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 the case 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, 22 B.R. 860 (B.A.P. 2d. Cir. 1997.) Please be advised that for purposes of FRCP 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 FRCP 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 electronically filed in the Adversary Proceeding case.

Scheduling Matters in Adversary Proceedings

Trial Calendars are held once per month, typically the third Wednesday 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, and Pre-Trial Option Form. 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, he must complete the Pre-Trial Option Form and return it 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 thus 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.