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Answer to adversary complaint in United States Bankruptcy Court

An answer to an adversary complaint in United States Bankruptcy Court is the topic of this blog post. An adversary complaint is filed as the first pleading in a separate legal action that is filed within an existing bankruptcy case. An adversary complaint is an action that is initiated by a plaintiff filing a complaint against one or more defendants.

Two of the most common adversary complaints are (1) a complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(c), and (2) a complaint to deny the Debtor a discharge under 11 U.S.C. § 727.

Once the summons and complaint are filed they must be served on the defendant within 120 days from the date the complaint was filed or the case will be subject to dismissal. See Fed. R. Civ. P. 4(m).

The defendant must answer the complaint within thirty (30) days after issuance of the summons unless a different date is specified by the court. See Fed. R. Bankr. P. 7012[a].

In their answer, the defendant should deny each statement in the complaint that is untrue and admit each statement that is true. See Rule 8(b) of the Federal Rules of Civil Procedure. If a defendant does not have sufficient information either to admit or deny a statement in the complaint, a statement may be used such as “Defendant has no information or belief that the allegations of paragraph __ are true so defendant denies them.”

Any allegations of the adversary complaint that are not specifically denied will be deemed admitted.

In addition to admitting or denying each and every allegation in the adversary complaint, defendant should include in their answer any legal defenses they may have. See Rule 8(c) of the Federal Rules of Civil Procedure. A legal defense is defined as a defense in which, even assuming that all plaintiff’s allegations in the adversary complaint were true, the law does not permit the plaintiff to win the case. A defendant should be very careful in deciding whether to raise a defense as Rule 12(b) of the Federal Rules of Civil Procedure states that certain defenses may be waived if they are not raised in the answer or a pre-answer motion. This means that a defendant that fails to raise a legal defense in their answer may not be able to raise it later in the case.

Defendants should also be sure to state enough facts for each legal defense otherwise plaintiff may file a motion to strike the defense under Rule 12(f) on the grounds of an insufficient defense, or an immaterial allegation.

If the defendant does not answer the complaint by the date set forth in the summons they are in default.

The Plaintiff can then obtain a default judgment for the relief requested in the complaint.

If the defendant does answer the complaint then discovery is permitted pursuant to the Federal Rules of Civil Procedure.

Attorneys or parties who wish to view a portion of a sample answer to an adversary complaint for sale by the author please see below.

Attorneys or parties that would like more information on a Federal litigation document package containing 42 sample documents including a sample answer to an adversary complaint can use the link shown below.

Federal litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Subscribe to my weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

Copyright 2015 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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