11 U.S.C. § 523

Section 523(a)(4) makes an attorney’s debt from misappropriating client funds nondischargeable when the attorney acted in a fiduciary capacity.

Michener v. Brady (In Re Brady) · filed 1999-06-14(a)(4)

Given the Husband’s admission of his acts in defrauding his client, the language of § 523(a)(4) applies to render the debts nondischargeable, at least as to him.

Section 523(a)(4) can except a debt from discharge when a California spouse or former spouse commits defalcation while handling undivided community property.

Lovell v. Stanifer (In Re Stanifer) · filed 1999-07-13(a)(4)

In light of the statutory scheme provided in the California Family Code, we hold that California statutory law imposes a fiduciary duty upon spouses and former spouses in their dealings with regard to community property which is within the meaning of § 523(a)(4).

Section 523(a)(4) treats an attorney-client relationship as a fiduciary relationship for the defalcation exception, even without an express or technical trust.

In Re: Edward W. Hayes, Debtor. The Andy Warhol Foundation for Visual Arts, Inc. v. Hayes · filed 1999-07-30(a)(4)

As a result, the attorney-client relationship, although usually not involving a technical trustee or express trust, has long been understood to be a fiduciary relationship within the meaning of the defalcation exception.

Section 523(a)(4) requires at least reckless conduct for a fiduciary’s defalcation; mere negligence is insufficient.

M-R Sullivan Manufacturing Co. v. Sullivan (In Re Sullivan) · filed 1999-09-07(a)(4)

Conduct by fiduciary debtors which is merely negligent is insufficient to prove defalcation under § 523(a)(4).

Section 523(a)(4) requires more than a debtor’s position as a corporate officer or director to establish fiduciary capacity for a fraud or defalcation exception to discharge.

Ploetner-Christian v. Miceli (In Re Miceli) · filed 1999-08-11(a)(4)

Defendant’s position as an officer and director of Southern, standing alone, is insufficient to meet the fiduciary capacity standard required by § 523(a)(4).

Section 523(a)(4) makes a debt to a shareholder nondischargeable when it arises from a corporate officer’s breach of fiduciary duty that injures the shareholder.

Rothman v. Beeber (In Re Beeber) · filed 1999-09-10(a)(4)

By reason of all of the foregoing and an examination of the record taken during the course of the trial, there was a preponderance of the evidence sufficient to justify that Dr. Beeber violated his fiduciary duty to Dr. Rothman. ... This Court will treat the combined award of $275,000 as nondischargeable and as due and owing from Dr. Beeber to Dr. Roth-man since it was he who essentially took over RBPC and changed the corporate name to Jerry Beeber, M.D., P.C.

Section 523(a)(4) requires an express or technical trust for a fiduciary relationship to make a debt nondischargeable.

Radcliffe v. Atherton · filed 1999-08-26(a)(4)

Thus, a fiduciary-type relationship stemming from a constructive trust fails to satisfy § 523(a)(4).

Section 523(a)(4) excepts from discharge a debt arising from an ERISA fiduciary’s knowing defalcation of duties imposed by a technical trust.

Eavenson v. Ramey · filed 1999-11-10(a)(4)

In summary, ERISA establishes the elements of a technical trust in statutory form, and thus one acting as a fiduciary under ERISA is also acting in a fiduciary capacity under 11 U.S.C. § 523(a)(4). Additionally, the facts found in the ERISA judgment which constituted a violation of appellant’s ERISA fiduciary duties also constituted defalcation under § 523(a)(4) as a matter of law. Finally, appellant’s debt arose as a result of the defalcation committed while acting in his fiduciary capacity.

Section 523(a)(4) requires a creditor claiming fraud or defalcation in a fiduciary capacity to establish a fiduciary relationship under federal law; a general fiduciary duty between partners is insufficient.

Smolen v. Hatley · filed 1999-09-16(a)(4)

Section 523(a)(4) denies a § 727 discharge from a debt for fraud or defalcation while acting in a fiduciary capacity. Thus, a creditor must establish, under federal law, that a fiduciary relationship existed between him and the debtor.

Section 523(a)(4) covers fiduciary debts only when the fiduciary relationship arises from an express or technical trust, not an implied trust.

