UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON DIVISION

IN RE:

FLOYD T. COMBS

CONSTANCE JO COMBS

DEBTORS CASE NO. 91-00166

JAMES A. NOLAN, TRUSTEE

PLAINTIFF

VS: ADV. NO. 91-0175

CITIBANK VISA NFL, BANK

ONE VISA and DISCOVER

FINANCIAL SERVICES

DEFENDANT

MEMORANDUM OPINION

This matter is before the Court on the Motion to Set Aside Default Judgment and to Allow Hearing on the Merits filed by Discover Financial Services ("Discover"). The Motion is based on the contention that the plaintiff failed to effect proper service upon Discover. The plaintiff has responded to the Motion. Default judgment was entered against Discover in this matter on October 21, 1991.

Discover states that the plaintiff attempted to serve notice of the action upon it by mailing copies of the Summons and Complaint to an address used for collection rather than to the address it designates as correct for proper service of process. Service of process upon a corporation by mail is governed by Federal Rule of Bankruptcy Procedure 7004(b)(3) which states that such service may be made "[u]pon a domestic...corporation ... by mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process..."

Interpretation of this rule, or its predecessor, Rule 704(c)(3), has centered on its intent, rather than on "strict formalism". In In re Schack Glass Industries Co., Inc., 20 B.R. 967 (Bkrtcy.S.D.N.Y. 1982), the summons and complaint were not directed to the attention of any officer, managing agent or other authorized agent, as specified by the rule. However, the summons and complaint were transmitted by company personnel at the address to which they were sent in Washington, D.C., to the company's managing director in Saudi Arabia, along with a request for information so as to assert a defense to the action. The company therefore had notice of the commencement of the action, together with copies of the summons and complaint.

As the Schack Glass court pointed out

At page 971. In the within action, the address to which the summons and complaint were sent and the address to which Discover maintains they should have been sent were both in Wilmington, Delaware. It would appear that if a summons and complaint can make their way from Washington, D.C., to Saudi Arabia, then the same can be accomplished within a city.

In conclusion, it is the opinion of this Court that the sending of the summons and complaint to an incorrect address for Discover, but one of its addresses nonetheless, was not a fatal error on the part of the plaintiff. Discover's Motion to Set Aside Default Judgment will therefore be overruled by separate order.

Dated:

BY THE COURT

________________________________

BANKRUPTCY JUDGE

COPIES TO:

Debtor

Terry Risner, Esq.

James A. Nolan, Esq., Trustee

mcombs.opi