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In re Marshall

United States Court of Appeals, Eighth Circuit

February 28, 2019

In re: Theresa Marshall Debtor
v.
Mark T. McCarty Trustee - Appellee Theresa Marshall Debtor - Appellant

          Submitted: February 19, 2019

          Appeal from United States Bankruptcy Court for the Eastern District of Arkansas - Little Rock

          Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges.

          NAIL, BANKRUPTCY JUDGE.

         Debtor Theresa Marshall appeals the September 4, 2018 order of the bankruptcy court[1] granting Chapter 13 Trustee Mark T. McCarty's ("Trustee") motion to dismiss Debtor's bankruptcy case. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(b). We affirm.

         BACKGROUND

         Debtor filed a petition for relief under chapter 13 of the bankruptcy code. In Part 5 of her petition, Debtor was advised "[t]he law requires that you receive a briefing about credit counseling before you file for bankruptcy" and was instructed to check one of four boxes to indicate whether she had received such a briefing.

         A debtor checking the first box represents: "I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, and I received a certificate of completion." A debtor checking this box is instructed to attach a copy of the certificate.

         A debtor checking the second box represents: "I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, but I do not have a certificate of completion." A debtor checking this box is instructed to file a copy of the certificate within fourteen days.

         A debtor checking the third box certifies: "I asked for credit counseling services from an approved agency, but was unable to obtain those services during the 7 days after I made my request, and exigent circumstances merit a 30-day temporary waiver of the requirement." A debtor checking this box is instructed to "attach a separate sheet explaining what efforts you made to obtain the briefing, why you were unable to obtain it before you filed for bankruptcy, and what exigent circumstances required you to file this case."

         A debtor checking the fourth box represents: "I am not required to receive a briefing about credit counseling because of [incapacity, disability, or active duty]." A debtor checking this box is instructed to "file a motion for waiver of credit counseling with the court."

         Debtor checked the first box, thereby representing she had received the requisite briefing within the 180 days before she filed her petition and had received a certificate of completion. Debtor did not, however, attach a copy of such a certificate.

         Citing Debtor's failure to file a certificate of completion, a certification of exigent circumstances, or a request for a waiver of the credit counseling requirement due to incapacity, disability, or military service, Trustee filed a motion to dismiss Debtor's case. Debtor responded, first by filing a certificate of counseling that showed Debtor had received the requisite briefing four weeks after she filed her petition and then by filing an objection to Trustee's motion to dismiss. In her objection, Debtor attempted to excuse her failure to receive the requisite briefing within the 180 days before she filed her petition by claiming-seemingly inconsistently-she "did not remember that she needed to do credit counseling before she filed Chapter 13" and she "misread question and believed that credit counseling that she had previously taken on/about October 26, 2016 met credit counseling requirement."[2]

         Following a hearing, the bankruptcy court granted Trustee's motion and dismissed Debtor's case with a 180-day bar ...


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