Adversary Proceedings - The Answer

The Answer is the formal written statement filed by the defendant responding to a complaint setting forth any defenses and objections to the claims by the plaintiff.

Filing the Answer

The answer is due thirty (30) days after issuance of the summons, unless a different date is set by the Court. See Federal Bankruptcy Rule 7012. The answer should admit or deny every allegation in the complaint and set forth any affirmative defenses that may be applicable. The easiest way to do this is to go through the complaint and answer each numbered paragraph, admitting or denying the statements of that paragraph. Affirmative defenses should be separately listed and identified as such. Failure to answer the complaint timely may result in a default judgment being entered against the defendant.

The answer may also contain a cross-claim, in which the defendant makes a claim against another named defendant. The answer may also contain a third-party claim, in which the defendant brings in third parties to the action that may be liable to the defendant in the event defendant is liable to the plaintiff. The form of the counter-claim, cross-claim and/or third-party claim should be the same as the complaint and clearly captioned as such.

A Motion is an application or request made to the Court for the purpose of obtaining a ruling or order directing some act to be done in favor of the applicant. See Rule 7(b) of the Federal Rules of Civil Procedure.

After the Answer

The summons sets the date and time for an initial pretrial conference or scheduling conference. Counsel or parties may appear by telephone at the pretrial/scheduling conference. Failure to attend the initial pretrial conference may result in dismissal of the case (against plaintiff) or judgment (against defendant). During the course of the case there may also be motion hearings, and a final pretrial conference before trial.

If There Is No Answer

If the defendant does not file an answer by the date set forth on the summons, he or she is in default. Plaintiff can obtain a default judgment for the relief requested. To obtain this judgment, plaintiff submits to the Clerk an "Entry of Default in Adversary Proceeding" with:

  1. a motion for default judgment or affidavit of default and
  2. the proposed default judgment.

The Clerk reviews the record and the motion or affidavit, enters the default, and then transmits the entire group of documents to the Judge's office for review and signature. The motion or affidavit of default should include:

  1. date of issuance of summons,
  2. date of service of the complaint and summons,
  3. date of filing of proof of service,
  4. a statement of when the answer was due,
  5. a statement that no answer or motion has been received, and
  6. a statement that the defendant is not in the military service, as required by 50 U.S.C., Appendix, Section 520.