The case of the day is In re Barkats (Bankr. D.D.C. 2014). In early 2014, several creditors of Pierre Philippe Barkats filed an involuntary bankruptcy petition. They served it on him by “delivery through owner and co-resident” at a home in Chevy Chase, Maryland, which Barkats’s lawyer had listed as Barkats’s address in a document filed with the District of Columbia Superior Court in an unrelated case. But the lawyer later averred that he had given the address solely as an address for receiving mail in the Superior Court action and that Barkat lived in France. After Barkat failed to answer the petition and the creditors obtained an order for relief, Barkats moved to vacate the order on the grounds that he had never been served with the petition.

According to Barkats’s affidavit, Barkats had never lived at the Chevy Chase address and had lived in Paris since 2011. The form of the affidavit is imprecise. It states that Barkats was “first duly sworn,” but the notarial certificate seems to indicate that the notary took his acknowledgment, not his oath:

I hereby certify that on this 16th day of April, 2014, before me, the undersigned Notary Public, personally appeared Pierre Philippe Barkats, and acknowledged himself to be the individual signing this affidavit, and that he executed the foregoing instrument for the purposes therein contained by signing his name.

Moreover, the form of the notarial certificate is typically American, though it was signed and sealed by a French notary.

The judge chose to exclude the affidavit on the grounds that it did not bear an apostille and was not otherwise legalized.¹The creditors were wrong to argue that the apostille was mandatory—the traditional “chain legalization” method remains available, though there’s no reason to use it when an apostille is available. The court’s conclusion seems right to me, though I think, given what I’ve written above, that he could also have excluded the affidavit on the grounds that it wasn’t sworn. When you make an affidavit, it’s not enough to recite that you’ve taken an oath. You actually have to take one, and that fact should be reflected in the certificate of the person with authority to administer the oath, namely the notary.

As the judge noted, Barkats could have avoided these problems altogether by simply following the procedure set out in 28 U.S.C. § 1746, which allows for unsworn declarations in lieu of affidavits. All that is required is a certificate “under penalty of perjury under the laws of the United States of America” that the contents of the document are “true and correct.”

In the end, though, these technicalities didn’t matter. The court held that the creditors had failed to carry their burden to prove service because there was no evidence Barkats had ever lived at the Maryland address, and Barkats’s lawyer had stated, in an affidavit, that his address was in Paris.

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  The creditors were wrong to argue that the apostille was mandatory—the traditional “chain legalization” method remains available, though there’s no reason to use it when an apostille is available.