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Casenotes: 2007 WDNY Bankruptcy Cases Archives

Exigent circumstances permitting filing of petition without credit counseling

In re Giambrone; Bk 06-03862 (Judge Bucki; Decision March 29, 2007)Pursuant to Bankruptcy Code section 109(h) (3) (A) Exigent circumstances permitting filing of petition without credit counseling. Debtor contacted attorney on 12/5/06 with impending 12/7/06 foreclosure sale. Credit counseling was unavailable for 5 days. Chapter 13 Petition filed on December 6, 2006 @ 7:38 p.m. requesting waiver on exigent circumstances. Debtors obtain counseling on December 11 and file Certificate on December 15, before the January 4 return date on the motion. Court notes conflict in decisions variously finding an impending foreclosure sale to be such an exigent circumstance and others indicating that foreclosure process provides considerable notice to homeowners and allows no excuse for procrastination. Court reviews definitions of "exigent" and finds that "urgency" carries no connotation relating to causation. Statute does not require an absence of culpability of the debtor. Waiver granted.

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