IN RE MENG

Full title: In re Edward Gene Meng, Sr. and Tammy Lynn Meng

Court: United States Bankruptcy Court, D. South Dakota

Date published: Mar 30, 2010

Chapter 7, Bankr. No. 10-40116 (Bankr. D.S.D. Mar. 30, 2010)

Opinion

Chapter 7, Bankr. No. 10-40116.

March 30, 2010

Bruce J. Gering, Assistant United States Trustee, Sioux Falls, South Dakota.

Wanda L. Howey-Fox, Esq., Attorney for Debtors, Yankton, South Dakota.

CHARLES NAIL, Bankruptcy Judge

Dear Mr. Gering and Ms. Howey-Fox:

The matter before the Court is the United States Trustee's Motion to Dismiss. This is a core proceeding under 28 U.S.C. § 157(b)(2). This letter decision and accompanying order shall constitute the Court's findings and conclusions under Fed.Rs.Bankr.P. 7052 and 9014(c). As discussed below, the United States Trustee's motion will be granted.¹ Facts. Tammy Lynn Meng completed credit counseling on September 1, 2009. She and her husband, Edward Gene Meng, Sr., filed a petition for relief under chapter 7 of title 11 on March 1, 2010.

1 The material facts are not in dispute. The issue presented is purely a question of law. Thus, no hearing was held.

Discussion. An individual may not be a debtor under title 11 unless she receives credit counseling within the 180-day period preceding the date of the filing of her petition for relief. 11 U.S.C. § 109(h)(1). Section 109(h)(1) is clear and unambiguous. The event that triggers the 180-day period is the filing of a petition for relief, not the completion of credit counseling, and the Court must count backward from the petition date, not forward from the date credit counseling is received.²

2 Had Congress intended otherwise, it could have required a debtor to file her petition within 180 days of completing credit counseling.

To compute the relevant 180-day period, the Court must exclude the petition date, Fed.R.Bankr.P. 9006(a)(1)(A), count every day, including intermediate Saturdays, Sundays, and any legal holidays, Fed.R.Bankr.P. 9006(a)(1)(B), and include the 180^th day, unless the 180^th day is a Saturday, Sunday, or legal holiday. Fed.R.Bankr.P. 9006(a)(1)(C).³ In this case, the 180^th day was Wednesday, September 2, 2009, and it was not a legal holiday.

3 If the 180^th day is a Saturday, Sunday, or legal holiday, the 180-day period would be extended backward to the next preceding day that was not a Saturday, Sunday, or legal holiday. Fed.R.Bankr.P. 9006(a)(1)(C) and (5).

Ms. Meng did not receive credit counseling within the 180-day period preceding the date of the filing of her petition for relief. Consequently, she may not be a debtor in this case. The Court will enter an appropriate order.