In re Tulper

11 Citing cases

  1. In re Grantham

    617 B.R. 344 (Bankr. C.D. Cal. 2020)   Cited 1 times

    Receiving an exemption, therefore, requires the debtor to clear a high bar – a total physical or mental disability – and courts have been reluctant to grant exemptions without strong evidence.In re Tulper, 345 B.R. 322, 326 (Bankr. D. Colo. 2006) (stating that exemptions under section 109(h)(4) are "only available under limited circumstances" because the statute "is rigid in setting the bar for the granting of the exemption very high."); In re Smith, 2007 WL 5117434, *1, 2007 Bankr. LEXIS 4026, *3 (Bankr.

  2. In re Oliver

    Case Number 12-30468 (Bankr. S.D. Ga. Mar. 25, 2013)   Cited 3 times

    ; In re Broner, 2012 WL 5940272 *1 (Bankr. N.D. Ohio Nov. 27, 2012)(debtor's being in a nursing home with limited mobility did not rise to the type of impairment intended to provide a basis for waiver under the statute) . Debtor has not shown he has made a reasonable effort despite being in a wheelchair to obtain credit counseling. See In re Tulper, 345 B.R. 322, 326-27 (Bankr. D. Colo. 2006)(where debtor was tethered to a breathing apparatus, wheelchair bound and took 17 daily medications impairing her ability to understand information and husband was basically deaf, and the court found debtors had made a reasonable effort to address credit counseling through sessions with their accountant and lawyer). The overwhelming majority of courts considering the issue have held that incarceration does not excuse a debtor from the §109(h)(1) credit counseling requirement.

  3. In re Al-Ameen

    649 B.R. 62 (Bankr. M.D. Fla. 2022)

    The test requires a debtor to demonstrate that: "(1) the debtor is severely physically impaired; (2) the debtor has made a reasonable effort, despite the impairment, to participate in the prepetition credit counseling; and (3) the debtor is unable, because of the impairment, to participate meaningfully in an in person, telephone, or Internet briefing prepetition." In re Tulper, 345 B.R. 322, 326 (Bankr. D. Colo. 2006) (stating that exemptions under § 109(h)(4) are "only available under limited circumstances" because the statute "is rigid in setting the bar for the granting of the exemption very high."); see also In re Smith, 2007 WL 5117434, at *1 (Bankr. D.S.C. Nov. 29, 2007) (finding that the Social Security Administration's decision that the debtor was eligible for disability benefits did not alone "prove physical disability so severe as to render Debtor unable to participate in a pre-petition credit counseling briefing"); In re Winston, No. 07-20593-D-13L, 2007 WL 1650926, at *1 (Bankr. E.D. Cal. June 6, 2007) ; In re Hall, 347 B.R. 532, 534-35 (Bankr. N.D. W.Va. 2006) (citing 2 Collier on Bankruptcy P 109.09[4] (Alan N. Resnick & Henry J. Sommer eds. 15th ed. rev. 2006)) ("The purpose of the exemption is to avoid ‘the absurd situation in which a debtor would be required to obtain a briefing even if suffering from Alzheimer's disease or some other disability that would make the briefing meaning

  4. In re Middleton

    C/A No. 10-01328-DD (Bankr. D.S.C. Apr. 2, 2010)

    The disability exemption of § 109(h)(4) only applies if a debtor demonstrates that: (1) the debtor is severely physically impaired; (2) the debtor has made a reasonable effort, despite the impairment, to participate in the pre-petition credit counseling; and (3) the debtor is unable, because of the impairment, to participate meaningfully in an in person, telephone, or internet briefing pre-petition. In re Smith, C/A No. 07-5726-DD, slip op. at 2 (Bankr. D.S.C. Nov. 30, 2007); In re Tulper, 345 B.R. 322, 326 (Bankr. D. Colo. 2006); In re Winston, 2007 WL 1650926, 2007 Bankr. LEXIS 2011 (Bankr. E.D. Cal. 2007); In re Hall, 347 B.R. 532 (Bankr. N.D. W. Va. 2006).

  5. In re Alexander

    432 B.R. 41 (Bankr. N.D.N.Y. 2010)   Cited 8 times
    Denying a request to waive pre-petition counseling and stating: "Bankruptcy Courts have rarely granted debtor permanent exemptions, and those that have done so have generally reserved such relief for debtors who are severely impaired."

