Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

Welcome to the Bankruptcy Forum. Bankruptcy (BK) Forum is known as and will be referred to as BKF hereinafter. In order to ensure a long term success of our vibrant community, we have established certain rules and guidelines to which everyone must adhere to. Please take your time to carefully read our rules, before you start to participate in the community.

Things you agree to do: (BKF) users agree to use the search function before starting a new thread. This prevents duplicate discussions and allows for better organized topics.

All BKF users agree to read the sticky posts which may be available at the top of a forum page. These Sticky posts often contain valuable information. They may also outline more rules and guidelines specific for that particular forum, stickies are put in place by that forums moderator(s) or admin(s).

Things you agree not to do:

All BKF users agree not to call people names or write a post simply to make a personal attack, or get a negative reaction; this behavior is not allowed on our forum. The use of derogatory language aimed at anyone will be severely dealt with. There is no need to agree with each other, or to even like each other. However, by signing onto you agree to treat each member and guest with the respect they deserve. No threats or personal attacks will be allowed.

All BKF users agree not to discuss, engage, or encourage any behavior or activity which violates the law. Discussion of drugs, violence, murder, theft, vandalism, fraud or any other issue which could be used to help individuals break the law is strictly forbidden.

All BKF users agree not to "bump" old threads, unless there is a specific benefit to the community by doing so. But in most cases, please don't post in very old threads, instead start new threads.

All BKF users agree not to attempt/use another members account. It is against BKF rules to use any account other than your own. Impersonating another member will result in an immediate ban. It is also against the rules to open more than one account in your own name without permission from a moderator or administrator. If you have been banned for any reason, it is against the rules to open another account. If you were banned temporarily and you are caught using another account you will be banned permanently. Choosing a moniker which is similar in either sound or spelling as a moderator or administrator is strictly forbidden.

All BKF users agree not to private message any moderator, admin, or other member with questions related to their personal circumstances (Questions about the forum or issues with the forum are ok). This forum only works when members share their experience and insights with everyone.

Things you agree not to post:
All BKF users agree not to post any derogatory/racist/or sexist remarks. This includes attachments, links and all information contained within posts, signatures, and avatars, failure to comply with this rule will result in a permanent ban.

All BKF users agree not to post any copyrighted or trademarked information without the express written permission of the owner(s) / proper citation of source.

All BKF users agree not to post any real names, addresses, telephone numbers, email addresses, social security numbers, or any other personal details (their own or other people's).

All BKF users agree not to post links, pictures, attachments, videos, or the like of pornographic content, objectionable material or extreme violence, whether cartoon or real.

All BKF users agree not to use BKF for advertising purposes without a written contract between yourself/company/agent and the administration of BKF. Blatant advertising will result in a ban.

All BKF users agree not to spam the forums. Spam includes but is not limited to posting erroneous, non-relevant-useless, off-topic, or meaningless posts. Spam may also include posts which contain no text, or large areas of blank space between lines. Simply posting emoticons without text is considered spam. BKF is the largest bankruptcy message board and all the content is intended to help other users. Please help us improve the quality of our forum by making sure that your posts are well-worded, spell checked, grammatically correct and syntaxed.

Regarding actions of moderators and administrators:

The forum is no place to air out your opinion or be judgmental of our staff and its capabilities.

All BKF users agree not to abuse or mistreat moderators or administrators. It is against BKF rules to post any information regarding bans or any other action taken by a member of the moderating or administrative team. If you wish to discuss bans or warnings please do so via PM. To place a complaint against a moderator, send a PM to a super moderator. All Moderators are equal, any decision made by a moderator must be adhered to. If a moderator tells you something you do not like, do not go to another moderator looking for a different answer. If you are caught doing this you will be banned. The moderators work as a team and respect the decisions made by their peers and will help enforce them unless an administrator tells them differently.
If you have an issue with how the forum is run, then notify one of our administrator and we will look into the situation. We have in the past and still do appreciate any input that you offer this forum. But critical input and/or judgmental postings towards the staff will result in you getting banned.

