Opinion
Case No. A05-02243-DMD.
November 2, 2005
ORDER AND NOTICE OF HEARING ON DEBTOR'S MOTION FOR RELIEF FROM § 109(h) REQUIREMENTS
On November 1, 2005, the debtor filed a chapter 7 petition. With his petition, he filed a motion for relief from the requirements of 11 U.S.C. §§ 109(h)(1) and 727(a)(11) on the grounds that the conditions of his incarceration prevent him from having phone or Internet access to authorized credit counseling agencies in this district. The debtor has been incarcerated at Palmer Correctional Facility since May, 2005, and is not scheduled to be released until March 3, 2006. He states that he is not permitted Internet access for any reason, and his phone privileges are limited and subject to an automatic disconnect after 15 minutes. Because of this, he is asking for a waiver of the credit counseling and financial management course requirements contained in §§ 109(h)(1) and 727(a)(11).
This petition was filed after the effective date of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Under the provisions of this Act, an individual is not eligible to be a debtor under any chapter of the Bankruptcy Code unless he first obtains pre-petition credit counseling, as required by 11 U.S.C. § 109(h)(1). This requirement may be deferred, in limited circumstances, under § 109(h)(3)(A), on the filing of a certificate of exigent circumstances which is satisfactory to the court. Finally, this requirement can be waived completely under § 109(h)(4) if a debtor can show an inability to comply on account of incapacity, disability, or active military duty in a military combat zone. Incapacity and disability are narrowly defined under § 109(h) and do not appear to encompass environmental factors that would limit a debtor's phone or Internet access. Therefore,
11 U.S.C. § 109(h)(3)(A) permits a debtor to file a bankruptcy petition without first obtaining credit counseling if the debtor submits a certification that:
(i) describes exigent circumstances that merit a waiver of the requirements of paragraph (1) [which requires the pre-petition counseling];
(ii) states that the debtor requested credit counseling services from an approved nonprofit budget and credit counseling agency, but was unable to obtain the services referred to in paragraph (1) during the 5-day period beginning on the date on which the debtor made the request; and
(iii) is satisfactory to the court.
11 U.S.C. § 109(h)(3)(A) [emphasis added].
"Incapacity" means "the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to financial responsibilities," and "disability" means "the debtor is so physically impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing" to obtain the required credit counseling. 11 U.S.C. § 109(h)(4).
IT IS ORDERED, AND NOTICE IS HEREBY GIVEN, that a hearing on the debtor's motion for relief from the requirements of 11 U.S.C. §§ 109(h) and 727(a)(11) will be held before the undersigned on THURSDAY, NOVEMBER 10, 2005, AT THE HOUR OF 2:30 P.M., in the Historic Courtroom, Old Federal Building, 605 West 4th Avenue, Anchorage, Alaska.