Bankruptcy can save a person from serious financial problems as assets and other finances can be collected to pay for debts. Due to its technicalities, people filing for bankruptcy must know a lot of terminologies that will help them understand the process better. One of these terms is a defendant.
Defining a Defendant in General
Answering the question about what is defendant requires looking into the general law first. In general, a defendant is the term given to a person with a lawsuit filed against him. This is a widely used term in the legal industry and used in naming a sued person in a civil or criminal case. A defendant may be found guilty or not guilty of the named charges on the lawsuit. If the defendant is not guilty, he will be acquitted. Those with guilty verdicts may face jail time, render community service, fines and punitive damages depending on the case they face.
Defining a Defendant in a Bankruptcy Case
Although bankruptcy is considered a case, it doesn’t label involved parties as defendants or plaintiffs. They are only known as creditors, debtors and trustees. Most people think that the debtor is the defendant in a bankruptcy case. A debtor can’t be a defendant because defending himself in a bankruptcy case is unnecessary. Furthermore, he filed for bankruptcy to deal with debts and not to incriminate himself as a defendant.
Creditors can’t also be defendant in a bankruptcy case. Nothing is filed against them as they are entitled to debt repayments.
However, there are instances when there has to be a defendant in the case like in the case of adversary proceedings.
Defining Adversary Proceedings and Its Procedures
Adversary proceedings are lawsuit filed within the bankruptcy file. This case will have its own case number and may be attached to the bankruptcy case file. A different bankruptcy lawyer may also be hired for defense, but the same bankruptcy judge may also preside in an adversary proceeding.
Adversary proceedings are preceded by a plaintiff filing a case against the defendant due to many reasons. Key people in the bankruptcy may also labeled as plaintiffs and defendants depending on the case. A trustee can be the plaintiff, or the person filing the lawsuit, if he wants to collect money from a lender. The lender will then be the defendant in this case. On the other hand, creditors filing for motion to prevent a debtor from getting discharged from bankruptcy will be the plaintiff. The debtor will then need to defend himself in the process.
The process of adversary proceedings is similar with a regular lawsuit. The plaintiff will file their case while the court will issue a summon. A defendant will be served with the summon and complaint copy. He is entitled to a specific timeframe allotted for responding on the summon. If a defendant failed to respond within the deadline, the case will go into default, causing the plaintiff to get a default verdict.
Overall, a defendant is not a term used in typical bankruptcy case. However, there are instances when a lawsuit may be filed in relation to bankruptcy. Be sure to ask help from a professional if you’re facing a lawsuit related to bankruptcy filing process.