Adversary Proceedings

Adversary Proceeding

An adversary proceeding is the term used for a lawsuit filed in the bankruptcy court.  The lawsuit can be brought by a creditor against a debtor, a trustee against a creditor, a debtor against a creditor, a creditor against a trustee, a creditor against another creditor, a committee of creditors against a debtor, against another creditor, etc. As one can see, there can be multiple variations of parties to an adversary proceeding.

There are a few things to keep in mind regarding adversary proceeding practice in bankruptcy court.  The most important is that service of the summons, complaint, exhibits, and whatever other documents are required by the court to be served, are served by first class mail.  If you rely on the notion that you have not been personally served, and therefore do not have respond to the adversary proceeding, you have made a grave error in judgment.  Second, the Federal Rules of Bankruptcy Procedure govern procedure in the bankruptcy courts.  They are almost identical to the Federal Rules of Civil Procedure, but there are some variations in the Federal Rules of Bankruptcy Procedure.  Knowing these variations is especially important in bankruptcy practice.  Third, the Federal Rules of Evidence apply in the bankruptcy court in their entirety without modification.  Fourth, bankruptcy litigation tends to move at a very quick pace, and parties that are either not familiar with the intricacies of bankruptcy litigation practice or go to court unprepared in the case, will pay a heavy price for such lack of knowledge or lack of preparation.

Before accepting an adversary proceeding, a meeting with the prospective client is required.  This will allow for a discussion of the adversary proceeding in general terms.  Afterwards, an analysis of the litigation as well as a budget for the action, discussion of litigation strategy and fees and costs for representation in the adversary proceeding, will take place.  A written retainer agreement along with a retainer for attorney’s fees and a retainer for costs will be required prior to any representation in any adversary proceeding.

Due to the nature and intricacies of adversary practice, last minute filing of complaints, answers, and the like are not considered by the firm.