A consumer can complete credit counseling after filing a petition, so long as counseling takes place later on the day of filing, according to Bankruptcy Judge Laura T. Beyer of Charlotte, N.C., who sided with the minority on the issue.

The case raises a fundamental question about statutory interpretation: Should the court follow the plain language of the statute even if it does not accomplish the result that Congress likely intended?

Congress adopted Section 109(h)(1) as part of the BAPCPA amendments in 2005. Originally, the subsection required a consumer to complete credit counseling “preceding” the date of filing. Some courts dismissed petitions unless counseling was finished the day before filing. That reading of the statute prevented some consumers from filing in time to prevent eviction or home foreclosure.

Congress amended the statute in 2010 so that it now requires counseling “during the 180-day period ending on the date of filing of the petition.”

In the case before Judge Beyer, the debtor completed counseling after she filed her petition, but on the same day. The bankruptcy administrator filed a motion to dismiss the petition but lost in Judge Beyer’s March 8 opinion.

Although the courts are split, the leading authorities on both sides of the question are from Chicago.

In 2013, Bankruptcy Judge Timothy A. Barnes concluded that the plain language of the statute allows counseling later on the day of filing. In re Walker, 502 B.R. 324 (Bankr. N.D. Ill. 2013).

Two years later, District Judge Sara T. Ellis, also of Chicago, disagreed with Walker and required completion of counseling before the moment of filing. In re Arkuszewski, 550 B.R. 374 (N.D. Ill. 2015). Judge Ellis was persuaded in part by legislative history suggesting that Congress wanted counseling in advance of filing, thus preventing some bankruptcies.

Judge Beyer declined to follow Arkuszewski “without more explicit guidance in the statute.” She said that the plain language of the amended  subsection “unambiguously allows a debtor to satisfy the credit counseling requirement on the same day the case commences,” even if the class takes place later that day.

Even though Congress may have intended for counseling to occur before filing, Judge Beyer felt compelled to enforce the statute as written as long as the plain language is “unambiguous and not absurd.”

The Collier treatise agrees with Judge Beyer.

Even if the statute required counseling in advance, Judge Beyer said she still would deny the dismissal motion because the debtor had “substantially complied with the credit counseling requirement.”