Opinion
Case No. 20-10201
03-19-2020
IN RE: LORENZO CHAVIRA JR. Debtor.
DESIGNATED FOR ONLINE PUBLICATION
Chapter 7
ORDER DENYING WAIVER OF CREDIT COUNSELING BRIEFING AND PERSONAL FINANCIAL MANAGEMENT INSTRUCTIONAL COURSE
To be eligible for chapter 7 relief, most individual debtors must first receive consumer credit counseling within 180 days before filing. Individual debtors cannot receive a discharge unless they complete a personal financial management instructional course during the case. Debtors who labor under a physical disability or are incapacitated are excused from these obligations as are debtors on active duty with the armed forces. Unless they are "so physically impaired as to be unable, after reasonable effort," to participate in a telephonic or internet briefing, incarcerated debtors do not qualify for the "disability" exception.
11 U.S.C. § 109(h)(4) (defining "disability" for the purpose of waiving the credit counseling requirement).
Debtor Lorenzo Chavira, Jr., who is incarcerated at the Norton Correctional Facility (NCF), seeks a waiver of the credit counseling requirement under § 109(h)(4), to which the United States Trustee objects. A hearing was held on March 11, 2020 that debtor did not attend due to his incarceration. Absent his alleging that he is physically incapable of attending a telephonic or Internet counseling session or that he is without physical access to a telephone or the Internet, I cannot waive these requirements and, instead, direct that Mr. Chavira complete credit counseling and the financial management instructional course, as set forth below. Otherwise, his chapter 7 petition will be dismissed.
Doc. 3, 9.
The Court also notes that on March 17, 2020, Mr. Chavira's § 341 meeting was continued indefinitely. See Doc. 24.
Very few courts have excused incarcerated debtors from obtaining a credit counseling briefing or completing a personal financial management course. "Although the court is sympathetic to debtor's situation, his incarceration is not within the meaning of 'disability' intended by Congress when they drafted § 109(h)(4), and therefore debtor does not meet the exception for permanent waiver pursuant to § 109(h)(4)." Only one has equated imprisonment with disability. In that case, the debtor was held at a work camp where he only had once-a-week phone privileges that were limited to calling family. He had no internet access. That court concluded the debtor was "disabled" and excused his compliance.
In re Star, 341 B.R. 830, 831 (Bankr. E.D. Va. 2006). See also In re Hubel, 395 B.R. 823, 826 (N.D.N.Y. 2008); In re Rendler, 368 B.R. 1, 4 (Bankr. D. Minn. 2007); In re Ruckdaschel, 364 B.R. 724, 729 (Bankr. D. Idaho 2007); In re McBride, 354 B.R. 95, 99 (Bankr. D. S.C. 2006); In re Bindus, No. 08-62456, 2008 WL 2902567, at *2 (Bankr. N.D. Ohio July 28, 2008); In re Cox, No. 07-10787, 2007 WL 4355254, at *2 (Bankr. M.D. Ga. Nov. 29, 2007).
See In re Lee, No. 08-30355, 2008 WL 696591, at *1-2 (Bankr. W.D. Tex. Mar. 12, 2008).
Id. at *2.
In previous cases, I have declined to excuse incarcerated debtors from compliance with § 109(h)(1)'s and § 727(a)(11)'s requirements, but I have allowed such debtors additional time to comply and attempted to aid that effort by directing the correctional authorities to afford them access to a telephone or internet-connected computer to complete the tasks within a defined time period. While requiring a debtor with no assets or income and considerable unsecured debt to do this seems onerous, many unconfined debtors could fashion a similar argument. Section 109(h)(4) simply doesn't give me the latitude to permit a waiver in this instance.
See, e.g., In re Murch, No. 19-10007, doc. 13 (Bankr. D. Kan. Jan. 8, 2019).
Accordingly, the debtor's request to waive these requirements is DENIED. Debtor must comply not only with the § 109(h)(1) consumer credit counselling requirement, but must also complete a personal financial management instructional course as described in § 111(d). That is a prerequisite to his being eligible for a discharge under § 727(a)(11). Because the debtor advises that he will be released from prison on April 19, 2020, I see little need to burden or impose on correction officials to provide debtor access to a prison telephone or internet while incarcerated. Instead, debtor is ordered to obtain credit counselling and complete a personal financial management instructional course on or before April 30, 2020, after his release.
The Clerk will serve this Order via first-class mail on the debtor as follows:
Lorenzo Chavira, Jr. (Inmate #0119734)
Norton Correctional Facility
P.O. Box. 546
Norton, KS 67654-0546
Failure to comply with this Order may result in debtor's bankruptcy case being dismissed without further notice.
SO ORDERED.
SIGNED this 19th day of March, 2020.
/s/_________
Robert E. Nugent
United States Bankruptcy Judge