Houston Bankruptcy Attorney
Generally speaking there are two types of bankruptcy litigation. Those types of litigation can be broken down into “adversary proceedings” and “contested matters.” At Guerra | Days Law Group, our Houston Bankruptcy attorneys can help determine which of these may be necessary in your case.
A lawsuit filed in the bankruptcy case is an “adversary proceeding.” The adversary proceeding is a separate case with its own case number that is related to the primary bankruptcy matter. In adversary proceedings the person or entity bringing the lawsuit before the court is the plaintiff while the person or entity being sued is called the defendant.
After an adversary proceeding has been filed, the case is prosecuted in the same manner as a traditional lawsuit that was filed outside of a bankruptcy court. This means that each party should have the opportunity to conduct discovery to obtain evidence, file motions to be considered by the bankruptcy court, and ultimately have the case decided by a judge or in certain instances a jury.
While the bankruptcy rules allow for consideration of various matters in adversary proceedings, the Federal Bankruptcy Rules of Bankruptcy Procedure state that certain matters must be determined pursuant to adversary Under Rule 7001 of the Federal Bankruptcy Procedure Rules, a few matters must be resolved through the adversary process. The types of matters that require an adversary proceeding include but are not limited to a determination of the extent or validity of a lien on property (i.e. challenging the amounts owed on a mortgage claim), determining whether or not a debt may be discharged, or suits to recover money that should belong to the bankruptcy estate.
Our Houston Bankruptcy attorneys can use their extensive knowledge of the bankruptcy laws to identify claims that require adversary litigation and have the bankruptcy litigation experience to successfully argue those claims.
Contested matters do not require the filing of a separate lawsuit. They don’t get their own case number, and they don’t reference a plaintiff or defendant. Rather, contested matters are typically filed with the court as motions or objections.
In contested matters, following the filing of the motion or objection the opposing side will usually have the opportunity to respond. These contested matters are typically more streamlined in nature and tend to proceed more quickly than adversary proceedings. Although the contested matter process may be somewhat less formal than the adversary process it may still be necessary for an evidentiary hearing before the judge that will ultimately make a decision on the matter.
In some instances contested matters will not require a hearing or an appearance before the court. This occurs when a party in interest to the contested matter does not timely file an objection or response. For example for most contested matter motions in the Federal and Local Bankruptcy Rules allow for the inclusion of negative notice language. This means that the other party has been informed through the filing of the motion or objection of its right to file a response to the contested matter. If that party fails to do so, the bankruptcy court can then sign an order granting relief without the need for hearing.
There are various contested matters that can be filed with the court that do not require adversary proceedings. These contested matters may include an action by a creditor that is seeking relief from the automatic stay to pursue foreclosure, a action by debtor who has a lease on real property that wishes to reject the lease contract, or a Chapter 13 debtor who is seeking to modify a confirmed Chapter 13 plan to name a few.
Contact Guerra | Days Law Group for our Houston Bankruptcy attorneys and we can explain your rights under the bankruptcy laws and assist in determining if bankruptcy litigation will be necessary in your case.