Should you find a thread offensive or out of line, then notify a Mod in a PM so they can evaluate the situation and do the action deemed necessary.

All moderators do have active "other" lives outside of the forum and help moderate this forum in their spare time throughout the days and weeks.

If you have a problem with a member or Mod follow the proper channels of reporting it.

BKF reserves the right to delete any posts which contain anti-BKF comments or discussion. Any bashing of moderators or administrators, or any of their discussion or actions will also be deleted, and the responsible posting party(s) will be banned. Any public anti-BKF advertising, communication, or posts on another forum will result in permanent bans as well.

All warnings and bans are decided by individual moderators and administrators. Warnings are preferable to bans however, for serious offenses and repeat abusers bans will go into effect. The length of the bans can vary from several hours to permanent.

All messages posted or sent including through PM are the property of

All BKF users agree not to advertiser on the forum (Niether by posting, private messaging or using your signature). If you are a company/attorney/legal adviser wishing to advertise on the site or sell a product, you must contact the head administrator and inquire about our advertising packages.

All bankruptcy related opinions expressed on are those of their authors and not necessarily of BKF, its staff or representatives.

You agree not to copy any material/post/content from BKF without written permission from our head administrator .

By posting on this forum you agree to these terms and conditions, including any punishment deemed appropriate by moderators or administrators in the event of an offense.

Administrators/Moderators can change these rules at any time without prior notice.
See more
See less

Adversary Proceeding - How to remove it to District Court?

  • Filter
  • Time
  • Show
Clear All
new posts

  • Adversary Proceeding - How to remove it to District Court?

    My situation is a long and disastrous one at this point. I have two separate attorneys working on my Chapter 13. One was hired just for the bankruptcy and the other was hired for an adversary proceeding against a bank. Unfortunately, the bankruptcy attorney turned out to be a complete joke and due to his numerous late filings and failure to appear at a confirmation hearing, my Chapter 13 was dismissed. There was (and still is) a pending adversary proceeding against the bank. They did not answer, so I would have won a default judgment but my attorney on that side doesn't want to file it until he sees if the court will maintain jurisdiction or not. (See Pocklington, IN Re Stardust)

    My question is, would you not be able to remove the proceeding out of the bankruptcy court and into the federal district court? If you could, I would hope that you would still be able to pursue the default judgment against the bank.

    I have been dealing with this since last summer and have spent way too much money on this just to see myself having to re-do it because of an incompetent attorney.

    Any advice would be great. I have read through this forum before and figured that by what I've read someone would have a logical answer to this. I appreciate your time and consideration into looking into this for me.


    Also I know you have an Adversary Proceeding Forum but it seemed it was more about dealing with them being filed against you and since this partly deals with Chapter 13 jurisdiction, I thought it would be more general in this forum. I apologize in advance if that was not the correct assumption.
    Last edited by DoctorWho; 02-27-2011, 02:27 AM.

  • #2
    I do not know if your district has similar procedures (it probably does) but here is the standard Order that is entered in mine:

    "The above captioned related bankruptcy proceeding was dismissed on __________ and the above captioned adversary proceeding remains open and pending. The dismissal of the related bankruptcy proceeding does not divest this court of jurisdiction over this adversary proceeding, In re Carraher, 971 F.2d 327 (9th Cir. 1992). This court may retain jurisdiction when judicial economy, fairness, convenience and comity favor retention, In re Casamont Investors, Ltd., 196 B.R. 517 (9th Cir. BAP 1996). IT IS ORDERED THAT this adversary proceeding shall be dismissed (if commenced by the filing of a complaint) or shall be remanded to the State Court (if commenced by the filing of a Notice of Removal) unless a party files, within 21 days of the date of this order, a written motion for the court to retain jurisdiction or the bankruptcy proceeding is reinstated. Any response shall be filed no later than 14 days after service of the motion. The party filing the motion to retain shall have the motion set for hearing pursuant to the judge's procedures posted at the court's web site and shall prepare, serve on all parties, and file a notice of the hearing."