Consumer United Insurance v. Bustamante (In Re Bustamante) · filed 1999-10-01(a)(4)

The term “fiduciary” under (a)(4) applies only to express or technical trusts and does not extend to implied trusts, which are imposed on transactions by operation of law as a matter of equity.

Section 523(a)(4) does not treat a homebuilder as a fiduciary merely because the Maryland Custom Home Protection Act imposes a statutory trust.

Spinoso v. Heilman (In Re Heilman) · filed 1999-10-26(a)(4)

There is no question that Mr. Heilman violated the terms of the Maryland Custom Home Protection Act, which imposes criminal liability. This Court holds, however, that the statute did not convert him into a fiduciary for purposes of nondis-chargeability under Section 523(a)(4).

Section 523(a)(4) excepts debts arising from defalcation while acting in a fiduciary capacity from discharge.

Airlines Reporting Corp. v. Ellison (In Re Ellison) · filed 1999-12-02(a)(4)

ORDERED that the plaintiffs motion for summary judgment is hereby GRANTED, and the debts arising out of ARC’s relationship with SWT are nondischargeable debts to defendants under § 523(a)(4) due to defendants’ defalcation while acting in a fiduciary capacity.

Section 523(a)(4) makes a supplier’s claim nondischargeable when a debtor misapplies proceeds held in trust under New York’s construction lien law.

IRR Supply Centers, Inc. v. Metzgar (In Re Metzgar) · filed 1999-12-10(a)(4)

The debtor having misapplied proceeds in violation of that trust, Irr’s claim is nondis-chargeable under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) can except a director’s defalcation debt from discharge when Oregon’s trust fund doctrine imposed a fiduciary duty before the wrongdoing.

Flegel v. Burt & Associates, P.C. (In Re Kallmeyer) · filed 1999-12-03(a)(4)

Because the fiduciary duty arose independently of any wrongdoing and existed prior to and without reference to it, we hold that the bankruptcy court properly concluded that the trust fund doctrine imposes a fiduciary obligation upon directors within the meaning of § 523(a)(4).

Section 523(a)(4) excepts from discharge a debt arising when a bank officer uses his fiduciary position to commit fraud.

Kansas Bankers Surety Co. v. Eggleston (In Re Eggleston) · filed 2000-01-07(a)(4)

The Debtor was an officer of Clayco State Bank and he used this position to perpetrate a fraud; therefore, under the terms of § 523(a)(4) as defined by federal and state law, he committed fraud while acting in a fiduciary capacity.

For fraud or defalcation under § 523(a)(4), fiduciary capacity requires an express or technical trust; a corporate officer’s general duties alone are insufficient.

ProSports Management of the South, Inc. v. Jacobs (In Re Jacobs) · filed 2000-01-18(a)(4)

Therefore, because Florida statutory and case law lack any provision that creates a trust relationship or finds a corporate officer to be a trustee over corporate assets, ProSports has failed to prove that Jacobs was acting in a fiduciary capacity within the context of § 523(a)(4).

Section 523(a)(4) treats a securities broker with discretion over a customer’s account as acting in a fiduciary capacity when the law imposes a technical trust.

McCoun v. Rea (In Re Rea) · filed 2000-02-07(a)(4)

Since Rea acted as a broker over a discretionary account, the law would impose a fiduciary relationship without the need to explore the day trading practice. ... The court, therefore, concludes that the law imposes a trust on Rea acting as a securities broker for the McCouns. Rea was “acting in a fiduciary capacity.”

A transaction serving a clear corporate purpose does not establish fraud or defalcation under § 523(a)(4) without further evidence.

Everspring Enterprises, Inc. v. Wang (In Re Wang) · filed 2000-03-08(a)(4)

The transaction without further evidence does not rise to the level of fraud or defalcation proposed by Sun and EEI.

Section 523(a)(4) requires an express trust with a specific res in the debtor’s hands for a debt arising from defalcation to be nondischargeable.

Technical Aid Corp. v. Krizanic (In Re Krizanic) · filed 2000-04-06(a)(4)

In the case before us, there is no “specific res in the hands of the debtor,” and for that reason there is no express trust. There being no express trust, there is no defalcation.

Section 523(a)(4) requires a fiduciary relationship arising from an express or technical trust before the alleged wrongdoing for a debt based on fiduciary defalcation to be excepted from discharge.

