Wednesday, May 19, 2010

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

For information about Chapter 13 bankruptcy Click Here NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

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.

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