In re Downings

Thomas J. Tucker

This case is before the Court on a motion filed by the Debtor entitled "Motion to Recover Funds and for Attorney Fees and Punitive Damages" (Docket # 24, the "Motion"). The Motion seeks to avoid a pre-petition transfer, in the form of a creditor's garnishment of Debtor's tax refund, as a preference under 11 U.S.C. § 547, and recover the amount of that transfer. Debtor filed a Certification of Non-Response, indicating that no one has filed an objection to the Motion. The Motion must be denied because Debtor must file an adversary proceeding to obtain this type of relief, under Fed.R.Bankr.P. 7001(1).

In addition, the Court notes that there is no proper certificate of service on file showing that the respondent, Ford Motor Credit Company, LLC ("Ford"), was served with the Motion or the 14-day notice of the Motion. The only certificate of service says only that an attorney, who apparently represents Ford (Michael Szuba), will be served by the Court's ECF system. (See the last page of Docket # 24). But the Court's records show that Mr. Szuba was not so served. (He has not entered an appearance in this case.)

Accordingly,

IT IS ORDERED that the Motion (Docket # 24) is denied, without prejudice to Debtor's right to file an adversary proceeding seeking the same relief.

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Thomas J. Tucker

United States Bankruptcy Judge