A) Adversary Proceedings Can be Filed After Bankruptcy Case is Filed - Adversary proceedings can be filed in bankruptcy court for a variety of reasons, such as:
- A creditor wants to prevent the debtor from receiving a discharge;
- The trustee attempts to force a non-debtor party to give back property that belongs to the bankruptcy estate; or
- A party wants the court to make rulings about property or contractual rights (Declaratory Relief).
In some scenarios an adversary proceeding is the only procedural method for obtaining relief. Consult Federal Rules of Bankruptcy Procedure Rule 7001 to determine if an Adversary Proceeding is required. In some situations an adversary proceeding can be started or continued even if the main bankruptcy case is no longer open.
B) Filing the Complaint – A plaintiff must take six steps to properly file an adversary complaint:
- Include an adversary proceeding cover sheet;
- Pay the adversary filing fee;
- Provide one extra copy to the court of the complaint and cover sheet, even if the complaint is filed electronically via CM/ECF;
- Include a "Summons" form that the clerk's office can fill out and return to the plaintiff. The summons will indicate the adversary number and the date/time/location of the initial adversary status conference;
- Serve a Summons on each defendant according to the methods and time limits set forth in the Federal Rules of Bankruptcy Procedure 7000 series and Local Bankruptcy Rules; and
- File a Proof of Service of Summons and Complaint after a defendant has been properly served.