(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 28, 2010, eff. Dec. 1, 2010.)
Notes of Advisory Committee on Rules—1983
The rules in Part VII govern the procedural aspects of litigation involving the matters referred to in this Rule
. Under Rule
some of the Part VII rules also apply to contested matters.
These Part VII rules are based on the premise that to the extent possible practice before the bankruptcy courts and the district courts should be the same. These rules either incorporate or are adaptations of most of the Federal Rules of Civil Procedure. Although the Part VII rules of the former Bankruptcy Rules also relied heavily on the F.R.Civ.P., the former Part VII rules departed from the civil practice in two significant ways: a trial or pretrial conference had to be scheduled as soon as the adversary proceeding was filed and pleadings had to be filed within periods shorter than those established by the F.R.Civ.P. These departures from the civil practice have been eliminated.
The content and numbering of these Part VII rules correlates to the content and numbering of the F.R.Civ.P. Most, but not all, of the F.R.Civ.P. have a comparable Part VII rule. When there is no Part VII rule with a number corresponding to a particular F.R.Civ.P., Parts V and IX of these rules must be consulted to determine if one of the rules in those parts deals with the subject. The list below indicates the F.R.Civ.P., or subdivision thereof, covered by a rule in either Part V or Part IX.
|| Rule in Part V or IX
Proceedings to which the rules in Part VII apply directly include those brought to avoid transfers by the debtor under §§ 544, 545, 547, 548 and 549 of the Code; subject to important exceptions, proceedings to recover money or property; proceedings on bonds under Rules
; proceedings under Rule
to determine whether a discharge in a chapter 7 or 11 case should be denied because of an objection grounded on § 727 and proceedings in a chapter 7 or 13 case to revoke a discharge as provided in §§ 727(d) or
(e); and proceedings initiated pursuant to § 523(c) of the Code to determine the dischargeability of a particular debt. Those proceedings were classified as adversary proceedings under former Bankruptcy Rule
Also included as adversary proceedings are proceedings to revoke an order of confirmation of a plan in a chapter 11 or 13 case as provided in §§ 1144 and
1330, to subordinate under § 510(c), other than as part of a plan, an allowed claim or interest, and to sell under § 363(h) both the interest of the estate and a co-owner in property.
Declaratory judgments with respect to the subject matter of the various adversary proceedings are also adversary proceedings.
Any claim or cause of action removed to a bankruptcy court pursuant to 28
U.S.C. § 1478 is also an adversary proceeding.
Unlike former Bankruptcy Rule
701, requests for relief from an automatic stay do not commence an adversary proceeding. Section 362(e) of the Code and Rule
establish an expedited schedule for judicial disposition of requests for relief from the automatic stay. The formalities of the adversary proceeding process and the time for serving pleadings are not well suited to the expedited schedule. The motion practice prescribed in Rule
is best suited to such requests because the court has the flexibility to fix hearing dates and other deadlines appropriate to the particular situation.
Clause (1) contains important exceptions. A person with an interest in property in the possession of the trustee or debtor in possession may seek to recover or reclaim that property under § 554(b) or § 725 of the Code. Since many attempts to recover or reclaim property under these two sections do not generate disputes, application of the formalities of the Part VII Rules is not appropriate. Also excluded from adversary proceedings is litigation arising from an examination under Rule 2017 of a debtor’s payments of money or transfers of property to an attorney representing the debtor in a case under the Code or an examination of a superseded administration under Rule
Exemptions and objections thereto are governed by Rule
. Filing of proofs of claim and the allowances thereof are governed by Rules
3001–3005, and objections to claims are governed by Rule
. When an objection to a claim is joined with a demand for relief of the kind specified in this Rule
, the matter becomes an adversary proceeding. See Rule
Notes of Advisory Committee on Rules—1987 Amendment
Another exception is added to clause (1). A trustee may proceed by motion to recover property from the debtor.
Notes of Advisory Committee on Rules—1991 Amendment
Clauses (5) and (8) are amended to include chapter 12 plans.
Committee Notes on Rules—1999 Amendment
This rule is amended to recognize that an adversary proceeding is not necessary to obtain injunctive or other equitable relief that is provided for in a plan under circumstances in which substantive law permits the relief. Other amendments are stylistic.
GAP Report on Rule
. No changes since publication, except for stylistic changes.
Committee Notes on Rules—2010 Amendment
Paragraph (4) of the rule is amended to create an exception for objections to discharge under §§ 727(a)(8), (a)(9), and 1328(f) of the Code. Because objections to discharge on these grounds typically present issues more easily resolved than other objections to discharge, the more formal procedures applicable to adversary proceedings, such as commencement by a complaint, are not required. Instead, objections on these three grounds are governed by Rule
. In an appropriate case, however, Rule
allows the court to order that additional provisions of Part VII of the rules apply to these matters.
Changes Made After Publication. The proposed addition of subsection (b) was deleted, and the content of that provision was moved to Rule
. The exception in paragraph (4) of the rule was revised to refer to objections to discharge under §§ 727(a)(8), (a)(9), and 1328(f) of the Code. The redesignation of the existing rule as subdivision (a) was also deleted. The Committee Note was revised to reflect these changes.