In the Matter of Park Nursing Center, Inc., Debtor. Creditors Committee of Park Nursing Center, Inc. v. Richard Samuels

766 F.2d 261, 1985 U.S. App. LEXIS 20206, 13 Bankr. Ct. Dec. (CRR) 498, 54 U.S.L.W. 2061
Court of Appeals for the Sixth Circuit·Decided July 5, 1985·No. 83-1261·Published·Cited by 65 cases

Opinions

[262] MERRITT, Circuit Judge.

In this constitutional challenge under the Due Process Clause to Bankruptcy Rule 704(c)(1),1 defendant-appellant Samuels raises a question of first impression concerning service of process. He argues that bankruptcy service of process by first-class mail instead of by personal service, as provided in the rule, violates the Due Process Clause of the Fifth Amendment because it provides insufficient notice of adversary proceedings and too much room for error. We hold that there is no constitutional notice defect in the rule.

I.

The Creditors’ Committee of Park Nursing Center, Inc. obtained an order in Chapter 11 proceedings on October 5, 1981, permitting the Committee to institute adversary proceedings against Samuels claiming preferential transfers by Park Nursing Center, Inc. to him. On October 14, 1981, in accordance with Rule 704(c)(1), the Committee sent Samuels a copy of the summons and complaint by first-class mail addressed to 4600 Larme, Allen Park, Michigan, Samuels’ wife’s residence and Sam-uels’ last known address. At this time Samuels was separated from his wife. The record shows that Samuels submitted a change of address form to the U.S. Post Office changing his mailing address from 4600 Larme to Samuels’ business address at 23900 Outer Drive, Melvindale, Michigan. During October, 1981, mail addressed to Samuels at the Larme address was forwarded to Samuels’ business address.

Samuels failed to appear, and on May 17, 1982, a default judgment for the amount of $34,200.00 was entered against him. On August 13, 1982, Samuels filed a motion for relief against the default judgment. The Bankruptcy Judge held that Bankruptcy Rule 704(c)(1) meets the due process requirements of the Fifth Amendment and that Samuels failed to show that he had a meritorious defense to the action. On appeal the District Court affirmed the Bankruptcy Court’s decision upholding the constitutionality of Bankruptcy Rule 704(c)(1).

In the bankruptcy court, in the District Court, and again before us, Samuels has taken the position that service of process by first-class mail within the judicial district is unconstitutional whether notice is received or not. Because he maintains that a bankruptcy court cannot obtain personal jurisdiction over persons living within its judicial district by any means short of personal service, he has argued that he could have ignored the summons and complaint even if he had received them. Moreover, he has chosen to make no attempt at showing a meritorious defense to the action; instead, he has relied upon his claim that the court lacked jurisdiction.

II.

The question before us is whether Bankruptcy Rule 704(c)(1) permitting service of process by first class mail satisfies the constitutional requirements of procedural due process, a serious problem since notice is an essential element of due process, as this Court recently observed in Lindsey v. Greene, 649 F.2d 425, 426 (6th Cir.1981), aff'd Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982):

Federal Courts have long held that procedural due process requirements come into play when government power is used to deprive a person of an interest, derived from the common law, in the peaceful possession and use of real property. Notice of suit and an opportunity [263] to be heard is an essential element of a judicial proceeding, distinguishing it from the exercise of arbitrary power.

In general, the constitutional standard regarding notice is found in Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Mullane the Supreme Court held that whether a particular form of notice satisfies due process requirements depends on whether that form of notice “is in itself reasonably certain to inform those affected....” Id. at 315, 70 S.Ct. at 657. “[NJotice must be such as is reasonably calculated to reach interested parties.” Id. at 318, 70 S.Ct. at 659. The Supreme Court has thus established a balancing procedure in which costs and efficiency considerations are balanced against the probability that a procedure will effectuate notice.

What is needed in bankruptcy proceedings is a form of notice which is likely to achieve actual notice in a large volume of cases but is not overly expensive or time consuming. Bankruptcy proceedings occupy a large and important place in our federal judicial system. In 1983 there were 490,-717 petitions filed in bankruptcy court, and of the 842,229 bankruptcy proceedings pending, 123,442 were adversary proceedings. Fed.Jud. Workload Statistics 19-21 (March 31, 1984).

A rule of notice in bankruptcy proceedings is adequate if it meets the following conditions in addition to cost-effectiveness. The rule must reasonably be calculated to achieve actual notice, and there must be an available procedure, either as part of the rule, or as part of the general rules of civil procedure under which a person who fails to receive notice, through no fault of his own, has some available remedy for setting aside the judgment of default entered against him. If first class mail fails to give Samuels actual notice through no fault of his own, and if the default judgment entered against him were automatically irrevocable, then Samuels would have a strong argument that his procedural due process rights are in jeopardy. But that circumstance is not the case here.

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In the Matter of Park Nursing Center, Inc., Debtor. Creditors Committee of Park Nursing Center, Inc. v. Richard Samuels, 766 F.2d 261, 1985 U.S. App. LEXIS 20206, 13 Bankr. Ct. Dec. (CRR) 498, 54 U.S.L.W. 2061 (6th Cir. 1985).

766 F.2d 261 (In the Matter of Park Nursing Center, Inc., Debtor. Creditors Committee of Park Nursing Center, Inc. v. Richard Samuels) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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