One of our goals this year is to publish a comprehensive guide on filing an adversary proceeding as part of a bankruptcy to discharge student loans. It will initially be published as a series of Learn Articles. The following is one of the sections in the working draft of the Upsolve's Student Loan Adversary Proceeding ("SLAP") Guide.
Written by Attorney Andrea Wimmer.
Updated January 30, 2021
An adversary proceeding is basically a lawsuit that takes place in the bankruptcy court because that’s connected to a bankruptcy proceeding in some way. Each step of the process will be covered in detail in its own section of the Guide. What follows is a general overview only.
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Timeline Of An Adversary Proceeding To Discharge Student Loans
Prepare the complaint, gather exhibits.
Go to court to open an adversary proceeding and file a complaint.
Clerk issues summons. This happens either on the day that you file your complaint or within a few days thereafter. Once issued, you have 30 days to serve the summons and complaint (more on how to serve something in an AP later).
Summons is served and the defendant has 30/35 days to respond by filing either an answer or a motion to dismiss.
If they don’t do either and there’s no response, you can file a motion for default asking the court to declare you the winner and grant a judgment against the defendant by default.
If they respond with a motion to dismiss, you’ll be given a chance to file a response to the motion and make your case to the judge at a hearing on the motion. If the court rules in your favor, the defendant will file an answer.
If they respond by filing an answer, the case moves forward to the discovery period.
Discovery period: During this time you exchange information with the defendant as you both prepare for trial. This is also more time to reach a settlement with the other side.
Pretrial proceedings. If no settlement is reached, the matter will eventually be set for trial.
Trial. The court considers evidence and witness testimony, then makes a decision to either:
fully discharge the student loan
partially discharge the student loan, leaving you responsible for the remainder
not discharge any portion of the student loan
Appeal. The losing party may appeal to the District Court or the Bankruptcy Appellate Panel (if any).