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In re Henderson

United States Bankruptcy Court, W.D. Texas, San Antonio Division
Apr 9, 2008
BANKR. CASE NO. 06-52439-C (Bankr. W.D. Tex. Apr. 9, 2008)

Summary

determining that death is a disability under the definition in Section 109(h)

Summary of this case from In re Shorter

Opinion

BANKR. CASE NO. 06-52439-C.

April 9, 2008


ORDER GRANTING WAIVER OF DEBTOR'S POST-PETITION CREDIT COUNSELING


CAME ON for consideration the foregoing matter. The debtor filed his petition December 1, 2006. On December 31, 2006, the debtor died. The debtor's will was admitted to probate in state court. The debtor now seeks a waiver of the requirement that the debtor complete an instructional course concerning personal financial management. See 11 U.S.C. § 727(a)(12). Failure to complete such a course is grounds for denying the debtor a discharge.

Death is not necessarily fatal either to the continuation of a bankruptcy case or to the receipt of a discharge. See FED.R.BANKR.P. 1016; see also In re Doyle, 209 B.R. 897, 907 (Bankr. N.D.Ill. 1997) (a debtor who dies post-petition is entitled to claims of exemption as well as a discharge); In re Robles, 2007 WL 4410395 (Bankr. W.D.Tex. Dec. 13, 2007) (gathering cases and materials). As this court noted in Robles, the debtor's probate estate is entitled to the benefit of the discharge. See Robles, at *2, citing H.R. REP. NO. 595, 95th Cong, 1st Sess 367-68 (1978) (". . . the discharge will apply in personam to relieve the debtor, and thus his probate representative, of liability for dischargeable debts"). But section 727(a)(11) makes completion of the instructional course a necessary prerequisite to discharge in bankruptcy. See 11 U.S.C. § 727(a)(12). Fortunately, there is an exception. If the debtor is "disabled" within the meaning of section 109(h)(4), then the debtor is excused from the requirement. As this court noted in Robles, death would appear to qualify as a disability within the meaning of the statute's language (". . . so physically impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing . . ."). It is odd to think of death as a "mere disability," but the statutory language (added in 2005) seems not to have anticipated the possibility that debtor might die after filing but before completing the mandated instructional course. Still, the intent of Congress seems obvious at least from its context, if not from its express wording.

The requirements of section 727(a)(11) with respect to this debtor are waived.

SO ORDERED.


Summaries of

In re Henderson

United States Bankruptcy Court, W.D. Texas, San Antonio Division
Apr 9, 2008
BANKR. CASE NO. 06-52439-C (Bankr. W.D. Tex. Apr. 9, 2008)

determining that death is a disability under the definition in Section 109(h)

Summary of this case from In re Shorter
Case details for

In re Henderson

Case Details

Full title:IN RE ROBERT H. HENDERSON, CHAPTER 7, DEBTOR

Court:United States Bankruptcy Court, W.D. Texas, San Antonio Division

Date published: Apr 9, 2008

Citations

BANKR. CASE NO. 06-52439-C (Bankr. W.D. Tex. Apr. 9, 2008)

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