You are here

How do I serve an adversary proceeding summons and complaint, motion, or chapter 12 or 13 plan?

I. Disclaimer

This FAQ is general information, not legal advice. It does not address all elements of the rules or all fact situations. It has not been updated since May 14, 2021, and there is no guaranty that its content is current. The people in the clerk’s office can provide you with general information, but neither they nor the bankruptcy judge can give you legal advice.

II. Who should read this FAQ?

Read this FAQ if you have filed or are considering filing a complaint starting an adversary proceeding, a motion, or a plan in a case under chapter 12 or chapter 13. This FAQ tells you how to serve the documents that start those types of litigation in the Oregon bankruptcy court.

III. What is service?

“Service” is the way that you must send other people certain litigation documents in a bankruptcy case. Documents that start litigation must be served in the way that is required by Federal Rule of Bankruptcy Procedure (FRBP or Rule) 7004.

If you fail to serve documents that start litigation in the way required by Rule 7004, the bankruptcy judge could be unable to rule for you. And if a service error is discovered after the judge has ruled for you, the judge could be required to set aside the ruling.

IV. What bankruptcy documents must be served under Rule 7004?

There are two categories of bankruptcy litigation in which the documents that start the litigation must be served under Rule 7004. The first category is called an adversary proceeding. An adversary proceeding is started by the filing of a complaint, and it has its own number separate from the number of the main bankruptcy case.

The second category of litigation in which documents starting the litigation must be served under Rule 7004 occurs in the main bankruptcy case. That litigation starts and ends as part of the main bankruptcy case, and it addresses a specific dispute within the main bankruptcy case for the court to resolve. The dispute is called a contested matter, and there can be several contested matters within one main bankruptcy case. The document that starts a contested matter is usually a motion, but it can also be another type of document, such as a chapter 12 or 13 plan.

Rule 7004 service is required for documents starting all contested matters. In addition, certain documents are specifically required to be served under Rule 7004: an involuntary petition; an objection to the claim of the United States or of any of its officers or agencies or of an insured depository institution; a chapter 12 or 13 plan that seeks to determine the amount of a secured claim; a debtor’s motion, either by itself or in a plan, to avoid a lien on or other transfer of exempt property; a debtor’s motion in a chapter 12 or 13 case for an order declaring a lien satisfied and released under a confirmed plan; a motion for sanctions; a motion for appointment of a next friend or guardian ad litem for the debtor; and a chapter 12 or 13 plan in which the debtor provides for assumption, rejection, or assignment of an executory contract or unexpired lease.

This FAQ uses the term “motion” to mean motions and other documents that start contested matters or are required to be served under Rule 7004.

V. What documents must be served?

A. Summons

After you start an adversary proceeding by filing a complaint, the clerk will issue and send you a summons. The summons tells the defendant when and where to file an answer or motion responding to the complaint, and it includes the time and place of the first hearing. The summons and complaint must be served together under Rule 7004.

With one exception, no summon is issued in a contested matter. The exception is for the summons issued when an involuntary petition is filed.

B. Notice of motion

With certain exceptions, a motion that starts a contested matter must include a notice of motion before the substantive part of the motion (where you say what you want and why you are entitled to it). The notice of motion serves a function similar to the summons in an adversary proceeding, telling the target of the motion when and where to file an objection to the motion.

The notice of motion must follow this template:

Notice. If you oppose the proposed course of action or relief sought in this motion, you must file a written objection with the bankruptcy court no later than [insert number of days in objection period, excluding any additional time provided by FRBP 9006] days after the date listed in the certificate of service below. If you do not file an objection, the court may grant the motion without further notice. Your objection must set forth the specific grounds for objection and your relation to the case. The objection must be received by the clerk of court at [insert the address for the office in Portland or Eugene, whichever is administering the case] by the deadline specified above or it may not be considered. You must also serve the objection on [insert name, address, and phone number of movant] within that same time. If the court sets a hearing, you will receive a separate notice listing the hearing date, time, and other relevant information.

If no specific objection deadline applies to the motion, the deadline is 14 days, so use “14” in place of the language in the first bracket. “Movant” means you if you are filing the motion, so use your name, address, and phone number in the last bracket.

The notice isn’t required in several circumstances, including if the motion is filed using a local bankruptcy form (LBF) or official bankruptcy form; the motion seeks to convert or dismiss the case (unless the motion is by a chapter 13 trustee); the motion is unopposed, joint, or stipulated; the motion seeks certain relief that the court can grant without notice and a hearing; or the motion requests expedited consideration.

VI. How must documents be served under Rule 7004?

Although Rule 7004 describes ways in which service is permitted, service using a permitted method is mandatory. In other words, it’s possible that more than one method of service could be available to you, depending on the circumstances, but you must follow at least one of them for service to comply with Rule 7004.

