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serving debtor by email (per clients request)
Michael:
I was trying to point out that the debtor was more than just a party in interest. The debtor is the focus of the proceeding. Certainly a layman's definition of party in interest would apply to the debtor. But a request for courtesy notice is not a consent to service of process.
I understand that putting the debtor on courtesy notice can be an effective way to get the debtor everything the same day counsel gets it, but it scares me to think that once a debtor goes on the ecf, that others will think that constitutes "service". It is quite a different thing to get an inch thick pleading in the mail, than to have to open 20 exhibits, one by one, on a computer.
I just think your argument is dangerous for debtors, and maybe malpractice, as a court might rule a debtor was served when he didn't even open up his email.
Are you telling your debtors that if you put them on ecf, that some lawyers with think that constitutes service and failure to reply can cost them their discharge?
If you file a limited appearance and don't reply to the 523 or 727 complaint, would you think the email of the complaint was good service?
I don't think the email rules were set up for most of our debtors. The original advisory committee note was and is focused on large creditors with sophisticated staff.
d
________________________________
To: easky1@yahoo.com
Sent: Friday, May 11, 2012 12:15 PM
Subject: Re: [cdcbaa] Re: serving debtor by email (per clients request)
Dear Dennis,
I'm very sorry for taking up your time with this. I keep unresolved issues in my mind and revisit them whenever something comes up. Here is something I came across:
"n Testaverde, the court held that the term party in interest,ne whose pecuniary interest is directly affected by the bankruptcy proceeding and that the trustees professionals did not hold this type of interest. 317 B.R. at 54 (citing BLACKS LAW DICTIONARY 1122 (6th ed. 1990))."
It seems like a debtor falls under this category. Also, rule 9036 uses the words "entity." It's only the notes that mention party in interest.
Furthermore, there shouldn't be an issue of personal jdx because the debtor has submitted itself to the jdx of the court by filing the petition.
Does any of this convince you that it's ok to file a nef for the debtor? I plan to follow your advice and always serve the debtor by mail until a more senior attorney tests the waters. I also want to personally say thank you for taking the time to moderate the forums. I'm re-reading FRPB again. It's amazing what you learn the second time around!
Sincerely,
Michael Avanesian Esq.
Professor of Mathematics, ELAC
MS Mathematics, BS Computer Science
csulamath@gmail.com // 818-817-1725
Member of the California State Bar
On Fri, May 11, 2012 at 11:57 AM, Michael Avanesian wrote:
>
>Sent from my iPhone
>
>Begin forwarded message:
>
>
>>Date: May 7, 2012 7:51:10 PM PDT
>>To: "cdcbaa@yahoogroups.com"
>>Subject: Re: [cdcbaa] Re: serving debtor by email (per clients request)
>>Reply-To: cdcbaa@yahoogroups.com
>>
>>
>
>>Michael and Laura:
>>
>>After reading Laura's post, I have gone back to reread 9036, local rule 9036-1, and the Advisory Committee notes.
>>
>>The advisory committee notes for 9036 do not include the debtor:
>>
>>NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
>>This rule is added to provide flexibility for banks, credit card companies, taxing authorities, and other entities that ordinarily receive notices by mail in a large volume of bankruptcy cases, to arrange to receive by electronic transmission all or part of the information required to be contained in such notices.
>>The use of electronic technology instead of mail to send information to creditors and interested parties will be more convenient and less costly for the sender and the receiver. For example, a bank that receives by mail, at different locations, notices of meetings of creditors pursuant to Rule 2002(a) in thousands of cases each year may prefer to receive only the vital information ordinarily contained in such notices by electronic transmission to one computer terminal.
>>The specific means of transmission must be compatible with technology available to the sender and the receiver. Therefore, electronic transmission of notices is permitted only upon request of the entity entitled to receive the notice, specifying the type of electronic transmission, and only if approved by the court.
>>Electronic transmission pursuant to this rule completes the notice requirements. The creditor or interested party is not thereafter entitled to receive the relevant notice by mail. (emphisis added)
>>
>>I don't think I am going out on a limb to say the debtor is the debtor, not just an interested party.
>>
>>LBR 9036-1, however, is not so limited. The local rule uses the word "persons", not "interested party".
>>
>>Again, there are a litany of cases saying the local rules cannot supercede the National Rules.
>>
>>I would err on the side ofserving the debtor by mail.
>>
>>Also, the rule applies to Notices. I hadn't really concentrated on that before. We are getting e service of motions, responsive pleadings, etc. That is probably well outside ofthe rule, but the court requires us, attorneys, to consent to electronic service of all documents.
