Commentary

2017 Addition of 9013-1(a)(3): There is a difference between giving “notice” of a motion and “serving” a party with a motion. Generally speaking, all creditors should receive a general notice so that they have an opportunity to provide input on the proposed action, but parties whose individual rights may be directly impacted by the motion must be “served” with a copy of the motion and notice. For example, if the trustee wants to sell the debtor’s business “free and clear of any liens” (meaning the purchaser will acquire the property free of any pre-existing liens against the property), then the entire creditor body should be given notice of this proposed action, but in addition those creditors who hold liens of record against the property must be “served” with the motion. Giving notice may be as simple as sending the notice in the mail addressed to the post office box of the creditor.

“Serving” a creditor whose lien rights may be impacted by the motion may require sending the notice, the motion, and all of its attachments to the creditor’s registered agent or a named officer of the company. Fed. R. Bankr. P. 7004 governs the manner in which a party must be served. This Rule refers to service of a complaint but it also applies to motions impacting individual party rights. The manner of service required under this Rule differs depending on the identity of the party.

Governmental agencies must be served differently than a private company. An “insured depository institution,” which includes many banks, requires a completely different form of service. The purpose behind these technical rules governing service is to ensure that the motion and notice will be placed into the hands of decision makers more quickly than merely mailing it to a post office box.