Trunnels v. Schmidt (In re Schmidt) · filed 2000-05-26(a)(4)

For purposes of § 523(a)(4), any fiduciary relationship must arise from an express or technical trust that was imposed before and without reference to wrongdoing that allegedly caused the debt.

Section 523(a)(4) excepts from discharge a debt arising when an officer of an insolvent corporation misuses funds held under a preexisting fiduciary duty to its creditors.

Smith Drug Co. v. Pharr-Luke (In Re Pharr-Luke) · filed 2000-06-30(a)(4)

Debtor’s actions in depositing the $110,000.00 in the Manana Si account and later using it for purposes other than satisfying creditors of Manana Si constitute a defalcation, excepting the portion used for purposes other that satisfying creditors from discharge.

Section 523(a)(4) covers ERISA plan fiduciaries, but a decline in the value of authorized plan investments without misappropriation or failure to account is not defalcation.

In Re: Christopher Bagwell Hemmeter · filed 2001-03-26(a)(4)

This appeal presents the question of whether ERISA plan fiduciaries are also fiduciaries within the meaning of 11 U.S.C. S 523(a)(4). We conclude that they are, but that the specific allegations of breach of ERISA fiduciary duties do not constitute defalcations within the meaning of 11 U.S.C. S 523(a)(4).

Section 523(a)(4) excepts from discharge a debt caused by a trustee’s defalcation, including a failure to account for entrusted funds.

Buchholz v. Cook (In Re Cook) · filed 2001-03-28(a)(4)

I conclude that in investing the money in the Norwest account, Cook was acting in a fiduciary capacity as an agent-trustee for Buchholz. ... As Cook has made no credible attempt to account for the losses, I find that the entire loss of value from $38,000.00 to $27,000.00 resulted from Cook’s defalcation.

Section 523(a)(4) covers ERISA plan fiduciaries, but losses from a decline in authorized investments are not defalcations without a failure to account for or produce entrusted funds.

Blyler v. Hemmeter (In re Hemmeter) · filed 2001-03-26(a)(4)

This appeal presents the question of whether ERISA plan fiduciaries are also fiduciaries within the meaning of 11 U.S.C. § 523(a)(4). We conclude that they are, but that the specific allegations of breach of ERISA fiduciary duties do not constitute defalcations within the meaning of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) does not treat a partnership relationship alone as the fiduciary capacity required to except a debt from discharge.

Sides v. Futch (In Re Futch) · filed 2001-03-27(a)(4)

The partnership relationship is insufficient to establish the fiduciary capacity required by § 523(a)(4).

Section 523(a)(4) does not except a debt from discharge based solely on a fiduciary duty implied by law.

Schlenkerman v. Goldbronn (In Re Goldbronn) · filed 2001-04-26(a)(4)

More importantly, the only fiduciary duty that the plaintiff points to in this proceeding is an “implied in law” duty that is insufficient under Section 523(a)(4). As such, the plaintiffs claim fails as a matter of law. The defendant therefore is entitled to summary judgment in her favor on the Section 523(a)(4) claim.

Section 523(a)(4) makes a debt nondischargeable when a debtor’s failure to account for entrusted money constitutes defalcation.

Fraser v. Dennis · filed 2001-05-29(a)(4)

Because the state court’s findings meet the statutory definition of defalcation, the bankruptcy court correctly determined that Fraser’s debt was not dischargeable.

Section 523(a)(4) requires an express or technical trust for a debt to be excepted from discharge based on defalcation in a fiduciary capacity.

Gould v. Schmanke (In Re Schmanke) · filed 2001-06-01(a)(4)

There is no express or technical trust by and between the Plaintiff and the Defendant and, as a result, there can be no fiduciary capacity so as to fit within the meaning of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) excepts a debt from discharge when a debtor misappropriates funds held in a fiduciary capacity.

Adamo v. Scheller (In Re Scheller) · filed 2001-07-25(a)(4)

Preliminarily, I conclude that Robert was acting in a fiduciary capacity in connection with his handling of the property of Race Place. ... By any definition of “defalcation,” the misappropriation of this $2,050 of Race Place funds by Robert, Anita and Irene and the use of the money for Robert’s personal benefit constituted defalcation.

Section 523(a)(4) treats a fiduciary’s delay in recording an entrusted trust deed that diminishes its value as defalcation through failure to account for or misappropriation of property.

