Bayview Loan Servicing, LLC v. Blackmon

Filing 39

ORDER granting 38 Motion for Alternate Service; granting 38 Motion to Adjourn. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BAYVIEW LOAN SERVICING, LLC,
Plaintiff,

Case No. 10-11693
Honorable David M. Lawson

v.
ODELL BLACKMON,
Defendant.
_________________________________________/
ORDER GRANTING PLAINTIFF’S EX PARTE MOTION FOR ALTERNATE
SERVICE AND TO ADJOURN SHOW CAUSE HEARING
On July 29, 2011, the plaintiff filed a motion for an order to show cause why defendant Odell
Blackmon should not be held in contempt for failing to appear for his creditor’s examination. The
Court granted the plaintiff’s motion and entered an order on August 4, 2011, directing the defendant
to appear and show cause on August 24, 2011. The plaintiff was ordered to serve the defendant by
August 15, 2011. On August 16, 2011, plaintiff’s counsel contacted Chambers and indicated that
he had been unable to serve the defendant by the deadline established by the Court. The plaintiff
requested an extension of the service deadline and the hearing date because it believes the defendant
may be evadng service. The Court granted the requested extension, scheduled a hearing for
September 20, 2011, and ordered the plaintiff to serve the defendant at his home by September 5,
2011.
On September 16, the plaintiff filed an ex parte motion requesting that the hearing scheduled
for September 20, 2011 be adjourned and that the plaintiff be allowed to serve the defendant by
alternate means because the defendant was evading service. The plaintiff presented three affidavits

detailing seven attempts by the plaintiff’s process server to serve the defendant personally at his
home.
An order to appear and show cause is a command by the Court, the disobedience of which
itself may be punished by contempt. A party who receives notice of an order to appear must present
himself to the Court at the proper date and time. Failure to appear may result in the issuance of a
warrant for arrest. See 18 U.S.C. § 401(3); In re Campbell, 761 F.2d 1181, 1186 (6th Cir. 1985).
Before the Court would issue a bench warrant for failure to appear, the Court must be assured
that the respondent had actual notice of the show cause hearing. A method of service other than
delivery must be reasonably calculated to provide actual notice. See Dusenbery v. United States,
534 U.S. 161, 168, 170 (2002) (explaining that the Due Process Clause does not mandate actual
notice; rather, a party “must attempt to provide actual notice”) (citing Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314, 319 (1950)).
In this case, the plaintiff has made multiple attempts to serve the defendant personally with
the show cause order, all of which were rebuffed. The plaintiff has asked permission to serve the
order by sending it to the defendant’s residence using the United States mail and tacking the order
to the defendant’s house. The mail has been found to be a method of service that is reasonably
calculated to give actual notice. See Mullane, 339 U.S. at 319. The plaintiff’s proposed methods
of service are constitutionally adequate. See Fed. R. Civ. P. 5(b)(2)(C).
The Court finds that personal service of the order reasonably cannot be made and the
substitute means requested reasonably are calculated to give the defendant actual notice of the
proceedings and an opportunity to be heard. The Court further finds that the plaintiff’s request for
an adjournment is reasonable under the circumstances and will grant it.

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Accordingly, it is ORDERED that the plaintiff’s ex parte motion for alternate service and
to adjourn the show cause hearing [dkt. #38] is GRANTED.
It is further ORDERED that the September 20, 2011 show cause hearing is ADJOURNED
to October 24, 2011 at 2:00 p.m..
It is further ORDERED that defendant Odell Blackmon shall appear with counsel in the
Theodore Levin United States Courthouse, 231 W. Lafayette Blvd., Courtroom 860, Detroit,
Michigan, for a hearing on October 24, 2011 at 2:00 p.m. at which time the defendant must show
cause why he should not be held in contempt of court for his failure to appear for a creditor’s
examination pursuant to a duly issued and served subpoena.
It is further ORDERED that the plaintiff may serve the defendant Odell Blackmon
by:
(A)

posting a copy thereof, along with a copy of this petition and order for substituted
service of process, at the defendant’s residence at 38508 Emerald Lane North,
Westland, Michigan 48185;

(B)

mailing a copy of the same by certified mail (return receipt requested) to the
defendant’s residence noted above; and

(C)

mailing a copy of the same by first class mail to the defendant’s residence noted
above.

It is further ORDERED that the plaintiff must serve defendant Odell Blackmon with a copy
of this order in the manner described above on or before Monday, October 10, 2011.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 20, 2011

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 20, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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