    • #3
      You would only have to move it if the Bankruptcy court doesn't believe that it has jurisdiction. I'm guessing this is a TILA or RESPA issue with respect to a mortgage? Anyhow, and forgive my guessing, yes something needs to be done with the open AP. If the Chapter 13 was sufficiently planned (good plan), then I would have (probably) hired a new lawyer or at least asked for Reconsideration and to Vacate the dismissal.

      I hope that you find good representation soon.
      Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
      Status: (Auto) Discharged and Closed! 5/10
      Visit My BKForum Blog: justbroke's Blog

      I am not an attorney. Any advice provided is not legal advice.


      • #4
        Yeah, drop it and let the house go?

        In any event, I am not sure about removal to Federal District Court. But you can generally get dismissal without prejudice of the AP and refile in another appropriate venue. However, if this really is a real estate issue, it is substantially easier and less costly to litigate these issues in bankruptcy court than regular federal court.


        • #5
          Your wondering the impact of your case being dismissed and the affect on the AP as was In Re Stardust Inn 70 BR 888, 891 (Bankr.E.D.Pa.1987)? That case wasn't even in your District/State and is not binding anyhow. I think that, as HHM writes, maybe you should allow it to close and then re-open a new Chapter 13 in the Bankruptcy Court. I'll tell you, the Bankruptcy Court was much nicer to deal with than what I'd expect in the actual Federal District Court.

          Besides, Pocklington 21 B.R. 199, 201 (Bankr.S.D.Cal.1982) was fact specific so it may not even apply to you. Also be aware that you can't assume that you'd win a summary judgment when a party does not answer. The Judge has to still weigh the facts and make a determination, so summary judgment isn't always that simple. Was your AP of a specific amount (on the cover sheet)?
          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
          Status: (Auto) Discharged and Closed! 5/10
          Visit My BKForum Blog: justbroke's Blog

          I am not an attorney. Any advice provided is not legal advice.


          • #6
            There was a motion to reinstate filed, but the attorney screwed that up as well and the case was officially dismissed due to failure to prosecute. The plan amendments were not done for 4 months and were filed less than 10 days before confirmation. The adversary attorneys are/were aware of the problems getting in touch with bankruptcy counsel, but insisted that it should sort out and to keep trying to get a hold of him. His phone mailbox was always full and I wrote him letters (he only lives 4 miles from me) which he did not pick up nor sign for. He's a joke and let this get way out of hand. I've dropped close to $20,000 on this so far, so I am now looking for a malpractice attorney.

            The cases I cited were used by the adversary counsel. This is not a TILA/RESPA/FDCPA case. This was for fraud, rico, consumer practices violations, etc. The only money asked for was $25,000 per violation (5) and for the court to remove their false lien on the property. They did not answer the complaint and the only thing left to be filed was for the default judgment. This judge has granted similar cases, so the fact that she would not grant it was not the concern, but getting it in front of her in the first place.

            Also, I did not even need to file bankruptcy in the first place. The only debt I was dealing with was some minor taxes (that I could have fixed outside of bankruptcy) and the issue with this bank. I do not currently have any credit cards (paid off/closed) so to continue to drop my credit was something I was hoping to avoid, but I'm sure I can find a malpractice attorney for this issue.


            • #7
              I think that what you wrote, shows that it's not as simple as it looks. I have seen attorneys reference cases, thinking it would help them, and the Judge corrects them and uses it against them. Not that this is your issue at all. You hired an attorney who didn't fully represent you.

              I don't know where you want to go from here.
              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
              Status: (Auto) Discharged and Closed! 5/10
              Visit My BKForum Blog: justbroke's Blog

              I am not an attorney. Any advice provided is not legal advice.


              • #8
                Okay...what was the goal...what was the end game scenario you were hoping to achieve. And based on the type of claims you are bringing (no offense, but when I see those terms wielded around, RICO, et al, my mind turns to "frivolous lawsuit") what was the underlying issue for which you needed a bK in the first place (normally, a BK 13 in this context is used to stop a foreclosure quickly).


                Unconfigured Ad Widget