In In re Hubbard, 2005 Bankr. LEXIS 2005, (Bankr. S.D. Tex. 2005), five putative debtors had their petitions stricken for failure to file certifications complying with the new Bankruptcy laws, effective October 17, 2005.

The debtors filed their cases on October 26, 2005 and November 1, 2005 and all were filed under the new laws. Section 109(h) of the new law requires that debtors obtain credit counseling or alternatively describe exigent circumstances that merit waiver of credit counseling.

None of the debtors in the case obtained pre-petition credit counseling. Each of the five debtors sought an extension of deadline to obtain credit counseling. The Bankruptcy Court for the Southern District of Texas, prior to the above filings, issued an order stating that any requests for extension must be in the form of a certification to the court containing specific information. The debtors filed motions containing the following language: “The debtor(s) certify to this Court…”. The Court stated that a motion stating that it is a certification does not make it a certification.

The Court did find that the debtors filed certifications stating that they had received post-petition credit counseling. However, the Court found that the debtors, having failed to obtain pre-petition credit counseling and failed to file the required certification, did not meet the Sect. 109 requirements to be debtors and therefore were not eligible for relief under the Bankruptcy Laws. The Court found that because the debtors did not satisfy the eligibility requirements, no case was commenced which warranted dismissal. Rather, the petitions were stricken.

Ray