General Adversary Proceeding Information for Pro se Filers
The following is general information about adversary proceedings provided to assist self-represented (pro se) persons.
A bankruptcy case is the proceeding under Chapter 7, 11, 12, or 13 of Title 11 of the United States Code that is commenced by the filing of a bankruptcy petition, concerning a person, partnership, or corporation that is the debtor. An adversary proceeding is a lawsuit filed within the bankruptcy case. It is an action commenced by a plaintiff filing a complaint against one or more defendants. An adversary proceeding resembles a typical civil case from state court. 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 by motion in the bankruptcy case, but instead require the commencement of an adversary proceeding. Federal Bankruptcy Rule 7001 lists types of actions that require an adversary proceeding. Adversary proceedings are governed, for the most part, by Part VII of the Federal Rules of Bankruptcy Procedure. These rules incorporate most of the Federal Rules of Civil Procedure and are designed to make practice before the bankruptcy and district courts as similar as possible.
Please see the Bankruptcy Court Fee Schedule for the fee to file an adversary complaint. No fee is due if the plaintiff is the debtor or a child support creditor who submits Form B281 as an attachment to the adversary complaint.
How to File an Adversary Proceeding
Note: Electronic filing of all documents, including adversary complaints, is mandatory in this district for attorneys and trustees. E-filing is not available for self-represented persons.
The procedure for filing an adversary proceeding is divided into three sections: the complaint, service of process, and the answer. Please read the entirety of each section before filing an adversary complaint.
Adversary Proceedings are Separate
Lawsuits Filed Within a Bankruptcy Case
An Adversary Proceeding consists of a pleading called a complaint, which is issued an Adversary Proceeding number. There is a Plaintiff (the person(s)/entity bringing the complaint) and a Defendant (the person(s)/entity against whom the complaint is brought). Adversary matters usually involve dischargeability of a particular debt or denial of a discharge of all debts, preference payment or fraudulent transfer issues. They may be filed by a creditor, ex-spouse or a Trustee or a debtor to discharge a student loan or to determine the validity of a lien. For a complete list of the types of proceedings, please refer to Fed. R. Bankr. P. 7001. It is advisable to seek legal counsel for such matters. Note: there is no filing fee to file an Adversary Proceeding if the plaintiff is an individual Chapter 7 Debtor.
All cases are comprised of documents prepared and filed by litigants. The most common documents are the complaint, answer, and motions. The first document that you must write as a plaintiff is called a Complaint. The function of the Complaint is to tell the Court and the defendant the reason for filing the lawsuit and what relief you desire. The Complaint consists of five main parts:
- The Caption, which identifies the Court, bankruptcy caption, and party information for the adversary.
- The Name and Address of the plaintiff and the defendant. These are usually listed in the first and second paragraphs respectively. If there is more than one defendant, list each defendant's name and address in separate additional paragraphs.
- The Jurisdiction or reason your case is being filed in this Bankruptcy court, see 28 U.S.C. § 1334, and a statement as to whether the case is a "core" or "non-core" proceeding. See, 28 U.S.C. § 157(b) .
- The Allegations or claims that you are making against the defendant. Place each allegation in a short, clearly-written paragraph. See Rule 7010 of the Federal Rules of Bankruptcy Procedure and Rule 10(b) of the Federal Rules of Civil Procedure.
- 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, an adversary cover sheet (Form B104) is required for all Adversary Proceedings.
You must write your complaint yourself; the Clerk's office cannot help you do this. Please be sure to number each paragraph except for the paragraph that asks the court for relief. Do not worry that your complaint is not professionally written. The court will take into consideration that you are a pro se litigant and untrained in drafting legal documents. You should, however, make every effort to state your case in clear, concise terms. See Rules 7008 and 7010 of the Federal Rules of Bankruptcy Procedure and corresponding Rules 8 and 10 of the Federal Rules of Civil Procedure.
You must notify the Clerk of Court of any change of address. Your case may be dismissed if you cannot be contacted by mail.
All pleadings submitted to this 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. Be certain to state what relief you are seeking. Handwritten complaints must be legibly written.
Filing the Complaint
The original complaint is filed with the Clerk of Court. No copies are required. The Court's filing system automatically generates the Summons, i.e., the plaintiff is no longer required to submit a summons. When this summons is generated, it is returned to the plaintiff for service.
