- Case Type:
- Case Status:
- BAP No. NV-20-1238-TLB (9th Circuit, Mar 30,2021) Not Published
- BAP for 9th Cir. affirmed ruling of bankruptcy court (D. Nev.) dismissing creditor's adversary against chapter 7 debtor based on creditor's failure to effect service of summons and complaint. Service of complaint only upon debtor's attorney was insufficient to effect service of process under FRCP 4(m)/FRBP 78004(a)(1). Process required timely service of summons and complaint upon debtor. Actual notice of complaint via service upon attorney for debtor was inadequate. Ignorance of service rules and half-hearted effort at service of process did not demonstrate "good cause."
- Procedural context:
- Bankruptcy court granted chapter 7 debtor's motion to dismiss adversary complaint after creditor failed to timely serve summons and complaint. Creditor appealed to BAP for 9th Cir.
- Debtor filed chapter 13 and case was subsequently converted to chapter 7. Creditor failed to file proof of claim by bar date. Prior to bar date, creditor filed adversary complaint against debtor for injunctive relief, breach of contract, tort, and RICO claims. Creditor did not file any claims under 11 USC 523. Bankruptcy court issued summons. Creditor asserted it served the complaint by mail upon debtor's counsel. Creditor did not attest that it served the summons, and did not attest that it served the summons and complaint upon the debtor. Discharge entered. Debtor moved to dismiss.
- Taylor, Lafferty, Brand
3404 in the system
1 Being Processed