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How do I serve an adversary proceeding Summons and Complaint, motion or a Chapter 12 or 13 plan?

Service of process is a crucial part of the judicial process.  If service is not made according to the rules, the validity of any outcome may be called into doubt.  If you are unsure how to serve a document, consider seeking legal advice.

I. SERVICE OF SUMMONS IN ADVERSARY PROCEEDING

Proof of Service must show that the summons and complaint were served within 7 days of issuance of the summons. The Certificate of Service form to be used is attached to the summons issued by the Court. The method of service depends upon whom the defendant is and where located as set out below in Section IV.

II. SERVICE OF CHAPTER 13 PLAN

Proper service of the Chapter 13 Plan requires both of the following:

A. Completed Certificate of Service on Creditors listed in ¶2(b)(1), ¶2(b)(2), and ¶6. The Certificate of Service located on the bottom of the last page of the Plan showing service on all creditors listed in ¶2(b)(1), 2(b)(2), and ¶6 of the Plan must be completed as follows:

1. Creditors in those paragraphs, other than an insured depository (see point II.A.2.) must be listed on the mailing list in care of a person or entity authorized to be served as set out below in Section IV. with that person’s position clearly indicated as appropriate (e.g., if corporation listed, service on registered agent or on an officer; if partnership or unincorporated assoc., on a managing or general agent).

2. An insured depository institution (e.g., credit union, bank or savings and loan) listed in those paragraphs must be served by certified mail as set out below in Section IV.A.9.

3. The date of service blank in point (b) of the Plan’s Certificate of Service is filled in only if there are any insured depository institutions listed.

B. Separate List of ¶2(b)(1), ¶2 (b)(2), and ¶6 Creditors. A separate list, including the names and addresses of all such creditors served, must be attached to the Plan showing as to ¶2(b)(1), ¶2(b)(2), and ¶6 creditors: (a) those entities served via matrix listing (i.e., creditors other than an insured depository institution), and (b) those entities served via certified mail (i.e., an insured depository institution such as a credit union, bank or savings and loan).

NOTE: Any time the IRS is listed as a creditor under ¶2(b)(1) or ¶2(b)(2) of the Plan, be sure all of the following 3 entities are served and listed on the matrix:

(1) IRS (PO Box 7346, Philadelphia, PA 19101-7346);
(2) U.S Attorney for District of Oregon; and
(3) U.S. Attorney General, Washington D.C.
 

III. SERVICE OF CHAPTER 12 PLAN

Proper service of the Chapter 12 plan requires both of the following:

A. Creditors Listed in ¶2(b)(1) and ¶2(b)(2). The Certificate of Service located on the bottom of the last page of the Plan showing service on all creditors listed in ¶2(b)(1) and ¶2(b)(2) of the Plan must be completed as follows:

1. Creditors in those paragraphs, other than an insured depository (see point II.A.2.) must be listed on the mailing matrix in care of a person or entity authorized to be served as set out below in Section IV. with that person’s position clearly indicated as appropriate (e.g., if corporation listed, service on registered agent or on an officer; if partnership or unincorporated assoc., on a managing or general agent).

2. An insured depository institution (e.g., credit union, bank or savings and loan) listed in those paragraphs must be served by certified mail as set out below in Section IV.A.9.

3. The date of service blank in point (b) of the Plan’s Certificate of Service is filled in only if there are any insured depository institutions listed.

B. Separate List of ¶2(b)(1) and ¶2(b)(2) Creditors. A separate list, including the names and addresses of all such creditors served, must be attached to the Plan showing as to ¶2(b)(1) and ¶2(b)(2) creditors: (a) those entities served via matrix listing (i.e., creditors other than an insured depository institution), and (b) those entities served via certified mail (i.e., an insured depository institution such as a credit union, bank or savings and loan).

NOTE: If the I.R.S. is a creditor listed in ¶2(b)(1) or ¶2(b)(2) of the Plan, be sure all of the following three entities are served and listed on the matrix:

(1) I.R.S. (PO Box 7346, Philadelphia, PA 19101-7346);
(2) U.S. Attorney for the District of Oregon; and
(3) U.S. Attorney General, Washington, D.C.IV.
 

IV. RULES GOVERNING SERVICE OF PROCESS

Service of process in Bankruptcy Court is governed by the provisions of Federal Rules of Bankruptcy Procedure Rule (FRBP) 7004 and the Oregon Rules of Civil Procedure (ORCP) Rule 7. To adequately complete service of process, a dated and signed certificate stating that the documents were properly served is filed with the court. What is unique about the Bankruptcy Court service requirements is that instead of personal service, service by mail is authorized.

