Understanding & Serving a Contested Matter

What is a Contested Matter?

What constitutes a “contested matter” is not always clear, and the text of the rule provides little guidance. Other bankruptcy rules, however, specify what is a contested matter by referencing Rule 9014 in their text.

 

 

 

 

 

 

Contested Matters include:

a) Proceeding to dismiss, convert or suspend a case. Fed. R.Bankr. P. 1017(f)(1).
b) Motion to review appointment of Creditors’ Committee. Rule 2007.1(a)
c) Review of any act or failure to act by the United States Trustee. Rule 2020.
d) Objection to confirmation of a plan. Rule 3015(f).
e) Request to modify a confirmed chapter 13 or chapter 13 plan. Rule 3015(g).
f) Objection to confirmation of a chapter 9 or chapter 11 plan. Rule 3020(b)(1).
g) Motion requesting relief from the automatic stay or to prohibit or condition the use, sale or lease of property. Rule 4001(a)(1).
h) Motion for authorization to use cash collateral. Rule 4001(b)(1).
i) Motion for authority to obtain credit. Rule 4001(c)(1).
j) Motion to avoid a lien or other transfer of exempt property. Rule 4003(d).
k) Motion for abstention pursuant to 28 U.S.C. §1334(c). Rule 5011(b).
l) Objection to the proposed use, sale or lease of property. Rule 6004(b), (d).
m) Motion to sell property free and clear of liens and other interests. Rule 6004(c).
n) Proceeding to assume, reject or assign an executory contract or unexpired lease, other than as part of a plan. Rule 6006(a).
o) Proceeding to compel trustee to assume or reject a contract or lease. Rule 6006(b).
p) Motion for an order of contempt. Rule 9020.
q) Motion for remand of a removed claim or cause of action. Rule 9027(d).

What Rules Apply in a Contested Matter?

The following rules apply in contested matters pursuant to Rule 9014(c):

a) Rule 7009 – Pleading Special Matters
b) Rule 7017 – Real Party in Interest
c) Rule 7025 – Substitution of Parties
d) Rule 7026(a)(4) – Parties may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of any documents and the identity and location of persons who know of any discoverable matter.
e) Rule 7028 – Persons before whom depositions may be taken
f) Rule 7029 – Stipulations regarding discovery procedure
g) Rule 7030 – Depositions upon oral examination
h) Rule 7031 – Deposition upon written questions
i) Rule 7032 – Use of depositions in adversary proceedings
j) Rule 7033 – Interrogatories to Parties
k) Rule 7034 – Production of documents
l) Rule 7035 – Physical and mental exemption of persons
m) Rule 7036 – Requests for admission
n) Rule 7037 – Failure to make discovery: sanctions
o) Rule 7041 – Dismissal of adversary proceedings
p) Rule 7042 – Consolidation of adversary proceedings
q) Rule 7052 – Findings by the court
r) Rule 7054 – Judgments; Costs
s) Rule 7055 – Default; Default Judgment
t) Rule 7056 – Summary Judgment
u) Rule 7064 – Seizure of person or property
v) Rule 7069 – Execution
w) Rule 7071 – Enforcing relief against a nonparty

The following rules do not apply in contested matters pursuant to Rule 9014(c):

a) Rule 7026(a)(1) (mandatory disclosures);
b) Rule 7026(a)(2) (disclosures regarding expert testimony)
c) Rule 7026(a)(3) (additional pre-trial disclosure_
d) Rule 7026(f) (mandatory meeting before scheduling conference/discovery plan)

Service of a Contested Matter – Rule 9014(b)

Service is required by virtue of Rule 9014(b).  The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.

i. Service by First Class Mail – R. 7004(b)
a) Upon an individual
b) Upon a corporation or partnership by mailing a copy of the motion to the “attention of an officer or managing agent.”
c) Upon the United States, by mailing a copy of motion to the civil process clerk at the office of the United States Attorney for the district in which the action is brought and by mailing a copy of the motion to the Attorney General of the United States at Washington, District of Columbia.

ii. Nationwide Service of Process – R. 7004(d)

iii. Time Limit for Service Within the United States – R. 7004(e)

a) 14 days after the summons is issued.
b) Obtain a new summons if not timely delivered.

iv. Service on Debtor’s Attorney
a) Service shall be made upon the debtor and debtor’s counsel.

v. Service of Process on an Insured Depository Institution
a) Service in a contested matter shall be by certified mail addressed to the officer of the institution.

b) Unless the following 2 situations apply:
1. The institution has appeared by its attorney, in which case the attorney shall be served by first class mail. R. 7004(h)(1).
2. The institution has waived its entitlement to service by certified mail by designating an officer to receive service. R. 7004(h)(3).

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