Are You Paying Attention when Serving Contested Matters under Bankruptcy Rule 7004(b)(3)
Most bankruptcy practitioners know that Rule 7004 governs service of process in adversary proceedings. Fewer seem to realize, however, that a contested matter also must be commenced by service under that rule. The result is that too many practitioners are merely providing notice of contested matters when, in fact, service is required. 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).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.
Even practitioners who know how to serve contested matters face other issues that are not clear under the rules. 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
Improper service may lead the court to deny the requested relief, quash service or vacate an order entered upon faulty service.
Even 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.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. 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).
When Is Service Required?
Before discussing how to effectuate service under Rule 7004(b)(3), it is worth addressing when service (rather than notice) is required. First, and most obvious, are adversary proceedings. An adversary proceeding is governed by Part VII of the Federal Rules of Bankruptcy Procedure, including the service requirements in Rule 7004. 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.
Second, by virtue of Rule 9014(b), service also is required in contested matters. What constitutes a "contested matter" is not always clear, and the text of the rule provides little guidance. Rule 9014(a) states in part that "[i]n a contested matter not otherwise governed by these rules, relief shall be requested by motion...." Subsection (b) then states that "[t]he motion shall be served in the manner provided for service of a summons and complaint by Rule 7004."
Other bankruptcy rules, however, specify what is a contested matter by referencing Rule 9014 in their text. Under these rules, contested matters include:
- certain proceedings to dismiss, convert or suspend a case;7
- a motion to appoint a trustee or examiner;8
- a proceeding to contest any act or failure to act by the U.S. Trustee;9
- an objection to confirmation or modification of a chapter 12 or chapter 13 plan;10
- an objection to confirmation of a chapter 9 or chapter 11 plan;11
- a motion for relief from the automatic stay or to prohibit or condition the use, sale or lease of property;12
- a motion for authorization to use cash collateral;13
- a motion for authority to obtain credit;14
- a proceeding to avoid a lien or other transfer of exempt property;15
- a motion for abstention pursuant to 28 U.S.C. §1334(c);16
- an objection to the proposed use, sale or lease of property;17
- a motion to sell property free and clear of liens and other interests;18
- a proceeding to assume, reject or assign an executory contract or unexpired lease, other than as part of a plan;19
- a proceeding to compel assumption or rejection of an executory contract or unexpired lease;20
- a motion for an order of contempt;21 and
- a motion to remand a removed claim or cause of action.22
Finally, the Advisory Committee Notes to Rule 9014 help define what are contested matters. The Notes state "[w]henever there is an actual dispute, other than an adversary proceeding, before the bankruptcy court, the litigation to resolve that dispute is a contested matter." Examples of "actual disputes" are objections to claims of exemption, objections to a disclosure statement or objections to the amount of compensation sought by a professional. Therefore, a proceeding may be a contested matter even though neither the bankruptcy rule governing the proceeding nor its Advisory Committee Notes reference Rule 9014.26
There also is confusion about what papers in a contested matter must be served. Rule 9014(b) states that only the "motion" in a contested matter must be served. In some instances, however, a contested matter is commenced not by a motion but by an objection (such as an objection to confirmation). Even though they are not "motions," common sense dictates that they are to be served. Therefore, a logical interpretation of Rule 9014(b) is that the filing that initiates an "actual dispute" must be served, whether it is a motion, objection or other filing.
Service Under Rule 7004(b)(3)
Rule 7004 incorporates certain provisions of Fed.R.Civ.P. 4 that require personal service by a non-party at least 18 years old.27 Rule 7004 also allows service within the United States by first-class mail.28 Different mailing requirements exist depending on the status of the party being served (e.g., an individual, an officer or agency of the United States, an infant or incompetent person, etc.). Because many creditors in bankruptcy cases are corporations and other non-governmental entities, this article focuses on the primary rule for mail service upon those entities—Rule 7004(b)(3).29
"To the Attention of" an Individual or Office?
