Opinion
20-11435 PROC. 21-1001
04-29-2021
IN RE JAMES ALLYN FOSTER KATHERINE KAY FOSTER Debtors v. KATHERINE KAY FOSTER Defendants KAPITUS SERVICING Plaintiffs
NOT INTENDED FOR PUBLICATION
DECISION AND ORDER DENYING MOTION FOR ENTRY OF DEFAULT
Robert E. Grant Chief Judge, United States Bankruptcy Court
The technical formalities for service of process must be observed or service is insufficient. See, McMasters v. U.S., 260 F.3d 814, 817-18 (7th Cir. 2001); Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 300-301 (7th Cir. 1991). Even actual notice of the litigation will not cure defective service of process. Mid-Continent Wood Products, 936 F.2d at 301. In bankruptcy proceedings, one of those requirements is that a summons must be served within seven (7) days of the date it was issued. Fed.R.Bankr.P. Rule 7004(e). If it is not done within that time, service is defective. InreCappuccilli, 193 B.R. 483, 486-87 (Bankr. N.D. 111. 1996); In re Campbell, 105 B.R. 19 (9th Cir. B.A.P. 1989); In re Tuzzolino, 71 B.R. 231, 233 (Bankr. N.D. N.Y. 1986).
An alias summons was issued in this adversary proceeding on February 3, 2021. That summons and the complaint were timely served upon the debtor/defendant. But the debtor is represented by counsel in the main bankruptcy case and so proper service requires that the summons and complaint also be served upon debtor's attorney. Fed R. Bankr P. Rule 7004(g). That was not done until April 9, 2021, after the court denied Plaintiffs motion for default judgment. By then, it was too late, the February 3 summons had expired. Since the present record does not indicate that the defendant has been properly served, Plaintiffs request for the entry of default is DENIED. 10A Fed. Prac. & Proc. Civ. § 2682, Entry of Default Under Rule 55(a) (4th ed.) (before a default can be entered, the court must have subject-matter jurisdiction and jurisdiction over the party against whom the judgment is sought which also means that the party must have been effectively served with process).