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UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

In re: 

FAROOQ D. SULTAN, 

 Debtor. 

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 Case No. 20-12666-BFK 

 Chapter 7 

MEMORANDUM OPINION AND 

ORDER DISMISSING CASE 

WITHOUT PREJUDICE 

This matter came before the Court on the Court’s Order to Show Cause why this 

bankruptcy case should not be dismissed. Docket No. 7. The Court heard the Debtor’s arguments 

on December 22, 2020. For the reasons stated below, this case will be dismissed without 

prejudice. 

Findings of Fact 

The facts are not in dispute. 

1. On December 8, 2020, at 10:58 p.m., the Debtor filed a Voluntary Petition under 

Chapter 7 with this Court. Docket No. 1. The Debtor was represented by counsel in his filing. Id. 

2. As part of his Petition, which was signed under oath, the Debtor checked the box 

that stated: 

I received a briefing from an approved credit counseling agency within the 180 

days before I filed this bankruptcy petition, and I received a certificate of 

completion. 

Id. at ¶ 15. 

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3. This was not true. The Debtor submitted a Certificate of Credit Counseling stating 

that he completed credit counseling at 10:36 p.m. CST, which was 11:36 p.m. EST, about a halfhour after he filed his Petition. Docket No. 3. 

4. On December 9, 2020, the Court entered an Order to Show Cause why the case 

should not be dismissed. Docket No. 7. 

5. The next day, on December 10, 2020, the Debtor filed an Amended Voluntary 

Petition. Docket No. 8. In his Amended Petition, the Debtor did not check any of the boxes 

relating to credit counseling.1 

Conclusions of Law 

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Order of 

Reference entered by the U.S. District Court for this District on August 15, 1984. This is a core 

proceeding under 28 U.S.C. § 157(b)(2)(A) (matters concerning the administration of the estate). 

I. Section 109(h) Requires Pre-Petition Credit Counseling. 

The credit counseling requirement was first enacted as part of the Bankruptcy Abuse 

Prevention and Consumer Protection Act of 2005 (“BAPCPA”). As originally enacted, the 

statute required debtors to complete credit counseling “during the 180-day period preceding the 

date of filing of the petition. . . .” 11 U.S.C. § 109(h)(1) (2005) (emphasis added). This led some 

courts to conclude that the credit counseling course had to be completed the day before the 

debtor filed a petition, not on the day of the petition (the “plain language” view), while other 

courts held that the Debtor could complete credit counseling up until the moment of filing. See In 

re Francisco, 390 B.R. 700, 705 (10th Cir. B.A.P. 2008). 

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 The choices in the form are: (a) the Debtor received credit counseling and has a certificate; (b) the Debtor received 

credit counseling but does not yet have a certificate; (c) the Debtor requested but was unable to complete counseling 

within seven days of the request, and there are exigent circumstances that justify a 30-day waiver; or (d) the Debtor 

is exempt from the credit counseling requirement due to incapacity or disability. Id. 

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In 2010, Congress amended the statute to require that debtors complete credit counseling 

“during the 180-day period ending on the date of filing of the petition. . . .” 11 U.S.C. § 109(h)(1)

(emphasis added). This solved the “day of filing” controversy, but it created a new issue – can a 

debtor complete credit counseling on the same day that he or she files the petition but after the 

petition is filed? Once again, two views emerged. 

One line of cases holds that the “plain language” of Section 109(h)(1), as amended, 

allows debtors to complete credit counseling at any time on the day that he or she files the 

petition. In re Kuykendall, Case No. 20-14818-KHT, 2020 WL 5823268, at *3-4 (Bankr. D. 

Colo. Sept. 30, 2020); In re Tillman, Case No. 17-30037, 2017 WL 933025, at *1 (W.D. N.C. 

March 8, 2017)(“The court must presume that words in a statute have their normal meanings 

unless Congress provided definitions in the statute. . . .”); In re Walker, 502 B.R. 324, 328 

(Bankr. N.D. Ill. 2013)(“The language of section 109(h)(1) is expressed in plain terms. The 180–

day period of a debtor to receive credit counseling includes the date of the filing of the petition. 

