DuVoisin v. Arrington

112 F.3d 248, 1997 U.S. App. LEXIS 8854

Opinions

MERRITT, J., delivered the opinion of the court, in which BOGGS, J., joined.

BECKWITH, D.J. (pp. 249-51), delivered a separate dissenting opinion.

MERRITT, Circuit Judge.

In this bankruptcy appeal, the District Court reversed the Bankruptcy Court’s decision that the liquidating trustee in bankruptcy, Mr. DuVoisin, had properly effectuated service of process on the defendants by first class mail in his action to recover a preferential transfer to a depositor of a bankrupt savings and loan company. The mailed process did not reach the defendants who lived at a different location from the address on the envelope.

The issues presented on appeal are basically the same as those formulated by the parties in the District Court, as stated in the opinion of the District Court as follows:

1. Whether service of a Summons and Complaint by first-class mail to a defendant’s last known address is proper service under Fed R.Bankr.Pro. 7004(b)(1) where defendant no longer resides at the address to which the Complaint is mailed and plaintiff has in its possession, and does not utilize a second address which is defendant’s dwelling house or permanent place of abode.

2. Whether plaintiffs mailing of the Summons and Complaint to one of the addresses contained in its file constitutes good cause for failure to effect service within the one hundred twenty (120) day period required by Bankruptcy Rule of Procedure 7004 and Fed.R.Civ.P. 4(j) where no response was forthcoming.

The District Court decided each of these questions against the liquidating trustee who now appeals. We affirm the judgment of the District Court for the reasons set out in the comprehensive, clearly stated opinion of District Judge Jordan. Judge Jordan’s holding and reasoning provide the appropriate answer to the questions presented. Judge Jordan’s opinion is found at DuVoisin v. Pressley, 205 B.R. 525 (E.D.Tenn.1996).