Probably the most common service defect under Rule 7004(b)(3) is failing to direct service "to the attention of" an individual or office. Under the rule, 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." Courts are virtually unanimous in finding service improper that is not directed "to the attention of" either an appropriate individual or office.30 They disagree, however, on whether it must be to the attention of a specifically named individual or merely to the attention of an office (e.g., "Attn: President").
A California bankruptcy court was the first to directly address the issue.31 In Schoon, the debtors filed a motion to avoid a corporation's lien that was mailed to the attention of the corporation's president (i.e., "Attn: President"). The corporation did not respond, and the debtors sought an order by default. The court denied the motion based on improper service because the debtors did not address service to a specifically named officer.
The court based its holding on both a literal reading of the rule and policy considerations. First, the court observed that Rule 7004(b)(3) requires service to the attention of an officer, not an office. It explained that while service upon an "office" is permitted under other rules (e.g., service on a municipality under Rule 7004(b)(6)) Rule 7004(b)(3) uses the term "officer." Next, the court noted that nationwide service of process by mail is a "rare privilege" that drastically reduces the costs and delay of litigation. Therefore, when the alternative is hiring a process server to serve papers in person, it is reasonable to require literal compliance with Rule 7004(b)(3). The court believed its ruling would not burden litigants, as "it merely requires a little extra effort to determine the name of the president or other officer and make sure the envelope is addressed to him or her, by name."32
Two years later, a Virginia bankruptcy court likewise held that service to the attention of a corporation's "president or corporate officer" was defective under Rule 7004(b)(3).33 The court found that directing service to a specific individual ensures that corporate defendants receive actual notice of the matter. The trustee argued that corporations could avoid service by failing to maintain accurate records of officers. But the court decided that due process concerns prevailed and noted that service on the corporation's registered agent (also allowed under Rule 7004(b)(3)) is easily ascertained from state records. A Delaware bankruptcy court also found improper service under Rule 7004(b)(3) when not directed to the attention of a specifically named individual.34 Practitioners should rely only on credible information when searching for the name of an officer to serve.35
Other courts do not require that service be directed to a specific individual. In 2000, a Pennsylvania bankruptcy court held that service to a corporation's "officer, managing or general agent" satisfies Rule 7004(b)(3).36 The court found support in the Advisory Committee Notes to Old Bankruptcy Rule 704(c)—the predecessor to Rule 7004(b)(3)—that state: "In serving a corporation...it is not necessary for the officer or agent of the defendant to be named in the address so long as the mail is addressed to the defendant's proper address and directed to the attention of the officer or agent by reference to his position or title."37 Moreover, in 1999, one member of the Bankruptcy Rules Committee explained that "requiring parties to name an officer, director or managing agent would create more problems than it would solve."38 Due process also does not require naming a specific individual because a defendant can use Rule 9024, incorporating Fed.R.Civ.P. 60 to set aside a default judgment when service is not timely received through no fault of the defendant.39
A Georgia bankruptcy court has twice followed C.V.H. Transport.40 Other courts, without citing C.V.H. Transport or any other authority, also have upheld service not directed to a specific individual.41
To Whose Attention?
Rule 7004(b)(3) allows service only upon an officer, managing or general agent, or agent authorized by appointment or by law to receive service of process.42 The purpose is to limit service to individuals "who, by inclination and training or statutory duty, will assure that the papers are passed on to a responsible authority in the corporation...."43 Determining who is a managing or general agent requires a factual analysis of the individual's authority within the corporation.44 Service upon a controlling stockholder45 or a corporate employee46 may be insufficient. Also, a corporation's "legal assistant specialist" who signed the proof of claim may not be an appropriate individual to receive service of a claim objection.47
An "agent authorized by appointment" under Rule 7004(b)(3) may be appointed expressly or impliedly.48 When a creditor designates in its proof of claim that notices should be sent to an attorney, then the creditor expressly appoints that attorney as its agent to receive service (even for matters unrelated to the proof of claim).49 Implied agency cases also typically involve attorneys. In these cases, courts look to the circumstances under which the defendant appointed the attorney to measure the extent of the authority that the client intended to confer.50 The more active the attorney is in the bankruptcy case and the greater the discretion afforded the attorney by the client, the more likely the court will find an implied agency to accept service.51 In general, merely filing an appearance and requesting notice under Rule 2002 does not appoint an attorney as agent to receive service of process.52 Likewise, an attorney's representation of a client in another case or proceeding is not a basis for implied agency to accept service in the bankruptcy case or an adversary proceeding.53 However, a court may imply agent status for attorneys based on extraordinary circumstances, such as mass tort litigation.54
To What Address?
