IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: )

) Bankruptcy No. 05-50127-JAD

ANNA M. MILLER, )

) Chapter 13

Debtor. )

_________________________ X

) Related to Docket No. 29

ANNA M. MILLER, )

)

Movant, )

)

- vs - )

)

Advantage Credit Counseling )

Service, Ronda J. Winnecour, )

Chapter 13 Trustee, and )

the U.S. Trustee for Region 3 and )

all Creditors of the Debtor, )

)

Respondents. )

_________________________ X

MEMORANDUM OPINION

RELATING TO DEBTOR’S “CERTIFICATION”

OF COMPLETION OF “BRIEFING” REQUIRED

PURSUANT TO 11 U.S.C. §§ 109(H) AND 521(b)

I. Introduction

The matter that is before the Court concerns the debtor’s efforts to comply with the

credit counseling “briefing” provisions of the United States Bankruptcy Code as amended

by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“2005 Act”).

Specifically, the issue before the Court is whether the debtor has satisfied the “certification”

requirements set forth in the credit counseling briefing provisions of this statute. For the

reasons set forth below, the Court holds that the debtor in this case has not adequately

satisfied the “certification” requirements of the 2005 Act. The Court will therefore enter

an order scheduling further proceedings consistent with this Memorandum Opinion.

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1 The Court takes judicial notice of the facts and circumstances surrounding the debtor’s

bankruptcy filing as set forth in the Court’s file, including the statements made by the debtor in documents

filed on her behalf. See Fed.R.Evid. 201; Nantucket Investors, II v. California Federal Bank (In re Indian

Palms Associates, Ltd.), 61 F.3d 197, 204-206 (3d Cir. 1995)(judicial notice of documents in Court’s file is

permissible). The Court specifically takes judicial notice of the statements made by the debtor located in

the Court’s file at the following Document Numbers: #1 (voluntary petition), #2 (certificate of exigent

circumstances), #5 (motion to extend the automatic stay), #8 (motion to extend time to file schedules and

statements), #10 (order granting motion to extend time to file schedules and statements), #12 (schedules

of assets and liabilities and statement of financial affairs), #13 (chapter 13 plan), #18 (motion to extend

time for credit counseling briefing), #21 (order granting motion to extend time for credit counseling

briefing), #23 (modified order granting motion to extend the automatic stay), and #29 (alleged

certification relating to briefing by credit counseling agency).

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II. Facts1

The debtor, Anna M. Miller, is a retired widow whose sole source of income consists

of social security benefits provided by the United States Social Security Administration.

(Document No. 12 - Schedule I). The debtor commenced this case by filing a voluntary

petition for relief under Chapter 13 of the United States Bankruptcy Code on November 4,

2005. (Document No. 1 - Voluntary Petition).

The circumstances surrounding the debtor’s bankruptcy filing are not uncommon.

The debtor was forced to seek bankruptcy protection because her residence was scheduled

for a sheriff’s sale due to mortgage foreclosure on November 7, 2005. (Document No. 2 -

Certificate of Exigent Circumstances). The debtor has represented to the Court that her

financial difficulties are not the result of excessive spending or inappropriate use of credit

cards. (Ibid). Rather, the debtor has represented to the Court that except for mortgage

obligations on her principal residence, the liabilities of the debtor are predominantly

medically related debts incurred by the debtor as a result of a prolonged and expensive

illness suffered by her late husband (who unfortunately passed away as a result of such

illness prior to the petition date). (Id.); (Document No. 12 - Schedules D, E, and F). 

