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URGENT QUESTION - SERVICE OF PROCESS IN ADVERSARY
I do not know if there is a distinction between notice and service of
process but that belies the point. The rules require service on the debtor.
Period.
If you look at FRBP 7004, it says "(b)(9) Upon the debtor, after a petition
has been filed by or served upon the debtor and until the case is dismissed
or closed, by mailing a copy of the summons and complaint to the debtor at
the address shown in the petition or to such other address as the debtor
may designate in a filed writing."
It also says, "(g) Service on Debtor's Attorney. If the debtor is
represented by an attorney, whenever service is made upon the debtor under
this Rule, *service shall also be made* upon the debtor's attorney by any
means authorized under Rule 5(b) F.R.Civ.P."
Combined, these two say that even if the Debtor is represented by an
attorney, both must be served. I get that from the "also" underlined above.
It does not say service shall instead be made...
Another point is that if you have a limited scope of representation or one
that excludes AP, then you are not the debtor's attorney for purposes of
the AP. So even if the above were not true, which it is, you still couldn't
be served with the complaint because you were not the attorney of record
(assuming you have a limited scope engagement letter).
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
801 N. Brand Blvd., Suite #1130
Glendale, CA 91203
Tel: 818.276.2477 | Fax: 818.208.4550
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On Tue, Dec 15, 2015 at 8:45 AM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> Well I gave counsel 21 days to fix it, after which I intend to challenge
> and seek sanctions. I know it is simple to serve process by mail, but I
> still think the rules require it. I've always understood that notice is
> not the same as service of process!
>
>
I do not know if there is a distinction between notice and service of process but that belies the point. The rules require service on the debtor. Period.If you look at FRBP 7004, it says "(b)(9) Upon the debtor, after a petition has been filed by or served upon the debtor and until the case is dismissed or closed, by mailing a copy of the summons and complaint to the debtor at the address shown in the petition or to such other address as the debtor may designate in a filed writing."It also says, "(g) Service on Debtor's Attorney. If the debtor is represented by an attorney, whenever service is made upon the debtor under this Rule, service shall also be made upon the debtor's attorney by any means authorized under Rule 5(b) F.R.Civ.P."Combined, these two say that even if the Debtor is represented by an attorney, both must be served. I get that from the "also" underlined above. It does not say service shall instead be made...Another point is that if you have a limited scope of representation or one that excludes AP, then you are not the debtor's attorney for purposes of the AP. So even if the above were not true, which it is, you still couldn't be served with the complaint because you were not the attorney of record (assuming you have a limited scope engagement letter).Sincerely,Michael Avanesian, Esq.Avanesian Law Firm801 N. Brand Blvd., Suite #1130Glendale, CA 91203Tel: 818.276.2477 | Fax:818.208.4550Confidentiality:This electronic transmission and its contents are legally privileged and confidential information and intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or other use of this message and its contents is strictly prohibited. If you have received this transmission in error, please reply to us immediately and delete this message from your directory.IRS Circular 230 Disclosure:To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.
Clearly not proper service of process. Unfortunately this happened to meand one of my clients several years ago. The improper service is at leastoccasionally missed by the clerk's office when issuing the default. Yourprior email to opposing counsel, could have been missed or been routed tospam. To save time, money and additional frustration, I suggest you callopposing counsel and explain the error and demand opposing counsel draft astipulation and order to set aside the default. Direct opposing counsel to
obtain an alias summons and serve it properly. Then follow up with a letter
that you fax and mail. Hopefully this resolves the problem and avoids thetime and hassle of filing a 12(b)(5) motion.. If not at least you can show
you tried to resolve the error simply and you have a paper trail if laterthere is sufficient basis for sanctions.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 12/9/2015 8:39:13 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Yes the POS shows service by email only
Clearly not proper service of process. Unfortunately this
happened to me and one of my clients several years ago. The improperservice is at least occasionally missed by the clerk's office when issuing the
default. Your prior email to opposing counsel, could have been missed or
been routed to spam. To save time, money and additional frustration,I suggest you call opposing counsel and explain the error and demand
opposing counsel draft a stipulation and order to set aside the
default. Direct opposing counsel to obtain an alias summons and
serve it properly. Then follow up with a letter that you fax and
mail. Hopefully this resolves the problem and avoids the time andhassle of filing a 12(b)(5) motion.. If not at least you can show you
tried to resolve the error simply and you have a paper trail if
later there is sufficient basis for sanctions.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)
In a message dated 12/9/2015 8:39:13 A.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Yes the POS shows service by email only
The post was migrated from Yahoo.
Reply-To: Chris Gautschi
X-Original-Return-Path: Chris Gautschi
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
Judge Tighe entered a default judgement against my client without a proof of service filed and only NEF notice to me. But it was a small amount the client was paying anyway. You can't trust a judge so you have to deal with only a NEF awareness
Sent from my iPhone
> On Dec 9, 2015, at 11:36 AM, David Jacob david@dpjacob.com [cdcbaa] wrote:
>
> Some ideas
>
> LBR 9036-1 (a)(2)(D)
>
> 2) NEF Does Not Constitute Service. Electronic transmission of an NEF does not constitute service or notice of the following documents that must be served non- electronically:
> (D) Service of a summons and complaint under FRBP 7004;
>
>
> FRBP 7004
> FRCP 55 & 60(b) maybe (a)
>
>
>
>
> This message is from an attorney and may contain information that is privileged and/or confidential, including, without limitation, attorney-client privileged communication(s) and/or confidential attorney work product. Unless you are the addressee or authorized to receive messages for the addressee, you may not use, copy,or disclose this message or any information contained herein. If you havereceived this message in error, please advise the sender by reply e-mail and delete any version, response, or reference to it. Thank you.
>
>> On Dec 9, 2015, at 10:55 AM, sam@southbaybk.com [cdcbaa] wrote:
>>
>>
>> Yes the clerk actually entered the default today. I am not happy!
>>
>
>
The post was migrated from Yahoo.
Some ideas
LBR 9036-1 (a)(2)(D)
2) NEF Does Not Constitute Service. Electronic transmission of an NEF does not constitute service or notice of the following documents that must be served non- electronically:
(D) Service of a summons and complaint under FRBP 7004;
FRBP 7004
FRCP 55 & 60(b) maybe (a)
This message is from an attorney and may contain information that is privileged and/or confidential, including, without limitation, attorney-client privileged communication(s) and/or confidential attorney work product. Unless you are the addressee or authorized to receive messages for the addressee, you may not use, copy,or disclose this message or any information contained herein. If you havereceived this message in error, please advise the sender by reply e-mail and delete any version, response, or reference to it. Thank you.
> On Dec 9, 2015, at 10:55 AM, sam@southbaybk.com [cdcbaa] wrote:
>
> Yes the clerk actually entered the default today. I am not happy!
>
>
The post was migrated from Yahoo.
Sounds like improper service.
On Wed, Dec 9, 2015 at 8:39 AM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> Yes the POS shows service by email only
>
>
Kirk Brennan
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Sounds like improper service.On Wed, Dec 9, 2015 at 8:39 AM, sam@southbaybk.com [cdcbaa]
The post was migrated from Yahoo.