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Adversary Proceeding Questions

Adversary proceedings are lawsuits within or related to bankruptcy cases. When people are faced with adversary proceedings, questions about legal rights and the provisions of the law are common. Listed below are a few questions answered Experts on adversary proceeding related issues.

I would like to file an adversary proceeding against a debtor who is planning to discharge a loan. Do I need the help of a lawyer to do so?

The Constitution of the United States gives you the right to represent yourself in all federal and state courts of the country. You might find bankruptcy laws and rules very complicated but you still have the right to fight for yourself.

An adversary proceeding was filed during our bankruptcy. I don’t have the money to hire an attorney to fight the proceeding now, so can I get it dismissed?

In a situation like this, you could make a copy of the bankruptcy filing and put it together with a document that you caption “NOTICE OF BANKRUPTCY”. You would then need to go to court and file this. You will also need to send a copy to the other side. As per law, the court in which the adversary proceeding is being carried out should “stay” the proceeding automatically.

If a bankruptcy adversary proceeding is moved to federal district court, can the bankruptcy court still have any jurisdiction over the case after it is moved?

Once the adversary proceeding is moved, even though the bankruptcy court would not have jurisdiction over the proceeding, it should still exercise its authority over the bankruptcy case itself. This includes approving settlements and so on.

I was summoned in an adversary proceeding in which I was asked to answer within 30 days. I went to the federal court house that same day and dropped my answers off. I then realized the plaintiff’s attorney must also be notified by me at the same time that I give my answers. I cannot afford an attorney so I am representing myself. I still have a few more days left to respond to the court.

In most cases, an answer must be given to the court as well as to the other party. The error that you made was a simple one to make and perhaps a reason why you might want to hire an attorney to represent you. Now, there are two ways to look at this. The first is that this could actually be the last mistake that you ever make in this process. Or, that it could be the first of many more. Unfortunately, errors like this can make people prejudiced against you and can possibly result in default judgments.

As you now know, you need to serve your opponent with an answer. So what you could do is rectify this prior to the due date. It is possible that a court will realize that you made a mistake, find you to be in substantial compliance and see that you have filed an answer on time. Yet, this also does depend on other factors like your judge and the laws and rules of your state.

You may want to hire an attorney who has a license to practice in your state. Here are two links to help you find lawyers in your area:
http://www.lawyers.com/
http://www.justia.com/

Dealing with a bankruptcy case is difficult. Adversary proceedings within these cases are not always common. Yet every debtor should have a clear understanding of what an adversary proceeding is and how one can fight it.

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Tina
Tina, Lawyer
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