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By Steven G. Klesner,Iowa City, IA

Some people don't like to read all of those listserv messages that can overwhelm the inbox.  I'll pass on a few tricks I learned in being on the NACBA listserv that kept my inbox from getting jammed up, and turned those messages into a quick issue primer.

1. Create a subfolder to the inbox.  Make a rule that all messages coming from "AcademyListserv" get immediately shunted to that folder.

2. If you aren't using it already, go to Google's website and download the free Google Desktop application.  It will index your hard drive, and even does network drives.  All of your emails will get indexed as well.

3. When you want to research an issue, open Google Desktop, and to search discussions on the listserv on, say, §1328 issues, type in "UpdateForum" and "1328."

It did not take long before I had tens of thousands of NACBA messages.  They did not clog my inbox.  I could find insightful discussions of all sorts of topics this way.

 

EXAMPLES OF EXCHANGES ON THE LISTSERV

A LIST-MEMBER SUBMITTED THIS QUESTION:

June 5 2008

Hello

Is the effect of debtors failing to complete and file the financial management course automatic dismissal of the case? Is there a bar to re-filing within 6 months? Is this an effective way to get out of a ch 7 that has gone awry?

Thanks, Alexis Crow, Charlottesville, VA

June 5 2008

As I understand it, the case is closed with no discharge, but it is not dismissed. Does that bar filing another Chapter 7 since they didn't get a discharge nor was the case dismissed? If there were assets they would still be distributed, but if it's a no asset case, what's the result? Good question. Anyone know?

Judi Descalso

June 5 2008

This has happened to me several times. as I understand it, the case closed without a discharge. all I have done is a simple motion to reopen the case, and after the order is granted to reopen, I file the financial mang. cert. then they grant the discharge and close the case.

Mark Reed, Esq.

June 5 2008

I got the impression this debtor did not want to complete the Chapter 7 because it has gone awry and this might be a way out of this one without precluding the filing of another

Judi Descalso

June 6 2008

I just received a motion to dismiss because the client completed the course a few days after the bankruptcy was filed. The Judge's clerk sounded intent on dismissing it so I intend to re- file Exhibit D to explain the exigent circumstances for filing it before we received the filing (plus the client's certification that the request for services was made before the filing). The exigent circumstances was avoidance of the automatic default judgment after the expiration of the 35 days to respond to/answer a summons and complaint.

I have no idea how this will pan out since this is my first time with this problem, but if the case is dismissed I intend to reopen or re-file it, preferably reopen.

Rhinold Lamar Ponder, Esq. Ponder & Williamson
Princeton, NJ 08540

June 6 2008

Thanks. The debtors would like to get out of the Ch 7 because a family member died intestate two days before the 341 and they may inherit a substantial piece of property.

Alexis

June 6 2008

I don't understand what the problem is. As I understand the message from Rhinold Lama Ponder, the debtor completed the financial management course a few days after the bk was filed.

Why is that grounds for dismissal? What am I missing?

Morgan King
Dublin, CA

June 6 2008

Sorry; I see that she took it post filing

June 6 2008

11 USC 727 implies that a debtor may not take the debtor education course pre-petition:

(a)(11) after filing the petition, the debtor failed to complete an instructional course concerning personal financial management described in section 111, except that this paragraph shall not apply with respect to a debtor who is a person described in section 109 (h)(4) or who resides in a district for which the United States trustee (or the bankruptcy administrator, if any) determines that the approved instructional courses are not adequate to service the additional individuals who would otherwise be required to complete such instructional courses under this section (The United States trustee (or the bankruptcy administrator, if any) who makes a determination described in this paragraph shall review such determination not later than 1 year after the date of such determination, and not less frequently than annually thereafter.); or

Bobby Wilbert

June 6 2008

I think terms are being used interchangeably which are not interchangeable. If the case is dismissed a few days after filing the case due to "failure to complete the Financial Management Course" this is not possible. It is only the failure to complete the credit counseling prior to the filing of the case which subjects the debtor to a dismissal. Exigent circumstances as a follow up the earlier post are usually never deemed things that are self-imposed "emergencies". Things like waiting until the last minute to file bankruptcy and not completing the credit counseling prior to filing because "my house was being foreclosed" is not exigent circumstances here in the 1st circuit. The rushing to beat the default judgment scenario would be looked at the same way. I apologize if I have completely misinterpreted the original poster's issue.

