Adversary Proceedings
Adversary proceedings are assigned a number (separate from the bankruptcy case number), which must be used in conjunction with the related bankruptcy case number in the caption of all adversary proceedings. Captions of adversary proceedings should clearly reflect the name of the debtor, plaintiff, and defendant.
Pursuant to Federal Rules of Bankruptcy Procedure 7001, an adversary proceeding must be filed when a party is seeking to:
recover money or property, except during a proceeding to compel the debtor to deliver property to the trustee, or a proceeding under 11 USC § 554(b) or § 725 of the Code, Fed. R. Bankr. P. 2017 or 6002.
- determine the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Fed. R. Bankr. P. 4003(d).
- obtain approval pursuant to 11 USC § 363(h) for the sale of both the interest of the estate and of a co-owner in property.
- object to or revoke a discharge.
- revoke an order of confirmation of a chapter 11, 12, or 13 plan.
- determine the dischargeability of a debt.
- obtain an injunction or other equitable relief.
- subordinate any allowed claim or interest, except when subordination is provided in a chapter 9, 11, 12, or 13 plan.
- obtain a declaratory judgment relating to any of the foregoing.
- determine a claim or cause of action removed pursuant to 28 USC § 1452.
Parties to an adversary proceeding are required to designate in their initial pleadings whether a proceeding is core or non-core (28 USC § 157 distinguishes between “core” and “non-core” proceedings). This designation is important to the judges and the clerk’s office in determining how to process and handle final orders and rulings of the court.
Subsections (4) and (5) of the Fed. R. Bankr. P. 7004 address service of a summons and complaint (and in a contested matter, the motion [see Fed. R. Bankr. P. 9014]) on the United States or any officer or agency of the United States. Plaintiffs (or moving parties), frequently fail to effect service in accordance with these subsections. The most common defect is that service is not made on the Attorney General of the United States nor on the officer or agency involved – usually the U.S. Attorney for the district is served. There may be other parties who should also be served, such as the trustee, and that is a determination for the plaintiff (or the moving party) to make. Failure to effect such service could render any order issued on the objection invalid should the party not served subsequently file a motion under Fed. R. Bankr. P. 7060.
After the adversary proceeding is filed, the clerk’s office issues a summons and a scheduling order. A summons is only valid for ten days following its issuance (Fed. R. Bankr. P. 7004(f)). If the ten-day period has passed without the summons being served, the plaintiff should request, in writing, that the summons be reissued.
Federal Rules of Bankruptcy Procedure 7055 (and Fed. R. Civ. P. 55) provides the procedure for defaults and default judgments. The Clerk of Court plays a major role in entering defaults and, in certain circumstances, the Clerk can sign and enter default judgments. If the defendant has failed to respond, the plaintiff should file an affidavit of default, which sets forth the following facts:
The date of issuance of summons;
- A statement of whether the court fixed a deadline for the filing of an answer or motion, or whether the 30 (or 35) day limit applies;
- The date of service of complaint;
- The date of filing of affidavit of service or certificate of mailing;
- A statement that defendant is not an infant or incompetent person, nor has been in the military of the United States since the filing of the suit or for a period of six months prior to such filing;
- A statement that no answer or motion has been received within the time limit.
There are certain time constraints when filing an adversary proceeding pursuant to 11 USC § 523 and § 727 of the Bankruptcy Code. Please consult Fed. R. Bankr. P. 4004(a)(b)(c), 4007(c)(d), and 9006(b)(3) for time constraints associated with complaints to determine dischargability and objecting to discharge.
The party initiating an adversary proceeding (Bankruptcy Rule 7004) or a contested matter (Bankruptcy Rule 9013) against an insured depository institution shall make service on insured depository institutions by certified mail when that service is required by Bankruptcy Rule 7004(h). Adversary Proceedings
Adversary proceedings are assigned a number (separate from the bankruptcy case number), which must be used in conjunction with the related bankruptcy case number in the caption of all adversary proceedings. Captions of adversary proceedings should clearly reflect the name of the debtor, plaintiff, and defendant.
Pursuant to Federal Rules of Bankruptcy Procedure 7001, an adversary proceeding must be filed when a party is seeking to:
recover money or property, except during a proceeding to compel the debtor to deliver property to the trustee, or a proceeding under 11 USC § 554(b) or § 725 of the Code, Fed. R. Bankr. P. 2017 or 6002.
- determine the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Fed. R. Bankr. P. 4003(d).
- obtain approval pursuant to 11 USC § 363(h) for the sale of both the interest of the estate and of a co-owner in property.
- object to or revoke a discharge.
- revoke an order of confirmation of a chapter 11, 12, or 13 plan.
- determine the dischargeability of a debt.
- obtain an injunction or other equitable relief.
- subordinate any allowed claim or interest, except when subordination is provided in a chapter 9, 11, 12, or 13 plan.
- obtain a declaratory judgment relating to any of the foregoing.
- determine a claim or cause of action removed pursuant to 28 USC § 1452.
Parties to an adversary proceeding are required to designate in their initial pleadings whether a proceeding is core or non-core (28 USC § 157 distinguishes between “core” and “non-core” proceedings). This designation is important to the judges and the clerk’s office in determining how to process and handle final orders and rulings of the court.
Subsections (4) and (5) of the Fed. R. Bankr. P. 7004 address service of a summons and complaint (and in a contested matter, the motion [see Fed. R. Bankr. P. 9014]) on the United States or any officer or agency of the United States. Plaintiffs (or moving parties), frequently fail to effect service in accordance with these subsections. The most common defect is that service is not made on the Attorney General of the United States nor on the officer or agency involved – usually the U.S. Attorney for the district is served. There may be other parties who should also be served, such as the trustee, and that is a determination for the plaintiff (or the moving party) to make. Failure to effect such service could render any order issued on the objection invalid should the party not served subsequently file a motion under Fed. R. Bankr. P. 7060.
After the adversary proceeding is filed, the clerk’s office issues a summons and a scheduling order. A summons is only valid for ten days following its issuance (Fed. R. Bankr. P. 7004(f)). If the ten-day period has passed without the summons being served, the plaintiff should request, in writing, that the summons be reissued.
Federal Rules of Bankruptcy Procedure 7055 (and Fed. R. Civ. P. 55) provides the procedure for defaults and default judgments. The Clerk of Court plays a major role in entering defaults and, in certain circumstances, the Clerk can sign and enter default judgments. If the defendant has failed to respond, the plaintiff should file an affidavit of default, which sets forth the following facts:
The date of issuance of summons;
- A statement of whether the court fixed a deadline for the filing of an answer or motion, or whether the 30 (or 35) day limit applies;
- The date of service of complaint;
- The date of filing of affidavit of service or certificate of mailing;
- A statement that defendant is not an infant or incompetent person, nor has been in the military of the United States since the filing of the suit or for a period of six months prior to such filing;
- A statement that no answer or motion has been received within the time limit.
There are certain time constraints when filing an adversary proceeding pursuant to 11 USC § 523 and § 727 of the Bankruptcy Code. Please consult Fed. R. Bankr. P. 4004(a)(b)(c), 4007(c)(d), and 9006(b)(3) for time constraints associated with complaints to determine dischargability and objecting to discharge.
The party initiating an adversary proceeding (Bankruptcy Rule 7004) or a contested matter (Bankruptcy Rule 9013) against an insured depository institution shall make service on insured depository institutions by certified mail when that service is required by Bankruptcy Rule 7004(h).