There is a statutory filing fee at the time you file your complaint. See 28 U.S.C.§ 1930 notes and 28 U.S.C. § 1914. This fee is waived for Chapter 7 debtors and certain child support creditors. The Clerk cannot accept personal checks or credit cards from debtors. Money orders should be made payable to: "Clerk, U. S. Bankruptcy Court."
When a complaint is filed, the Court's Electronic Filing System generates the summons form, which is returned to the plaintiff. A summons is a writ used to notify the person named as the defendant of the commencement of the adversary action and the requirement to appear and answer. The summons contains the name of the Court and the names of the parties, is directed to the defendant, states the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address and the time within which the rules require the defendant to file an answer to the complaint.
Making Service of Process involves serving a copy of a summons and a copy of the complaint to each of the defendants, Trustee, US Trustee and all interested parties. This can be done via first class mail. See Federal Bankruptcy Rule 7004(b) . You can make service of process by having a "disinterested" person who is over the age of eighteen deliver copies of the summons and complaint to each of the defendants. See Federal Bankruptcy Rule 7004(a). The summons and complaint must be mailed or delivered within fourteen (14) days of the issuance of the summons. See Federal Bankruptcy Rule 7004(e). After the complaint and summons are properly served, the plaintiff must file the summons form with a completed certificate of service (see second page of summons form). This notifies the Court that all parties have received copies of the complaint.
Finally, service of the summons and complaint on the defendant must be made within 120 days from the date the complaint was filed or the case will be subject to dismissal. See Rule 4(m) of the Federal Rules of Civil Procedure.
Adversary Proceedings - The Answer
The Answer is the formal written statement filed by the defendant responding to a complaint setting forth any defenses and objections to the claims by the plaintiff.
Filing the Answer
The defendant(s) are then required to file answers within 30 days (35 days for government agencies), unless a different date is set by the Court. See Federal Bankruptcy Rule 7012. The answer should admit or deny every allegation in the complaint and set forth any affirmative defenses that may be applicable. The easiest way to do this is to go through the complaint and answer each numbered paragraph, admitting or denying the statements of that paragraph. Affirmative defenses should be separately listed and identified as such. Failure to answer the complaint timely may result in a default judgment being entered against the defendant.
The answer may also contain a cross-claim, in which the defendant makes a claim against another named defendant. The answer may also contain a third-party claim, in which the defendant brings in third parties to the action that may be liable to the defendant in the event defendant is liable to the plaintiff. The form of the counter-claim, cross-claim and/or third-party claim should be the same as the complaint and clearly captioned as such.
A Motion is an application or request made to the Court for the purpose of obtaining a ruling or order directing some act to be done in favor of the applicant. See Rule 7(b) of the Federal Rules of Civil Procedure.
After the Answer
The Discovery Plan
When the answer is filed, the Court calculates a 45-day deadline for the parties to file a Discovery Plan (see RI Bankr. Form 7026-1.1 ). The filing of the discovery plan and procedure for failure to file are governed by R.I. LBR 7026-1. The discovery plan tells the Court that the parties have talked and decided how much time they request to complete discovery and file a Joint Pretrial Order. Upon review of the discovery plan, the Court will issue a Scheduling Order which tells the parties the actual dates for the close of discovery and the deadline for filing the Joint Pretrial Order.
If There Is No Answer
If the defendant does not file an answer or other motion described in Fed. R. Civ. P. 12(b)-(h) by the date set forth on the summons, he or she is in default. The plaintiff can obtain a default judgment for the relief requested. To obtain this judgment, the plaintiff submits to the Clerk an "Application to Clerk for Entry of Default" with:
- An affidavit in support of application for entry of default and;
- A motion for default judgment with the proposed default judgment.
The Clerk reviews the record and the motion and affidavit, enters the default, and then transmits the entire group of documents to the Judge's office for review and signature. The motion for default judgment should include:
- date of issuance of summons,
- date of service of the complaint and summons,
- date of filing of proof of service,
- a statement of when the answer was due,
- a statement that no answer or motion has been received, and
- a statement that the defendant is not in the military service, as required by 50 U.S.C. Appendix, Section 520.
The Joint Pretrial Order lists the items on which parties agree, the issues that remain to be tried by the Court, the Exhibits which will be produced and the list of witnesses. It also gives the Court the estimated length of the trial. Please refer to RI Bankr. Form O. Upon receipt and review of the Joint Pretrial Order, the Court will schedule a trial.
Failure to Comply
Failure to comply with any of the requirements may result in a party’s filing of Default Motions against another party or the issuance of an Order to Show Cause notice by the Court, which may result in the matter being defaulted or dismissed for lack of compliance.