Adversary Proceedings – What Are They?

Even in most common Chapter 7 Bankruptcy cases, creditors may file an adversary proceeding. An adversary proceeding is basically a federal lawsuit brought within a pending bankruptcy case. The Bankruptcy Rules require that certain contested matters in bankruptcy, usually claims related to outstanding debts or transactions, must be litigated in adversary proceedings. Bankruptcy Rule 7001 lists such matters which include: objections to discharge; determination of the validity, priority, or extent of a lien or interest in property of the estate; actions to recover property of the estate; and proceedings to sell property in which the debtor is only a part owner. Bankruptcy Rule 7001 et. seq., lists all of the rules applicable to adversary proceedings.

The most common adversary proceedings in bankruptcy cases are proceedings to determine the dischargeability of a debt. Since the credit card debt is one of the primary reasons for consumer bankruptcy filings, many credit card lenders are actively reviewing petitions and credit usage histories to determine if the debtor obtained the debt through either fraudulent or improper means. In accordance with Bankruptcy Code §523, a creditor can contest the dischargeability of a particular debt that was incurred through false pretenses, fraud, use of false financial statements, embezzlement, or larceny.

Bankruptcy Code §727 allows an interested party, such as a creditor, to contest the entire discharge for intentional concealment, transfer or destruction of property; unjustified failure to keep books and records; dishonesty in connection with the bankruptcy code; or failure to explain loss of assets. If a trustee requests a debtor to provide documents at the meeting of creditors and the debtor is uncooperative, the trustee may bring an adversary proceeding under this section.

In adversary proceedings, the Federal Rules of Civil Procedure apply. These rules are adapted to bankruptcy proceedings by Bankruptcy Rules 9001 et. seq. In order to commence an adversary proceeding, the creditor or trustee will draft a complaint, setting forth the facts and allegations which the plaintiff believes justify the granting of relief against the debtor, and stating the relief requested.

Just like bankruptcy filings, all adversary proceedings must be filed electronically through the court’s E.C.F. system. Each adversary proceeding will be assigned a case number, which will be different from the original bankruptcy case number. All adversary proceeding documents filed with the court must contain the full adversary proceeding caption, both case number and adversary proceeding case number, the type of chapter, and the name of the judge. In adversary proceedings, each debtor is referred to as either “debtor” or “defendant.”

There are three parties in the bankruptcy court case who can file an adversary proceeding. Those parties are the creditor, the trustee (either the Chapter 7 Bankruptcy trustee, Chapter 13 bankruptcy Trustee, or the United States Trustee), and the debtor. Each adversarial proceeding is heard by the United States Bankruptcy Judge for the district where the bankruptcy is filed. For the cases filed here in Rochester, the adversary proceeding cases are heard by Hon. John C. Ninfo, II.

Mere fact that an adversary proceeding is filed does not mean that the party filing it will prevail. The bankruptcy judge will hear the case and will determine each party’s rights. It is the job of the bankruptcy attorney to advise the party as to the likelihood of success in an adversary proceeding, but the case will be decided by the bankruptcy judge.

While most documents in adversary proceedings are served pursuant to Bankruptcy Rule 7004(b) by first class mail upon both the debtor and his or her attorney, service can be completed by other means as well. Service upon the debtor must be made within 10 days of the summons date pursuant to Bankruptcy Rule 7004(f).

In Chapter 7 Bankruptcy, the court sets a statute of limitations for creditors to file objections to discharge. The bar date is 60 days from the date set for the first scheduled meeting of creditors pursuant to Bankruptcy Rules 4004 and 4007. If the meeting of creditors is adjourned, it does not affect the bar date. If a creditor fails to file an adversary proceeding by the bar date, that creditor will be forever barred from objecting to discharge.

If you are contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.