A. Service by mail

You may serve documents under Rule 7004 by mailing them, postage prepaid, to an address within the United States—but only in the specific ways described below. The ways that service is permitted depend on the type of defendant who will be served. The following explanation of the service rules applies to litigation started in the Oregon bankruptcy court and uses the term “defendant” to refer not only to the defendant in an adversary proceeding, but also to the target of a motion.

With certain exceptions listed below, mail service must be by first-class mail.

1. Individual

If the defendant is an individual, other than an infant or incompetent person, the mailing may be to the defendant’s dwelling or usual place of abode or to the place where the defendant regularly conducts a business or profession. A post office box isn’t a dwelling or usual place of abode or a place where a business or profession can be conducted.

2. Infant or incompetent person

If the defendant is an infant or incompetent person, the mailing may be to the person upon whom process is prescribed to be served by the law of the state in which service is made when a lawsuit is brought against such a defendant in the courts of general jurisdiction of that state. In both cases, you must mail to the defendant and each other person who must be served by a mailing addressed to the person’s dwelling house or usual place of abode or where the person regularly conducts a business or profession.

A minor defendant under age 14 may be served in Oregon by serving the defendant and the defendant’s father, mother, conservator of the defendant’s estate, or guardian, or if there is none, then to any person having the care or control of the defendant, or with whom the defendant resides, or in whose service the defendant is employed, or upon a guardian ad litem appointed under Oregon Rule of Civil Procedure (ORCP) 27 B.

A defendant who is incapacitated or financially incapable, as those terms are defined in Oregon Revised Statute (ORS) 125.005, may be served in Oregon by serving the defendant and the conservator of the defendant’s estate or guardian or, if there is none, upon a guardian ad litem appointed under ORCP 27 B.

3. Corporation, partnership, or unincorporated association

If the defendant is a domestic or foreign corporation, partnership, or other unincorporated association, the mailing may be to the attention of an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process (such as a registered agent) on behalf of the defendant and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing to the defendant. The term “corporation” includes a limited liability company. For entities formed under Oregon law or registered to do business in Oregon and whose registration hasn’t lapsed, information about the entity, including the name and address of its registered agent, may be available on the website of the Oregon Secretary of State.

4. United States

If the defendant is the United States, the mailing may be to both (separately) the Civil Process Clerk at the office of the U.S. Attorney for the District of Oregon and the Attorney General of the United States at Washington, D.C. If the adversary proceeding or contested matter attacks the validity of an order of an officer of an agency of the U.S. but the officer or agency hasn’t been made a party to the adversary proceeding or contested matter, the mailing must also be to the officer or agency.

5. Officer or agency of U.S.

If the defendant is an officer or agency of the U.S., the mailing may be to both (separately) the U.S. Attorney for the District of Oregon and the Attorney General at Washington, D.C., and also to the officer or agency. If the agency is a corporation, such as the Federal Deposit Insurance Corporation, the mailing must also comply with part VI.A.3 above governing service on a corporation.

6. State or municipal corporation or other governmental organization

If the defendant is a state or municipal corporation or other governmental organization, the mailing may be to the person or office upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against the defendant in the courts of general jurisdiction of that state, or, in the absence of the designation of any such person or office by state law, then to the chief executive officer of the defendant.

If the defendant is the State of Oregon, the mailing may be to the Attorney General, Oregon Department of Justice.

If the defendant is an Oregon county, incorporated city, or other public corporation, commission, board, or agency, the mailing may be to an officer, director, managing agent, or attorney of the defendant.

7. Debtor

If the defendant is the debtor in the bankruptcy case in which the adversary proceeding or contested matter is filed and the bankruptcy case hasn’t been dismissed or closed, the mailing may be to the debtor at the address shown in the petition or any other address that the debtor designates in a filed writing. The current address for the debtor is shown at the top of the online PACER docket for the main bankruptcy case. If the debtor’s designated address is a post office box, mail service may be addressed there even though that address wouldn’t be proper for mail service on an individual defendant who isn’t the debtor.

If the debtor is represented by an attorney, you must also mail to the attorney at the attorney’s mailing address. The name and address of any debtor’s attorney appears near the top of the online PACER docket for the main bankruptcy case.

8. U.S. trustee

If the defendant is the United States trustee, the mailing may be to an office of the U.S. trustee or another place designated by the U.S. trustee in Oregon.

9. Other mailing addresses for individual, corporation, partnership, or unincorporated association

In addition to the mailing addresses for a defendant who is an individual (described in part VI.A.1 above) or a corporation, partnership, or unincorporated association (described in part VI.A.3 above), the mailing may be to the person or entity on whom service is prescribed to be served by any federal statute or statute of the state in which service is made when an action is brought against the defendant in the court of general jurisdiction of that state.