Stevens v. Briles · filed 2001-08-02(a)(4)

By delaying the recording, Briles permitted the IRS to record a lien ahead of Stevens. In so doing, Briles substantially reduced the value of property with which she had been entrusted and over which she had control. We hold that this conduct constitutes defalcation either as a failure to account for property or as a misappropriation of property.

Section 523(a)(4) makes a debt nondischargeable when a fiduciary’s willful neglect of duty amounts to defalcation, judged by an objective recklessness standard.

Office of Thrift Supervision v. Felt (Felt) · filed 2001-06-21(a)(4)

This is probably the most egregious example of Felt’s willful behavior which qualifies as defalcation within the meaning of § 523(a)(4).

Section 523(a)(4)’s fiduciary defalcation exception requires an express or technical trust; breach of a corporate officer’s common law fiduciary duty alone is insufficient.

Castle Nursing Home v. Sullivan · filed 2001-08-08(a)(4)

Castle has failed to establish an express trust here. Although it may be equitable to impose a constructive trust on a corporate director for the benefit of the corporation, such equities are insufficient to bring the relationship within the defalcation exception to dischargeability of debts.

Section 523(a)(4) requires fiduciary capacity for a defalcation debt to be nondischargeable.

McGuire v. Barwick · filed 2001-09-21(a)(4)

Reversal of summary judgment was proper because Barwick’s actions were legally insufficient to constitute the requisite fiduciary capacity for a defalcation to exist under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a debtor to act in a fiduciary capacity; a lawyer who places client funds in a client trust account becomes the client’s fiduciary.

Banks v. Gill Distribution Centers, Inc. · filed 2001-08-15(a)(4)

This circuit requires that for the purposes of § 523(a)(4) the debtor must have been a trustee in the strict or narrow sense through an expressed or technical trust. ... When he placed his client’s funds into his trust account, he became his client’s fiduciary.

Section 523(a)(4) treats an attorney holding a client's funds in a client trust account as a fiduciary for purposes of nondischargeability.

In Re: Thomas M. Banks, Debtor · filed 2001-08-15(a)(4)

When he placed his client's funds into his trust account, he became his client's fiduciary.

Section 523(a)(4)’s fiduciary-capacity requirement can be satisfied by an estate executor’s trust-type duty under state common law to pay federal estate taxes.

United States v. Tomlin (In Re Tomlin) · filed 2001-09-06(a)(4)

Because Texas common law imposes a fiduciary duty on Tomlin as Estate Executor to pay federal estate taxes to the IRS, it is adequate to satisfy the trust-type obligation required by § 523(a)(4).

Section 523(a)(4) requires an express or technical trust to establish a fiduciary relationship; a contractual relationship alone is insufficient.

Jafarpour v. Shahrokhi (In Re Shahrokhi) · filed 2001-09-18(a)(4)

Because of the absence of an express or technical trust, the relationship between Jafarpour and Shahrokhi was merely contractual, not fiduciary. Accordingly, section 523(a)(4) does not prevent discharge of Shahrokhi’s debt.

Section 523(a)(4) requires an express or technical trust over identifiable property, established before the wrongdoing, for a debt based on defalcation in a fiduciary capacity to be nondischargeable.

Ronk v. Maresh (In Re Maresh) · filed 2001-09-19(a)(4)

Therefore, given that O.R.C. § 1701.59(B) does not create any specific trust res, the Court must, in accordance with those herein listed decisions rendered by the Sixth Circuit Court of Appeals find that the Plaintiff will not, as a matter of law, be able to sustain her burden under the defalcation exception to discharge contained in § 523(a)(4).

Section 523(a)(4) permits a partner’s fiduciary duty to be imputed to a debtor when deciding whether a debt is dischargeable.

Zois v. Cooper · filed 2001-10-16(a)(4)

Andrews’ fiduciary duty was properly imputed to the appellant. Fundamental principles of partnership law require the imputation of the fiduciary duty between the appellant and Andrews in this case. ... Therefore, the bankruptcy court did not err in declaring the appellant’s debt nondischargeable under Section 523(a)(4).

Section 523(a)(4) does not make a California corporation’s officer, director, or controlling shareholder a fiduciary solely because of that position.

