Say What? ... Florida's Judge Jay Cristol Waives Credit Counseling Requirement for Creole-Speaking Debtor Who Couldn't Understand English
A recent comment here asked whether one can get away with getting credit counseling just one day in advance of the bankruptcy filing. The cases answer this question with a resounding NO!
As with most statutory schemes, however, it doesn't take long (as noted here) for a case to come along that gives a judge an opportunity to find an exception to the general rule.
Another judge finding such an exception is Judge A. Jay Cristol, Chief Judge Emeritus of the Bankruptcy Court for the Southern District of Florida (and author of this classic ode (in which he denied his own sua sponte motion) and this highly acclaimed book on the so-called "Liberty Incident").
In In re Petit Louis, 2006 WL 538635, (Bankr. S.D. Fla. 3/1/06) (pdf), the debtor -- who couldn't understand English -- requested a waiver of the credit counseling requirement on the basis that none of the approved counseling agencies could speak to him in his native Creole. In the alternative, he asked the Assistant US Trustee to provide a Creole translator, or decertify the approved counseling agencies for failure to provide Creole speaking counselors. The Assistant US Trustee, for her part, stuck close to the party line and maintained several different reasons as to why she lacked authority to waive the pre-bankruptcy counseling requirement, decertify any counseling agencies approved for the district, or provide a free translator (these rapid-fire, hard-nosed arguments alone make the case worth reading).
In meting out a small -- but significant -- measure of justice, Judge Cristol actually bucked the trend and waived the pre-filing credit counseling requirement for this indigent, Creole-speaking debtor. He wrote:
Now, this is a matter that probably could go either way. You could take the position that since it is the custom of the Court in proceedings not to provide interpreters, that this policy will be carried over to the issue of credit counseling.
On the other hand, since the credit counseling is a new provision and it is provided for a particular purpose, the position could be taken that it should be strictly construed and that, if the credit counseling agency cannot provide the counseling in the debtor's language and the debtor cannot afford to hire a translator, there is no possibility the debtor can get the credit counseling.
Therefore, this Court grants the waiver of the credit counseling requirement in this case because of the inability of any of the certified credit counseling agencies to provide pre-bankruptcy counseling in Creole.
Expect to soon see a request for waiver of the credit counseling requirement that combines Judge Cristol's reasoning with the "BAPCPA is incomprehensible" reasoning (reported here, here, and here) and argues that since BAPCPA is the legislative equivalent of Creole, the credit counseling requirement should be waived for that hapless debtor too.
For those interested, here are a few other classic quips from Judge Cristol's bankruptcy opinions and proceedings that will surely make you laugh (and please don't hesitate to contribute your own references or personal memories in the comments below):
Upon confirming Arrow Air's reorganization plan:
As of today, I shot an Arrow into the air. The reorganization plan was very fair. Go fly your birds everywhere. Haul your cargo with a great deal of flare. Keep your planes on the runway and out of the muck. May you continue to operate with the best of luck.
On Carl Icahn's supposed $43 million bid for Pan Am:
I don't see it as the solution to the Pan Am problem. We talk about Mr. Icahn riding up with $43 million. He may have $43 million in his pocket, but he's only going to put $8 million on the table.
On Florida's homestead exemption and the abuses that led to the closing of the "mansion loophole" (discussed here):
You could shelter the Taj Mahal in this state and no one could do anything about it.
In denying a debtor's attempt to claim an exemption for a pension plan:
A little neglect may breed mischief. In this case, it cost the debtor his claim to an exemption for the interest in this pension plan. Had he attended to the plan, perhaps the outcome would have been different.
© Steve Jakubowski 2006
In re: John Coffey Vivian
Order on Letter From John C. Vivian Dated December 3, 1992, and Marked "Important" and Determining Rogue Computer in Civil Contempt
150 B.R. 832
If Congress wanted the credit counseling briefing to be at least one calendar date from filing, they could have simply written that into the code. It appears that some Judges have taken the literal reading of the code, although I doubt that it was intended to force a debtor to wait one calendar day. In fact, if taken on the internet, one calendar day can actually be just minutes.
the article http://www.moneysavingfreetips.com/consumer-credit-counciling.html says to beware of credit counseling companies, because they can ripoff consumers easily
"Thus as a consumer, you have to beware! Avoid "debt settlement" firms who promise to completely get rid of your debt within months and who ask for a $3000 upfront fee. These usually turn out to be scams who upon receiving the money will run off from the country, disconnect their phones or set up a new firm under a new name."
Can you please name these cases?
It seems to me that the phrase "during the 180-day period preceding the date of filing of the petition" is ambiguous at best. Specifically focusing on the word "date", are judges saying that "date" = "calendar day"?
Did these judges (or the attorneys involved) bother to glance at the dictionary definition for the word "date" which is
"a : the time at which an event occurs;
b : a statement of the time of execution or making"
I see nothing about "calendar days" in that definition. So, considering the ambiguity of the word, "date" let's think about the policy in reading "date" as "calendar day". Picture the arbitrary, non-sensical result of this hypo:
Debtor A completes a credit counseling course at 11:59:59 p.m., and files his petition electronically one second later, at 12:00:00 a.m. the next calendar day.
Debtor B completes a credit counseling course at 12:00:00 a.m. and files his petition one second short of 24 hours later at 11:59:59 p.m. the same calendar day.
So Debtor A is eligible to file and Debtor B is not?
If Congress' goal is to make creditors wait a certain period of time after they obtain credit counseling services to the time they file their petition, this language (interpreting "date" as "calendar day") certainly does not do it!