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90 N.C. L. Rev. Addendum 1 (2011-2012)

handle is hein.journals/addendum3 and id is 1 raw text is: SERVING A SUMMONS BY FIRST CLASS MAIL: WHY BANKRUPTCY RULE 7004(b)(1) VIOLATES DUE PROCESS* JONATHON S. BYINGTON* Even though it has been accepted and widely used throughout the nation for thirty-five years by courts, practitioners, and commentators, the service method of delivering a summons and complaint solely by first class mail under Bankruptcy Rule 7004(b) (1) violates due process. Bankruptcy court jurisdiction was vastly expanded after the bankruptcy rules first authorized service by first class mail. This expansion fundamentally changed the nature of bankruptcy proceedings for which mail service could be made. Basing the legitimacy of something on the sole ground that it has been in existence for a long time without being changed is unconvincing logic and standing alone, does not legitimize Bankruptcy Rule 7004(b)(1). Because a summons carries out the dual purpose of providing notice to a defendant and conferring personal jurisdiction over a defendant by a bankruptcy court, the Supreme Court's mailings jurisprudence does not support the constitutionality of delivering a summons by first class mail. Under Mullane's analytical framework, inquiry into the expectations of defendants is appropriate because the intended beneficiary of both the Fifth and Fourteenth Amendments is the recipient of the process, not the sender or the summoning court. Defendants simply do not expect to be sued through a delivery method as informal as first class mail. In addition, service by first class mail creates proof of service problems and produces uncertainty over the defendant's receipt of the summons, resulting in questions over the legitimacy of the bankruptcy court's jurisdiction over the defendant. Consequently, delivery by first class mail under Bankruptcy Rule 7004(b) (1) should be eliminated and replaced with the acknowledgment procedure contained in Rule 4(d) of the Federal Rules of Civil Procedure. * 0 2011 Jonathon S. Byington. ** Partner, law firm of Racine, Olson, Nye, Budge & Bailey, Chartered. I thank Richard Seamon, Jeremy Ladle, and Dustin Charters for their comments on earlier drafts.

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