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Adversary complaint under section 523(a)(2) of the Bankruptcy Code

by Stan Burman

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is the topic of this blog post.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is filed to request that the court determine that a specific debt cannot be discharged due to fraudulent representations.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is filed in United States Bankruptcy Court under the provisions of Title 11 U.S.C. § 523(a)(2).

An adversary complaint under section 523(a)(2) of the Bankruptcy Code must contain allegations that describe the fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure which states in pertinent part that, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake".

The Ninth Circuit Court of Appeals has ruled in several published cases that the particularity requirement of Rule 9(b) is a federally imposed requirement and that the court examines state law in determining whether the adversary complaint states a cause of action for fraud.

The particularity requirement is imposed on the grounds that fraud is a serious charge against another party.

This blog post will discuss the elements required by California law in order to state a cause of action for fraud.

The law is settled in California that four (4) elements be specifically pleaded in any cause of action for fraud. (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.

Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.

In California as stated by Code of Civil Procedure § 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.

An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code can also include other claims for relief such as a claim requesting a denial of a discharge under  section 727 of the bankruptcy code.

Sample adversary complaint under section 523(a)(2) of the Bankruptcy Code.

Attorneys or parties who would like to view a portion of a sample 8 page adversary complaint under section 523(a)(2) of the Bankruptcy Code requesting that the bankruptcy court determine that a debt owed to them is nondischargeable due to fraud under section 523 of the bankruptcy code that also includes a request for denial of a discharge under section 727 of the bankruptcy code can see below.

Sample Adversary Complaint for Fraud in United States Bankruptcy Court by Stan Burman on Scribd

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The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

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