>>
>>A person who requests couresy notice does not sign a consent for electronic service. Therefore, I do not believe requesting courtesy notice equals consent to electronic service of process, as Laura points out.
>>
>>d
>>
>>
>>To: "cdcbaa@yahoogroups.com"
>>Sent: Sunday, May 6, 2012 1:27 AM
>>Subject: Re: [cdcbaa] Re: serving debtor by email (per clients request)
>>
>>
>>
>>I'm sorry if I misread the rules.
>>
>>
>>So FRBP 9036 does not allow compliance with 2002 for Debtors? I thought the last paragraph of the committee notes on the reliability of email over mail would have added additional weight.
>>
>>
>>I will do further research before posting next time. I do think a good thing came out of this since no one had responded before me and now anyone looking this up will know the answer.
>>
>>-Michael Avanesian
>>Sent from my iPhone
>>
>>On May 5, 2012, at 10:29 PM, Dennis McGoldrick wrote:
>>
>>
>>
>>>Local rules cannotsupersedenational rules. It is one thing for attorneys to say they consent to electronic service, but I would not rely on that kind of consent for other parties, especially the debtor. nd a maid copy anyway, to comply with rule 2002.
>>>
>>>
>>>d
>>>
>>>
>>>To: cdcbaa@yahoogroups.com
>>>Sent: Tuesday, May 1, 2012 2:42 PM
>>>Subject: [cdcbaa] Re: serving debtor by email (per clients request)
>>>
>>>
>>>
>>>Local Rules and the form proof of service indicate your client just needs to consent in writing to electronic service:
>>>LBR9036-1(a)(2) says that "A person or entity that is entitled to service of a document, but is not a CM/ECF
>>>User or is a CM/ECF User who has not consented to electronic service, must be served as otherwise provided by the F.R.Civ.P., FRBP, and these rules."
>>>
>>>And the form proof of service (Form 9013-3.1) for service by electronic mail says "Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on ___, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
>>>email as follows."
>>>
>>>
>>>Laura L. Buchanan
>>>Richardson|Buchanan,APROFESSIONALCORPORATION
>>>2301 Hyperion Ave., Ste. A
>>>Los Angeles, CA 90027
>>>Tel: 323-686-5400 Fax: 323-686-5403
>>>llb@richardsonbuchanan.com
>>>
>>>
>>>
>>>
>>>Reply to sender | Reply to group | Reply via web post | Start a New Topic
>>
>>
>>
The post was migrated from Yahoo.
Michael and Laura:
After reading Laura's post, I have gone back to reread 9036, local rule 9036-1, and the Advisory Committee notes.
The advisory committee notes for 9036 do not include the debtor:
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
This rule is added to provide flexibility for banks, credit card companies, taxing authorities, and other entities that ordinarily receive notices by mail in a large volume of bankruptcy cases, to arrange to receive by electronic transmission all or part of the information required to be contained in such notices.
The use of electronic technology instead of mail to send information to creditors and interested parties will be more convenient and less costly for the sender and the receiver. For example, a bank that receives by mail, at different locations, notices of meetings of creditors pursuant to Rule 2002(a) in thousands of cases each year may prefer to receive only the vital information ordinarily contained in such notices by electronic transmission to one computer terminal.
The specific means of transmission must be compatible with technology available to the sender and the receiver. Therefore, electronic transmission of notices is permitted only upon request of the entity entitled to receive the notice, specifying the type of electronic transmission, and only if approved by the court.
Electronic transmission pursuant to this rule completes the notice requirements. The creditor or interested party is not thereafter entitled to receive the relevant notice by mail. (emphisis added)
I don't think I am going out on a limb to say the debtor is the debtor, not just an interested party.
LBR 9036-1, however, is not so limited. The local rule uses the word "persons", not "interested party".
Again, there are a litany of cases saying the local rules cannot supercede the National Rules.
I would err on the side ofserving the debtor by mail.
Also, the rule applies to Notices. I hadn't really concentrated on that before. We are getting e service of motions, responsive pleadings, etc. That is probably well outside ofthe rule, but the court requires us, attorneys, to consent to electronic service of all documents.
A person who requests couresy notice does not sign a consent for electronic service. Therefore, I do not believe requesting courtesy notice equals consent to electronic service of process, as Laura points out.
d
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Sunday, May 6, 2012 1:27 AM
Subject: Re: [cdcbaa] Re: serving debtor by email (per clients request)
I'm sorry if I misread the rules.
