Adversary Proceedings
An Adversary Proceeding (a/k/a AP) is a civil action, the same as might
be prosecuted in a Federal or State Trial Court. AP’s are law suits
within the bankruptcy case, and are commenced by the filing of a
summons and 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 through CM/ECF. If you 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 please file:
- A complaint signed by the attorney (an /s/ signature is acceptable); 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 demand amount which needs to be consistent with the demand
amount in the “wherefore” clause of 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 fee.
Service
- The Clerk’s office will produce a Summons
- Federal
Rules of Bankruptcy Procedure (FRBP) 7004 governs service of the
Summons and Complaint. The Summons and Complaint must be served within
10 days of the issuance of the Summons, or within 15 days if the
defendant is a governmental agency. Parties to be served include the
debtor and debtor’s attorney, the defendant and defendant’s attorney,
and trustee. Proof of service must be electronically filed in the AP
case within twelve (12) days of the issuance of the Summons.
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.
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. Please see the default judgment
package
- If the defendant is a party other than the debtor, only the proper default judgment packet with a proposed order must be submitted. 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 Federal Rules of Civil Procedure (FRCP) 55 made applicable by 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 FRCP Rule 55 made applicable by FRBP 7055 a debtor
named as defendant in an adversary proceeding in his own bankruptcy
case is always deemed to have “appeared” in the adversary proceeding so
as to require notice of a motion for a default judgment. If a debtor is
a defendant in an adversary proceeding, even if he fails to file a
timely answer, the plaintiff must bring a default judgment by motion,
in accordance with Rule 55 made applicable by FBRP 7055, to be heard at
the United States Bankruptcy Court.
- Documents related to default proceedings must be electronically filed in the AP case.
Other Documents
-
All other documents related to an AP must be e-filed in the Adversary Proceeding case.
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.