No finer distinction is included in the statute, and thus, the court is bound to apply the clear and 

unambiguous language of the statute pursuant to its terms.”) 

The other line of cases holds that, while the 2010 Amendment solved the “day of filing” 

problem, it did not permit debtors to complete credit counseling post-petition. As one court held: 

Section 109(h) states that if an individual does not receive a credit counseling 

briefing during the 180–day period, the individual “may not be a debtor.” If a 

person must qualify as a “debtor” to file a case, then someone who has not yet 

received a credit counseling briefing—and so may not be a debtor—cannot 

properly file. 

In re Arkuszewski, 507 B.R. 242, 245 (Bankr. N.D. Il. 2014) aff’d In re Arkuszewski, 550 B.R. 

374 (N.D. Ill. 2015) citing In re Jackson, Case No. 12-77990, 2012 WL 7679562, at *2 (Bankr. 

N.D. Ga. Dec. 13, 2012); see also In re Lane, Case No. 12–10718–M, 2012 WL 1865448 

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(Bankr. N.D. Ok, May 22, 2012). In Arkuszewski,the District Court for the Northern District of 

Illinois affirmed the judgement of the Bankruptcy Court, pointing to the purpose of the credit 

counseling requirement and concluding that Congress intended credit counseling to help 

individuals make an informed choice about filing for bankruptcy before filing, not later on 

during the same 24-hour period to “check a box.” In re Arkuszewski, 550 B.R. 374, 382-83 (N.D. 

Il. 2015) citing Lindsay Sherp, To Strike or to Dismiss, That is the Question: How Courts Should 

Dispose of Bankruptcy Cases Filed by Debtors Who Failed to Obtain Credit Counseling, 60 

BAYLOR L. REV. 317, 320 (2008) (“The language of section 109(h) unambiguously reflects 

Congress' intention to prevent individuals from filing for bankruptcy without first receiving 

credit counseling.”); Michael D. Sousa, Just Punch My Bankruptcy Ticket: A Qualitative Study of 

Mandatory Debtor Financial Education, 97 MARQ. L. REV. 391, 398 (2013) (“As for the prefiling credit counseling course, Congress's mission was to have prospective debtors understand 

the potential alternatives to filing for bankruptcy relief with the goal of having a significant 

portion of them settle their debt obligations outside of the bankruptcy system.”)

In light of the purpose of the credit counseling requirement, the Bankruptcy Court for the 

District of Columbia in In re Koo explained that the 2010 edits to § 109(h)(1)’s language from 

“preceding the date of filing of the petition” to “ending on the date of filing of the petition” were 

intended to clarify the fact that the prepetition credit counseling requirement could be fulfilled up 

until the bankruptcy petition was filed, down to the hour. In re Koo, Case No. 12-00121, 2012 

WL 692578, at *1 (Bankr. D. D.C. March 2, 2012) (“the change was made by the Bankruptcy 

Technical Corrections Act of 2010, Pub.L. 111–327, 124 Stat 3557 (Dec. 22, 2010). That statute 

was intended to make merely technical corrections. The statute contains no indication that the 

change to § 109(h)(1) was anything other than a technical amendment intended to clarify that, as 

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held by the better reasoned decisions, the required prepetition credit counseling could be 

received up until the moment of filing of the bankruptcy petition, and need not be received prior 

to the calendar day on which the petition was filed.”) 

Section 109(h)(1) “addresses eligibility for bankruptcy relief” which is ordinarily “tested 

as of the moment of filing of the petition.” Id. at *2. Section 109(h)(1) “requires that the debtor 

‘has . . . received’ credit counseling (instead of requiring that the debtor ‘receives’ credit 

counseling) during the 180–day period ending on the date of filing of the petition.” Id. This 

language, in the past tense, reflects the expectation that the Debtor obtained credit counseling 

before the petition was filed. Id. The Court in In re Koo explained that the legislative intent was 

that the credit counseling requirement would be a “condition of eligibility” Id. citing H.R. Rep. 

