Yet Another Pre-Discharge Requirement in Chapter 13 – the Section 1328 Certificate

By Jonathan Ginsberg, Atlanta Bankruptcy Attorney

The Bankruptcy Code’s requirement that debtors obtain and file both a pre-filing credit counseling certificate and a post filing financial management course certificate have been rightly criticized as ineffective, time consuming and an unnecessary financial burden on people who do not have a lot of extra money.

In my Atlanta area Chapter 13 practice in particular the sentiment I hear expressed most is one of confusion.  The two months between filing and confirmation are filled with phone calls, document production, amendments, payments to the trustee and anxiety waiting to hear if the trustee will withdraw his objections to confirmation.  Once their cases are confirmed, my clients often have little enthusiasm to spend another $50 and another two to three hours attending a financial management course.

Now, there is an additional pre-discharge requirement in the Northern District of Georgia that adds yet another administrative burden on debtors – the Section 1328 certificate.

This certificate, which must be signed by the debtor and filed by counsel, asserts under penalty of perjury that the debtor is or is not current with all domestic obligations – child support and/or alimony, and that the debtor has or has not received a discharge in a prior bankruptcy case that would make him ineligible for a discharge in this case.

If you are a Chapter 13 debtor and you do not fill out and submit this form, you will not get your Chapter 13 discharge.

In my view, this 1328 certificate obligation is yet another unnecessary and time wasting requirement that unnecessarily increases the cost and complexity of personal bankruptcy.  The statement regarding prior discharges is duplicative of the assertion that every debtor makes when he files his case – previous cases filed within the 8 years are already disclosed.  Now, before discharge, we want debtors to promise again that they are eligible for discharge?

As far as the promises regarding child support and alimony – the Code already makes these debts non-dischargeable and it appears to me that denying a delinquent non-custodial parent the opportunity to get rid of other debts would make it less likely rather than more likely that child support payments will be made.

It seems that this requirement like so many others in the Code are intended to address issues unrelated to the core issue in bankruptcy – can this person pay his debt or not?  Bloating the Code with public policy concerns not related to economics just adds complexity and cost to a system that is already too complicated.

What do you think?  Should Congress use the Bankruptcy Code to further policy goals unrelated to a debtor’s capacity to pay back debt?

Jonathan GinsbergJonathan Ginsberg – has represented Chapter 7 and Chapter 13 debtors in the Atlanta area for over 20 years.  A graduate of Tulane University College of Law, Jonathan regularly teaches continuing legal education classes for Georgia lawyers about consumer bankruptcy and Social Security disability.  He is also a faculty member at Solo Practice University, an on-line law practice development resource for attorneys entering private law practice.  Jonathan has published the Atlanta bankruptcy blog since 2005 and is a founding member of the Bankruptcy Law Network.

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