Cantrell v. Cal-Micro, Inc. (In Re Cantrell) · filed 2001-10-23(a)(4)

Other than Cantrell’s titles and positions as an officer, director and controlling stockholder of CMI, which we have concluded were insufficient to make Cantrell a § 523(a)(4) fiduciary, the CMI Plaintiffs neither alleged, nor provided any evidence of, any alternative basis under which the bankruptcy court could conclude that Cantrell was a § 523(a)(4) fiduciary.

Section 523(a)(4) requires a preexisting express or technical trust for a debt arising from fraud or defalcation in a fiduciary capacity; an LLC manager’s general duties alone do not suffice.

KMK Factoring, L.L.C. v. McKnew (In Re McKnew) · filed 2001-11-02(a)(4)

As such, the imposition of a fiduciary relationship here would unnecessarily stretch the long imposed restriction of limiting such a relationship to an express or technical trust, and instead impose it to an instance where traditional concepts of embezzlement or larceny more nearly fit. Having concluded the acts of McKnew complained of did not occur in the course of a fiduciary relationship for the purposes of § 523(a)(4), Count II of the Complaint of KMK fails and provides no basis to render the indebtedness of McKnew to KMK non-dischargeable.

Section 523(a)(4) requires a fiduciary relationship beyond an employer’s contractual duty to contribute to an ERISA fund.

Mo-Kan Iron Workers Pension Fund v. Engleman (In Re Engleman) · filed 2001-11-29(a)(4)

But, language in ERISA that states an employer is a fiduciary of the retirement fund does not raise the employer’s status to that of a fiduciary for bankruptcy discharge purposes.

Section 523(a)(4) does not except a debt from discharge for defalcation by an attorney when a nonrefundable retainer was not held as client trust funds.

Stephens v. Bigelow (In Re Bigelow) · filed 2001-11-30(a)(4)

Since there were no trust funds involved in Bigelow’s attorney-client relationship with Stephens, theirs was not a “fiduciary” relationship within the narrow meaning of § 523(a)(4). Nor could there have been, by definition, a “defalcation” without trust funds.

Section 523(a)(4) treats a fiduciary’s willful neglect or reckless breach of duty as defalcation, making the resulting debt nondischargeable.

Rutanen Ex Rel. Estate of Quevillon v. Baylis · filed 2002-03-06(a)(4)

This Court is persuaded to apply the willful neglect or reckless standard adopted by the Fifth and Seventh Circuit Courts of Appeals and by bankruptcy courts in this Circuit.

Section 523(a)(4)’s fiduciary fraud or defalcation exception requires a pre-existing fiduciary relationship or an express trust; a constructive, resulting, or implied trust does not qualify.

Rae v. Scarpello (In Re Scarpello) · filed 2002-01-29(a)(4)

The Court finds that the Creditor has not established that a fiduciary relationship for purposes of § 523(a)(4) existed between the parties because there was no pre-existing fiduciary relationship between the parties, nor was there any technical express trust created. At best, the agreement between the parties might have created constructive, resulting or implied trusts which do not fall within the confines of § 523(a)(4).

Section 523(a)(4)’s fiduciary exception requires a relationship arising from an express or technical trust.

Dresser v. Arient · filed 2002-04-02(a)(4)

In order to fall within ... the meaning of § 523(a)(4), the fiduciary relationship must arise from an express or technical trust, not a constructive, resulting, or implied trust.

Section 523(a)(4) requires an express or technical trust for a debtor to act in a fiduciary capacity; a fiduciary duty under state law alone does not suffice.

Subich v. Verrone (In Re Verrone) · filed 2002-05-01(a)(4)

Plaintiff, who has the burden of proof on this issue, has failed to demonstrate that debtor was acting as a fiduciary relative to plaintiff for purposes of § 523(a)(4) when plaintiff purchased the above promissory note through him. She specifically offered no evidence establishing that any of the above required elements of an express trust were present in this instance. Plaintiff apparently assumed that because debtor was acting as a fiduciary under state law he also was acting as a fiduciary for purposes of § 523(a)(4). We have seen that this assumption is erroneous.

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity; corporate officer and director duties alone are insufficient.

Posillico v. Bratcher (In Re Bratcher) · filed 2002-05-21(a)(4)

Therefore, the Court holds that the duties owed by Defendant, in his position as an officer and director of Island Design, to either the corporation or to Plaintiff are insufficient to establish the fiduciary capacity required by § 523(a)(4).

