This is a reboot of a post from last year, but it bears repeating: summonses in bankruptcy adversarial proceedings must be modified if they are to be served on a defendant located abroad.
The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court. Perfectly logical. And Rule 7004 governs how to serve the summons. Again, logical. But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.
The reality is that a bankruptcy action is going to be served under Rule 4 in most cases. That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does. Schlunk says specifically that if the Convention applies, you have to follow it.
Bankruptcy lawyers are under no heavier a burden than the rest of us. There’s no difference in how you must get service effected, whether a bankruptcy adversarial proceeding or a personal injury suit. There’s a problem, though: proper Hague service takes a while— a very long while in many instances– and bankruptcy summonses must be answered within thirty days after issuance. That’s not a big problem here at home.
But, hang on, says the adverse party. It is a problem here at home. You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer?
Well, no, not exactly. The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e). Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).
But 7004(e) applies only within the United States. The seven-day rule doesn’t apply when serving abroad. So how to get around the expiration? Simple. Just modify the language.
To be fair, any adversary is going to need two or three weeks to properly answer a complaint. This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?). Simply put, though, if you have to serve an adversary outside the United States, it won’t happen quickly. Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days. But if it’s not done in either of those two countries, forget it.
Tell the Clerk that the summons (Form B 250A) must set a deadline based on the date of service— not based on the date of issuance. Best bet: go 21 days, just like you’d have in a regular AO440. It doesn’t have to be an overly complicated edit, and it doesn’t have to alter the substance of the document itself. Seriously, the picture above shows it all.
(And to be sure, Bankr. Rule 7012(a) requires the court to set a different answer deadline for offshore defendants… you’ll get very little pushback from clerks in the know.)