So FRBP 9036 does not allow compliance with 2002 for Debtors? I thought the last paragraph of the committee notes on the reliability of email over mail would have added additional weight.
I will do further research before posting next time. I do think a good thing came out of this since no one had responded before me and now anyone looking this up will know the answer.
-Michael Avanesian
Sent from my iPhone
On May 5, 2012, at 10:29 PM, Dennis McGoldrick wrote:
>Local rules cannotsupersedenational rules. It is one thing for attorneys to say they consent to electronic service, but I would not rely on that kind of consent for other parties, especially the debtor. a maid copy anyway, to comply with rule 2002.
>
>
>d
>
>
>
>________________________________
>To: cdcbaa@yahoogroups.com
>Sent: Tuesday, May 1, 2012 2:42 PM
>Subject: [cdcbaa] Re: serving debtor by email (per clients request)
>
>
>
>Local Rules and the form proof of service indicate your client just needs to consent in writing to electronic service:
>
>LBR9036-1(a)(2) says that "A person or entity that is entitled to service of a document, but is not a CM/ECF
>User or is a CM/ECF User who has not consented to electronic service, must be served as otherwise provided by the F.R.Civ.P., FRBP, and these rules.">
>And the form proof of service (Form 9013-3.1) for service by electronic mail says "Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on ___, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
>email as follows."
>
>
>Laura L. Buchanan
>Richardson|Buchanan,APROFESSIONALCORPORATION
>2301 Hyperion Ave., Ste. A
>Los Angeles, CA 90027
>Tel: 323-686-5400 Fax: 323-686-5403
>llb@richardsonbuchanan.com
>
>
>
>
>Reply to sender | Reply to group | Reply via web post | Start a New Topic
The post was migrated from Yahoo.
charset-ascii
I'm sorry if I misread the rules.
So FRBP 9036 does not allow compliance with 2002 for Debtors? I thought the last paragraph of the committee notes on the reliability of email over mail would have added additional weight.
I will do further research before posting next time. I do think a good thing came out of this since no one had responded before me and now anyone looking this up will know the answer.
-Michael Avanesian
Sent from my iPhone
On May 5, 2012, at 10:29 PM, Dennis McGoldrick wrote:
> Local rules cannot supersede national rules. It is one thing for attorneys to say they consent to electronic service, but I would not rely on that kind of consent for other parties, especially the debtor. If the debtor wants electronic service, fine, file a consent, then send a maid copy anyway, to comply with rule 2002.
>
> d
>
> To: cdcbaa@yahoogroups.com
> Sent: Tuesday, May 1, 2012 2:42 PM
> Subject: [cdcbaa] Re: serving debtor by email (per clients request)
>
>
> Local Rules and the form proof of service indicate your client just needs to consent in writing to electronic service:
>
> LBR9036-1(a)(2) says that "A person or entity that is entitled to service of a document, but is not a CM/ECF
> User or is a CM/ECF User who has not consented to electronic service, must be served as otherwise provided by the F.R.Civ.P., FRBP, and these rules."
>
> And the form proof of service (Form 9013-3.1) for service by electronic mail says "Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on ___, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
> email as follows."
>
>
> Laura L. Buchanan
> Richardson | Buchanan, A PROFESSIONAL CORPORATION
> 2301 Hyperion Ave., Ste. A
> Los Angeles, CA 90027
> Tel: 323-686-5400 Fax: 323-686-5403
> llb@richardsonbuchanan.com
>
>
>
>
>
> Reply to sender | Reply to group | Reply via web post | Start a New Topic
I'm sorry if I misread the rules. So FRBP 9036 does not allow compliance with 2002 for Debtors? I thought the last paragraph of the committee notes on the reliability of email over mail would have added additional weight. I will do further research before posting next time. I do think a good thing came out of this since no one had responded before me and now anyone looking this up will know the answer. -Michael AvanesianSent from my iPhoneOn May 5, 2012, at 10:29 PM, Dennis McGoldrick <easky1@yahoo.com> wrote:
The post was migrated from Yahoo.
