Friday, July 20, 2012

Adversary Proceedings versus Contested Matters

Bankruptcy litigation can be confusing to the inexperienced practitioner.  If you are contemplating litigation in bankruptcy court, you should first determine which rules apply.  Then you should read them.  

There are two terms of art that apply to litigation in bankruptcy court, "adversary proceedings" and "contested matters."  Adversary proceedings (or "adversaries") are separate lawsuits brought in bankruptcy court.  They start with traditional pleadings, including a complaint, motions to dismiss, answer, affirmative defenses, etc.  Then they proceed to discovery and a trial.  Contested matters, on the other hand, are brought by motion and are governed more like state-court motion practice.  

Adversary proceedings are governed by Part VII of the Federal Rules of Bankruptcy Procedure.  Rule 7001 states that the following are adversary proceedings: 

  1. A proceeding to recover money or property, other than a proceeding to compel the debtor to deliver property to the trustee, or a proceeding under Sec. 554(b) or Sec. 725 of the Code, Rule 2017, or Rule 6002;
  2. A proceeding to determine the validity, priority, or extent of a lien or other interest in prperty, other than a proceeding under Rule 4003(d);
  3. A proceeding to obtain approval under Sec. 363(h) for the sale of both the interest and of a co-owner in property;
  4. A proceeding to object to or revoke a discharge, other than an objection to discharge under Secs. 727(a)(8), (a)(9), or 1328(f);
  5. A proceeding to revoke an order of confirmation of a chapter 11, chapter 12, or chapter 13 plan;
  6. A proceeding to determine the dischargeability of a debt;
  7. A proceeding to obtain an injunction or other equitable relief, except when a chapter 9, chapter 11, chapter 12, or chapter 13 plan provides for the relief;
  8. A proceeding to subordinate any allowed claim or interest, except when a chapter 9, chapter 11, chapter 12, or chapter 13 plan provides for subordination;
  9. A proceeding to obtain a declaratory judgment relating to any of the foregoing; or
  10. A proceeding to determine a claim or cause of action removed under 28 U.S.C. 1452.
If your proceeding is not contained in that list, it is a "contested matter," which is governed by Rule 9014.  If your issue does not fall into one of the 10 categories listed above, it must be brought by motion.  

It is also helpful to think in these terms if you are defending a proceeding.  You may have a motion to dismiss if your opponent brought a contested matter in an adversary complaint, or vise versa.   

As usual, call me with any questions.  

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