Many Homeowners who found themselves in an unfortunate foreclosure situation often wonder whether they have better options when dealing with pretender lenders trying to steal their homes right under their noses. In some situations, you may need a type of bankruptcy relief that can be granted only by a judge, and that cannot be provided by simply filing a motion related to the bankruptcy. In those cases, it may be appropriate to file an adversary proceeding within your bankruptcy case.
The Question then becomes – WHAT IS AN ADVERSARY PROCEEDING?
An adversary proceeding (or “AP”) is a lawsuit filed separate from but related to the bankruptcy case. It is an action commenced by one or more Plaintiffs filing a Complaint against one or more Defendants and resembles a typical civil case. The Plaintiff is the person, partnership or corporation initiating the lawsuit. The Defendant is the person, partnership or corporation being sued. Certain types of disputes cannot be handled in the bankruptcy case, but instead require the commencement of an adversary proceeding. These types of actions are found in Rule 7001 of the Federal Rules of Bankruptcy Procedure.
The laws pertaining to bankruptcy are very complex. Like many lawsuits, an adversary proceeding can involve complicated factual circumstances and legal questions. The Clerk’s Office staff, the judge, the judge’s staff and the trustee appointed to oversee the bankruptcy case are not permitted to answer legal questions or provide legal advice. It is strongly recommended that you retain legal counsel to represent you in an adversary proceeding, unless of course, you know what you are doing. Any individual who is a Plaintiff or Defendant may represent themselves pro se (without legal counsel). Corporations, partnerships and other business entities must be represented by an attorney.
All litigants involved in an adversary proceeding must comply with the Local Rules, the United States Bankruptcy Code and the Federal Rules of Bankruptcy Procedure as well as observe traditional and customary rules of decorum. Failure to do so can result in dismissal of the case or other sanctions.
The next question is – WHO TYPICALLY FILES AN ADVERSARY PROCEEDING?
Common adversary matters often involve dischargeability of a particular debt or denial of a discharge of all debts, preference payment (an action to recover money paid to a creditor just prior to filing bankruptcy), violation of the automatic stay, or fraudulent transfer issues. An adversary proceeding is typically filed by a creditor, a trustee, or the debtor.
An adversary proceeding is commenced by the filing of a Complaint. A Complaint is a formal, written statement in which the initiating party, (i.e., the Plaintiff) presents the facts as he or she believes them to be and demands relief to which he or she is entitled under the law. Each Complaint is unique and there is no specific or official form provided by the court.
The Complaint usually consists of five main parts:
- The case caption which identifies the Court, bankruptcy case, and party information for the adversary.
- The narrative statement identifying the name and location of the parties involved in the adversary proceeding as well as description of the transaction or other relationship between the parties that gives rise to the complaint.
- The jurisdiction or reason your case is being filed in this bankruptcy court.
- The allegations or claims that you are making against the Defendant.
- The relief you are seeking from the Court. This can be money or something you want the judge to make the Defendant do or stop doing. This information is usually written in the last paragraph of the Complaint.
In addition to the Complaint, you must complete and submit the Adversary Proceeding Cover Sheet (Procedural Form B104) with the Complaint. If filing electronically (registered CM/ECF users only), you must include the Cover Sheet as an attachment to the Complaint.
PLEADING STYLE AND SIGNATURES
All pleadings submitted to the Court must be on 8 1/2″ x 11″ paper, the writing must be legible and double-spaced, whether typed or printed, and it must bear an original signature if not filed electronically.
SERVICE OF SUMMONS
When a Complaint is filed, the Clerk’s Office will generate a Summons [form B250A] form which is returned to the Plaintiff for service. A Summons is a writ used to notify the person(s) named as the Defendant(s) of the commencement of the adversary proceeding and the requirement to appear and answer. Service of the Complaint and Summons must be executed in accordance with Fed. R. Bankr. P. 7004. After the Complaint and Summons have been served, the Plaintiff must file a Certificate of Service indicating the parties have been served and by what method, i.e. USPO, personal service, etc.
PAYMENT OF FILING FEES
A filing fee is required in most instances when filing an adversary proceeding unless the Plaintiff is the debtor in a chapter 7 or 13 case and the adversary proceeding is related to the debtor’s discharge.
Plaintiffs who are not debtors in a pending bankruptcy case may pay filing fees by credit card, cash (exact amount), check, money orders, or cashier’s checks. Personal checks or credit cards from the debtor, two-party checks, or post-dated checks are usually not be accepted, but check with the clerk’s office of your local jurisdiction.