A. Service by First Class Mail.

FRBP 7004 authorizes service within the United States by first class mail, postage prepaid as follows:

1. Individuals: Upon an individual (other than an infant or incompetent) by mailing to the individual’s dwelling or usual place of abode or to the place where the individual regularly conducts a business or profession. A PO Box is not acceptable unless the person being served is the debtor (see item 7. below).

2. Infant or Incompetent Person:Upon an infant or incompetent person, by serving the parent, guardian, conservator, or guardian ad litem at such person’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.

3. Corporation/Partnership/Unincorporated Association: Upon a domestic or foreign corporation or partnership or other unincorporated association, by mailing to the registered agent or to the attention of an officer or a managing or general agent. A title without a name is not acceptable; and, unless a person certifies that “x” (name without a title) is an authorized agent of the corporation for the acceptance of service, a name without a title is not acceptable. [NOTE: also see Service On Attorney in item C. below]. Caveat: Be aware of additional requirements found in ORCP Rule 7 and ORS 60.121.

NOTE: For corporations, partnerships, and unincorporated associations authorized to conduct business in Oregon, the name and address of the registered agent can usually be found on the Oregon Secretary of State’s website.

4. United States: Upon the United States, by mailing to the Civil Process Clerk at the office of the U.S. Attorney for the district in which the action is brought and by mailing to the Attorney General at Washington, DC. In any action attacking the validity of an order of an officer or an agency of the U.S. not made a party, by also mailing to such officer or agency.

5. Officer/Agency of U.S.: Upon an officer or agency of the U.S., by mailing to the U.S. Attorney for the district in which the action is brought and by mailing to the Attorney General at Washington, DC and also to the officer or agency. If the agency is a corporation the mailing must also follow paragraph 3 (e.g., the RTC or FDIC).

6. State or Municipal Corporation or Other Governmental Organization: Upon a state or municipal corporation or other governmental organization, by mailing to the person or office upon whom process is prescribed to be served by the law of the state in which service is made.

(a) For the State of Oregon, the Oregon Attorney General must be served. [FRBP 7004(b)(6); ORCP 7D(3)(c)]

(b) For a County, City or other public corporation, service must be on an officer, director, managing agent or attorney (e.g., County Counsel, City Attorney, etc. by name).

7. Debtor: Upon the debtor (until the case is dismissed or closed) by mailing to the address shown in the petition or to any other such address as the debtor may designate in a filed writing (e.g., the address shown in ECF/PACER) and if the debtor is represented by an attorney, to the attorney at the attorney’s mailing address. A PO Box for a debtor is acceptable if that is the address supplied to the court by the debtor.

8. U.S. Trustee: Upon the U.S. Trustee, by mailing to an office of the U.S. Trustee or another place designated by the U.S. Trustee in the district where the case is pending

9. Insured Depository Institution: Upon an insured depository institution, by mailing certified mail addressed to an officer of the institution unless the institution has appeared by its attorney, in which case the attorney may be served by first class mail, or the institution has waived in writing its entitlement to service by certified mail by designating an officer to receive service.

B. Service by Publication.
If a party cannot be served as previously noted, FRBP 7004(c) permits service by at least one publication, in a manner and form as the court may direct.

C. Service On Attorney.
Service on an attorney is permitted only in the following circumstances:

1. If the attorney is the registered agent of the party being served;
2. If the attorney has formally appeared in the matter;
3. If the attorney has not formally appeared in the matter but agrees to accept service on behalf of his/her client.

D. Service on Individuals in Foreign Country. [FRCP Rule 4(f) made applicable by FRBP 7004 (a)].

1. Unless there is a waiver filed, service must be by any internationally agreed means reasonably calculated to give notice such as those means authorized by the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents.

2. If there is no internationally agreed means of service then service is by:

a. Any manner prescribed by the law of the foreign country for service in any of its courts of general jurisdiction.

b. As directed by the foreign authority in response to a letter rogatory or letter of request.

c. Unless prohibited by law of the foreign country:

(1) by personal delivery, or

(2) any form of mail requiring a signed receipt (note: to be mailed by the clerk of court to the party to be served).

d. By other means not prohibited by international agreement as may be directed by the court.

V. RULES GOVERNING SERVICE OF MOTIONS

Service of motions in contested matters is governed by FRBP 9014(b), which provides that a “motion shall be served in the same manner provided for service of a summons and complaint by Rule 7004.” See Section IV above for rules regarding service of a summons and complaint.

Type: 
For Debtor