Judges of the Court
Dischargeablity — § 523(a)(6)
Lockerby v. Sierra, 535 F.3d 1038 (9th Cir. 2008)
Section 523(a)(6) only applies to conduct that is an intentional tort under state, and the intentional breach of a contract does not qualify as such under Arizona law.
Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th Cir. 2007)
“The failure to obtain informed consent, without evidence of intent to injure, does not give rise to a willful and malicious injury within the meaning of § 523(a)(6).”
In re Barboza, 545 F.3d 702 (9th Cir.2008)
Failure by jury to find that copyright infringement was deliberate as opposed to reckless, and failure of bankruptcy judge to consider “willful” and “malicious” elements separately, required reversal.
In re Sicroff, 401 F.3d 1101 (9th Cir. 2005), cert. denied, 545 U.S. 1139, 125 S.Ct. 2964 (2005)
State court judgment for libel was nondischargeable under 523(a)(6).
In re Peck, 295 B.R. 353 (9th Cir. B.A.P. 2003)
False accusations of child molestation were slanderous, and nondischargeable under § 523(a)(6).
In re Thiara, 285 B.R. 420 (9th Cir. B.A.P. 2002)
Failure to turnover insurance proceeds to secured creditor constituted a conversion under California law, but in the absence of a finding of subjective intent to harm, it could not be deemed a nondischargeable debt.
In re Su, 290 F.3d 1140 (9th Cir. 2002)
“ § 523(a)(6) renders debt nondischargeable when there is either a subjective intent to harm, or a subjective belief that harm is substantially certain.” In order to prove maliciousness, there must be a wrongful act, done intentionally, which necessarily causes injury and is done without just cause or excuse.
In re Jacks, 266 B.R. 728 (9th Cir. B.A.P. 2001)
Summary judgment for the defendant should not have been granted, where there was a genuine issue of material fact as to whether the defendant intended to injure plaintiff in having a corporation issue a guarantee of his personal obligations.
In re Peklar, 260 F.3d 1035 (9th Cir. B.A.P. 2001)
“A judgment for conversion under California substantive law decides only that the defendant has engaged in the “wrongful exercise of dominion” over the personal property of the plaintiff. It does not necessarily decide that the defendant has caused “willful and malicious injury” within the meaning of § 523(a)(6).”
In re Jercich, 238 F.3d 1202 (9th Cir. 2001), cert. denied, 533 U.S. 930 (2001)
Although a simple breach of contract is not actionable under § 523(a)(6), “where an intentional breach of contract is accompanied by tortious conduct which results in willful and malicious injury, the resulting debt is excepted from discharge under § 523(a)(6).” Tortious conduct does not have to be independent of the breach of contract. Here, debtor was found to have the “clear ability” to pay wages, but willfully “chose not to.”
“We hold...that under Geiger, the willful injury requirement of § 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.”
In re Baldwin, 249 F.3d 912 (9th Cir. 2001)
Defendant in state court who defaulted to battery claim was collaterally estopped from discharging debt under § 523(a)(6). Participation in beating of plaintiff established that debtor intended to injure or knew that his conduct was substantially certain to lead to injury.
In re Bailey, 197 F.3d 997 (9th Cir. 1999)
No lien in settlement proceeds, therefore no property interest and no conversion.
In re Sarbaz, 227 B.R. 298 (9th Cir. B.A.P. 1998)
Geiger applied retroactively.
Kawaauhau v. Geiger, 523 U.S. 57(1998)
(a)(6) only covers acts done with the actual intent to cause injury. Negligence or recklessness not enough.
In re Bammer, 131 F.3d 788 (9th Cir. 1997)
Fraudulent conveyance judgment debt is dischargeable in bankruptcy absent finding of malicious intent. Reversed 11/20/97. No such thing as fraud committed with just cause or excuse.
In re Gergely, 110 F.3d 1448 (9th Cir. 1997)
Medical malpractice is not the same as willful and malicious injury - no certainty or near certainty that act would cause harm.