Shortly after the filing of the debtor’s Chapter 13 bankruptcy case, the debtor timely

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complied with the Court’s orders with respect to the filing of schedules, statements and

other documents as required by 11 U.S.C. § 109, 11 U.S.C. § 521 and Fed.R.Bankr. 1007, with

one notable exception. (Document Nos. 8 - Motion to Extend Time to File Schedules and

Statements; Document No. 10 - Order Granting Motion to Extend Time to File Schedules

and Statements; Document No. 12 - Schedules and Statement of Financial Affairs;

Document No. 13 - Chapter 13 Plan; Document No. 18 - Motion to Extend Time for Credit

Counseling; Document No. 21 - Order Granting Motion to Extend Time for Credit

Counseling Briefing). This exception is the debtor’s efforts under 11 U.S.C. § 109(h)(1) to

obtain and receive from an approved, non-profit budget and credit counseling agency a

“certification” stating that the debtor has completed a “briefing” from such agency that

both outlined the opportunities available to the debtor for credit counseling and assisted

the debtor in performing a related budget analysis.

The emergency nature of the debtor’s bankruptcy filing (i.e., to stay the Sheriff’s sale

and enjoin the foreclosure of the debtor’s equity of redemption) precluded the debtor from

obtaining the requisite pre-petition “briefing” as required by 11 U.S.C. § 109(h)(1).

Therefore, on the petition date, the debtor timely filed with the Court a Certification of

Exigent Circumstances which, in a manner satisfactory to the Court, set forth the reasons

why this debtor could not obtain the pre-petition “briefing” required by the 2005 Act.

(Document No. 2 - Certificate of Exigent Circumstances).

After filing her Certificate of Exigent Circumstances, the debtor also filed with the

Court on December 5, 2005 a Motion for Extension of Time for Filing of Certificate of

Credit Counseling. Pursuant to this motion for extension, the debtor sought what

amounted to a 60 day extension of time (measured from the petition date) to obtain the

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briefing required by the 2005 Act. (Document No. 18 - Motion to Extend Time for Credit

Counseling Briefing). By Order of the Court dated December 15, 2005, the Court granted

the debtor’s motion to extend time. The Court’s order authorized the extension only until

December 19, 2005 because the 2005 Act, at 11 U.S.C. § 109(h)(3)(B), contains a statutory

time limit of no more than 45 days measured from the petition date. (Document No. 21 -

Order Granting Motion to Extend Time for Credit Counseling Briefing).

On December 9, 2005, and well within the time periods set forth in the Court’s Order

and the 2005 Act, the Debtor apparently sought and obtained a briefing from Advantage

Credit Counseling Service, which is an approved, non-profit budget and credit counseling

agency. (Document No. 29 - alleged Certification Relating to briefing by Credit Counseling

Agency). On December 19, 2005, counsel to the debtor electronically filed with the Court

a copy of a facsimile which appears to be on Advantage Credit Counseling Service

letterhead. The copy of the facsimile filed on the debtor’s behalf contains the following

handwritten statement:

Anna [Miller] was counseled by our agency on 12/9/05 but has

not sent in her money order for the $50 fee[.] We left her a

message to see if she mailed it in but she won’t be home until

this Wed. We are not able to fax the certificate until payment

is rec’d. Sorry for the confusion. Thanks! We will fax the

certificate to you once she has paid.

(Ibid.). The facsimile is then signed “Robin”, with no last name or title of the person

purportedly transmitting the facsimile to counsel to the debtor. (Id.).

When the facsimile was electronically filed on the debtor’s behalf, counsel for the

debtor identified it as follows: “Certificate of Credit Counseling (verification from

Advantage Credit Counseling Service that counseling had been completed.).” (Id.). The

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language of the facsimile, however, indicates that Advantage Credit Counseling Service did

not intend the facsimile to constitute a “certification” of completion of the briefing required

by the 2005 Act (and instead advised the debtor that Advantage Credit Counseling Service

would not be “able to fax the certificate until payment is rec’d”). 

 Under these circumstances, the Court is therefore called upon to determine whether

the facsimile filed by the debtor pursuant to 11 U.S.C. § 521(b) can, notwithstanding the

intentions of Advantage Credit Counseling Service, be deemed to be a lawful “certification

from the approved nonprofit budget and credit counseling agency” that the briefing

required by 11 U.S.C. § 109(h) has been completed by the debtor.

