Gray v. Skidmore

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

Russ Kendig -
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: ) CHAPTER 7
LORI ANN SKIDMORE, CASE NO. 11-61526

Debtor. ADV. NO. 11-6072
FRANCES LYNN GRAY, JUDGE RUSS KENDIG

Plaintiff,
V. MEMORANDUM OF OPINION

) (NOT FOR PUBLICATION)

LORI ANN SKIDMORE, )

Defendant.

Plaintiffs motion for default judgment, filed on November 23, 2011, is before the court.
Defendant-debtor (“Debtor”) filed a response on December 5, 2011.

The court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334 and the general
order of reference entered in this district on July 16, 1984. Venue in this district and division is
proper pursuant to 28 U.S.C. § 1409. This is a core proceeding under 28 U.S.C. § 157(b)(2)(D).

This opinion is not intended for publication or citation. The availability of this opinion,
in electronic or printed form, is not the result of a direct submission by the court.

Prcoro-n Doc 12 FILED 12/15/11 ENTERED 12/15/11 08:07:33 Page 1 of 2

DISCUSSION

This adversary is tied to claims pending in the probate court of Medina County. Debtor
was the guardian of Plaintiff, who sued her for alleged breaches of fiduciary duties as guardian.
Plaintiff filed this adversary on August 29, 2011, alleging nondischargeability under 11 U.S.C.

§ 523(a)(2), (4) and (6).

Plaintiff moves for default judgment under Federal Rule of Civil Procedure 55, adopted
into bankruptcy practice by Federal Rule of Bankruptcy Procedure 7055. The motion alleges that
the complaint and summons were served on August 29, 2011, requiring an answer by September
30, 2011. Plaintiff seeks default judgment for Debtor’s untimely answer of October 5, 2011.

Federal Rule of Bankruptcy Procedure 7004 outlines the requirements for service of the
summons and complaint in an adversary proceeding. The record bares no evidence of execution
of the summons following its issuance by the court on August 31, 2011. Consequently, the court
cannot find that Debtor’s answer dated October 5, 2011 is untimely as alleged by Plaintiff in the
motion for default judgment. Additionally, there is no proof that Plaintiff complied with the
Initial Pretrial and Case Management Order and served it on Debtor.

An order denying the motion for default judgment will be issued immediately.

Service List:

Lori Ann Skidmore
423 Keen Avenue
Ashland, OH 44805

Vance P Truman

689 Layfayette Road
Medina, OH 44256

11-06072-rk Doc12 FILED 12/15/11 ENTERED 12/15/11 08:07:33 Page 2 of 2