Rule 7004(b)(3) is silent concerning the proper address for mailing service. Presumably, then, service should be mailed to an address where the officer or agent is located. Indeed, so long as an officer actually receives service, it is irrelevant whether service is mailed to a corporate office.55 Note, however, that service under Rule 7004 may be mailed only within the United States.
An objection to a proof of claim may be mailed to the address on the proof of claim under the heading "address where notices should be sent,"56 but still must be directed to the attention of an appropriate officer or agent.57 In fact, some courts find that any service under Rule 7004(b)(3) may be mailed to the address provided on the proof of claim (even if no officers or agents are located at that address),58 unless the claim has been withdrawn.59 Courts disagree on whether a post office box utilized by a creditor to receive payments is a proper mailing address for service under Rule 7004(b)(3).60
Practitioners should remember that service is required under Rule 7004 not only to commence adversary proceedings, but also to initiate disputes constituting "contested matters" under Rule 9014. When using Rule 7004(b)(3) to serve a corporation or other entity, service must be addressed "to the attention of" an office or agent. Some courts even require directing service to a specific individual. Improper service may lead the court to deny the requested relief, quash service or vacate an order entered upon faulty service. The result is added expense and delay, and in some instances, it could result in more serious consequences. For example, failing to properly serve a secured creditor with a motion to sell property free and clear of liens (which is a contested matter) could result in the lien surviving the sale, which in turn may seriously affect the sale transaction. Therefore, bankruptcy practitioners must ensure there is proper service not only in adversary proceedings, but also contested matters.
2 In addition, unlike the Federal Rules of Civil Procedure, the bankruptcy rules do not require an acknowledgement of receipt of service. For a general discussion on the difference between notice and service, see In re Association of Volleyball Professionals, 256 B.R. 313, 319-20 (Bankr. C.D. Cal. 2000); Boykin v. Marriott International Inc. (In re Boykin), 246 B.R. 825, 828-29 (Bankr. E.D. Va. 2000); and Green Tree Financial Servicing Corp. v. Karbel (In re Karbel), 220 B.R. 108, 112 (10th Cir. BAP 1998). Return to article
3 Although there also are differences between notice and service when dealing with individuals, municipalities and other entities, the focus of this article is service under Rule 7004(b)(3) upon domestic and foreign corporations, partnerships and other unincorporated associations. Return to article
5 In many cases, the bankruptcy judge will scrutinize the adequacy of service sua sponte, claiming a responsibility to ensure that relief may be properly granted. See, e.g., In re Lancaster, 2003 WL 109205 (Bankr. D. Idaho 2003). Return to article
23 See Fed.R.Bankr.P. 2017 ("Examination of Debtor's Transactions with Debtor's Attorney"); Fed.R.Bankr.P. 3007 ("Objections to Claims"); Fed.R.Bankr.P. 6002 ("Accounting by Prior Custodian of Property of the Estate"); and Fed.R.Bankr.P. 6008 ("Redemption of Property from Lien or Sale). Return to article
24 See Schwab v. Associates Commercial Corp. (In re C.V.H. Transport Inc.), 254 B.R. 331, 333 fn. 2 (Bankr. M.D. Pa. 2000) (citing Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)). Return to article
