Bowen v. New Century Mortgage Serv et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
LORYNE JOYCE BOWEN,
Debtor.
____________________________
LORYNE JOYCE BOWEN,
Plaintiff,
v.
NEW CENTURY MORTGAGE SERV.,
et al.,
Defendants.
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Case No. 10-00032
(Chapter 13)
Adversary Proceeding No.
10-10026
Not for publication in
West's Bankruptcy Reporter.
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR ENTRY OF DEFAULT
The plaintiff in the above-captioned adversary proceeding
has filed with the court a praecipe requesting the court to enter
a default judgment against New Century Mortgage based on its
failure to respond to the summons and complaint. 	Because,
however, the plaintiff failed to effect proper service on New
Century an entry of default is inappropriate at this time.
Federal Rule of Bankruptcy Procedure 7004 allows a plaintiff
The document below is hereby signed.
Signed: June 27, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 10-10026 Doc 10 Filed 06/28/10 Entered 06/28/10 13:27:51 Desc Main
Document Page 1 of 3

to effect service of process by either first class mail or
personal service. 	Here, Bowen has opted for personal service,
executing the summons on The Fisher Law Group, care of Jeffrey
Fisher. 	Under Rule 4(h) of the Federal Rules of Civil Procedure,
incorporated in bankruptcy by Federal Rule of Bankruptcy
Procedure 7004(a), a party can effect service of process upon a
corporation, partnership, or association, by either (1) following
the law of the state where the district court is located or
service is effected or (2) delivering a copy of the summons and
complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process and, if the agent is one authorized by statute
and the statute so requires, by also mailing a copy of the
summons and complaint to the defendant. 	Regarding the first
option, District of Columbia law is identical to Rule 4(h)(1)(B)
for service upon a corporation. 	See Superior Court Rule of Civil
Procedure 4(h). 	Accordingly, Bowen's sole option for effecting
service on a corporation in the District of Columbia is to
deliver service to an officer of New Century (or an agent
authorized to receive service on its behalf).
Here, Bowen tried to effect service only upon Mr. Fisher,
the debtor's attorney in a lift-stay proceeding in the main case.
The problem with this service, however, is there is nothing to
show that Fisher is New Century's agent for service of process.
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The mere fact that Fisher represented New Century in a proceeding
seeking relief from the automatic stay does not mean that he is
its agent for service of process in a separate proceeding. 1
Without a certificate of service reflecting personal services of
process on an actual officer of New Century or evidence that
Fisher is its appointed agent for service in all matters, this
court lacks personal jurisdiction over New Century and,
consequently, cannot enter a default judgment against it. 	In
accordance with the foregoing, it is
ORDERED that the plaintiff's motion for default judgment
(Dkt. No. 7) is DENIED.
[Signed and dated above]
Copies to: Loryne Joyce Bowen.
1 	Rather than attempting personal service, the plaintiff
would be well advised to attempt to effect service of process
under Rule 7004(b)(3), which allows Bowen to mail a copy of the
summons and complaint to the attention of an officer of New
Century.
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