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Craig D. Robins, Esq. New York Bankruptcy Attorney, Longisland bankruptcy attorney

“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”

Craig D. Robins, Esq.

A Primer on Adversary Proceedings

Posted on Thursday (June 10, 2004) at 11:49 pm to Bankruptcy Practice
Bankruptcy Procedure
Bankruptcy Terms
Chapter 7 Bankruptcy
Nassau Lawyer

The Answer. The answer must be served within 30 days from the date the summons is signed by the clerk of the court. The answer is no different than a typical answer you may be accustomed to, but it must be signed by the attorney. The answer must be filed with the court electronically through the court’s ECF system, together with an affidavit of service.

Extending Time To Answer. If needed, most creditors’ attorneys will cooperate by extending you time to answer by at least two to four weeks. Although court rules require that any extension of time be memorialized by a stipulation which is filed with the court, it is nevertheless common practice to merely confirm such extensions by way of informal letter. Stipulations, however, are always more desirable. Since most adversary proceedings are settled, consider stipulating with your adversary to indefinitely extend the debtor’s time to answer, pending good faith efforts to negotiate a settlement, but further stating that the plaintiff can demand an answer at any time upon several weeks written notice.

Discovery And Trial. If you do not settle your case, you can expect to get involved in depositions and other discovery and disclosure. The court will also require several pre-trial conferences in order to schedule discovery and provide the court with the status of the case. All judges have chambers rules requiring the parties to submit several joint pre-trial statements at various stages of the case. All of this can be somewhat burdensome and time consuming. The amount of work involved encourages all parties to settle. The trial itself is a formal hearing in which the Federal Rules of Evidence apply. Some judges may vigorously encourage the parties to work out a settlement prior to the start of any trial.

Legal Fees. Representing the debtor in an adversary proceeding is usually additional, unanticipated work that is not provided for in the initial retainer agreement. Retainer agreements should state this with particularity. Defense of an adversary proceeding is usually done either on an hourly basis or a lump sum basis. The fees for negotiating a settlement can range from $750.00 to $1,000.00 or more, depending on the issues and amount of work involved. Zealously defending the debtor with a full adversary proceeding up through trial can often result in very substantial legal fees as the time involved can easily be twenty hours or more. For this reason, most matters are settled. It is also unfortunate that a debtor who has a good defense may be unable to fully assert it because of the expense of litigation.

Practical Tips. If your consumer debtor client is served with an adversary proceeding, immediately consult with the client to discuss it. Consider the high cost of defending a proceeding and review settlement options. Almost all creditors challenging dischargeability are amenable to settlement, often agreeing to payment plans over extended periods of time. The sooner an adversary proceeding is settled, the less procedural work is involved, such as continuously seeking adjournments of pre-trial conferences.

About the Author. Long Island Bankruptcy Attorney Craig D. Robins, Esq., is a frequent columnist for the Nassau Lawyer, the official publication of the Nassau County Bar Association in New York. This article appeared in the June 2004 issue of the Nassau Lawyer. Mr. Robins is a bankruptcy lawyer who has represented thousands of consumer and business clients during the past twenty years. He has offices in Medford, Commack, Woodbury and Valley Stream. (516) 496-0800. For information about filing bankruptcy on Long Island, please visit his Bankruptcy web site: http://www.BankruptcyCanHelp.com.

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Craig D. Robins, Esq. is a Long Island bankruptcy lawyer, who is focused primarily on helping individuals and families, find solutions to their debt problems. Read more »


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