Pardon me, typo, "mailed copy", not maid copy.
d
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Saturday, May 5, 2012 10:29 PM
Subject: Re: [cdcbaa] Re: serving debtor by email (per clients request)
Local rules cannotsupersedenational rules. It is one thing for attorneys to say they consent to electronic service, but I would not rely on that kind of consent for other parties, especially the debtor. a maid copy anyway, to comply with rule 2002.
d
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 1, 2012 2:42 PM
Subject: [cdcbaa] Re: serving debtor by email (per clients request)
Local Rules and the form proof of service indicate your client just needs to consent in writing to electronic service:
LBR9036-1(a)(2) says that "A person or entity that is entitled to service of a document, but is not a CM/ECF
User or is a CM/ECF User who has not consented to electronic service, must be served as otherwise provided by the F.R.Civ.P., FRBP, and these rules."
And the form proof of service (Form 9013-3.1) for service by electronic mail says "Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on ___, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
email as follows."
Laura L. Buchanan
Richardson|Buchanan,APROFESSIONALCORPORATION
2301 Hyperion Ave., Ste. A
Los Angeles, CA 90027
Tel: 323-686-5400 Fax: 323-686-5403
llb@richardsonbuchanan.com
The post was migrated from Yahoo.
Local rules cannotsupersedenational rules. It is one thing for attorneys to say they consent to electronic service, but I would not rely on that kind of consent for other parties, especially the debtor. a maid copy anyway, to comply with rule 2002.
d
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, May 1, 2012 2:42 PM
Subject: [cdcbaa] Re: serving debtor by email (per clients request)
Local Rules and the form proof of service indicate your client just needs to consent in writing to electronic service:
LBR9036-1(a)(2) says that "A person or entity that is entitled to service of a document, but is not a CM/ECF
User or is a CM/ECF User who has not consented to electronic service, must be served as otherwise provided by the F.R.Civ.P., FRBP, and these rules."
And the form proof of service (Form 9013-3.1) for service by electronic mail says "Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on ___, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
email as follows."
Laura L. Buchanan
Richardson|Buchanan,APROFESSIONALCORPORATION
2301 Hyperion Ave., Ste. A
Los Angeles, CA 90027
Tel: 323-686-5400 Fax: 323-686-5403
llb@richardsonbuchanan.com
The post was migrated from Yahoo.
Kirk is asking if it is ok to send electronic notice to his debtor instead of mailing notices to the debtor. A very new (4 chapter 11's, no confirmations) attorney, says just file an request for electronic notice.
People, if you have no idea of the correct answer, don't try to answer.
Bankruptcy Rule 2002 says a debtor must be served a lot of things by mail.
Please, if you don't know the answer, don't guess, other lawyers may rely on bad advice to their detriment.
Also, if you are on this listserve, read the rules. It seems a lot of new attorneys do not read the rules. Rule 2002 is a rule you must check over and over and comply with to the letter. 2002 is our minimum service rule. The court will not have jurisdiction to rule if you do not serve the debtor under rule 2002. Service of Process is a minimum for jurisdiction.
dennis
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Tuesday, May 1, 2012 4:28 PM
Subject: Re: [cdcbaa] serving debtor by email (per clients request)
You can do a request for courtesy notification. There is a form and instructions on how to do that in the courts website.
He will then get all service electronically not just things you file.
Sent from my iPhone
On May 1, 2012, at 2:31 PM, Kirk Brennan wrote:
>One of my clients, a chapter 11 debtor, has requested that I email to
him all documents that I file instead of mailing hard copies. He points out that this will save time and money.
>I agree but am not sure how the Courts feel about this.
>Do I need to get Court approval to serve my client via email?
>Do I simply change the Proof of Service to reflect service via email instead of by snail mail?
>
>Thanks,
>
>--
>Kirk Brennan, esq.
>California Law Office, P.C.
>www.calibankruptcysite.com
>
>CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the exclusive and confidential use of the intended recipient. If you are not the intended recipient, please do not read, distribute or take action in reliance on this message. If you have received this message in error, please notify us immediately by return e-mail and promptly delete this message and its attachments from your computer system. We do not waive attorney-client or work product privilege by the transmission of this message.
>TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not constitute a "reliance opinion" as defined in IRS Circular 230 and may not be used to establish reasonable reliance on the opinion of counsel for the purpose of avoiding the penalty imposed by Section 6662A of the Internal Revenue Code. The firm provides reliance opinions only in formal opinion letters containing the signature of a director.
>
>
The post was migrated from Yahoo.
You can do a request for courtesy notification. There is a form and instructions on how to do that in the courts website.
He will then get all service electronically not just things you file.
Sent from my iPhone
On May 1, 2012, at 2:31 PM, Kirk Brennan wrote:
> One of my clients, a chapter 11 debtor, has requested that I email to him all documents that I file instead of mailing hard copies. He points out that this will save time and money.
