JUDGMENT BY DEFAULT IN NON-CORE PROCEEDINGS
(NOT FOR USE IN ROCHESTER DIVISION)
Where the Adversary Proceeding is a Non-Core Proceeding [28 USC § 157(c)]
and Defendant has failed to answer, appear or otherwise defend, the Bankruptcy Judge
may “recommend” to the District Court that Judgment by Default be entered. However,
in Non-Core Proceedings, Judgment by Default must be entered in and by the District
Court for the Western District of New York.
Where the Adversary Proceeding is a Non-Core Proceeding [28 USC § 157(c)],
and Defendant has failed to answer, appear or otherwise defend, Plaintiff’s attorney may
seek a Recommendation from the Bankruptcy Court to the District Court that Judgment
by Default be entered, by filing with the Court:
“Affidavit in Support of Application for Entry of Fact of Default”
•
[Bankruptcy Rule 7055(a)]
(Suggested Form D100);
“Affidavit of Non-Military Service” [50 USC Appx. § 521]
•
(Suggested Form D101);
“Entry of Fact of Default” [Rule 7055(a)];
•
(Suggested Form D102);
“Affidavit of Amount Due”
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(Suggested Form D105);
“Order to Transmit Record to District Court, Combined with Findings of
•
Fact, Conclusions of Law and Recommendation Regarding Plaintiff’s
Request for Entry of Judgment by Default”
(Suggested Form D106);
“Order Granting Judgment by Default (Non-Core Proceeding)”
•
(Suggested Form D107).
If the Bankruptcy Judge, on the basis of Plaintiff’s “Recommendation for
Judgment by Default,” determines that a hearing is necessary, the Court will inform the
parties of the date for the hearing. For example, if the Defendant appeared but did not
answer or otherwise defend the action, the Defendant may have the right to be heard on
the issue of damages. Following the hearing, if the Court grants the relief requested,
Plaintiff’s attorney is to submit a revised “Order to Transmit” (Suggested Form D106)
based upon the hearing, a revised “Affidavit of Amount Due” (Suggested Form D105)
consistent with the hearing and an “Order Granting Judgment by Default (Non-Core
Proceeding)” (Suggested Form D107) for execution by the United States District Judge.
Dated: January 2013