Affidavit In Support Of Application For Entry Of Fact Of Default
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10PROCEDURES FOR REQUESTING
JUDGMENT BY DEFAULT PURSUANT TO BANKRUPTCY RULE 7055
In the UNITED STATES BANKRUPTCY COURT, WESTERN DISTRICT OF NEW YORK
Prior to requesting either that the Clerk of Court enter the “Fact of Default,” pursuant to
Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) 7055(a), or that the Court grant
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Judgment by Default, pursuant to Bankruptcy Rule 7055(b)(2)
, Plaintiff’s attorney must ensure that:
(1) the Summons and Complaint has been timely and properly served on the Defendant as required
by Bankruptcy Rule 7004; and (2) an accurate and complete Certificate of Service has been filed
with the Court. If the Defendant has not answered, appeared or otherwise defended the action within
the time required by the Bankruptcy Rules, Plaintiff’s attorney may seek entry of the “Fact of
Default” [Bankruptcy Rule 7055(a)] and “Judgment by Default” [Bankruptcy Rule 7055(b)] by
submitting the appropriate Application and supporting documents to the Court, as noted below.
Counsel must submit either Suggested Forms D100-D104 [Core Proceeding] or Suggested Forms
D100-D102 and D105-D107 [Non-Core Proceeding], or the equivalent.
If the Debtor is the Defendant, Plaintiff must seek Judgment by Default by proper service
of a “Notice of Motion” and “Motion,” pursuant to Bankruptcy Rule 9014, even if the
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Debtor/Defendant has failed to answer or otherwise plead in the Adversary Proceeding.
JUDGMENT BY DEFAULT IN CORE PROCEEDINGS
Where the Adversary Proceeding is a Core Proceeding [28 U.S.C. § 157(b)(2)], and
Defendant has failed to answer, appear or otherwise defend, Plaintiff’s attorney may seek Judgment
by Default by filing with the Court:
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“Affidavit in Support of Application for Entry of Fact of Default”
[Bankruptcy Rule 7055(a)]
(Suggested Form D100);
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“Affidavit of Non-Military Service” [50 U.S.C. Appx. § 521]
(Suggested Form D101);
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“Entry of Fact of Default” [Bankruptcy Rule 7055(a)]
(Suggested Form D102);
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“Application for Order Granting Judgment by Default and Affidavit of Amount Due”
[Bankruptcy Rule 7055(b)]
(Suggested Form D103);
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“Order Granting Judgment by Default (Core Proceeding)”
[Bankruptcy Rule 7055(b)]
(Suggested Form D104).
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NOTE: The authority of the Clerk of Court in this District to enter Judgment by Default, pursuant to Rule
7055(b)(1), is limited to actions involving post-petition accounts receivable. In all other instances, the
Court requires that Judgment by Default be sought from and granted by the Court, pursuant to Rule
7055(b)(2).
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See, In Re Emmerling, 223 B.R. 860 (B.A.P. 2d Cir. N.Y. 1997).
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