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In re Mack

United States Bankruptcy Court, N.D. Georgia, Atlanta Division
Mar 12, 2004
Case No. 03-94486, Adversary No. 03-9208 (Bankr. N.D. Ga. Mar. 12, 2004)

Summary

finding that defendant was not in default where service was insufficient and denying plaintiff's motion for default judgment

Summary of this case from HRN Grp. v. O'Kelley & Sorohan, Attorneys at Law, LLC (In re HRN Grp.)

Opinion

Case No. 03-94486, Adversary No. 03-9208.

March 12, 2004


ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND DENYING DEFENDANT'S MOTION TO SET ASIDE A DEFAULT AS MOOT


Plaintiff moves for a default judgment but tripped up by waiting more than ten days after issuance of the summons to serve it. The docket in this adversary proceeding reflects that the complaint was filed and the summons was issued on July 2, 2003. Plaintiff filed a certificate of service showing personal service of the summons and complaint on Defendant on July 17, 2003. Personal service is provided for in Fed.R.Civ.P. Rule 4(e), made applicable by F.R.Bankr.P. 7004(a). Unlike Rule 4, however, Bankruptcy Rule 7004(e) requires that "[s]ervice made under Rule 4(e) . . . shall be by delivery of the summons and complaint within 10 days after the summons is issued." Plaintiff served the summons and complaint 15 days after the issuance of the summons. For this reason, the Clerk refused to make an entry of default.

Defendant filed an answer subsequent to the filing of the motion for a default judgment and a motion to set aside what he perceived to be a default. Because the service of the summons and complaint did not comply with Bankruptcy Rule 7004(e), Defendant was never in default.

Accordingly, it is

ORDERED that Plaintiff's motion for a default judgment is DENIED and Defendant's motion to set aside default is DENIED as moot.


Summaries of

In re Mack

United States Bankruptcy Court, N.D. Georgia, Atlanta Division
Mar 12, 2004
Case No. 03-94486, Adversary No. 03-9208 (Bankr. N.D. Ga. Mar. 12, 2004)

finding that defendant was not in default where service was insufficient and denying plaintiff's motion for default judgment

Summary of this case from HRN Grp. v. O'Kelley & Sorohan, Attorneys at Law, LLC (In re HRN Grp.)

finding that defendant was not in default where service was insufficient and denying plaintiff's motion for default judgment

Summary of this case from HRN Grp. v. Wilmington Sav. Fund Soc'y, FSB (In re HRN Grp.)

finding that defendant was not in default where service was insufficient and denying plaintiff's motion for default judgment

Summary of this case from HRN Grp., LLC v. State Court (In re HRN Grp., LLC)
Case details for

In re Mack

Case Details

Full title:IN RE: ROBERT L. MACK, CHAPTER 7 Debtor. TOMPKINS ASSOCIATES, Plaintiff…

Court:United States Bankruptcy Court, N.D. Georgia, Atlanta Division

Date published: Mar 12, 2004

Citations

Case No. 03-94486, Adversary No. 03-9208 (Bankr. N.D. Ga. Mar. 12, 2004)

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