III. DISCUSSION and ANALYSIS

The 2005 Act was signed into law on April 20, 2005, thereby enacting the most

sweeping changes to this country’s bankruptcy laws since the Bankruptcy Code was adopted

in 1978. To a certain degree, the focus of the 2005 Act is the “belt tightening” or “means

testing” required for individual consumer debtors to obtain a discharge in bankruptcy. An

additional focus of the 2005 Act, however, is consumer protection. Towards that end, the

2005 Act requires individual consumer debtors to complete pre-petition credit counseling

briefings and post-petition financial education courses either as a prerequisite to being

eligible for bankruptcy relief in the first-instance or as a condition for being eligible for a

discharge at the conclusion of the bankruptcy case. See 11 U.S.C. § 109(b)(identifying prepetition counseling “briefing” requirements for debtors to be eligible to be consumer

debtors under the Bankruptcy Code in the first instance); 11 U.S.C. § 727(a)(11)(setting forth

the post-petition instructional course requirement for debtors to receive a discharge in

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2

 Pursuant to § 109(h) of the Bankruptcy Code, the briefing is generally required to be completed

by the debtor during the 180 day time period immediately preceding the filing of the petition. 11 U.S.C. §

109(h)(1). The 2005 Act, however, carves out a safe harbor for debtors who filed their bankruptcy case

under exigent circumstances. 11 U.S.C. § 109(h)(3). In instances where a debtor’s bankruptcy filing falls

within the exigent circumstances safe harbor, the debtor must file with the bankruptcy petition a

certification which, among other things, describes the exigent circumstances and states that the debtor

requested credit counseling services from an approved agency (but was unable to obtain the services

during the five-day period beginning on the date on which the debtor made the request). 11 U.S.C. §

109(h)(3)(A); Fed.R.Bankr.P. 1007(b)(3). In such circumstances, the debtor then must obtain and

complete the credit counseling briefing within 30 days of the petition date, and such 30 day window may

be extended by an order of the Court for an additional 15 days for cause shown. In this case, Ms. Miller’s

failure to obtain a pre-petition briefing has been excused and her post-petition briefing falls within the

exigent safe harbor provisions of the 2005 Act. 

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Chapter 7); and 11 U.S.C. § 1328(g)(setting forth the post-petition instructional course

requirement for debtors’ to receive a discharge in Chapter 13). 

The matter sub judice relates solely to the credit counseling briefing required of this

individual consumer debtor, Ms. Miller, at the outset of her Chapter 13 bankruptcy case and

whether the documentation she is required to file with the Court reflecting the completion

of such briefing is satisfactory.

The 2005 Act amends § 109 of the Bankruptcy Code by adding sub-paragraph (h)

which states that “an individual may not be a debtor” unless the individual received “an

individual or group briefing (including a briefing conducted by telephone or on the

internet)” administered by an “approved nonprofit budget and credit counseling agency”

in the district in which the petition was filed. See 11 U.S.C. § 109(h)(1).2

 In addition, the

2005 Act amends § 521 of the Bankruptcy Code by adding sub-paragraph (b), which

describes the debtor’s duties, and states that “a debtor who is an individual shall file with

the court” a “certificate from the approved nonprofit budget and credit counseling agency

that provided the debtor services under 109(h) . . .” See 11 U.S.C. § 521(b). The certificate

provided by the credit counseling agency and filed by the debtor must describe “the services

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provided,” and the debtor is also required to also file “a copy of the debt repayment plan,

if any, developed under § 109(h) through the approved nonprofit budget and credit

counseling agency . . .” See 11 U.S.C. § 521(b)(1) and (2).

The Court has no doubt that Ms. Miller timely received and completed the briefing

required by 11 U.S.C. § 109(h)(1). However, it is questionable whether the facsimile filed

by the debtor constitutes the “certification” required by 11 U.S.C. § 521(b). Beyond the

language contained in Section 521(b) of the Bankruptcy Code, there is no mention in the

statute as to exactly what Congress meant by the term “certificate.” The legislative history

to the 2005 Act also fails to enlighten the Court in this regard. The question before the

Court is therefore: What type of document constitutes a “certificate” for purposes of 11

U.S.C. § 521(b)?

