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 by attorneys electronically 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 amounts 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 the 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 pursuant to FRBP 7012, 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, 22 B.R. 860 (B.A.P. 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

• Trial Calendars are the third Motion Calendar of each month at 9:00 a.m. Matters may be placed on the Trial Calendars due to the Court’s ten day policy, or if a matter is adjourned from a pre-trial

Pre-trial conference

• Upon receipt of an Answer, the Court will send a Notice of Pre-Trial Conference. The pre-trial may be held either in person or by telephone. If the attorney would like a telephonic pre-trial, or would like to waive the pre-trial, a Pre-Trial Option Form must be completed and returned to the Court within 14 days of the notice. The plaintiff's attorney must sign the form certifying that the defendant's attorney has agreed to the option elected.
• The election to waive the pre-trial conference allows attorneys who feel that based upon their negotiations the action will ultimately settle without the need for the Court to conduct a trial, the option to have the action immediately set down on one of the Court's next two Trial Calendars. However, if the attorneys elect to have an action set down on the Trial Calendar without a pre-trial conference being conducted, and the action does not settle before the calendar call, no adjournments will be granted. The attorneys must appear at the Trial Calendar at which time a date certain for trial will be set. Out of town attorneys, however, will still be allowed to provide the Court and opposing counsel in advance with available trial dates, and have their calendar call appearance waived.
  
• Pre-trials are generally scheduled at half-hour intervals on the last two Tuesdays and the second to last Thursday of each month. While attorneys are required to appear, it is not necessary for their clients to attend.
• Pre-trial conference date conflict
  
  • If the attorney has a conflict with the scheduled pre-trial date, please notify the Court in writing within seven days to request an adjournment. The Court will then issue a Notice of Rescheduled Pre-Trial Conference. If the Court does not hear from any of the attorneys within one week of the date of the notice, it will be assumed that there is an absence of conflict and that the attorneys are prepared to go forward with the pre-trial.