Adversary Proceedings

An Adversary Proceeding (AP) is a civil action in the bankruptcy case, and is commenced by the filing of a Complaint. PLEASE NOTE: The Bankruptcy Court for the Western District of New York requires all matters pertaining to a bankruptcy case, including Adversary Proceedings, to be filed electronically by attorneys through CM/ECF. If you are not an attorney or fall under an exception to the e-filing requirement, please contact the Clerk’s Office for information on filing requirements.

To commence an Adversary Proceeding, it is necessary to file:

• A Complaint signed by the attorney or by the plaintiff, if not represented by an attorney; and
  
• An Adversary Proceeding Cover Sheet with the complete names and addresses of the Plaintiff and Defendant. All boxes should be completed accordingly. If applicable, please include the amount of damages demanded, which must be consistent with the amount demanded in the Complaint. Be sure to use the current version of the Adversary Proceeding Cover Sheet.
  
• Please consult the Bankruptcy Court Fee Schedule to determine if a fee is required and if so, the amount of the filing fee.
  

Service

• The Clerk’s office will prepare a Summons, after the Complaint has been reviewed.
  
• Federal Rule of Bankruptcy Procedure (FRBP) 7004 governs service of the Summons and Complaint, and provides that the Summons and Complaint must be served within 14 days of the issuance of the Summons. Parties to be served include the debtor and debtor’s attorney, the defendant and defendant’s attorney, the United States Trustee, and case trustee. Proof of service must be electronically filed promptly after service of the Summons and Complaint.
  

Answer

• The defendant(s) will have thirty (30) days from the issuance of the Summons to file an Answer, except when a different time is prescribed by the Court.
  
• If the defendant is an agency of the United States, they will have 35 days to file an Answer.
  
• The Answer must be electronically filed in the AP case, if the defendant is represented by an attorney.
  
  

When an Answer is not filed

• If an Answer is not filed within 30 days (or 35 days for the United States), the attorney for the plaintiff may take the appropriate action to commence default proceedings.
  
• If the defendant is a debtor, then the following must be submitted:
  
  • Notice of Motion and Motion for Entry of Default Judgment in accordance with FRBP 7055, and returnable on a regularly scheduled motion calendar date.
  • A Default Judgment with a Proposed Order Pursuant to the Decision of the United States Bankruptcy Appellate Panel for the Second Circuit in In Re Emmerling, 1997 WL 998674 (Bankr. 2d Cir. 1997). Please be advised, that for purposes of FRBP 7055, a debtor named as defendant in an Adversary Proceeding is always deemed to have “appeared” in the Adversary Proceeding, so as to require notice of a motion for a default judgment. Therefore, if a debtor is a defendant in an Adversary Proceeding, even if the debtor fails to file a timely answer, the plaintiff must bring a default judgment by motion, in accordance with FRBP 7055.
    

Scheduling Matters in Adversary Proceedings

• For Adversary Proceeding Scheduling matters, please contact Marcia Bannister, (716) 362-3280
• Calendar calls are held once per month, typically the first Monday of each month, at 9:30 a.m.

Pre-Trial Conference

• Upon receipt of an Answer, the Court will send a Notice of Pre-Trial Conference. The Pre-Trial Conference may be held either in person or by telephone.

Page Modified on April 3, 2011 9:03 am