10. Agent of defendant

For any type of defendant, the mailing may be to an agent of the defendant authorized by appointment or by law to receive service of process—such as the registered agent of a corporation, limited partnership, or limited liability company—at the agent’s dwelling house or usual place of abode or where the agent regularly carries on a business or profession and, if the authorization so required, to the defendant as otherwise required by Rule 7004(b).

11. Insured depository institution

“Insured depository institution” includes most banks (including all with Federal Deposit Insurance Corporation deposit insurance), but it doesn’t include credit unions. If the defendant is an insured depository institution, you may mail by certified mail addressed to an officer of the institution unless one of the following three exceptions applies.

  • If the institution has appeared in the bankruptcy case by its attorney, mail service on the institution must be by mailing to the attorney by first-class mail.
  • If the court so orders after a prescribed notice to the institution, service on the institution must be made by first-class mail.
  • If the institution has waived in writing its entitlement to service by certified mail and has designated an officer to receive service, mail service on the institution must be by first-class mail to the designated officer.

If you are uncertain whether mailing must be first-class or certified, you may mail both ways.

B. Other service methods

Because service by mail within the U.S. is the most common type of service in bankruptcy cases, this FAQ does not address all the other ways that you may make service, including within the U.S. other than by mail and outside the U.S. Those other ways are described in Rule 7004(c) and Federal Rule of Civil Procedure (FRCP) 4(e)-(j).

If you decide to have documents personally served (delivered), rather than mailed, to the persons required to be served, neither you nor any other party can be the server. The server must be a nonparty at least 18 years old. In an adversary proceeding, the parties are the plaintiff (you) and the defendants. In a contested matter, the parties are the movant and the targets of the motion.

If you need to serve someone outside the U.S., see FRCP 4(f).

VII. When must I complete service?

Two deadlines apply to service in an adversary proceeding. One runs from the date the summons is issued, and the other runs from the date the complaint was filed. You have seven days after the summons was issued to complete service in the U.S. If you don’t meet that deadline, ask the clerk to issue a replacement summons (sometimes called an alias summons). You must serve the replacement summons within seven days after it is issued.

The second deadline runs from the date the complaint was filed. If you don’t complete service in the U.S. within 90 days after the complaint was filed, the court can dismiss the adversary proceeding unless you show good cause for the failure to meet the deadline.

You must serve a motion or other document that starts a contested matter when you file it.

VIII. How must I prove service?

A. Who must sign the certificate of service?

A certificate of service must be completed and signed by the person who did the service. If you served by mail, you are the server and you must sign the certificate. If you had someone else do the service, whether by mail or otherwise, that person must sign the certificate. The balance of this FAQ assumes that you were the server.

B. Adversary proceeding

In an adversary proceeding, the summons includes a blank certificate of service. After you have served the summons and complaint, you must complete the certificate and file the summons with the completed certificate.  Alternately, you may use LBF 305 for the certificate of service, to be filed with the completed summons.

C. Contested matter

In a motion that is not prepared on an LBF, a certificate of service must be incorporated in, attached to, or accompany the document. The certificate must include a clearly identified list of the names, addresses, and methods for service on all parties served using paper, including by mail.

1. Chapter 12 plan

Several provisions of the chapter 12 and 13 plan forms permit the debtor to propose treatment of a creditor or other party that, if sought outside a plan, would require service under Rule 7004. For that reason, creditors treated in those plan paragraphs must be served under Rule 7004.

In a chapter 12 case, creditors or parties treated in the following plan paragraphs must be served under Rule 7004: paragraphs 2(b)(1) or 2(b)(2), in either case if the creditor or party is listed under “Collateral Value if Not Paying in Full,” and paragraph 3. The debtor must file a certificate of service listing the names and addresses of all persons and entities served by mail or any other method other than via notice of electronic filing, including all served by certified mail or by first-class mail, postage prepaid, and the date and manner of service for each person or entity.

2. Chapter 13 plan

In a chapter 13 case, a certificate of service appears on page 7 of the plan form. Creditors or parties treated in the following plan paragraphs must be served under Rule 7004: paragraphs 4(b)(1) (if the creditor is listed under “Collateral Value if Not Paying in Full),” 4(b)(2) (if the creditor is listed under “Amount of Claim as Modified),” 5, and 6. The names and addresses to which the debtor served the plan by first-class mail on creditors or parties who aren’t insured depository institutions must be added to the part "a)" blank in the certificate. The names and addresses to which the debtor served the plan by certified mail on creditors or other parties who are insured depository institutions (if certified mail was proper; see part VI.A.11 above) must be added to the part "b)" blank.

Type: 
For Creditor
For Debtor