Citizens Bank v. McKenzie (In Re McKenzie)

MEMORANDUM AND ORDER J. BRATTON DAVIS, Bankruptcy Judge. In this adversary proceeding, The Citizens Bank, seeks the denial of a discharge to the debtor, pursuant to 11 U.S.C. § 523(a)(2), on account of the debtors’ indebtedness to the bank as shown on proof of claim number 3 filed herein by the bank. Counsel for the defendants (the debtors in possession) moved for a dismissal of the adversary proceeding on the ground that the Summons and Complaint were served upon counsel rather than upon the debtors in possession. *43 The plaintiff contends that the defendants’ attorney, by virtue of having granted to the plaintiff an extension of time within which to object to the discharge, has entered an appearance in the adversary proceeding; thus, service upon the attorney of record constitutes good service. The court, however, is persuaded that the extension of time in whieh to file an objection to a discharge is a matter .which must be resolved within the bankruptcy case — not in this adversary proceeding. The plaintiff further argues that under Rule 7004(b)(9) a Summons and Complaint may be served on the attorney of record if the debtor is represented by an attorney. The language of Rule 7004(b)(9), as applicable to this ease, requires the service of the Summons and Complaint upon the debtors and their attorney, rather than simply upon the attorney. Thus, the defendants’ motion to dismiss is proper and should be granted. The plaintiff orally has moved the court for an order extending the time for objecting to the discharge so as to be allowed to file a new adversary proceeding. The court is persuaded that this motion should be denied. ORDER According, IT IS ORDERED that the motion by the defendants to dismiss the adversary complaint on the ground that service has not been effected, is hereby granted and the adversary complaint is dismissed; and it is FURTHER ORDERED that the plaintiff’s motion for additional time within which to file a similar adversary proceeding is denied.