Believe it or not, service by certified may be an inferior and ineffective method for serving a summons and complaint. Without a return receipt establishing receipt by the addressee, certified mail doesn’t work.
The plaintiffs in an adversary proceeding obtained a summons from the clerk and attempted service on the defendant by sending the summons and complaint by certified mail, return receipt requested. Evidently, the plaintiffs never received a return receipt showing delivery.
When the defendant did not respond to the complaint, the clerk of the bankruptcy court entered the defendant’s default. The plaintiffs then filed a motion for judgment by default.
Chief Bankruptcy Judge B. McKay Mignault of Charleston, W. Va., denied the motion for a default judgment without prejudice in an opinion on March 15.
Judge Mignault explained how the service of a summons and complaint in an adversary proceeding is governed by Bankruptcy Rule 7004. Because the defendant was a corporation, Rule 7004(b)(3) permits service by certified mail.
Ordinary mail is dropped in the recipient’s mailbox regardless of whether anyone is home. With certified mail, on the other hand, Judge Mignault explained how the letter carrier leaves a notice of attempted delivery if no one is home and then attempts delivery twice more. If the attempts at delivery fail and the letter is not picked up, the post office returns the item as unclaimed.
In short, the letter carrier does not leave certified mail at the address unless someone signs the receipt.
Judge Mignault ruled that service by certified mail was improper because “the record does not include a return receipt or envelope showing refusal.”
Rule 7004 and Federal Rule 4(h)(1)(A) also permit service under state law. West Virginia does not allow judgment by default in the absence of a receipt showing acceptance by the defendant. Judge Mignault ruled that service was also ineffective under state law given the absence of a return receipt.
With nothing in the record showing receipt, Judge Mignault ruled that “default judgment cannot be granted.”
Believe it or not, service by certified may be an inferior and ineffective method for serving a summons and complaint. Without a return receipt establishing receipt by the addressee, certified mail doesn’t work.
The plaintiffs in an adversary proceeding obtained a summons from the clerk and attempted service on the defendant by sending the summons and complaint by certified mail, return receipt requested. Evidently, the plaintiffs never received a return receipt showing delivery.
When the defendant did not respond to the complaint, the clerk of the bankruptcy court entered the defendant’s default. The plaintiffs then filed a motion for judgment by default.
Chief Bankruptcy Judge B. McKay Mignault of Charleston, W. Va., denied the motion for a default judgment without prejudice in an opinion on March 15.