In re Saylor, 108 F.3d 219 (9th Cir. 1997)
Creditor has no property interest in remedies under state fraudulent transfer statute that supports exception from discharge of debt for willful and malicious injury to property.
In re Lund, 202 B.R. 127 (9th Cir. B.A.P. 1996)
Debtors who failed to act in maintaining condition of dwelling not liable under (a)(6).
In re Kelly, 182 B.R. 255 (9th Cir. B.A.P. 1995), aff’d, 100 F.3d 110 (9th Cir. 1996)
Attorney malpractice based on gross negligence does not constitute “willful and malicious injury” precluding discharge of resulting judgment debt.
In re Gee, 173 B.R. 189 (9th Cir. B.A.P. 1994)
Judgment for sex discrimination constitutes willful and malicious injury.
In re Florida, 164 B.R. 636 (9th Cir. B.A.P. 1994)
Debtor with RICO judgment against him; collateral estoppel as to all damages and attorney fees.
In re Zelis, 161 B.R. 469 (9th Cir. B.A.P. 1993), aff’d in part, reversed in part, 66 F.3d 205 (9th Cir. 1995)
Sanctions by state court met Cecchini test - affirmed, but the settlement with Pay as to second sanction satisfied Zelis’ liability.
In re Riso, 978 F.2d 1151 (9th Cir. 1992)
Breach of right of first refusal was a breach of contract - “An intentional breach of contract is excepted from discharge under § 523(a)(6) only when it is accompanied by malicious and willful tortious conduct.”
In re Britton, 950 F.2d 602 (9th Cir. 1991)
Punitive damages not discharged under § 523(a)(6). Review of standard.
In re Littleton, 942. F.2d 551 (9th Cir. 1991)
(a)(6) and (a)(4) - embezzlement
In re Itule, 114 B.R. 206 (9th Cir. B.A.P. 1990)
Willful conversion - calculation of damages.
In re Keller, 106 B.R. 639 (9th Cir. B.A.P. 1989)
§ 523(a)(6) - legal malpractice.
In re Littleton, 106 B.R. 632 (9th Cir. B.A.P. 1989), aff’d, 942 F.2d 551 (9th Cir. 1991)
Embezzlement. Failure to pay creditors according to terms of security agreement does not constitute willful and malicious injury.
In re Karlin, 112 B.R. 319 (9th Cir. B.A.P. 1989), aff’d, 940 F.2d 1534 (9th Cir. 1991)
Privacy right - intentional tort.
In re Strybel, 105 B.R. 22 (9th Cir. B.A.P. 1989)
Psychiatrist’s sexual liaison with a patient is not a nondischargeable debt- no malice. Disagreed with by In re Pattison, 132 B.R. 449 (Bankr. D.N.M. 1991).
In re Sharp, 102 B.R. 764 (9th Cir. B.A.P. 1989)
(1) Whether the appellant committed a wrongful and intentional act;
(2) whether such action produced harm;
(3) whether such action was without just cause or excuse.
Failure to explain shortage in trust account invokes (a)(6) and turn over funds.
In re Manser, 99 B.R. 434 (9th Cir. B.A.P. 1989)
Willful and malicious conversion - definition. Declined to follow by In re McLaughlin, 109 B.R. 14 (Bankr. D.N.H. 1989)
In re Wood, 96 B.R. 993 (9th Cir. B.A.P. 1988)
Willful and malicious injury standard.
In re Ellwanger, 105 B.R. 551 (9th Cir. B.A.P. 1989)
Punitive damages not dischargeable.. (Note: Judge had written date of 7/7/88, but no decisions corresponded to this date.)
In re Cecchini, 780 F.2d 1440 (9th Cir. 1986)
Adopts Collier’s definition of willful and malicious. Intentional injury which necessarily causes harm, committed without justification or excuse (overruled by In re Geiger, supra).