What is an Adversary Proceeding for Student Loan Debt?
Student loan debt adversary proceeding basics
An adversary proceeding for student loan debt is a lawsuit filed separately from but related to a bankruptcy case. It is an action commenced by the Plaintiff(s) (person or business initiating the lawsuit) filing a Complaint against the Defendant(s) (person or business being sued) similar to a civil case.
At times an adversary proceeding is required to bring certain types of disputes arising from a bankruptcy proceeding to a close. There are different types of actions, such as discharged student loan debts, that this process addresses.
Common adversary proceeding matters often involve questions surrounding dischargeability of certain debt(s), violations of automatic stays, or instances of fraudulent behavior. An adversary proceeding is typically filed by the debtor, creditor, or trustee. For more information on student loan debt causes of action, feel free to contact Smith Law Group here.
Steps to file an adversary proceeding
The first step to commencing an adversary proceeding is usually contacting a knowledgeable attorney. However, the filing of a Complaint is the first actual step taken in getting the proceeding started. A Complaint is a formal written document that sets out the facts and causes of action that the Plaintiff(s) believe demand relief under the law against the Defendant(s).
The Complaint typically consists of the following:
A case caption that identifies the court of jurisdiction, bankruptcy case number, and the parties involved.
A narrative statement that further identifies the Parties involved and describes the transaction or facts in dispute that give rise to the Complaint.
The reason the case is being filed with this particular bankruptcy court – the jurisdiction.
The allegations against the Defendant(s).
The relief sought. This can be monetary or attempting to get the court to stop the Defendant(s) behavior toward Plaintiff(s).
In addition to the Complaint, Plaintiff(s) must submit an adversary proceeding cover sheet with the court.
Once the Plaintiff files the Complaint, the court will issue a Summons which must be served to the Defendant(s) along with a copy of the Complaint. When the Complaint and Summons have been served, the Plaintiff(s) must file a certificate of service indicating that the Defendant(s) service occurred and by what method (USPS, FedEx, UPS, personally delivered, etc.). Finally, in most instances, a filing fee is required, so please check with your attorney or the courts for the fee schedules.
Failure to comply with adversary proceeding requirements will lead to the Complaint’s dismissal or result in a judgment being entered against the Defendant(s). To avoid this result, it is best to consult an attorney knowledgeable in this area of law.
Please note that the information contained herein is intended to give a brief overview of the adversary proceeding process as it relates to student loan debt litigation. It is not intended to be considered a complete guide or actual legal advice. Please feel free to reach out to Smith Law Group for a more complete consultation and more thorough guidance if legal advice is what you require.