Revised 3/2005 Suggested Form D100 UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK In Re: Debtor(s). AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENTRY OF FACT OF DEFAULT [Bankruptcy Rule 7055(a)] BK Case No. ____________ Plaintiff(s), AP Case No. ____________ vs. Defendant(s). The undersigned, being duly sworn, deposes and states that: 1. I am an attorney admitted to practice before this Court and am the attorney to the Plaintiff in this action (or, in the alternative, I am the Plaintiff in the above captioned Adversary Proceeding and appear pro se). 2. I make this Affidavit in support of Plaintiff’s request that the Clerk of Court certify and enter the “Fact of Default” of Defendant,______________________________________, (“Defendant”), pursuant to Federal Rules of Bankruptcy Procedure (“Bankruptcy Rule”) 7055(a). 3. This Adversary Proceeding is a box). 4. On _________________, 2_____, a copy of the Summons and Complaint was served on Defendant pursuant to Bankruptcy Rule 7004. 5. A Certificate of Service detailing the date, time and manner of service on Defendant was filed with the Court on _________________, 2_____. Defendant has failed to answer, plead or otherwise defend this action. 6. Core Non-Core Proceeding (check appropriate Page 1 American LegalNet, Inc. www.FormsWorkflow.com 7. The time to answer, plead or otherwise defend expired on _________________, 2_____, said date being _____ days after issuance of the Summons. 8. Defendant has not appeared in this action and the time to appear has expired. OR Defendant has appeared but has not answered or otherwise defended; Defendant’s appearance is more fully described as follows:___________________________ ________________________________________________________________. 9. Defendant is not an infant or incompetent person. 10. Pursuant to 50 U.S.C. Appx. § 521, I have made an investigation to ascertain whether Defendant is in the military service of the United States. The results of my investigation are as follows1:_______________________________________________________________ ________________________________________________________________________ ________________________________________________________________________. From the foregoing facts, I am convinced that Defendant is not in the military service of the United States, as defined by 50 U.S.C. Appx. § 521 [Suggested Form D-101, “Affidavit of Non-Military Service,” is attached.] 11. The Defendant is not the Debtor 2. 12. Plaintiff hereby requests that the Clerk of Court enter the Fact of Default of Defendant, pursuant to Bankruptcy Rule 7055(a). Dated:_________________ ____________________________________ By: Attorney for Plaintiff or Plaintiff pro se Sworn to before me this ______ day of _________________,2_____. _______________________________________ Notary 1 To properly complete the "Affidavit of Non-Military Service" required to be submitted in connection with a request for judgment by default, the requesting party is strongly encouraged to verify military status through the Defense Manpower Data Center ["DMDC"] Military Verification Service. The DMDC has a 24-hour website, and verification of military status can be printed from the website in a form document that contains the Department of Defense seal and the signature of the Director of the DMDC. A password to the DMDC website can be obtained by making a request on company letter to: DMDC, Military Verification, 1600 Wilson Blvd., Suite 400, Alexandria, VA 22209 or fax to 703-696-4156. 2 If the Defendant is the Debtor, Judgment by Default must be sought by Notice of Motion and Motion, pursuant to Bankruptcy Rule 9014. See, In Re Emmerling, 223 B.R. 860 (B.A.P. 2d Cir. N.Y. 1997). Page 2 American LegalNet, Inc. www.FormsWorkflow.com