Section 523(a)(4) excepts from discharge a debt arising from a contractor’s defalcation of construction trust funds while acting as a fiduciary.

Kriegish v. Lipan (In Re Kriegish) · filed 2002-04-09(a)(4)

The Court finds that the factual determinations of the Bankruptcy Court are amply supported by evidence in the record, and that the determination that appellant breached his fiduciary duty to appellee created by. the MBCFA, rendering the portion of the debt identified by the Bankruptcy Court nondischargeable under 11 U.S.C. § 523(a)(4), was correct as a matter of law.

Section 523(a)(4) requires a debtor to have acted in a fiduciary capacity for a debt to be excepted from discharge as fiduciary fraud or defalcation.

Bennet v. Wright (In Re Wright) · filed 2002-06-10(a)(4)

Because Bennett has cited no statute or case that designates Wright as a fiduciary of Bennett or imposes fiduciary duties on Wright, the Court concludes that Wright did not act in a fiduciary capacity; therefore Bennett has failed to meet his burden as to fiduciary fraud or defalcation.

Section 523(a)(4) makes a guaranteed debt nondischargeable when the guarantors personally cause their corporation’s defalcation of trust funds while breaching their fiduciary duty to the corporation.

Airlines Reporting v. Ellison · filed 2002-07-11(a)(4)

Accordingly, we agree with the district court that the Ellisons’ indebt- edness to ARC was caused solely by the Ellisons’ breach of trust and is therefore not dischargeable under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) excepts from discharge a debt arising from an ERISA fiduciary’s defalcation involving unpaid plan contributions.

Hunter v. Philpott (In Re Philpott) · filed 2002-07-31(a)(4)

The Court holds that ERISA creates a technical trust and fiduciary capacity under the Bankruptcy Code. ... The Court concludes that these stipulated facts clearly establish a defalcation under § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship between the debtor and the creditor for a debt based on defalcation to be nondischargeable; a duty owed to someone else does not suffice.

Lexington Health Care Center of Elmhurst, Inc. v. McDade (In Re McDade) · filed 2002-08-28(a)(4)

The Court holds that the Admission Agreement, coupled with the Power of Attorney, fails to establish the requisite § 523(a)(4) fiduciary relationship between the Debtor as fiduciary and the Creditor as principal/beneficiary.

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity; a confidential relationship alone is insufficient.

Peregrine Falcons Jet Team v. Miller (In Re Miller ) · filed 2002-09-06(a)(4)

Accordingly, the Record does not support a conclusion that Miller was in a “fiduciary capacity” vis-a-vis Ray and/or the Jet Team.

Section 523(a)(4) requires proof of a fiduciary relationship arising from an express or technical trust to except a debt for fiduciary fraud or defalcation from discharge.

Qin v. Qin · filed 2002-09-06(a)(4)

This Court concludes the debt to Plaintiff is not excepted from discharge under § 523(a)(4). Plaintiff has the burden to prove it is more likely than not that Debtor was acting in a fiduciary capacity under an express trust when he received the funds from Plaintiff.

Section 523(a)(4) requires an express or technical trust to establish the fiduciary capacity needed to except a debt from discharge.

In Re Ziadeh · filed 2002-09-18(a)(4)

Because Plaintiff cannot show the existence of an express or technical trust, this Court concludes that the relationship between Debtor and Plaintiff was merely contractual. Accordingly, § 523(a)(4) does not prevent discharge of Debtor's debt.

Section 523(a)(4) can apply when an indemnity agreement creates an express trust that places the debtor in a fiduciary capacity.

Mountbatten Surety Co v. McCormick (In Re McCormick) · filed 2002-09-20(a)(4)

We find that the language in ¶ 9 of the Indemnity Agreement creates a trust relationship between the parties. The Debtor, as trustee of the funds, owes a fiduciary duty arising from the trust.

Section 523(a)(4) excepts a fiduciary’s debt from discharge when the breach amounts to defalcation, which requires something close to extreme recklessness.

Rutanen v. Baylis · filed 2002-12-10(a)(4)

Instead, defalcation requires something close to a showing of extreme recklessness.

Section 523(a)(4)'s fiduciary defalcation exception requires an express or technical trust; an investment salesperson who never controlled the investors’ funds does not meet that requirement.