26 See, e.g., In re Nowling, 279 B.R. 607 (Bankr. S.D. Fla. 2002) (motion to value security under Rule 3012); DuPree v. Lomas Mortgage USA Inc. (In re DuPree), 183 B.R. 270 (Bankr. W.D. Okla. 1995) (same); In re Foster, 2004 WL 437447 at *1 (Bankr. D. Vt. 2004) (motion to reopen chapter 7 case under Rule 5010); In re Association of Volleyball Professionals, 256 B.R. at 320 (objection to settlement under Rule 9019(a)); In re Boykin, 246 B.R. at 829 (same); In re Chess, 268 B.R. 150, 157 (Bankr. W.D. Tenn. 2001) (motion by chapter 13 trustee to establish no default under debtor's mortgage); In re Village Craftsman Inc., 160 B.R. 740, 745 (Bankr. D. N.J. 1993) (motion to compel utility company to re-establish pre-petition security deposit). Return to article
30 See Beneficial California Inc. v. Villar (In re Villar), 317 B.R. 88 (9th Cir. BAP 2004); Claybrook v. Wellspring Associates LLC (In re Discovery Zone Inc.), 2004 WL 1725712 (Bankr. D. Del. 2004); Sun Healthcare Group Inc. v. Mead Johnson Nutritional (In re Sun Healthcare Group Inc., et. al.), 2004 WL 941190 (Bankr. D. Del. 2004); Speth v. Ute Mountain Farm & Ranch Enterprise (In re Bennett Trading Inc.), 2004 WL 2334316 (Bankr. D. Kan. 2004); In re Foster, 2004 WL 437447 (Bankr. D. Vt. 2004); York v. Bank of America (In re York), 291 B.R. 806 (Bankr. E.D. Tenn. 2003); In re Lancaster, 2003 WL 109205 (Bankr. D. Idaho 2003); In re Hooper, 2001 WL 34054526 (Bankr. E.D. Va. 2001); Sta-Rite Industries Inc. v. Stembridge (In re Stembridge), 2000 WL 33740248 (Bankr. M.D. Ga. 2000); Braden v. General Motors Acceptance Corp. (In re Braden), 142 B.R. 317 (Bankr. E.D. Ark. 1992); DaShiell v. Ohio Citizens Bank (In re DaShiell), 124 B.R. 242 (Bankr. N.D. Ohio 1990); accord, Vincioli v. Beneficial Finance (In re Vincioli), 9 B.R. 44 (Bankr. S.D. Fla. 1981) (applying former Rule 704(c)); but, see Green Tree Financial Servicing Corp. v. Karbel (In re Karbel), 220 B.R. 108 (10th Cir. BAP 1998) (holding, without discussion, that service mailed to corporation, but not to the attention of individual or office, was proper under Rule 7004(b)(3) when service was mailed to address designated by creditor for bankruptcy clerk's standard address list). Return to article
34 See In re Golden Books Family Entertainment Inc., 260 B.R. 300, 305-06 (Bankr. D. Del. 2001) (holding that debtor's service of notice assuming and assigning contracts to the attention of the "Asst. Controller" of the non-debtor party to the contracts was improper). Return to article
35 See, e.g., Hechinger Liquidation Trust v. Porter-Cable Corp. (In re Hechinger Investment Co. of Delaware Inc.), 308 B.R. 683, 686-87 (Bankr. D. Del. 2003) (service to the attention of specifically named individual who had terminated his employment as president 18 months prior to service was improper where serving party had relied upon records available from Illinois Secretary of State's online document service, which indicated that the corporation's authority to transact business had been withdrawn nearly two years prior such that there was no rational basis for the serving party to conclude that the records were current). Compare Cohen v. Stokes Electrical Supply (In re Submicron Systems Corp.), 2004 WL 883391 (D. Del. 2004) (service of summons and complaint to defendant's former address, as listed with Commonwealth of Pennsylvania's Department of State, Corporation Bureau, not improper under Rule 7004(b)(3) where plaintiff had no reason to question the accuracy of the Bureau's information or to presume that defendant would not receive mail at that address). Return to article
