If a creditor in a debtor’s bankruptcy case believes that the claim is non-dischargeable in bankruptcy, the creditor must file an adversary complaint in order to dispute its inclusion. The creditor will need to gather the evidence needed to prove that the debt should not be discharged by the bankruptcy court.
Grounds for a Challenge
Determine if as creditor, you have a ground for making the complaint in the law. Check 11 U.S. Code Section 523, which contains the descriptions of debts that cannot be discharged. Ordinary creditors may have grounds under the sections that make the following debts non-dischargeable: money or property obtained by fraud, consumer debts incurred right before declaring bankruptcy, domestic support obligations, willful or malicious injury, debts for personal injury damages where debtor was operating a vehicle under the influence or alcohol or drugs, and debts that were or could have been listed in a prior bankruptcy. If you have one of these grounds, you may proceed.
File Proof of Claim
File a Proof of Claim in the Bankruptcy. The claim is a written statement. Go to the website for the Bankruptcy Court for the relevant judicial district, obtain that court’s Official Form and use it. File a copy of any writing that is evidence of the claim with the Proof of Claim. Also file copies of evidence of security interests, if any. If vidence of the debt has been lost or destroyed, file a statement explaining the circumstances.
Now you are ready to compose the adversary complaint, requesting a determination that the debt is non-dischargeable. Set forth the circumstances of the debt and why it falls into a category that would make it non-dischargeable. Also prepare any court required documents and a Summons.
The Federal Rules of Bankruptcy contain deadlines for the filing of Adversary Complaints. See Rule 4007, which gives the limits – they are not long, on the order of 60 days. Also consult the Local Rules of the Court in which the Bankruptcy is filed for deadlines and rules regarding forms that may have to be filed with the Complaint. Be careful of the deadlines; they are not negotiable.
File and Serve the Adversary Complaint
Check the court’s web page for information on whether or not e-filing is required or available. After the Clerk of the Court issues the Summons, have the Summons and Complaint served on the debtor. Federal Bankruptcy Court Rule 7004(b) allows service by first class mail. It can also be delivered in person. After the service, file a Certificate of Service with the court, to inform the court of the fact that the complaint is served. Most courts will have forms for this.
Gather Evidence of the Debt and that it Belongs to a Nondischargeable Category
The evidence is the documents and witnesses that show that the debt falls into one of the Section 523 categories and therefore the debtor cannot have a discharge for it. Find the original documents. Bring in the custodian of records to be the witness who can vouch for the documents as genuine. This will help ensure that the evidence is admitted in court. Go to and check the Federal Rules of Evidence. Before the trial, you can do discovery – send written interrogatories or take depositions – especially where the debtor disputes the circumstances.