TWO COURSES AND NO DESSERT

 Bankruptcy Credit Counseling Rules Can Be Way Too Danged Confusing!


Photo credit: Man Dy, Pexels.com

A consumer bankruptcy filing involves a flood of forms, papers and procedures.  To the uninitiated, it can be difficult to understand why each of these components is important, or if they have an actual purpose. 

After filing a bankruptcy case your mailbox will have fewer bills, but you’ll instead get notices about hearings and meetings, objections to one thing, and notice of requirements to do another thing.  Some of these items are from lawyers – either yours or someone else’s – and others could be from the Trustee or Clerk of the Bankruptcy Court.  The Bankruptcy Court Clerk will probably send you something called a “NOTICE OF REQUIRMENT TO FILE A CERTIFICATION ABOUT A PERSONAL FINANCIAL MANAGEMENT COURSE (Official Form 423).”  That sounds an awful lot like the “credit counseling” that you did before you filed your bankruptcy case.  You could also get other menacing notices in the mail that say things like “NOTICE OF FEDERAL REQUIREMENT,” maybe adding the words “SECOND NOTICE” or “FINAL NOTICE.”  Some of these are just advertisements disguised as official notices.  What is all this about? 

Most people who file a bankruptcy case want to do whatever is needed for the case to be successful, but it can be a challenge to figure out what is actually required, and how and when to do it.  Part of the problem is the “help” that is offered, which takes the form of multiple notices from various parties, all worded slightly differently.  Are these notices all about the same thing, or several different things?  Figuring out the “Credit counseling” requirements is often the cause of confusion. 

Remember these 13 words about credit counseling: “You must take two courses: One before you file, one after you file.” 

Sadly, neither course includes dessert. 

Let’s look separately at each, referring to them as the First Course and the Second Course.

FIRST COURSE

“Why do I need credit counseling?”:  That’s a good question.  The credit counseling course requirements were added to the Bankruptcy Code in 2005.  Making credit counseling available isn’t a bad thing.  But the rules now require everyone to take the course in order to even be eligible to file a bankruptcy case.  When you take the First Course, the focus will be on how you got to this point, and your options for dealing with debt.  This “one size fits all” approach means the First Course is usually an inconvenient speed bump.  If you just got your vehicle repossessed or wages garnished due to a period of illness or unemployment, you already know exactly how you got to this point, and a bankruptcy filing is often the only real solution. 

“Can I get out of doing this?”: Every individual must take a credit counseling course and receive a certificate before filing bankruptcy.  The only exceptions involve military duty in a combat zone, or a mental or physical disability so serious that it would not be reasonably possible to participate.

“How long do I have to wait to file after I finish the counseling?”: You can file a bankruptcy case immediately after you receive your credit counseling certificate.  You must file the credit counseling certificate in the bankruptcy case to prove that you completed the course prior to filing the case. 

“How long can I wait a while to file a bankruptcy case after I do the credit counseling?”  There is no requirement to file a bankruptcy case, or to do anything else, after you take the course.  If you need some time to consider your options, the credit counseling certificate is good for 180 days. 

“If it’s an emergency, can I file a bankruptcy case and do the credit counseling later?”  No!  The law is very strict on this.  Filing a case without first taking credit counseling will render you ineligible to file, and your case will almost certainly be dismissed.

“Where do I go to do the counseling?”  If you are filing the case with an attorney, you can probably do the counseling in the attorney’s office.  Otherwise, the easiest way for most people will be by telephone or internet.  A list of approved counseling providers is maintained here

“How much does this cost?” Costs vary but should be disclosed to you before you begin the course.  The going rate seems to be around $20 to $24.  Individuals with low income will sometimes qualify for a waiver of the fee. 

“If I’m filing a case with my spouse, do we both have to do this?”  Yes, but you can both take the counseling at the same time, for one fee.  At the end of the session you will each need to receive a certificate. 

“How long does this take?”  An online course usually takes between 90 and 120 minutes.  A typical course alternates between presenting information for you to read, and asking you to provide information about your assets and debts.  The actual time that it will take you to complete the course depends on the speed at which you process and enter information, and the complexity of your finances.

