What is an Adversary Proceeding?
In certain bankruptcy cases, the debtor will need to go through an adversary proceeding in addition to the general bankruptcy case. The term “adversary proceeding” is common to come across when you are researching student loans and bankruptcy in particular since student debt, in large part, can only be discharged following an adversary proceeding. The general process for discharging student loan debt in bankruptcy has become significantly easier with new Department of Justice (DOJ) guidance, but it is still essential for debtors seeking to discharge student loans in bankruptcy to understand what an adversary proceeding is and how it works. Our West Palm Beach bankruptcy lawyers can explain, and we can begin working with you today on a bankruptcy case involving student debt.
Understanding the Adversary Proceeding
An adversary proceeding is, in short, a civil action that takes place in a bankruptcy court. It is similar to a lawsuit in any other civil court, except it is occurring in a bankruptcy court. According to the American Bankruptcy Institute (ABI), an adversary proceeding is a “possibility” in any bankruptcy case, and may be necessary in particular bankruptcy cases (such as those in which a debtor is asking the court to discharge federal student loans). As the ABI explains, an adversary proceeding will typically arise “when there is a fundamental disagreement between a creditor and a debtor.”
An adversary proceeding may be initiated by either a creditor or a debtor in a bankruptcy case. To initiate an adversary proceeding, the party that wants to initiate the proceeding will file a complaint similar to the way they would file a complaint in another kind of civil lawsuit situation outside bankruptcy. The adversary proceeding will then have a new case number distinct from the bankruptcy case itself.
When an Issue Must Go Through an Adversary Proceeding in a Bankruptcy Case
The Federal Rules of Bankruptcy Procedure outline the specific kinds of issues that must be resolved or addressed through an adversary proceeding rather than through something like a notice or a motion fully within your bankruptcy case. The following are examples of some of the types of issues that must be brought up in an adversary proceeding according to the Federal Rules of Bankruptcy Procedure:
- Determination of whether a debt is dischargeable (such as student loan debt);
- Creditor wants to object to the discharge of a debt; or
- Creditor wants to have a debtor’s confirmation plan revoked in a reorganization bankruptcy case (e.g., Chapter 11 or Chapter 13 bankruptcy case).
Contact a West Palm Beach Bankruptcy Attorney Today
If you have any questions about an adversary proceeding in your bankruptcy case, or if you want to learn more about discharging student loans in a personal bankruptcy case, you should get in touch with an experienced West Palm Beach bankruptcy lawyer at Kelley, Kaplan & Eller as soon as you can. Our firm represents individuals and businesses in a wide range of bankruptcy issues, and we are committed to assisting debtors who want to have their student loans discharged under the new guidance. Do not hesitate to get in touch with our firm to learn more about how we can help you.