Adversary Proceedings

General Information

An adversary proceeding is a lawsuit arising in or related to a bankruptcy case that is commenced by filing a complaint with the bankruptcy court. This includes an objection to discharge or to the dischargeability of certain debts. Adversary proceedings may result in a trial before the judge assigned to the case.

A complaint is the first document in an adversary proceeding. The complaint notifies the court and the defendant of the grounds claimed by the plaintiff as the basis for an award of money or other requested relief against the defendant.

All adversary proceedings must be resolved before a bankruptcy case can be closed.

Along with a complaint, the filing party must also file an Adversary Proceeding Cover Sheet (Form 1040) and submit the filing fee (unless one of the exceptions in 28 U.S.C. §1930 applies).

Once the complaint is received and the adversary proceeding is commenced, a summons will be issued by the court. The plaintiff must serve the summons on the defendant and then return a copy of the Certificate of Service to the court. As with most procedures related to a bankruptcy or adversary proceeding, the requirements (the “how to”) of “serving” a summons may be found in the Federal Rules of Bankruptcy Procedure.

The defendant’s answer to the complaint is due within 30 days after the summons is issued to the plaintiff by the court (except that the United States and its offices and agencies have 35 days to answer a complaint).

A pretrial conference will be scheduled at the time of the filing of the complaint and will be listed on the summons.

If no answer is filed by the defendant, the plaintiff may file a request for default. This should be filed within fourteen days of the expiration of time for the defendant to answer the complaint.