In re Baghoumian

Jeffery A. Deller Chief U.S. Bankruptcy Judge

Related to Dkt# 21 MEMORANDUM OPINION

The Clerk's Office received a letter dated October 8, 2014 from the above captioned Debtor. The gravamen of the letter is that the Debtor seeks a waiver from the credit counseling requirements based upon the Debtor's incarceration at the Federal Corrections Institute located in Loretto, PA. A liberal construction of the letter is also that the Debtor seeks reconsideration of the order the Court previously issued which dismissed this case due to the Debtor's failure to obtain credit counseling.

I.

Upon review of the statute, 11 U.S.C. § 109(h), and applicable case law thereunder, the Court is unable to grant the Debtor the requested waiver.

This Court has written extensively on the credit counseling requirements of the Bankruptcy Code, see e.g. In re Tomco, 339 B.R. 145 (Bankr. W.D. Pa. 2006), and incorporates that discussion here.

In a nutshell, 11 U.S.C. § 109(h)(1) allows a temporary waiver of the credit counseling requirements under "exigent" circumstances. The Debtor in this case has not described circumstances that are "exigent," therefore the statute does not apply.

It is true that the Debtor has alleged that he is incarcerated. But, courts have held that mere incarceration is not a sufficient basis to waive the credit counseling requirements of the Bankruptcy Code. See e.g. In re Hubel, 395 B.R. 823 (N.D.N.Y. 2008); In re Garivay, Slip. Op. Case No. 06-40851 (June 15, 2006, Bankr. E.D. Tex. 2006).

II.

Finally, the Debtor contends that he is unable to obtain the requisite counseling. But, counseling sessions at an approved credit counseling agency can be done by the phone or over the internet. The Debtor is currently housed at a minimum or low security facility in Loretto, PA, and the Court is aware that inmates may have phone privileges from time to time, as may be permitted by the appropriate protocols established by the Bureau of Prisons and the terms and conditions of confinement imposed by the Debtor's sentence. The FCI Loretto Inmate Admission and Orientation Handbook further describes at page 10 the telephone services that may be available to inmates housed at the facility. A copy of the pertinent pages are annexed hereto at Exhibit "A." It therefore appears that the Debtor may have the ability to obtain the credit counseling after all.

III.

Given the circumstances of this case, it does not appear that the Debtor suffers from an "exigent" circumstance warranting relief from the credit counseling conditions imposed by 11 U.S.C. § 109. Incarceration in and of itself, also does not appear to be a disability or incapacity warranting relief from the plain language of the statute as well. As a result, the Court finds the Debtor's certification to be without merit, and to the extent the Debtor is requesting vacatur of the Court's prior dismissal order, that motion shall be denied.

An appropriate Order shall be issued. October 24, 2014

/s/_________

Jeffery A. Deller

Chief U.S. Bankruptcy Judge

FILED

10/24/14 12:52 pm

CLERK

U.S. BANKRUPTCY

COURT - WDPA

EXHIBIT "A** EXCERPT OF FCI LORETTO INMATE ADMISSION AND ORIENTATION HANDBOOK FCI LORETTO Inmate Admission and Orientation Handbook U.S. Department of Justice Federal Bureau of Prisons Federal Correctional Institution PO Box 1000 Loretto Pennsylvania 15940 Phone: (814) 472-4140 Mission Statement The Federal Bureau of Prisons protects society by confining offenders in the controlled environments of prisons and community based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens.

Inmate Admission and Orientation Handbook

Federal Correctional Institution

Loretto, Pennsylvania

June 2013

LEISURE TIME EQUIPMENT:
A limited amount of sports equipment may be maintained in the housing unit as long as it conforms to the guidelines outlined in Program Statement 5580, Inmate Personal Property, and can be neatly and safely stored in a designated area. JEWELRY: You may wear a plain wedding band (without stones) and a religious medal (without stones). Each must have a value of less than $100. You may not wear your religious medal outside of your shirt, except within the confines of the Chapel. Watches are also permissible, provided the value does not exceed $100.

TELEVISION VIEWING HOURS

Unit televisions may remain on from 6:00 a.m. until 11:50 p.m. Viewing of special events (e.g., the World Series, Super Bowl, etc.), which go beyond 11:50 p.m., will require prior approval from the Captain. Disruptive conduct, damage to equipment, poor sanitation, and/or excessive noise in any of the common TV viewing areas may result in the termination of said privileges.

TELEPHONES

Local, long distance, international, and collect calls may be placed using the inmate telephones located in your respective housing unit. Credit card calls are not permitted. Third party calls are strictly prohibited, to include passing the telephone to another inmate during your conversation or having the individual on the other end of the call place a cell phone to the receiver to include a third person. INMATE CALLS ARE MONITORED. Inmates must utilize the TRULINC's computers to add or delete individual telephone numbers. All telephones will be disabled between the hours of 11:30 p.m. and 6:00 a.m. Inmates found using the phones while they are supposed to be at work or during "count" will be subject to disciplinary action. In the event of a family crisis or emergency, you may contact either a member of your Unit Team or the Chaplain to request a special phone call. The event necessitating the telephone call must be verified. All general and emergency telephone calls are subject to monitoring and recording. Unmonitored, unrecorded phone calls to attorneys can be arranged through your Unit Team. In order to receive an attorney call, your legal counsel must contact a member of your team in advance. Telephones are not to be used to conduct business.

VISITING

Visiting hours at the FCl are from 8:15 a.m. until 2:15 p.m., Friday through Sunday, and on Federal holidays. Visiting hours at the SPC are from 8:15 a.m. until 2:15 p.m., Saturday and Sunday, and on Federal holidays. You are permitted eight visiting points per month. You will ORDER

For the reasons set forth in the Memorandum Opinion issued herewith, it does not appear that the Debtor suffers from an "exigent" circumstance warranting relief from the credit counseling conditions imposed by 11 U.S.C. § 109. Incarceration in and of itself, also does not appear to be a disability or incapacity warranting relief from the plain language of the statute as well. As a result, the Court finds the Debtor's certification to be without merit, and to the extent the Debtor is requesting vacatur of the Court's prior dismissal order, that motion shall be denied. October 24, 2014

/s/_________

Jeffery A. Deller

Chief U.S. Bankruptcy Judge