Opinion
CASE NO. 07-21969 JPK.
June 18, 2009
ORDER CONCERNING MOTION FOR SUBSTITUTION OF COLLATERAL ("MOTION")
The Motion was filed by the debtors on May 28, 2009. The Motion seeks to utilize insurance proceeds, apparently derived from a casualty loss to the debtors' vehicle which constitutes property of their Chapter 13 estate, in order to replace that vehicle. The insurance proceeds essentially constitute "cash collateral" with respect to the subject vehicle in relation to the creditor having a security interest in that vehicle, and is thus subject to 11 U.S.C. § 363(c)(2). As such, the Motion is subject to Fed.R.Bankr.P. 4001(b), which provides that a motion subject to that provision "shall be made in accordance with Rule 9014 and shall be served on any entity which has an interest in the cash collateral . . . ". Fed.R.Bankr.P. 9014(b) requires service of a motion in accordance with the provisions of Fed.R.Bankr.P. 7004. The entity apparently having an interest in the cash collateral is Tech Credit Union, and thus service of process must be effected pursuant to Fed.R.Bankr.P. 7004(b)(3) or (b)(7) [which essentially requires service in the same manner under Indiana rules as that required by Fed.R.Bankr.P. 7004(b)(3)]. Service has not been properly effected with respect to the Motion.
IT IS ORDERED that the court will take no action with respect to the Motion until proper service of it has been made upon Tech Credit Union. If a certificate of service evidencing proper service of the Motion upon Tech Credit Union has not been filed with the court within 21 days of the date of entry of this order, the Motion will be denied, without prejudice. If such a certificate of service is filed, the Motion will be set for hearing.
IT IS FURTHER ORDERED that the form of "drop dead" notice utilized by debtors' counsel is not provided for by any rule or statute, and is invalid for any purpose.