IN RE KATE BUFFY DRAKEWYCK,
- Summarized by Jaden Banks , Nyemaster Goode P.C.
- 1 year 6 months ago
- Case Type:
- Consumer
- Case Status:
- Affirmed
- Citation:
- CO-23-004 (10th Circuit, Jun 23,2023) Not Published
- Tag(s):
-
- Ruling:
- The Bankruptcy Appellate Panel for the Tenth Circuit (the “BAP”) affirmed the Bankruptcy Court for the District of Colorado's dismissal of an adversary proceeding, where the Debtor failed to follow court orders directing her to properly serve the United States and United States Department of Education and for the Debtor's failure to effectuate proper service on the United States within 90 days of commencing the adversary proceeding.
- Procedural context:
- Kate Buffy Drakewyck (the "Debtor") filed an adversary complaint seeking to discharge her student loans. The Debtor failed to properly serve the United States or the United States Department of Education. The bankruptcy court entered two orders directing the Debtor to properly serve the United States and the United States Department of Education according to Federal Rule of Bankruptcy Procedure 7004(b)(4) and (5) or risk dismissal of the adversary proceeding. The Debtor failed to comply with those orders and the bankruptcy court dismissed the adversary proceeding. The Debtor appealed.
- Facts:
- The Debtor filed a Chapter 7 petition for bankruptcy relief. Shortly after, the bankruptcy court denied a motion seeking to discharge the Debtor’s student loans and denied a motion to reconsider, after explaining that the relief requested in the motion seeking discharge required an adversary proceeding. On appeal, the Bankruptcy Appellate Panel for the Tenth Circuit (the “BAP”) affirmed the denial of the motion seeking discharge and the motion to reconsider.
The Debtor initiated an adversary proceeding against the United States Department of Education (the “Defendant”) and filed an affidavit of service asserting that a process server served Roland Stallings, Clerk, a person authorized to accept service on behalf of the Defendant approximately twelve days after the issuance of the original summons. The bankruptcy court ordered the Debtor to obtain an alias summons and properly serve the Defendant and United States pursuant to Federal Rule of Bankruptcy Procedure 7004(b)(4) and (5) or risk dismissal of the adversary proceeding. The bankruptcy court extending the time to serve the Defendant and United States and again ordered the Debtor to effectuate proper service. The Debtor failed to do so, and instead mailed copies of the complaint and original summons to the District Attorney of Washington, D.C., and the Office of the Attorney General in Washington D.C. The bankruptcy court then dismissed the adversary proceeding. The bankruptcy court found the Debtor failed to properly serve the original summons and complaint on the civil process clerk for the United States Attorney for the District of Colorado as required by Federal Rule of Bankruptcy Procedure 7004(e). The bankruptcy court further found the Debtor failed to send a copy of the complaint and original summons, within seven days of the issuance of the summons, rendering the summons stale and she failed to obtain and serve an alias summons despite the bankruptcy court's orders directing her to do so. Additionally, the bankruptcy court found that the Debtor's failure to properly serve the United States within ninety days of commencing the adversary proceeding as required by Federal Rule of Civil Procedure 4(m) and as further required by court order, warranted dismissal of the adversary proceeding.
- Judge(s):
- Michael, Parker, and Thurman
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