In Field v. Mans, 516 US 59, 116 S.Ct. 437 (1995), the United States Supreme Court

declared that when Congress utilized in the Bankruptcy Code a term of art with an

established legal meaning, Congress meant to “incorporate the general common law” or the

“dominant consensus of common-law jurisdictions, rather than the law of any particular

State.” Field, 516 U.S. at 70 n. 9. Thus, in Field v. Mans , the Supreme Court held that

undefined terms or words used in the Bankruptcy Code are to be read in adherence to their

accumulated common law meanings, where such exist. Ibid. 

In Field v. Mans, the Supreme Court determined the settled meaning of the term

“fraud” as used in 11 U.S.C. § 523(a)(2)(A). To do so, the Supreme Court turned to the

Restatement (2nd) of Torts as the most widely accepted distillation of the common law.

Unfortunately, there is no Restatement of the Law concerning certifications. There are,

however, compilations of general common-law meanings to legal terms in Black’s Law

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Dictionary and other dictionaries. See Buchannnon Board and Care Home, Inc. V. West

Virginia Department of Health and Human Resources, 532 U.S. 598, 603, 121 S.Ct. 1835,

1839 (2001)(adopting Black’s Law Dictionary definition of the term “prevailing party” as

the clear meaning of the term); Branch v. Smith, 538 U.S. 254, 264, 123 S.Ct. 1429, 1437

(2003)(defining the term “enactment” using both Black’s Law Dictionary and Webster’s

Dictionary).

Black’s Law Dictionary defines the word “certificate” as:

A written assurance, or official representation, that some

act has or has not been done, or some event occurred, or some

legal formality has been complied with. A written assurance

made or issuing from some court, and designed as a notice of

things done therein, or as a warrant or authority, to some other

court, judge, or officer. A statement of some fact in a writing

signed by the party certifying. A declaration in writing. 

Black’s Law Dictionary 225-226 (6th ed. 1990). Similarly, Webster’s New Collegiate

Dictionary provides the following definition:

(1) a document containing a certified statement esp. as

to the truth of something; specif : a document certifying that

one has fulfilled the requirements of and may practice in a field

(2) something serving the same end as a certificate (3) a

document evidencing ownership or debt.

Webtser’s New Collegiate Dictionary 182 (1975).

The foregoing renditions of the term “certificate” (or “certification”) allude, at a

minimum, to a written instrument which, in an official manner, assures the person to

whom the certificate is presented that (1) the statements in the certificate are truthful, and

(2) the acts or requirements that are the subject of the certification have (or have not) been

done. 

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3

 Because the credit counseling agency provides the certificate, and because it is the debtor who

files the certification pursuant to Section 521(b) of the Bankruptcy Code, both the agency and the debtor

are jointly and severally responsible for the certification’s form and content. 

4

 Section 1746 of the Judiciary Code is consistent with the dictionary definitions of “certificate,”

and this statute states, in pertinent part, as follows:

Wherever, under any law of the United States or under any rule,

regulation, order, or requirement made pursuant to law, any matter is

required or permitted to be supported, evidenced, established, or proved

by the sworn declaration, verification, certificate, statement, oath, or

affidavit, in writing of the person making the same . . ., such matter may,

with like force and effect, be supported, evidenced, established, or proved

by the unsworn declaration, certificate, verification, or statement, in

writing of such person which subscribed by him, as true under penalty of

perjury, and dated, in substantially the following form: . . . 

. . . (2) If executed within the United States, its territories,

possessions, or commonwealths: “I declare (or certify, verify, or state)

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In this case, Ms. Miller’s putative “certification” misses the mark. Nothing on the

face of the document reflects that the document has been executed by an authorized officer

of Advantage Credit Counseling Service; nor is there any affirmation that the statements

contained in the document are true and correct. There also is nothing in the document

which suggests that Advantage Credit Counseling Service intended the document to be a

representation to the Court in the first instance. In fact, the face of the document provides

otherwise (when it states that the certification will be provided later once the condition of

payment by the debtor has been received).

