Rule 4 Service Of Process 7004

Rule 4 & 7004-SERVICE OF PROCESS

In re Peralta, 317 B.R. 381 (9th Cir. BAP 2004)

“The mailing of a properly addressed and stamped item creates a rebuttable presumption

that the addressee received it. . . .A certificate of mailing raises the presumption that the

documents sent were properly mailed and received.”

In re Focus Media, Inc., 387 F.3d 1077 (9th Cir. 2004), cert. denied, 544 U.S. 923, 125 S.Ct. 1674

( 2005)

“We hold today that in an adversary proceeding in bankruptcy court, a lawyer can be

deemed to be the client’s implied agent to receive service of process when the lawyer repeatedly

represented that client in the underlying bankruptcy case, and where the totality of the

circumstances demonstrates the intent of the client to convey such authority.”

In re Villar, 317 B.R. 88 (9th Cir. B.A.P. 2004)

Service of a motion to avoid a judicial lien upon the creditor’s P.O. box was insufficient

under Bankruptcy Rule 7004(b)(3).

In re La Sierra Financial Services, Inc., 290 B.R. 718 ( 9th Cir. B.A.P. 2002)

Movant not entitled to the presumption of proper service under the mailbox rule, where

motion was mailed to 1 Rolling View Lane instead of 3 Rolling View Lane.

In re Sheehan, 253 F.3d 507 (9th Cir. 2001)-Rule 4(m)

Excusable neglect standard of Bankruptcy Rule 9006(b) applies to Rule 4(m). “…[I]f good

cause is shown, a court shall extend the service period under Rule 4. If good cause is not shown,

the court has the discretion to extend the time period. In addition, the court may extend the time

limit upon a showing of excusable neglect under 9006(b).”

In re DeVore, 223 B.R. 193, 196-97 (9th Cir. B.A.P. 1998)

“Mailing a notice by first class mail to a party’s last known address is sufficient to satisfy

due process. See In re Eagle Bus Mfg., Inc., 62 F.3d 730, 736 (5th Cir.1995). In Eagle Bus, a

creditor who failed to keep the debtor apprised of changes in her mailing address was "herself to

blame" for not receiving notice of the claims bar date. Eagle Bus, 62 F.3d at 736. Here, the debtor

left her address of record in 1994. The case remained open until 1 November 1996, yet she did not

file a change of address with the court until September of 1997. LBR 105(e) provides in relevant

part: "It shall be the responsibility of the debtor … to ensure that the … master mailing list … [is]

complete and correct." Arguably, Marshack had actual knowledge of DeVore’s new address, if it is

assumed he received the copy of her 4 August letter. However, the pleadings were served by

trustee’s counsel, who, not unreasonably, served the addresses on the court’s mailing matrix, which

the debtor had not updated.

Additionally, the debtor’s letter of 4 August indicates she knew the trustee intended to file a

motion to reopen the case to administer the state court litigation proceeds. "Whatever is notice

enough to excite attention and put the party on his guard and call for inquiry, is notice of

everything to which such inquiry may have led." In re Gregory, 705 F.2d 1118, 1123 (9th Cir.

1983). The trustee’s motion was filed and served on 12 August 1997; DeVore or her counsel could

have obtained copies of the relevant documents from the court’s file in time to respond. Moreover,

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Anderson had actual notice of the order before the appeal period expired (indeed, before the

written order had been entered). While it appears he unsuccessfully attempted to obtain a copy of

the order, the record does not indicate any further attempts to do so or why these were or were not

fruitful.

”

In re Bertain, 215 B.R. 438 (9th Cir. B.A.P. 1997) – Rule 4(m)

No abuse of discretion to toll 120-day period for service of adversary complaint during

interval between dismissal and reinstatement of complaint

In re Pacific Land Sales, Inc., 187 B.R. 302 (9th Cir. B.A.P. 1995)

Defective service of process may be waived either intentionally or through estoppel.

In re Levoy, 182 B.R. 827 (9th Cir. B.A.P. 1995)

1. Debtor effectively serves government with objection to claim by mailing to Attorney

General without street address or zip code

2. Personal jurisdiction existed once IRS filed claim

In re Waldner, 183 B.R. 879 (9th Cir. B.A.P. 1995)

Bankruptcy claimant fails to show good cause for untimely service of adversary complaint

when service by mail available at all times

In re Cossio, 163 B.R. 150 (9th Cir. B.A.P. 1994), aff’d. 56 F.3d 70 (9th Cir. 1995)

When it found that there has been defective service of process, the judgment is void: “A

person is not bound by a judgment in litigation to which he or she has not been made party by

service of process.” Mason v. Genisco Technology Corp, 960 F.2d 849, 851 (9th Cir. 1992).

However, debtor’s attorney who did not update address in file was properly served at old address

under 7004 (b)(9).

In re Van Meter, 175 B.R. 64 (9th Cir. B.A.P. 1994)

Creditor’s service of unissued and unfiled copies of summons and adversary complaint

supports vacation of default judgment and dismissal…under 1990 version of R.4(j)

But see In re Barr, 217 B.R. 626, 629 (Bankr.W.D. Wa 1998) for statement of rule after

amendments to FRCP 4(m)

Boudette v. Barnette, 923 F.2d 754 (9th Cir. 1991)

FRCP 4(j) – dismissal appropriate – no good cause shown

IRS

In re Morrell, 69 B.R. 147 (N.D. Cal 1986)

Without proper service, court lacks jurisdiction.

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