The Process of an Adversary Proceeding

An Adversary Proceeding is similar to a civil lawsuit filed in state court when filed within the context of a bankruptcy case in federal court. All parties in a bankruptcy case - debtors, creditors, and trustees - may have reason to file an Adversary Proceeding, and may need to know the process.

Parties

The party filing the Adversary Proceeding, the plaintiff, looks to bring the party against whom the proceeding is filed, the defendant, before the judge to explain their actions in a legal forum commonly referred to as a hearing or trial. The judge decides the outcome of the issues of the Adversary Proceeding.

Pleadings

Complaint

The Adversary Proceeding process starts when the plaintiff files a complaint against the defendant. A complaint is the first pleading, or document, filed with the bankruptcy court, to notify the defendant, judge and any other interested parties of the nature of the plaintiff’s issue. At the time of filing the complaint, the plaintiff must also pay a filing fee.

Summons

The summons is issued by the clerk of the bankruptcy court. It notifies the defendant that he/she is party to the Adversary Proceeding, explains the next step he/she should take in response to the complaint, and may include the date and time the defendant is requested to appear before the judge. Together with a copy of the complaint, the summons is served on the defendant. Service of process, or the delivery of initial pleadings in a lawsuit, can be accomplished by first-class mail or by personal delivery by a person who is at least 18-years of age and not interested in the proceedings. If the address is unknown, service can be done by publication in a newspaper. Whether done by mail or personal service, service of process must be accomplished within 14 days of the summons being issued.

Answer

After the summons is issued by the clerk, and the defendant is served with copies of the summons and complaint, the defendant should answer the complaint within 30 days. The answer should admit or deny each of the claims set forth in the plaintiff’s complaint, by answering each of the numbered paragraphs with either admit or deny.

When to Talk to an Attorney

As a party to a bankruptcy, you may have reason to file an Adversary Proceeding. If you are unsure of how or when to file an Adversary Proceeding, it is important to contact a qualified, bankruptcy attorney.

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