The bankruptcy case must be open at the time the Complaint is filed. If the bankruptcy case is closed, you must file a Motion to Reopen and pay the filing fee (if applicable) to reopen the case. The reopening fee is in addition to the adversary proceeding filing fee.
PERSONALLY IDENTIFIABLE INFORMATION PRIVACY NOTICE
Bankruptcy cases and their related adversary proceedings are public record. Do not place the full Social Security Number or Taxpayer Identification Number on any documents to be filed.
Documents which must include personally identifiable information must be redacted or truncated prior to filing. (Fed. R. Bankr. P. 9037). You may abbreviate the information as shown in the following examples:
Personally Identifiable Information Redaction Examples
Social Security and/or Last four digits only
Taxpayer Example: xxx-xx-1234
Financial Account Numbers Last four digits only
Birthdate Year of birth only
Names of Minor Children Initials only (no names)
Example: J.D in place of “John Doe”
CHANGE OF ADDRESS
You must notify the Clerk of Court in writing of any change of address. Hearing notices and other documents will be sent to you by U.S. Mail if you are not an electronic participant to the case. Your case may be dismissed if you cannot be contacted by mail.
“Pro Se” Homeowners Should Use the following as a Guide
I. An Adversary Proceeding is Required
A. To recover money or property or for turnover of money or property;
B. To determine the validity, priority, or extent of lien or other interest in property;
C. To obtain approval to sale both the interest of the estate and of a co-owner of property;
D. To object to or revoke a discharge;
E. To revoke an order of confirmation of a plan;
F. To determine the dischargeability of a debt;
G. To obtain an injunction;
H. To subordinate an allowed claim or interest;
I. To obtain a declaratory judgment (a judgment explaining disputed law) relating to any of the foregoing; or
J. To determine a claim or cause of action removed from a state court pursuant to 28 U.S.C. Section 1452.
II. Starting an Adversary Proceeding
An adversary proceeding is commenced by the filing of a complaint. A complaint is a written formal statement in which the party initiating the adversary, the plaintiff, presents the facts as he or she believes them to be and demands the relief to which he or she believes he or she is entitled against the defendant, the person or entity the action is brought against. Each complaint is unique and there is no specific form provided by the court.
The bankruptcy case must be open at the time the complaint is filed. If the bankruptcy case is closed, it will need to be reopened before the complaint is filed. To reopen the bankruptcy case, you need to file a motion to reopen. There may be a reopening fee due. If the reopening is for the debtor or other party to file a complaint to determine whether or not a particular debt was discharged or for the debtor to file an action to enforce the discharge, there is no reopening fee. If the reopening is to file a complaint for any other reason, there is a reopening fee due of $260.00 for a Chapter 7 case and $235.00 for a Chapter 13 case. The reopening fee is in addition to the adversary filing fee if due as described below.
III. Filing Fees for an Adversary Complaint
The fee for an adversary complaint is $293. Parties exempt from paying the filing fee are:
A. Any U.S. Government agency.
B. A Chapter 7 or Chapter 13 debtor.
C. A Chapter 11 individual debtor, or attorney representing debtor, only when filing a Complaint for Dischargeability of a Debt.
D. A Chapter 7 trustee – the fee is due at the time of filing the complaint unless the trustee files a certification that insufficient estate funds are available. The fee is then deferred until funds become available.
E. A Chapter 12 or Chapter 13 trustee – the fee is paid from the estate upon confirmation of the plan.
F. A Chapter 11 trustee – the fee is due at the time of filing the complaint unless a motion and order to defer payment is filed with the complaint.
G. A creditor owed child support by the debtor or such creditor’s representative – the fee is usually not due provided the creditor or representative files Form 281 – Appearance of Child Support Creditor or Representative. (Check with your local jurisdiction for the fees).
IV. What is Required for Filing an Adversary Complaint?
A. Filing fee of $293 (except when the filing fee is not required or is deferred).
B. An original and one copy of the adversary complaint.
C. An Adversary Proceeding Cover Sheet (recommended, but not required)
D. Summons in an Adversary Proceeding.
The clerk’s office will issue the summons.
V. Issuing the Summons
The clerk’s office will issue the summons and mail it to the pro se (party not represented by an attorney) plaintiff.
VI. Service of Summons and Complaint
IMPORTANT: IF YOU HAVE NAMED THE UNITED STATES/OR A FEDERAL AGENCY AS A DEFENDANT, YOU ARE REQUIRED TO SERVE THE U.S. ATTORNEY AND THE ATTORNEY GENERAL OF THE UNITED STATES WITH A COPY OF THE COMPLAINT AND THE SUMMONS.
