Summary:
The Debtor served a copy of a Motion to Avoid the Judgment Lien held by Main Street Acquisition Corp. at its place of business and also by serving its attorney in the state court action. She did not direct service of the Motion to either "the attention of an officer, a managing or general agent or any other agent authorized by appointment or law to receive service of process..." Bankrupt Rule 7004(b)(3).
Without deciding whether the Debtor need to name a specific person for service or if "the service may be more generally and generically addressed to the attention of an officer, a managing or general agent or any other agent authorized by appointment or law to receive service, the court found that lacking any such, service was insufficient.
Service on the attorney as an "agent authorized by appointment" could be explicit, but that filing a Notice of Appearance in the bankruptcy case would not, by itself, be sufficient. Authorization to accept service can be implicit, such as where an attorney has "provided a creditor with active and vigorous representation in the main bankruptcy case may be found to have implied authority to receive service of process in a related adversary proceeding." In re Muralo Co., Inc., 295 B.R. 512, 519 (Bankr. D. N.J. 2003). Here the lawyer took no part in the bankruptcy case, so such service was insufficient.
Commentary:
The Proof of Claim form includes a section entitled "Name and address where notices should be sent:". It is extremely rare that creditors include the line "Attn: Officer or Managing Agent", let alone the specific name of an individual it wishes to receive notices. This should constitute an explicit waiver of such a line entry, especially as it is these addresses from which the list of creditors, used by the courts and trustees for service, is generated.
Further, and unmentioned in this opinion, is Rule 7004(h) which requires service on FDIC insured depository institutions by certified mail address to an officer. This apparently excludes the others allowed to accept service under 7004(b)(3).
This opinion should be contrasted with In re Burston, Case. No. 12-75188 (E.D.Va. 2013), which essentially held that, absent an objection, Motion for Confirmation was not a "contested matter" under Rule 9014 and consequently, the service requirements of Rule 7004 did not come into play.
And while service on the attorney that represented the creditor in obtaining the judgment may not be sufficient under Rule 7004, it is nonetheless likely still required by Rule 4.2(a) of the Rules of Professional Conduct. A defect in service means a slight delay and a bit more postage. A failing to follow the Rules of Professional Conduct means a bar complaint.
Rule 9022 requires that judgments and orders of a bankruptcy judge shall immediately be served "a notice of entry in the manner provided by Rule 5(b) F.R.Civ.P. on the contesting parties." Rule 5(b)(2)(C), the most frequently used, allows for "mailing it to the person's last known address." This does not specifically require inclusion of "Attn.: Officer or Managing Agent", but it is mildly ironic that the Certificate of Notice filed by the Bankruptcy Noticing Center ("BNC"), however, was made to only "Main Street Acquistion Corp, 3715 Davinci Court Suite 200, Norcross, GA 30092-2670", omitting "Attn: Officer or Managing Agent." See: BNC Certificate of Service for Bolden Opinion
For a copy of the opinion, please see:
Bolden- Service Pursuant to Rule 7004 on an Officer or Managing Agent
For a copy of In re Burston, please see:
Burston- Service under Rule 7004 not Required for Confirmation Order
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