What is an Adversary Proceeding?

An “adversary proceeding” in bankruptcy is a lawsuit within your bankruptcy filing to settle a specific issue. 

Certain benefits of the bankruptcy code, like the ability to discharge student loans in cases of “undue hardship,” require an extra step in the process (an “adversary proceeding,” essentially a lawsuit within the bankruptcy)

MONEY TIP $$: When you hire a lawyer to handle your bankruptcy, ask whether the fee includes adversary proceedings. Most lawyers' upfront fees do NOT include the cost of doing an "AP."

An adversary proceeding in bankruptcy is a lawsuit filed within a bankruptcy case. It is used to resolve legal disputes arising within a bankruptcy case context. Aside from student loan undue hardship cases (under section 523(a)(8)), issues that might be addressed in an adversary proceeding include any of 18 other categories about disputes over the dischargeability of a debt, the ownership of property, or the validity of a lien.

To file an adversary proceeding, you must first have a bankruptcy case open. If you do not have a bankruptcy case open, you will need to file a bankruptcy petition and receive a case number before you can file an adversary proceeding.

Once you have a bankruptcy case open, you can file an adversary proceeding by following the Federal Rules for court proceedings (Rule 7004), which includes doing the following:

1. File a complaint: This legal document outlines the nature of the dispute and the relief you seek.

2. Serve the complaint: You must serve a copy of the complaint on all parties involved in the dispute. This is typically done through the United States Marshal's Service.

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3. File a proof of service: Once you have served the complaint, you must file a proof of service with the court to show that the complaint was served on the other parties.

4. Respond to the complaint: The other parties will have an opportunity to respond to the complaint by filing an answer or other responsive pleading.

5. Attend hearings and participate in discovery: The case will proceed through the usual litigation process, including any necessary hearings and discovery.

6. Attend a trial: If the case is not resolved through settlement or other means, it may go to trial.

It is important to note that adversary proceedings can be complex and time-consuming, and it is often advisable to seek the assistance of an attorney if you are considering filing one.