The summons and complaint may be served anywhere in the United States. For service in a foreign country, see Bankruptcy Rule 7004.
A. Service may be made by:
1. Personal Service – By person not less than 18 years of age and not a party to the complaint.
2. First Class Mail – Service may be made on defendants within the United States by first class U.S. mail postage pre-paid, except as stated below. Service by first class mail is also subject to the following specific requirements as stated.
a. Mail service on an Insured Depository Institution (banks and other financial institutions whose deposits are federally insured) must be by certified mail addressed to a particular officer of the institution.
b. If serving the bankruptcy debtor by mail, the summons and complaint must be mailed to the address stated on the bankruptcy petition or to such other address as the debtor may designate in a writing filed with the bankruptcy court. If the debtor is represented by an attorney, service must also be made on the attorney at
the attorney’s post-office address.
c. Service on an Agency of the United States must be made to all three of the following addresses.
(1) Civil Process Clerk US Attorney, (YOUR CITY AND STATE, ZIP).
(2) Attorney General of the United States Dept of Justice, Room B-103 950 Pennsylvania Ave NW Washington DC 20530-0001
(3) US Agency Name Street Address/PO Box City State Zip Code
d. Service on the United States Trustee by mail must be mailed to the following address.
United States Trustee (YOUR CITY AND STATER, ZIP)
3. Publication – If a party cannot be served by personal service or first class mail, the court may, on motion of the plaintiff, order at least one publication in such manner and form as the court directs (example: newspaper).
B. Time Limit for Service:
1. Service must be made within ten days following the issuance date of the summons. If the summons is not timely delivered or mailed, a replacement summons (an alias summons) shall be issued upon request of the plaintiff, providing that 120 days have not passed since the filing of the adversary complaint.
2. If service of the summons and complaint is not made within 120 days after the filing of the complaint, and good cause cannot be shown why service was not made within that period, the adversary complaint may be dismissed.
C. Certificate of Service. You will complete the Certificate of Service form and then file it as your Certificate of Service . For the service to be valid, the certificate must show that the following requirements were done.
1. The date service was made must be stated. If mailed, the date the copy of the complaint and summons was deposited in the mail is the date to be stated.
2. It must state that a copy of the complaint and summons was served or mailed.
3. If service was made by personal delivery of the summons and complaint, then it must state that the person making service is 18 years or older and is not a party to the case.
4. If service was made by mail, then the names and addresses to which the summons and copy of the complaint were mailed must be stated.
5. If service was made by certified mail, then the certification must be attached to the certificate.
VII. What is the Usual Course of an Adversary Complaint?
A. An adversary complaint is filed by the plaintiff and the clerk’s office issues a summons.
B. The summons and complaint are served upon the defendant(s) and their attorneys by the plaintiff.
C. The plaintiff files with the bankruptcy court a Certificate of Service of the summons and complaint.
D. If the defendant files an answer to the complaint, the court will set a status hearing and will notice the hearing to the interested parties.
E. The adversary would then go through its course until the judge renders a decision, judgment, or the parties reach a settlement. The adversary would then be closed.
F. If an answer is not filed, the plaintiff would file the proper paperwork to have a default entered against the defendant(s).
VIII. How do I Have the Court Enter a Default Against the Defendant?
There are no specific forms available. You will prepare your own Application for Default and a separate Default Judgment. The clerk’s office is permitted to enter a default only upon being presented with an Application for Default setting forth the facts. These facts normally include the following:
A. Date the adversary complaint was filed with the court;
B. Date the summons was signed/issued by the deputy clerk;
C. Date you served the adversary complaint on the defendant and defendant’s attorney;
D. Date you filed your Certificate of Service with the court;
E. Statement that no answer has been received within the time limit fixed by the court on the summons; and
F. Statement that the defendant is not in the military service. If the defendant is or may be in the military service, the defendant is afforded certain protections which must be addressed prior to the Entry of Default.
IX. Clerk’s Entry of Default
When an Application for Entry of Default is filed, the adversary case will be reviewed and if appropriate, the clerk’s office will prepare and mail the Entry of Default to the interested parties. If the application is deficient, the clerk’s office will notify the plaintiff regarding the deficiency.
IX. Default Judgment
The judge will review the file and either sign the Default Judgment or set the matter for hearing.
FAILURE TO COMPLY
Failure to comply with any of the requirements may result in the Plaintiff’s Complaint being dismissed or may result in a judgment being entered against the Defendant(s). An Order to Show Cause may also be entered which requires the party to appear in Court and explain the lack of compliance.
The information contained herein is not intended to be a complete guide as to what is required in an adversary proceeding.
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