![]() Rule 9014(a) states in part that "n a contested matter not otherwise governed by these rules, relief shall be requested by motion." Subsection (b) then states that "he motion shall be served in the manner provided for service of a summons and complaint by Rule 7004." ![]() What constitutes a "contested matter" is not always clear, and the text of the rule provides little guidance. Second, by virtue of Rule 9014(b), service also is required in contested matters. Therefore, an adversary complaint and summons must be served and, under Rule 7004(b)(3), must be addressed "to the attention of" an appropriate individual or office. An adversary proceeding is governed by Part VII of the Federal Rules of Bankruptcy Procedure, including the service requirements in Rule 7004. First, and most obvious, are adversary proceedings. As one court warned: "When so much of the daily diet of bankruptcy practice is handled by 'notice and a hearing' under §102(1), and on the non-appearance or non-objection of a party who has been provided an opportunity to appear or object, it is appropriate that both the court and counsel for the proponent pay heed to the requirements of proper service." 6 Accordingly, bankruptcy practitioners must pay "attention" when serving adversary proceedings and contested matters under Rule 7004(b)(3).īefore discussing how to effectuate service under Rule 7004(b)(3), it is worth addressing when service (rather than notice) is required. 5 Indeed, the majority of the opinions, holding that service under Rule 7004(b)(3) must be "to the attention of" an individual or office, were published in the past few years, with five opinions (including an appellate decision) published in 2004. ![]() Improper service may lead the court to deny the requested relief, quash service or vacate an order entered upon faulty service.Įven though practitioners may not have clear answers to all these questions, one thing seems clear: Bankruptcy judges are increasingly ensuring proper service in contested matters and adversary proceedings. ![]() For example, what is a "contested matter" that requires service? Must service be addressed to the attention of a specifically named officer, or is addressing service to the attention of an office ( e.g., Attn: President) sufficient? Who is an officer or managing or general agent? Do attorneys representing the served party constitute an "agent authorized by appointment," and if so, under what circumstances? And to what address should service be mailed, since, unlike Rule 2002, Rule 7004(b)(3) is silent on where to mail service? 4 3 The biggest difference is that notice can be addressed to the entity's name only, while service must be directed "to the attention of an officer, a managing or general agent or to any other agent authorized by appointment or by law to receive service of process." Although this distinction may seem trivial, bankruptcy courts are increasingly finding insufficient service under Rule 7004(b)(3) when not directed "to the attention of" an appropriate individual or office.Įven practitioners who know how to serve contested matters face other issues that are not clear under the rules. Although each can be carried out by mail, notice differs from service upon a corporation, partnership or other unincorporated association under Rule 7004(b)(3). The result is that too many practitioners are merely providing notice of contested matters when, in fact, service is required. Fewer seem to realize, however, that a contested matter also must be commenced by service under that rule. Most bankruptcy practitioners know that Rule 7004 governs service of process in adversary proceedings. 4 requiring personal delivery (typically by a process server) but, like Rule 2002, also authorizes service by mail. Rule 7004 incorporates certain provisions of Fed.R.Civ.P. ![]() Rule 7004, on the other hand, governs "service" of matters that typically involve only certain parties ( i.e., adversary proceedings and contested matters). Rule 2002 governs "notice" of general matters that typically concern all parties, such as the deadline for filing proofs of claim and notice of the confirmation hearing. Journal Article: The Federal Rules of Bankruptcy Procedure deal with notice and service in bankruptcy cases. ![]()
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