Litigation
When a party seeks to enforce a legal right, they file a lawsuit. The path that lawsuits take as they journey through the civil justice system is called litigation.
Not every attorney practices bankruptcy law, and not every bankruptcy attorney is a litigator. For litigation to be effective, one needs to know each and every aspect of the case as well as the procedures that enable the parties to successfully navigate the lawsuit. Whatever the case, we bring over 15 years of litigation experience in various federal and state courts on a variety of factual and legal issues.
We represent our clients throughout the litigation process, including:
• Mediation;
• Arbitration;
• Trial or substantive motion; and
• Appeal.
Bankruptcy Litigation and Adversary Proceedings
Bankruptcy litigation usually takes the form of an Adversary Proceeding: a law suit filed in the bankruptcy court. Creditors, Debtors and Trustees may initiate these actions. These proceedings are separate from a bankruptcy filing where a debtor seeks a discharge or an opportunity to reorganize. An Adversary Proceeding is somewhat similar to civil suits filed in other courts.
There are a number of reasons why an Adversary Proceeding may be brought. These include, but are not limited to situations where
• A creditor seeks a non-dischargeability determination of a debt;
• A debtor seeks for violations of the automatic stay; or
• A trustee seeks the turn over of estate property.
Adversary Proceedings (APs) do not occur in every bankruptcy filing. According to the US Bankruptcy Court (District of Massachusetts) PACER website, a total of 4,945 bankruptcy cases were filed in the first six months (January 1 through June 30) of 2008. In addition to those cases, 230 Adversary Proceedings were filed. Statistically, most debtors will not see any AP’s filed in their bankruptcy matters. However, if an AP is filed, or needs to be defended, it is important to have experienced and skilled counsel protecting your interests.
I already have a bankruptcy attorney I trust. Why do I need another attorney to help me with an Adversary Proceeding?
If you are a debtor and you are facing an Adversary Proceeding, have a candid and frank discussion with your bankruptcy attorney. Some bankruptcy attorneys do not litigate and some do not have litigation experience. There is nothing wrong with that, and it does not mean that they are not qualified to represent you in your bankruptcy case. But if your attorney recommends getting a litigator, please contact us. We have represented debtors in Adversary Proceedings while their bankruptcy attorney continues to represent them in the bankruptcy matter.
Attorney McLeod has almost 18 years of litigation experience in state and federal courts in Massachusetts, Connecticut and New York as well as other jurisdictions.
I need to bring an Adversary Proceeding against a party. What can you do?
We will investigate and prepare a complaint and file it with the US Bankruptcy Court (along with the appropriate filing fee). Once the Defendant responds to the complaint, and assuming that there are no motions challenging the complaint, a pretrial order enters and a discovery phase will begin.
During this phase, both sides try and learn more about the facts supporting the claims and defenses. In doing so, they are allowed to use the tools provided for in the Federal Rules of Bankruptcy Procedure, which in large part, incorporates the Federal Rules of Civil Procedure.
This process all leads to either motions seeking judgment, which are called Motions for Summary Judgment, or a trial where evidence is presented, witnesses testify and a decision is rendered by the bankruptcy court.
How long will the process take?
There is no clear answer to this. Every case is different and every case presents its own unique legal and factual issues. The more complex the issues, the longer the process will likely take. Trials can take time to plan and schedule, and appeals will add to the length of time.
What are the chances the Adversary Proceeding will settle?
Statistically, the chances are good. Settlement of cases will depend on the nature of the case, and the dynamics of all of the parties involved. As with most civil matters, only a small percentage ever reach trial. Some settle after the complaint is filed, some settle on the eve of trial, and some settle some time in between. Every case is different.
In short, if an Adversary Proceeding has been filed or needs to be filed please contact us.
