Any party contemplating the filing of an adversary proceeding (or any other legal proceeding) should consult with an attorney. Court employees cannot offer legal advice or assist in the preparation of legal documents.
An adversary proceeding is a lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court. Some reasons these are filed may include:
To recover money or property or for turnover of money or property
To determine the validity, priority, or extent of lien or other interest in property
To object to or revoke a discharge
To revoke an order of confirmation of a plan
To determine the dischargeability of a debt
The Adversary Complaint
An adverdary proceeding is commenced by the filing of a complainT. A complaint is a written formal statement in which the party initiating the adversary proceeding, the plaintiff, presents facts and demands relief from the defendant, the person or entity the action is brought against. The complaint must contain the caption and case number of the bankruptcy case and the caption and adversary case number (with a blank line). A sample Adversary Complaint is available on the court’s website.
The bankruptcy case related to the adversary proceeding must be open at the time the complaint is filed. If the bankruptcy case is closed, the plantiff must file a Motion to Reopen Bankruptcy Case before or at the time of the filing of the adversary complaint.
Filing Fees for an Adversary Proceeding.
All fees are published on the Schedule of Bankruptcy Fees.
The fee required for the reopening of the bankruptcy case is separate from the fee required to file an adversary proceeding. The fee to reopen the bankruptcy case may be waived under certain circumstances, such as when a Debtor files an adversary complaint to enforce the discharge order.
Chapter 7 and 13 debtors are exempt from paying the adversary filing fee. Chapter 11 and 12 debtors are exempt from paying the fee when filing a complaint to determine dischargability of debts. Additional exceptions to the adversary fee requirement can be viewed on the court’s procedures manual (see, Filing a New Adversary Proceeding)
Requirements for a New Adversary Proceeding
Related Bankruptcy Case is Open
Adversary Filing fee, unless exempt
Adversary Cover Sheet, unless represented by counsel and filing electronically
Appearance, if plaintiff is represented by counsel
Corporate Ownership Statement, if the plaintiff is not an individual or governmental unit
The Clerk’s Office will prepare and docket the summons after all initial filing requirements have been met.
Service of the Summons
The summons and complaint may be served anywhere in the United States. For guidance on the proper way to serve the defendant, consult Bankruptcy Rule 7004.
If the plaintiff is pro se (not represented by an attorney), the Clerk’s Office will serve the summons, a copy of the complaint and any pretrial order on the defendant(s).
When the plaintiff is represented by an attorney, the attorney is responsible for service of required documents on the defendant(s) and must file a Certificate of Service with the Clerk’s Office.
What is the Usual Course of an Adversary Complaint?
An adversary complaint is filed by the plaintiff; the Clerk’s Office prepares the Summons in an Adversary Proceeding. The complaint and summons are served upon the defendant(s). If a defendant files an answer or other pleading in response to the complaint, the Court may issue an order or hearing notice which must be carefully reviewed. The adversary proceeding remains active and open until the Judge renders a decision or judgment, or the parties reach a settlement and the Judge orders the closing of the adversary proceeding.