Thursday, May 15, 2014

What is an Adversary Complaint

     An adversary complaint is a separate lawsuit filed in the bankruptcy court. It is assigned its own case number and proceeds independently of the underlying bankruptcy case. They are filed for a lot of different reasons. The most common adversary complaints seem to be for revocation of a discharge, pursuing a preference action, to determine the extent of a lien, or to recovery property.

     The filing of an adversary complaint is just like the filing of any other lawsuit. The complaint is filed and the clerk issues a summons. The summons and complaint is then served, usually through regular U.S. Mail on the defendants. The defendants then have 30 days to respond to the complaint with some sort of responsive pleading. The most common mistake is to simply file an answer to the complaint. The problem with that is there may be other avenues to proceed before filing an answer. A motion to dismiss or motion to withdraw the reference may be more appropriate. Timing is everything with the motions. Once the preliminary motions are filed and ruled on and the answer is filed the court will set a trial date. In between the filing of the answer or other responsive pleading the usual discovery requirements are there. Depositions, requests to produce, or interrogatories may be sent out or received in preparation of the trial. Once the trial happens there will be post judgment decisions that need quick action in order to preserve your rights of appeal or reconsideration.

     Adversary Complaints are not as simple and easy as a debtor may seem. There are very important decisions that need to be made and even more important rules to comply with. As soon as someone receives a summons and complaint they need to immediately seek appropriate legal advice. We offer a free consultation with an experienced bankruptcy litigation attorney who will fully analyze your situation and advise you on your options. If you would like someone to contact you please email us at or call one of our offices for a free, 904-354-5065, no obligation conference.

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