    See, e.g., In re Howard, 359 B.R. 589, 590 (Bankr.E.D.N.C. 2007) (granting permanent exemption from the pre-petition credit counseling requirement to debtor husband who suffered from cardiac arrest resulting in short-term memory loss, hearing loss, and limited mobility); In re Hall, 347 B.R. 532, 536 (Bankr.N.D.W.Va. 2006) (granting permanent exemption from the post-petition financial management counseling requirement to elderly debtor who was hearing impaired, limited to a scooter for mobility, and suffered from serious health problems, including prostrate cancer); In re Tulper, 345 B.R. 322, 326 (Bankr.D.Colo. 2006) (granting permanent exemption from the pre-petition credit counseling requirement to debtor who was "not very ambulatory because she [was] tethered to a breathing apparatus and wheelchair bound" and her co-debtor spouse whose hands and feet were disabled and who was virtually deaf). As best stated by the Honorable Gary L. Sharpe, United States District Court Judge:

  6. In re Ferrell

    391 B.R. 292 (Bankr. D.S.C. 2008)   Cited 3 times
    Stating that the "evidence presented supports Debtors' contention that they suffer from medical conditions that certainly may make it difficult for them to obtain the financial management course in person; however, no evidence was presented that their medical conditions are so severe as to render Debtors unable to participate in a telephone or Internet financial management course."

    The debtor generally must demonstrate [that] . . . (1) the debtor is severely physically impaired; (2) the debtor has made a reasonable effort, despite the impairment, to participate in the instructional course concerning personal financial management; and (3) the debtor is unable, because of the impairment to meaningfully participate in the required instructional course in an in person, telephone, or Internet briefing.In re Hall, 347 B.R. 532, 535 (Bankr.N.D.W.Va. 2006); see also In re Smith, C/A No. 07-05726-DD, slip op. at 3 (Bankr. D.S.C. Nov. 30, 2007) (addressing exemption from credit counseling requirement); In re Tulper, 345 B.R. 322, 326 (Bankr. D. Colo. 2006) (same). The purpose of this exemption is to excuse those debtors for whom a financial management course would serve no meaningful purpose or would be impossible.

  7. In re Winston

    Case No. 07-20593-D-13L Docket Control No. NLE-1 (Bankr. E.D. Cal. Jun. 6, 2007)   Cited 1 times

    Third, the court must determine whether the debtor is unable, because of the disability, to meaningfully participate in an in-person, telephone, or internet pre-petition briefing. In re Tulper, 345 B.R. 322 (Dist. Col. 2006). For the purpose of this Memorandum the court will accept the debtor's assertion that she is disabled.

  8. In re Trembulak

    362 B.R. 205 (Bankr. D.N.J. 2007)   Cited 4 times
    Allowing deceased debtor to be excused from financial management course under section 109(h) because "clearly the Debtor ... cannot participate" in the course nor would it aid him in the future

    09[4] (Alan N. Resnick Henry J. Sommer eds. 15th ed. rev. 2006)). In exempting an 81 year old, hearing-impaired debtor, whose mobility was limited due to prostate cancer, Judge Flatley recast a test enunciated in In re Tulper, 345 B.R. 322, 326 (Bankr.D.Colo. 2006), with respect to a "disability" exemption from the pre-petition, non-profit, budget and credit counseling agency briefing, as follows: (1) the debtor is severely physically impaired;

  9. In re Manalad

    360 B.R. 288 (B.A.P. 9th Cir. 2007)

    "An involuntary case may be commenced only under chapter 7 or 11 of this title, and only against a person, except a farmer, family farmer, or a corporation that is not a moneyed, business, or commercial corporation, that may be a debtor under the chapter under which such case is commenced." For an analysis of § 109(h)(4), see In re Tulper, 345 B.R. 322 (Bankr.D.Colo.2006), in which the debtors were granted an exemption to the Credit Counseling Requirements based upon incapacity. "(a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including (1) unreasonable delay by the debtor that is prejudicial to creditors; (2) nonpayment of any fees or charges required under chapter 123 of title 28; and (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521, but only on a motion by the United States trustee."

  10. In re Manalad

    360 B.R. 288 (Bankr. C.D. Cal. 2007)   Cited 19 times
    Finding the Court possessed the jurisdiction and discretion to assess debtor's eligibility and using a three-part analysis to determine whether a deficiency under § 109(h) had been cured

    For an analysis of § 109(h)(4), see In re Tulper, 345 B.R. 322 (Bankr.D.Colo. 2006), in which the debtors were granted an exemption to the Credit Counseling Requirements based upon incapacity.