Certifications provided by credit counseling agencies constitute representations

made by the credit counseling agency to the Court. The filing of such certifications with the

Court is an important component of the debtor’s duties in bankruptcy.3

 With this in mind,

the Court holds that a “certificate” containing the information and materials required by

11 U.S.C. § 521(b) must also comply with Section 1746 of the Judiciary Code, 28 U.S.C. §

1746 (which regulates the filing of declarations and/or certifications with the Court).4

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under penalty of perjury that the foregoing is true and correct. Executed

on (date).

(Signature)”.

See 28 U.S.C. § 1746.

5

 Rule 1007(b)(3) of the Federal Rules of Bankruptcy Procedure contains a disjunctive “or”,

suggesting that the debtor complies with Rule 1007(b) when the debtor files, among other things, either its

certificate of exigent circumstances or the certificate of the credit counseling briefing with its bankruptcy

petition. See Fed.R.Bankr.P. 1007(b)(3). Rule 1007(b)(3) of the Federal Rules of Bankruptcy Procedure

contains no subsequent deadline for filing the certificate of the briefing when the debtor falls into the

exigent circumstances safe harbor.

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 Unfortunately, the debtor’s “certification” does not comply with applicable Federal

law. While the debtor has received the requisite credit counseling briefing, the facsimile

filed by the debtor merely advises the Court that the debtor has not yet been able to comply

with Section 521(b) of the Bankruptcy Code because the credit counseling agency has

withheld the certification due to non-payment. Given the debtor’s situation, an issue

remains as to whether there is a remedy for the debtor’s current failure to comply with

Section 521(b) of the Bankruptcy Code. 

The Court is mindful that Section 521(b) of the Bankruptcy Code contains no express

provision setting forth the time period in which a debtor, falling within the exigent safe

harbor provisions of Section 109(h), must file the certification evidencing completion of the

credit counseling briefing. Rule 1007(b)(3) of the Federal Rules of Bankruptcy Procedure

is also silent as to the time period for the debtor to file its briefing certificate in these unique

circumstances.5

 The Court is further mindful that: (1) Section 111(c)(2)(B) of the Bankruptcy

Code provides that approved nonprofit credit and budget counseling agencies are required

to provide such services “without regard to [the debtor’s] ability to pay ,” (2) Section 105(a)

of the Bankruptcy Code authorizes the Court to “issue any order, process, or judgment that

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6

 It should be noted that the all of the Judges for the United States Bankruptcy Court for the

Western District of Pennsylvania have, on January 3, 2006, signed Administrative Order #2005-5, which

requires debtors (who fall within the exigent circumstances safe harbor) to file the Certificate of Consumer

Credit Counseling (i.e., the briefing certificate) no later than 30 days after the date the bankruptcy petition

is filed. The debtor’s Motion will be treated as a request for relief from the 30 day period set forth in

Administrative Order #2005-5.

7 The budget and credit counseling agency would have an administrative expense claim in this

case to the extent the briefing certificate is delivered to the debtor and to the extent the fees charged by it

are reasonable. Nothing contained in this Memorandum Opinion should be deemed or construed to be a

determination by the Court as to whether the debtor may compel the agency to provide the certificate

without any assurance(s) that the fees due the agency would be paid in full.

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is necessary to carry out the provisions of [the Bankruptcy Code],” (3) Rule 1001 of the

Federal Rules of Bankruptcy Procedure states that the Bankruptcy Rules are to be

construed by the Court to secure the “just, speedy, and inexpensive determination of every

case and proceeding,” and (4) Rule 1007(k) of the Federal Rules of Bankruptcy Procedure

permits the Court to order any “other party to prepare and file any of these papers [set forth

in Rule 1007(k)] within a time fixed by the Court.” 