“How do I know when I’m done?”  The counseling is not complete until you have received a certificate.  Do not proceed with filing a bankruptcy case until you are sure that you have a certificate showing the date and time you finished the credit counseling.  The date and time shown on the certificate must be before the date and time you file your bankruptcy case, but not more than 180 days before filing. 

“Who will see the information I provide to the credit counselor?”  The information that you provide in the credit counseling course is not disclosed publicly and does not become part of your bankruptcy case. 

SECOND COURSE

“What’s the point of this course?”  The Second Course is called a “financial management instructional course.”  The idea is to provide information to help you develop good spending and budgeting habits as you exit bankruptcy. 

“Can I take it at the same time as the First Course?”  No.  The Second Course cannot be completed until after you have filed a bankruptcy case.

“Do I have to take it before the meeting of creditors?”  No.  The Second Course is required before you get a discharge in your case.  For Chapter 7 filers that usually means you have 60 days after the meeting of creditors to take the course.  Chapter 13 filers can take three to five years, depending on the length of the plan, but it is a good idea to get the Second Course out of the way and not wait until the very end. 

“Can I get out of doing this?”  As with the First Course, you are only excused from taking the Second Course if you are on military duty in a combat zone, suffer from a severe mental or physical disability.  If you pass away before you can complete the course, your attorney and next of kin can ask the Court to waive the requirements, if it is possible to conclude your bankruptcy case and receive a discharge. 

“What happens if I don’t do it?”  If you do not complete the second course, the Clerk of Court can close your case without granting a discharge.  That means the debts in your case will not be wiped out.  This can be cured by a motion to reopen your case, but that can be time-consuming and expensive, and includes a fee of at least $235.00 to the Clerk of Court for reopening the case. 

 “Where do I go to do the counseling?”  Most people take the Second Course online, but there are other options, including in-person courses offered in certain regions.  As with the First Course, there is an official list of approved providers maintained at this link

“How much does it cost?”  As with the First Course, prices vary.  At the low range, the course can be completed for less than $10.00.  Providers may offer you “upgrades” but they’re often not necessary, and you can safely decline those options.  Again, if you are below a certain income level, you may qualify for a fee waiver. 

“How long does this take?”  A typical online course takes between 60 and 90 minutes.  There is usually a short test at the end. 

“How do I know when I’m done?”  Once you have completed the course you will receive a “Certificate of Debtor Education.”  The provider will sometimes file this certificate with the Court on your behalf.  This might be included in the price you paid for the course, or they may offer the service at additional cost.  Otherwise, you will need the file the certificate, along with a one-page “Certification About a Financial Management Course.”  Your attorney should be able to assist you in completing this form; if you represent yourself, the form is available from the U.S. Courts web site at this link, “Official Form 423.”

“Does the Bankruptcy Court offer credit counseling?”  Generally no, though some Courts may make space available for in-person counseling sessions.  The courses are typically offered by third-party providers. 

“Then why am I getting notices from the Court about it?”  The Clerk of Court will often send you one courtesy reminder about the need to take the course. 

“I already took both courses but I keep getting reminders?  Should I be concerned?”  The Clerk may send you a general notice, and if you are sure you have taken the course and filed the certificate and form with the Court, you can disregard it.  If you have any doubt, check with your attorney to see if you have complied, or call the Clerk of Court if you are representing yourself. 

Sometimes the notices that you are receiving are not from the Court at all.  They can look like official Court notices, including bold warnings like “Notice of Federal Requirement.”  I get lots of calls from clients about these notices.  They are usually from companies who got your name from a list and would like to provide you with a service, if you still need to take the course.  You can use these services if you like, but always make sure they are authorized to provide the service in your district, and you might want to shop around.  In my experience, the providers who send these fliers tend to be more expensive – somebody has to pay for all of the notices they mail out!  I also don’t like the way they advertise their services: When the first contact is confusingly disguised to look like a legal document, I question whether they can be clear and candid when providing actual course information! 

 

The 7thirteen is a blog written by Jeff Narmore, focusing on consumer bankruptcy issues.  Visit my website at narmorelawoffice.com.

Narmore Law Office LLC is a debt relief agency and helps people file for relief under the Bankruptcy Code.

 

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