has the benefit of any truly helpful statutory history, though occasionally both sides have claimed the benefit of the minimal background that does exist. In any event, Plain Language cases have asserted that the Bright Line Interpretation simply ignores the term “date” in the statute, which violates the long-standing rule of statutory interpretation that every word in a statute should be given meaning. Moreover, if all Congress had meant was “preceding the filing,” it certainly knew how to state it that way.8

Plain Language cases have also relied on Federal Rule of Bankruptcy Procedure 9006(a) as support for their interpretation. That rule provides, “[i]n computing any period of time prescribed ... by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.” 9 Explaining its reliance on Rule 9006(a), the court in In re Gossett stated that “[a]s Congress has not more specifically legislated the [§ 109(h)(1) time period], by default the Court looks to the Rule for the applicable answer.”10 Gossett con-eluded that “a debtor who obtains the required pre-petition counseling briefing on the same day as the date upon which a petition is filed does not comply with § 109(h)(1).”11

On the other side of the issue, the Bright Line cases focus on the ending of the allowed briefing period, holding that it ends at the precise point in time at which the petition is filed. These cases reason that the filing of the petition is treated throughout the Bankruptcy Code as a “bright line” that defines the estate and alters the rights and responsibilities of the debtor and its creditors. In its interpretation of § 109(h)(1), the Hudson court considered how the term “date” is used elsewhere in the Bankruptcy Code, including the interplay between § 547(b)(4)(A) (avoidance of preferential transfers) and § 549(a)(1) (avoidance of post-petition transfers), and in § 348(f)(1)(A) (defining property of the estate on conversion of a Chapter 13 case to another chapter).12 Section 547(b)(4)(A) authorizes the trustee to recover otherwise qualified transfers that are made within 90 days “before the date of the filing of the petition,” whereas § 549(a)(1) allows avoidance of transfers made “after the commencement of the case.” Thus, “the date of the filing” in § 547(b)(4)(A) is interpreted as the moment of filing, since there would otherwise be an uncovered gap between midnight [704]

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Cite This Page — Counsel Stack

Bluebook (online)
390 B.R. 700, 59 Collier Bankr. Cas. 2d 1655, 2008 Bankr. LEXIS 1918, 2008 WL 2600714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-francisco-bap10-2008.