Under these circumstances, the Court will therefore interpret the debtor’s

“certification” as a motion by the debtor for a reasonable period of time for the debtor to

obtain the certification at issue,6

 or alternatively, a motion by the debtor to compel the

Advantage Credit Counseling Service to deliver and/or file the certificate due the debtor.7

[Remainder of Page Intentionally Left Blank]

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IV. CONCLUSION

This Memorandum Opinion constitutes the Court’s findings of fact and conclusions

of law pursuant to Fed.R.Bankr.P. 7052. The debtor in this case has satisfied the credit

counseling “briefing” requirements of 11 U.S.C. § 109(h). However, for the reasons set

forth above, the Court determines that the “certification” filed by the debtor in this case is

not a proper “certification” required by 11 U.S.C. § 521(b). The “certification” is therefore

treated as a motion (the “Motion”) by the debtor for a reasonable period of time for the

debtor to obtain the certification at issue, or alternatively, a motion by the debtor to compel

the Advantage Credit Counseling Service to deliver and/or file the certificate. The Court

will issue an order consistent with this Memorandum Opinion, and will provide parties-ininterest with an opportunity to be heard relative to the merits of the Debtor’s Motion.

Date: January 5, 2006 /s/ Jeffery A. Deller______________________

Jeffery A. Deller

United States Bankruptcy Judge

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: )

) Bankruptcy No. 05-50127-JAD

ANNA M. MILLER, )

) Chapter 13

Debtor. )

_________________________ X

) Related to Docket No. 29

ANNA M. MILLER, )

)

Movant, )

)

- vs - )

)

Advantage Credit Counseling )

Service, Ronda J. Winnecour, )

Chapter 13 Trustee, and )

the U.S. Trustee for Region 3 and )

all Creditors of the Debtor, )

)

Respondents. )

_________________________ X

ORDER OF COURT

AND NOW, this 5th day of January, 2006, the Court having reviewed and

considered the Debtor’s “certification” filed at Docket No. 29, and having considered the

schedules, statements and other documents located in the Court’s file, the Court hereby

ORDERS, ADJUDGES and DECREES as follows:

1. The “Certification” filed by the Debtor in this case (at Document No.

29) is not a proper “certification” required by 11 U.S.C. § 521(b). 

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2. The “certification” is therefore treated by the Court as a motion (the

“Motion”) by the Debtor for a reasonable period of time for the Debtor

to obtain the Section 521(b) certification at issue, or alternatively, a

motion by the debtor to compel the Advantage Credit Counseling

Service to deliver and/or file the certificate.

3. A hearing on the Motion is hereby scheduled to commence on

February 14, 2006, at 2:30 PM in Courtroom D, United States

Bankruptcy Court for the Western District of Pennsylvania, 54th Floor,

US Steel Tower, Pittsburgh, PA, 15219. 

4. Responses or objections to the Motion shall be electronically filed on

the Court and served on the Debtor by no later than February 7, 2006.

5. In a manner compliant with Rule 7004(b) of the Federal Rules of

Bankruptcy Procedure, counsel to the Debtor shall serve a copy of this

Order, the Memorandum Opinion issued by the Court on this date,

and the Motion (i.e., the alleged “certificate” found at Document No.

29) by First Class Mail, postage prepaid, upon Advantage Credit

Counseling Service, the Chapter 13 Trustee, the Office of the U.S.

Trustee and such other parties-in-interest against whom the Debtor

seeks relief.

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6. Counsel for the Debtor shall file a certificate of service reflecting

service within ten (10) days of the date of this Order.

/s/ Jeffery A. Deller_________________________

Jeffery A. Deller

United States Bankruptcy Judge

cc: Ronda Winnecour, Esq. (w/ Motion and Memorandum Opinion And Order)

Joseph Sisca, Esq., (w/ Motion and Memorandum Opinion And Order)

Ronald Anderson, Esq. (w/ Motion and Memorandum Opinion And Order)

Advantage Credit Counseling Services (w/ Motion and Memorandum Opinion And

Order)

CASE ADMINISTRATOR TO MAIL:

cc: Clerk’s Office Mailing Matrix (w/ Memorandum Opinion And Order)

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