What is an Adversary Proceeding in Bankruptcy?

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Written by Andrea Wimmer, Esq..  
Updated June 22, 2020

Summary

An adversary proceeding is a like a lawsuit that takes place as part of the bankruptcy case. Adversary proceedings are generally the most complicated part of a bankruptcy proceeding, but they don't happen in every case.

An adversary proceeding is a like a lawsuit that takes place as part of a bankruptcy case. Some common examples include creditor objections to the discharge of a specific debt, general objections to granting the filer a discharge, an effort by the trustee to recapture property from a third party, or an action to determine whether a secured creditor has a valid lien on the filer’s property. However, many different types of issues can be determined through adversary proceedings in the bankruptcy case. For instance, a contract dispute regarding a debt listed in the bankruptcy might be decided by the Bankruptcy Court as part of an adversary proceeding.

Adversary proceedings are generally the most complicated part of a bankruptcy proceeding. If you’ve received notice that an adversary proceeding has been opened by the Bankruptcy Court,  you should seriously consider speaking to a lawyer or reaching out to a local legal aid organization to get more information about what to expect.  Some courts even have a panel of attorneys that will help filers pro bono (for free) in certain adversary proceedings.

What Happens during an Adversary Proceeding?

An adversary proceeding generally runs like a mini-trial. The person who started the proceedings and is asking the court to decide something and will make their case first. Then, the other party will have a chance to respond and make their own arguments. Depending on the type of proceeding, evidence may be presented, usually in the form of documents or witnesses. 

Because there are so many different types of adversary proceedings, it is impossible to provide a full description of what to expect. However, if you hire an attorney to represent you in the adversary proceeding, the lawyer will be able to explain in more detail how that particular type of case will move forward. 

What Happens if an Adversary Proceeding Isn't Decided in My Favor?

Depending on the type of adversary proceeding, a bad decision for you could mean that you have to pay a debt you hoped to discharge, that a lien is valid and a debt will be treated as secured, or any one of many other possibilities. In some cases, the effect will be small. But, in others, such as a determination that you are not eligible for a discharge, an adversary proceeding can disrupt your whole bankruptcy case. 

About the author

Andrea Wimmer, Esq.

Andrea practiced exclusively as debtors’ counsel in consumer chapter 7 and 13 cases for more than 10 years before joining Upsolve, first as a contributing writer and editor and ultimately joining the team full time in August 2019. While in private practice, Andrea handled all ban... read more

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