What goes into an adversary complaint in bankruptcy court?

What is a complaint, and when is one needed?

In federal court terms, a complaint is the written statement a plaintiff files to start a case, stating the court's jurisdiction, the wrongs alleged and the relief requested. In bankruptcy, the lawsuit it starts is called an adversary proceeding.1

Bankruptcy Rule 7001 lists the matters that are adversary proceedings. They include a proceeding to recover money or property, to determine the validity, priority or extent of a lien, to revoke or object to a discharge, and to determine whether a debt is dischargeable.5

The last of those is the subject of most of this guide. A debtor or any creditor may file a complaint asking the court to decide whether a debt is dischargeable. Timing matters for creditors: a complaint claiming a debt came from fraud or willful and malicious injury generally must be filed within 60 days after the first date set for the meeting of creditors.6

What do the rules say a complaint must contain?

A complaint in an adversary proceeding follows the general federal pleading rule, with additions from the bankruptcy rules. Together they call for the items below.2 3

1. A short and plain statement of the grounds for the court's jurisdiction.2 3
2. A reference to the name, number and chapter of the bankruptcy case, and the district and division where it is pending.2 3
3. A short and plain statement of the claim showing the person is entitled to relief.2 3
4. A demand for the relief sought.2 3
5. A statement of whether the filer consents to the bankruptcy court entering final orders or judgment.2 3
6. The signature of the party, who must sign every document filed with the court when there is no lawyer.7

The pleading rule also sets the style: each allegation must be simple, concise and direct, and no technical form is required.2 3

How is an adversary complaint laid out?

The federal civil rule on the form of pleadings applies in adversary proceedings, with one bankruptcy twist for the caption. In practice that means the following.8 9

• A caption at the top with the court's name, a title naming all the parties, the file number and what the document is. In bankruptcy, the caption must substantially follow Official Form 416.8 9
• The claims set out in numbered paragraphs, each limited as far as practicable to a single set of circumstances.8 9
• Separate counts for claims that arise from separate transactions or events, where that makes the complaint clearer.8 9
• Exhibits, such as a copy of a loan agreement, which become part of the complaint for all purposes once attached.8 9

The signature carries weight too. By presenting a document to the court, an unrepresented party certifies that it is not presented for an improper purpose, that the legal contentions are warranted, and that the factual contentions have evidentiary support. The court may impose sanctions for a violation.7

What happens after the complaint is filed?

The clerk issues a summons, which names the court and the parties, tells the defendant how long they have to respond and warns that failing to do so will result in a default judgment.10 11

The plaintiff is responsible for serving the summons and complaint. They must be delivered or mailed within 7 days after the summons is issued, or a new summons must be issued. Special rules apply when the defendant is the United States or a federal agency, as in most federal student loan cases.11 10

The defendant must answer within 30 days after the summons was issued, or 35 days for the United States or its agencies, unless the court sets a different time. In the answer the defendant must admit or deny the allegations, which is why each numbered paragraph matters.12 2 3

Then the claim has to be proved. The burden of proof is the duty to prove disputed facts, and in civil cases the plaintiff generally has it.1

How does this apply to a student loan?

Student loans are generally not discharged in bankruptcy unless not discharging them would impose an undue hardship on the debtor and the debtor's dependents. To seek that result, a debtor must file an adversary proceeding and prove undue hardship.13 14

For federal loans, the Justice Department and the Department of Education introduced a process in November 2022 in which the debtor fills out an attestation form. The Justice Department reviews it and decides whether to recommend a full or partial discharge, and the bankruptcy judge makes the final decision. That process runs inside the adversary proceeding the complaint starts.14

What facts support an undue hardship claim for one borrower is a question for a lawyer who handles these cases.

Are there official forms, and is there a fee?

The federal courts' bankruptcy forms page does not offer a fill-in complaint for debtors. It does include forms used around a complaint: the Adversary Proceeding Cover Sheet (Form 1040) and the Summons in an Adversary Proceeding (Form 2500A).15

Under the bankruptcy court fee schedule effective December 1, 2023, the fee for filing a complaint is $350, and the fee must not be charged if the debtor is the plaintiff.16

Courts can have their own formatting rules and local forms. Local rules are posted on each court's website and are available at its intake counter.4

Who can help with a complaint?

The limits on help from non-lawyers matter a great deal here. One bankruptcy court's warning to people without lawyers says the clerk's office and judges' staff cannot say whether a complaint properly presents a claim, cannot advise on the best procedure to reach a goal, and cannot explain who should receive proper notice or service.17

A petition preparer may only enter information into forms, and may not give legal advice or help in bankruptcy court.18 4

That leaves a lawyer. The federal courts say people who cannot afford an attorney may qualify for free legal services, and the official form instructions suggest contacting a state or local bar association for help finding them.4 19 20