No. 109-31 (2005). Several other Bankruptcy Courts, faced with similar fact patterns, have 

reached the same conclusion. See In the Matter of Wimbley, Case no. 15-10580, 2015 WL 

5609901, at *1 (Bankr. N.D. In. May 19, 2015) (denying Debtor’s motion to reconsider Court’s 

order dismissing the Debtor’s case finding that the required counseling was received six minutes 

after the petition was filed); In re Lane, Case No. 12-10718-M, 2012 WL 1865448, at *3 (Bankr. 

N.D. Ok. May 22, 2012) citing In re Francisco, 390 B.R. 700 (10th Cir. B.A.P. 2008). 

The Court agrees with the latter line of cases. The most that can be said about the 2010 

Amendment is that Congress intended to resolve the “day of filing” controversy by allowing 

debtors to receive credit counseling on the same day that a petition is filed. See In re 

Arkuszewski, 550 B.R. 374, at 382; In re Jackson, Case No. 12-77990, 2012 WL 7679562 

(Bankr. N.D. Ga. Dec. 13, 2012) (“By replacing the word ‘preceding’ with the words ‘ending on’ 

the statutory drafters clearly rejected the line of authority suggesting that the credit counseling 

deadline is the day before filing”); In re Koo, Case No. 12-00121, 2012 WL 692578, at *1 

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(Bankr. D. D.C. March 2, 2012) (“The statute contains no indication that the change to § 

109(h)(1) was anything other than a technical amendment intended to clarify that, as held by the 

better reasoned decisions, the required pre-petition credit counseling could be received up until 

the moment of filing of the bankruptcy petition, and need not be received prior to the calendar 

day on which the petition was filed.”) 

Further, the Supreme Court has held that, as a matter of statutory interpretation, Congress 

is presumed to be familiar with pre-Code practice and that courts should be reluctant to accept 

arguments҂that would interpret the Code, however vague the particular language under 

consideration might be, to effect a major change in pre-Code practice that is not the subject of at 

least some discussion in the legislative history.” Dewsnup v. Timm, 502 U.S. 410, 419 (1992). 

While there is every indication that Congress intended to resolve the “day of filing” controversy, 

there is no indication in the language of the statute, nor in the legislative history, that Congress 

intended in the 2010 Amendment (a Technical Amendment) to change the requirement for 

debtors to complete credit counseling before they filed for bankruptcy. 

The Court holds that credit counseling remains a pre-petition requirement, even after the 

2010 Amendment. The Court, therefore, will dismiss this case. 

II. The Court Will Dismiss this Case Sua Sponte. 

Alternatively, the Court will dismiss this case sua sponte. The Debtor affirmatively 

represented in his Voluntary Petition that he had completed the credit counseling course before 

he filed his Petition. Docket No. 1 at ¶ 15. This was not true. The Debtor completed the course 

after he filed his Petition. It was only through the diligence of the Court’s staff, in noticing that 

the time stated, 10:36 p.m. CST, was after the Debtor filed his Petition at 10:58 p.m. EST. The 

statement in the Petition, that the Debtor completed credit counseling “before I filed this 

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bankruptcy petition, and I received a certificate of completion,” was an affirmative 

misrepresentation. The Court should be able to rely on representations that Debtors make in their 

filings with the Court. 

The Court, therefore, will dismiss this case sua sponte, without prejudice. 

Conclusion 

It is therefore ORDERED: 

A. This case is dismissed without prejudice. 

B. The Clerk will mail copies of this Memorandum Opinion and Order, or will provide 

cm-ecf notice of its entry, to the parties below. 

Date: _____________________ ___________________________________ 

 Brian F. Kenney 

Alexandria, Virginia United States Bankruptcy Judge 

Copies to: 

Farooq D Sultan 

14503 Chelsey Pl 

Centreville, VA 20121 

Debtor 

Tommy Andrews, Jr., Esquire 

122 North Alfred St. 

Alexandria, VA 22314 

Debtor’s Counsel

Donald F. King, Esquire 

1775 Wiehle Avenue, Suite 400 

Reston, VA 20190 

Chapter 7 Trustee 

Jan 7 2021 /s/ Brian F Kenney

Entered On Docket: January 7, 2021

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