> I agree but am not sure how the Courts feel about this.
> Do I need to get Court approval to serve my client via email?
> Do I simply change the Proof of Service to reflect service via email instead of by snail mail?
>
> Thanks,
>
> --
> Kirk Brennan, esq.
> California Law Office, P.C.
> www.calibankruptcysite.com
>
> CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the exclusive and confidential use of the intended recipient. If you are not the intended recipient, please do not read, distribute or take action in reliance on this message. If you have received this message in error, please notify us immediately by return e-mail and promptly delete this message and its attachments from your computer system. We do not waive attorney-client or work product privilege by the transmission of this message.
> TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not constitute a "reliance opinion" as defined in IRS Circular 230 and may not be used to establish reasonable reliance on the opinion of counsel for the purpose of avoiding the penalty imposed by Section 6662A of the Internal Revenue Code. The firm provides reliance opinions only in formal opinion letters containing the signature of a director.
>
>
You can do a request for courtesy notification. There is a form and instructions on how to do that in the courts website. He will then get all service electronically not just things you file. Sent from my iPhoneOn May 1, 2012, at 2:31 PM, Kirk Brennan <kirkinhermosa@gmail.com> wrote:
One of my clients, a chapter 11 debtor, has requested that I email to
him all documents that I file instead of mailing hard copies. He points
out that this will save time and money.I agree but am not sure how the Courts feel about this.
Do I need to get Court approval to serve my client via email?Do I simply change the Proof of Service to reflect service via email instead of by snail mail?Thanks,-- Kirk Brennan, esq.
California Law Office, P.C.www.calibankruptcysite.comCONFIDENTIALITY NOTICE: This e-mail and any attachments are for the exclusive and confidential use of the intended recipient. If you are not the intended recipient, please do not read, distribute or take action in reliance on this message. If you have received this message in error, please notify us immediately by return e-mail and promptly delete this message and its attachments from your computer system. We do not waive attorney-client or work product privilege by the transmission of this message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not constitute a "reliance opinion" as defined in IRS Circular 230 and may not be used to establish reasonable reliance on the opinion of counsel for the purpose of avoiding the penalty imposed by Section 6662A of the Internal Revenue Code. The firm provides reliance opinions only in formal opinion letters containing the signature of a director.
The post was migrated from Yahoo.
One of my clients, a chapter 11 debtor, has requested that I email to him
all documents that I file instead of mailing hard copies. He points out
that this will save time and money.
I agree but am not sure how the Courts feel about this.
Do I need to get Court approval to serve my client via email?
Do I simply change the Proof of Service to reflect service via email
instead of by snail mail?
Thanks,
Kirk Brennan, esq.
California Law Office, P.C.
www.calibankruptcysite.com
CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the
exclusive and confidential use of the intended recipient. If you are not
the intended recipient, please do not read, distribute or take action in
reliance on this message. If you have received this message in error,
please notify us immediately by return e-mail and promptly delete this
message and its attachments from your computer system. We do not waive
attorney-client or work product privilege by the transmission of this
message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not
constitute a "reliance opinion" as defined in IRS Circular 230 and may not
be used to establish reasonable reliance on the opinion of counsel for the
purpose of avoiding the penalty imposed by Section 6662A of the Internal
Revenue Code. The firm provides reliance opinions only in formal opinion
letters containing the signature of a director.
One of my clients, a chapter 11 debtor, has requested that I email to
him all documents that I file instead of mailing hard copies. He points
out that this will save time and money.I agree but am not sure how the Courts feel about this.
Do I need to get Court approval to serve my client via email?Do I simply change the Proof of Service to reflect service via email instead of by snail mail?Thanks,-- Kirk Brennan, esq.
California Law Office, P.C.www.calibankruptcysite.comCONFIDENTIALITY NOTICE: This e-mail and any attachments are for the exclusive and confidential use of the intended recipient. If you are not the intended recipient, please do not read, distribute or take action in reliance on this message. If you have received this message in error, please notify us immediately by return e-mail and promptly delete this message and its attachments from your computer system. We do not waive attorney-client or work product privilege by the transmission of this message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not constitute a "reliance opinion" as defined in IRS Circular 230 and may not be used to establish reasonable reliance on the opinion of counsel for the purpose of avoiding the penalty imposed by Section 6662A of the Internal Revenue Code. The firm provides reliance opinions only in formal opinion letters containing the signature of a director.
The post was migrated from Yahoo.