The information provided here is intended to answer frequently asked questions and should not be interpreted as legal advice or to serve as a complete guide as to what is required in an adversary proceeding. This information is subject to change without notice.
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 and instead require the commencement of an AP. 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 (AP) can involve complicated factual circumstances and legal questions. Clerk’s Office staff, the judge, the judge and his or her 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 AP.
Any individual who is a Plaintiff or Defendant may be self-represented (to proceed without legal counsel). Corporations, partnerships and other business entities must be represented by an attorney. See Rule 2090-1 of the Local Bankruptcy Rules for the Northern District of Florida. All litigants involved in an AP 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.
Who Typically Files an Adversary Proceeding?
Common adversary matters often involve dischargeability of a certain debt, 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 (AP) is typically filed by a creditor, a trustee, or the debtor.
Requirements to Initiate an Adversary Proceeding
An adversary proceeding (AP) 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 case number, and party information for the adversary.
- The narrative statement identifying the name and location of the parties involved in the AP 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 (Form B 1040) 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 in and Adversary Proceeding [Form B 2500A] 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 (AP) 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, contained on the second page of the summons form, indicating the parties have been served and by what method, i.e. USPO, personal service, etc.
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.
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. Please refer to the current fee schedule for the filing fee amount. Plaintiffs who are not also debtors in a pending bankruptcy case may pay filing fees by credit card, cash (exact amount), check, money order, or cashier’s check. Personal checks or credit cards from the debtor, two-party checks, or post-dated checks will not be accepted. 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 (AP) filing fee.
Please review the Personally Identifiable Information (PII) notice which explains the filer's responsibilities concerning the redaction of personal identifiers.
Failure to Comply
Failure to comply with filing 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 to 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 and may be changed without notice. The Clerk’s Office strongly encourages you to contact a licensed attorney for assistance.