Any party contemplating the filing of an adversary proceeding (or any other legal proceeding) should consult with an attorney first. 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
A complaint is a written formal statement in which the party initiating the adversary proceeding, 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. The Bankruptcy Courts for the Southern District of Indiana require the complaint to 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 new adversary proceeding must be open at the time the complaint is filed. If the bankruptcy case is closed, it will need to be reopened first.
Filing Fees for an Adversary Proceeding.
All fees are published on the Schedule of Bankruptcy Fees.
Any fee required for the reopening of the bankruptcy case is separate from the fees required to file a new 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 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 and the Clerk’s Office prepares a summons. The summons, complaint and any order are served upon the defendant(s). If the defendant files an answer to the complaint, the Court may issue an order or hearing notice which must be carefully reviewed. The adversary proceeding is open, or active, until the Judge renders a decision, judgment, or the parties reach a settlement and the Judge closes the adversary.