Author J. Johnson

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
AUTHOR J. JOHNSON,
Debtor.
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Case No. 08-00541
(Chapter 11)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
VACATING ORDER GRANTING MOTION OF INDEPENDENCE
FEDERAL SAVINGS BANK FOR RELIEF FROM THE AUTOMATIC STAY
Independence Federal Savings Bank filed a motion for relief
from the automatic stay but neglected properly to serve it on the
debtor. 	Although the debtor became aware of the motion, that
actual notice does not excuse lack of proper service. 	As stated
in McMasters v. United States, 260 F.3d 814, 817 (7th Cir. 2001),
"neither actual notice nor substantial compliance is sufficient
to satisfy the requirements of Rule 4,” referring to service
under Fed. R. Civ. P. 4. 	That reasoning applies equally to
service under Fed. R. Bankr. P. 7004 (made applicable here by
Fed. R. Bankr. P. 9014).
Improper service can be waived by appearing in the case and
failing to raise the defense of improper service. 	Here, however,
The document below is hereby signed.
Signed: December 02, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Johnson did not file a response to the motion, and thus he did
not fail to raise the defense by not asserting it in papers filed
in the proceeding prior to entry of the order granting the
motion.
Independence’s counsel learned from the debtor of the
defective service but did not take steps to re-serve the motion.
The debtor’s statement to Independence’s counsel of an intention
to oppose the motion, and his failure to do so before the court
granted the motion as unopposed, cannot be taken as a waiver of
the defense of improper service. 	The opposition could have
included the defense of improper service, and the debtor could
have decided to raise the lack of improper service after the
motion was granted instead of raising it by way of opposition to
the motion. 	Accordingly, pursuant to the debtor’s motion to
reconsider, it is
ORDERED that the debtor’s motion to reconsider (Docket Entry
No. 44) is granted as follows. 	It is further
ORDERED that the order (Docket Entry No. 42) granting the
motion of Independence Federal Savings Bank for relief from the
automatic stay is VACATED, and Independence Federal Savings Bank
shall make service anew and give notice of a new hearing date and
of the opportunity to oppose the motion, but the time for the
debtor to oppose the motion is shortened to 8 days after the date
of filing to be noted on the notice of opportunity to oppose the
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3	O:\TEEL\Judge Temp Docs\Johnson (Author) Order Vacating Lift Stay Order.wpd
motion. 	Independence’s counsel should upload anew the proposed
order submitted with its motion.
[Signed and dated above.]
Copies to: Debtor; Office of United States Trustee; Stephen
Nichols, Esq.
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