Brian R. Lewis, Lakeville, MA

June 6 2008

What I wonder if Mr. Ponder meant the Credit Counseling rather than the financial Management class. From what he said in his initial message, I don't see a problem. If I am correct then I see the reason for the MTD.

Derek

June 6 2008

Perhaps, I misunderstood.

I thought the original issue concerned reopening a bankruptcy that was to be dismissed for failure to complete the Financial Management course. Alexis wrote "Is the effect of debtors failing to complete and file the financial management course automatic dismissal of the case?" Although she also wrote "Is this an effective way to get out of a ch 7 that has gone awry?,"

I don't think the responses understood that her clients actually wanted the bankruptcy dismissed, as she later re-stated.

Some of the responses addressed how the case can be salvaged despite the failure to complete the course before filing. Mark Reed responded " this has happened to me several times. as I understand it, the case closed without a discharge. all I have done is a simple motion to reopen the case, and after the order is granted to reopen, I file the financial mang. cert. then they grant the discharge and close the case."

My response also concerned the problem of having filed a petition before the debtor completed the course. For failure to file after, I understand from a number of responses that my case will be dismissed and that I am just SOL. Unlike Mark's situation, I understand that in New Jersey, the Judges consider this a jurisdictional matter adn simply re-opening the case will not be sufficient.

I admit that I am totally baffled and extremely pissed. My client completed the course within days of the defect. Of course, we receive the cursory notice that if the defect is not cleared in 15 days the case will be dismissed. The defect was cleared well within that time period, but the grace period, I see, clearly does not apply to the course certificate.

However, Exhibit D seemed to give some flexibility in terms of when a course can be completed in emergent situations. But based on the responses there is no real flexibility. So, what good is "exigent circumstances" if you cannot file because of imminent foreclosure or an imminent default judgment in litigation. According to the National Consumer Law Center's publication, Consumer Bankruptcy Law and Practice: Special Guide to the 2005 Act , page 29, an emergent filing, without completion of the course, to stop a foreclosure should be permissible. However this is not a waiver, it simply allows completion of the course within 30 days after the petition date. Brian has pointed out that this is not acceptable in the first circuit and if the counseling requirement is deemed jurisdictional in the District of New Jersey, then it seems the rest of the law is irrelevant here too.

I apologize for the lengthy recap, I simply wanted to clarify what I had written earlier on this thread and also apologize if my response created any confusion. I do want to thank you for the responses too. Still I am not happy because the outcome is ridiculous. I will need to take the financial hit for this one because I should have known that so-called or arguable "exigent circumstances" are not a reason to file without having completed the course.

Thanks.

(P.S. Is there a fight in this problem somewhere? I don't mind a good fight if I have a chance of winning?)

Rhinold Lamar Ponder, Esq., Ponder & Williamson, Princeton, NJ

June 6 2008

Mr. Ponder is correct about my original question. The answers indicated that there isn't a good way out for my clients and the trustee/responder said he would oppose a dismissal based on a debtor's failure to complete the financial management course.

The thread moved on and the other discussion was helpful, as well.

In the Western District of Virginia, the court issues an Order of Deficiency that requires debtors to take and file a credit counseling certificate within 15 days if one is not taken prior to filing.

Apparently, they are taking a more reasonable approach than some jurisdictions.

Thanks for the good input,

Alexis Crow

June 9 2008

Problem is that the court will close the case without ever entering a discharge, meaning that the poor debtor has to them pay a filing fee to reopen, go through the hoops to show why the course (FMC) did not get done (or why the certificate was not filed, actually), and that takes time and money that most people could better use for other pursuits. In Idaho the court believes that it is a part of the lawyer's job to see to it the certificate gets filed, and the judges are not willing to allow any additional fees for reopening, preparing the filngs, or attending the argument in court. We therefore stay on top of this and probably hound our clients more than their creditors were before they filed. Seems to work.

Cameron Phillips, Coeur d'Alene, Idaho

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