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§ 109

Bogedain v. Eisen

Appellant debtor filed a petition for chapter 12 bankruptcy relief. The debtor moved for an order waiving, based on exigent circumstances, the prefiling credit counseling required by 11 U.S.C. § 109(h)(1). Initially and on reconsideration, bankruptcy court denied the debtor's motion. The debtor appealed.
Ruling: 
"Family farmer" filing under chapter 12 was an individual and subject to credit counseling requirements.
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In re Reyes

A debtor was required to appear and show cause why her chapter 13 bankruptcy case should not have been dismissed for failure to obtain the consumer credit counseling briefing required by 11 U.S.C. § 109(h)(1).
Ruling: 
Chapter 13 case dismissed due to debtor's failure to obtain credit counseling or to establish exigent circumstances to justify a waiver.
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In re Kimsel

A debtor requested a waiver, based on exigent circumstances, of the requirement in 11 U.S.C. § 109(h) that he obtain credit counseling prior to the filing of his chapter 13 bankruptcy petition. The debtor requested an additional 30 days in which to obtain the counseling.
Ruling: 
Foreclosure sale on filing date did not create exigent circumstances sufficient to justify waiver of credit counseling requirement.
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In re Hess

Two debtors each filed a bankruptcy petition subject to the Bankruptcy Abuse Prevention and Consumer Protection Act without the proof of prepetition credit counseling required by 11 U.S.C. § 109(h)(1). The trustee in bankruptcy moved to dismiss the second of the two petitions. The court issued orders to show cause why the petitions should not be dismissed.
Ruling: 
Exemptions from prepetition credit counseling requirement granted where debtors had attempted to comply in good faith.
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In re Odette

The debtors moved to convert their chapter 7 case to chapter 13. Creditors filed objections. The first objection was that the debtors were ineligible under 11 U.S.C. § 109(e), because their total debts exceeded the chapter 13 unsecured debt ceiling. The second objection was that irrespective of the outcome of the first objection, the attempted conversion was in bad faith.
Ruling: 
Debtors'guarantee of corporate debt did not cause them to exceed debt limits for chapter 13 and conversion from chapter 7 was allowed.
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In re Cole

Chapter 13 trustee filed a motion to dismiss debtor's bankruptcy case for failure to timely obtain the credit counseling briefing required by 11 U.S.C. § 109(h).
Ruling: 
Case dismissed where debtor obtained credit counseling on filing date and not within 180 days before filing.
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Grossman v. Beal (In re Beal)

Pursuant to 28 U.S.C. § 158(a)(3), appellant trustee sought leave to appeal the interlocutory order of the bankruptcy court denying her motion to dismiss the bankruptcy petition of appellee debtors. The trustee moved to dismiss based on 11 U.S.C. § 109(g)(2).
Ruling: 
Court ruled that section 109(g)(2) did not apply where it thwarted Congressional intent and, thus, debtors'refiled case was deemed permissible.
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In re Bricksin

After the debtors filed for bankruptcy protection under chapter 7, the U.S. trustee moved to dismiss their case pursuant to 11 U.S.C. §§ 707(a), 109(h) and 521(b) and Fed. R. Bankr. P., Interim R. 1007(b)(3). The trustee asserted that the debtors failed to file certificates from an approved credit counseling agency evidencing their receipt of credit counseling within the 180-day period preceding the date of filing the petition
Ruling: 
Motion to dismiss case was denied since debtors' participation in debt repayment plan constitued ongoing credit counseling sufficient to satisfy 180-day prior to filing credit counseling requirement.
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In re Nelson

In a prior proceeding, the bankruptcy court summarily ruled that the debtor's proposed chapter 13 plan was filed in bad faith and dismissed the case. The Bankruptcy Appellate Panel for the Ninth Circuit reversed the decision and remanded the case, holding that the bankruptcy court should have permitted the debtor to amend her plan before dismissing the case.
Ruling: 
Debtor was not eligible for chapter 13 relief since debtor filed plan in bad faith.
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In re Elmendorf

Three separate bankruptcy cases of three debtors were before the court on three separate Motions to Dismiss for Cause filed by the U.S. Trustee.
Ruling: 
Three cases dismissed for failure to comply with credit counseling requirement but dismissal "with prejudice" applied only if warranted by facts.
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