40 See Fleet Credit Card Services L.P. v. Tudor (In re Tudor), 282 B.R. 546, 550 (Bankr. S.D. Ga. 2002) (mailing service upon limited liability company to the attention of "Managing Agent" is proper); Conseco Finance Servicing Corp. v. Rushton (In re Rushton), 285 B.R. 76, 81 (Bankr. S.D. Ga. 2002). Return to article
41 See Brandt v. Midway Health Care Center (In re Newcare Health Corp.), 274 B.R. 307, 309 (Bankr. D. Mass. 2002) (service upon corporation to the attention of corporation's "President"); Hovis v. ITS Inc. (In re Air South Airlines Inc.), 1999 WL 33486097 (Bankr. D. S.C. 1999) (service upon corporation to attention of "Officer, Managing or General Agent"); DuPree v. Lomas Mortgage USA Inc. (In re DuPree), 183 B.R. 270, 276 (Bankr. W.D. Okla. 1995) (stating there is no need to specify name of creditor's officers or agents); Teitelbaum v. Equitable Handbag Co. (In re Outlet Dept. Stores Inc.), 49 B.R. 536, 539 (Bankr. S.D.N.Y. 1985) (service addressed to attention of corporation's "President or Other Officers"). Return to article
42 Fed.R.Civ.P. 4(h)(1) also limits service to an "officer, managing or general agent, or agent authorized by appointment or by law to receive service of process." Cases interpreting that rule may be looked to for guidance as to who may be served under Rule 7004(b)(3). Return to article
48 See CruisePhone Inc. v. Cruise Ships Catering and Services N.V. (In re CruisePhone Inc.), 278 B.R. 325, 333 (Bankr. E.D.N.Y. 2002) (citing Reisman v. First New York Bank for Business (In re Reisman), 139 B.R. 797, 800 (Bankr. S.D.N.Y. 1992)). Return to article
49 See MS. Interpret v. Rawe Druck-Und Veredlungs-GmbH (In re MS. Interpret), 222 B.R. 409, 415 (Bankr. S.D.N.Y. 1998); accord, In re Chess, 268 B.R. at 157-58 (corporation's letter to chapter 13 trustee requesting that payments and reports be sent to bankruptcy department at specific address appoints that department as agent to receive service). Return to article
51 Compare In re MS. Interpret, 222 B.R. at 416-17 (implied agency exists when attorney attended and participated in committee meetings for creditor and voted on every issue on which the committee voted without adjourning to confer with client) with Beloit Liquidating Trust v. Beloit Walmsley Limited (In re Harnischfeger Industries Inc.), 288 B.R. 79, 83 (Bankr. D. Del. 2003) (routine participation by attorney in bankruptcy case insufficient to create implied agency to accept service in adversary proceeding) and In re CruisePhone, 278 B.R. at 333 (no implied agency where attorney's activities in case were not substantial and lacked significant exercise of independent judgment and discretion). Return to article
53 See In re Villar, 317 B.R. at 93-94; In re York, 291 B.R. at 811; In re Lancaster, 2003 WL 109205 at *2; In re Rae, 286 B.R. 675, 677 (Bankr. N.D. Ind. 2002); In re Hooper, 2001 WL 34054526 at *8; CitiCorp Mortgage Inc. v. Brooks (In re Ex-Cel Concrete Co. Inc.), 178 B.R. 198, 203 (9th Cir. BAP 1995). Return to article
58 See In re Village Craftsman Inc., 160 B.R. at 745; In re Outlet Dept. Stores Inc., 49 B.R. at 539; accord, In re Karbel, 220 B.R. at 112 (address for receiving notices provided by creditor pursuant to Clerk's Practice and Procedure Guide was proper address for service of contested matter); In re Chess, 268 B.R. at 157-58 (address for receiving notices provided to chapter 13 trustee pursuant to local practice is proper address for service of contested matter). Return to article