Unpublished Disposition, 898 F.2d 156 (9th Cir. 1984)

MEMORANDUM^** 

Dennis J. Krum appeals pro se the Bankruptcy Appellate Panel's (BAP) order reversing the bankruptcy court's order denying the United States' motion for relief from judgment under Bankruptcy Rule 9024. The United States had sought relief from the bankruptcy court's September 28, 1984 order discharging a federal tax lien against certain funds held by Krum's bankruptcy estate. Krum contends the BAP erred in finding that the United States was not required to bring its motion for relief within a reasonable time. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the decision of the BAP, In re Windmill Farms, Inc., 841 F.2d 1467, 1469 (9th Cir. 1988), and affirm.

Krum's objection to the bankruptcy trustee's motion to pay disputed claims in 1984 initiated a contested matter within the meaning of the Bankruptcy Rules. See In re Aquaslide 'N' Dive Corp., 85 B.R. 545, 546 (Bankr. 9th Cir. 1987); Bankr.R. 3007, Advisory Comm. Note (1983). Krum was required to serve a copy of his objection on the United States Attorney, but failed to do so. See Bankr.R. 7004, 9014. The bankruptcy court thus lacked personal jurisdiction over the United States. See In re Harlow Properties, Inc., 56 B.R. 794, 799 (Bankr. 9th Cir. 1985); see also Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988). The court's September 28, 1984 order is therefore void as to the United States. See In re Center Wholesale, Inc., 759 F.2d 1440, 1447 (9th Cir. 1985).

Under Fed. R. Civ. P. 60(b) (4), which Bankr.R. 9024 adopts, a motion to set aside a judgment as void may be brought at any time. Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir.), cert. denied, 484 U.S. 976 (1987). Moreover, a court's power to grant relief from judgment under Rule 60(b) (4) is not discretionary; if the challenged judgment is void, relief must be granted. First Fidelity Bank v. Government of Antigua & Barbuda--Permanent Mission, 877 F.2d 189, 196 (9th Cir. 1989). Therefore, the bankruptcy court erred in denying the United States' motion on the ground that the motion was not made within a reasonable time. See id.

Krum's contention that the United States waived any defects in the bankruptcy court's jurisdiction is of no avail. The United States did not file any pleadings in response to Krum's objection or make a general appearance at the hearing on the trustee's motion. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), as amended, 807 F.2d 1514 (9th Cir. 1987), cert. denied, 484 U.S. 870 (1987). Moreover, the informal contacts between Krum's attorney and Justice Department attorneys fail to demonstrate that the United States had a "clear purpose" to challenge the objection. See id.; Wilson v. Moore and Assocs., Inc., 564 F.2d 366, 368-69 (9th Cir. 1977).

Finally, we are not persuaded by Krum's argument that the bankruptcy court had jurisdiction over the government because he "substantially complied" with Rule 7004(b). Krum was represented by counsel throughout the bankruptcy proceedings. His attorney's inattention to the requirements of Rule 7004(b) does not constitute a justifiable excuse for Krum's failure to comply with that Rule. See Whale v. United States, 792 F.2d 951, 952 (9th Cir. 1986).

AFFIRMED.