Who has the burden of proof in an adversary proceeding?

The party seeking to bar a debtor from discharge under


Section 727 and concomitant "fresh start" has the burden of


proof. That party must articulate well-pleaded allegations


establishing the required elements for the denial of


discharge under one or more provision of the U.S. Bankruptcy


Code. The creditor or trustee objecting to a debtor’s


discharge carries the burden of proof because of the


draconian relief sought. The courts strictly construe


against objecting creditors and liberally construe in favor


of the debtor.



Exceptions to discharge under Section 523 must be similarly


construed so as to give maximum effect to the Code’s policy


of providing honest but unfortunate debtors with a "fresh


start." To sustain a cause of action under either §727 or


§523, the creditor must establish each element of the statue


by a preponderance of the evidence. Grogan v. Garner, 498


U.S. 279 (1991).
Warmest Regards,

Bob Schaller

Your Bankruptcy Advisor Blog

By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm
Click for Bankruptcy Lawyer Job Opportunities. You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at Discharging Student Loans to learn about how the bankruptcy laws can help you. Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys. For information about Chapter 7 bankruptcy Click Here

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I recommend that you review a few other blogs that may be of interest to you. These blogs are identified in the right column and are set forth below: bankruptcy issues blog; bankruptcy and family law issues blog; bankruptcy and employment issues blog; adversary defense blog; and bankruptcy and student loan issues blog.