Graffice v. Grim (In Re Grim) · filed 2003-02-05(a)(4)

Thus, based upon these facts and observations, the Court is unable to conclude that any of the elements necessary to create an express trust are present in this case. As such, the Plaintiff may not maintain her cause of action under § 523(a)(4).

Section 523(a)(4) recognizes a trust created by Article 3-A of the New York Lien Law as an express trust.

Sandak v. Dobrayel (In Re Dobrayel) · filed 2002-12-09(a)(4)

Hence, Article 3-A clearly creates an express trust within the meaning of Section 523(a)(4).

Section 523(a)(4)’s defalcation exception requires the debtor to have incurred the debt while acting in a fiduciary capacity toward the creditor seeking nondischargeability.

Bankers Trust Co. v. Hoover (In Re Hoover) · filed 2003-01-15(a)(4)

Rather, finding the reasoning of the dissent in Ellison to be logically valid and compelling, this Court concludes Defendant’s debt must have been incurred while Defendant was acting in a fiduciary capacity with respect to the Plaintiff for the debt in issue to be nondischargeable under the defalcation prong of section 523(a)(4).

Section 523(a)(4) makes a debt nondischargeable when a corporate officer commits defalcation while acting in a fiduciary capacity.

In Re: Lapeyre · filed 2003-01-30(a)(4)

Because he committed defalcation while acting in this fiduciary capacity, we affirm the bankruptcy court’s finding and hold that Lapeyre’s debts to AMD are not dischargeable in bankruptcy.

Section 523(a)(4) treats corporate officers and directors as acting in a fiduciary capacity under Washington law.

Butko v. Healy · filed 2003-03-21(a)(4)

We agree with the district court's conclusion that, under current Washington state law, corporate officers and directors act in a fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a corporate director’s duty to a shareholder to qualify as a fiduciary duty; general duties of good faith and fair dealing are insufficient.

Horejs v. Steele (In Re Steele) · filed 2003-04-24(a)(4)

The Court finds that Defendant, as a director of a closely held corporation, does not stand in the relationship of a fiduciary to Plaintiff, a minority shareholder, such that any liability incurred as a consequence of that relationship may be excepted from discharge under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) does not treat a California corporate officer as a fiduciary merely because the officer owes fiduciary duties to the corporation.

In Re Gregory Dewitt Cantrell, Debtor · filed 2003-05-28(a)(4)

Because under California law a corporate officer is not a fiduciary within the meaning of § 523(a)(4), we further conclude that Cantrell is entitled to summary judgment on Cal-Miero’s non-dischargeability claims.

Section 523(a)(4) treats a fiduciary’s extremely reckless failure to remedy unauthorized trades as a nondischargeable defalcation.

Moore v. Murphy (In Re Murphy) · filed 2003-08-28(a)(4)

The Debtor’s failures to act constituted, at the very least, a lack of diligence reaching the level of extreme recklessness. Accordingly, the Debtor’s failure to make a good faith effort to follow the Plaintiffs instructions to cancel the unauthorized Lycos trades constituted a defalcation within the meaning of § 523(a)(4).

Section 523(a)(4) excepts a debt from discharge when a fiduciary’s defalcation causes the creditor’s loss.

Baker v. Friedman (In Re Friedman) · filed 2003-09-11(a)(4)

His conduct in permitting the assets to be lost without informing Baker was a defalcation, rendering his obligation to her nondis-chargeable.

Section 523(a)(4) requires a preexisting express or technical trust for a debt arising from fraud or defalcation in a fiduciary capacity; an employee’s general duty of loyalty does not suffice.

E.L. Hamm & Associates, Inc. v. Sparrow (In Re Sparrow) · filed 2003-11-03(a)(4)

As such, the imposition of a fiduciary relationship here would unnecessarily stretch the long imposed restriction of limiting such a relationship to an express or technical trust. Accordingly, the record of the State Court Action is sufficient for this Court to determine no fiduciary relationship for the purposes of § 523(a)(4) of the Bankruptcy Code existed between the Sparrows and Hamm.

Section 523(a)(4) requires a creditor seeking to except a debt for fraud or defalcation in a fiduciary capacity from discharge to prove both a fiduciary relationship and fraud or defalcation by a preponderance of the evidence.

Monterey Mushrooms, Inc. v. Steinberg (In Re Steinberg) · filed 2003-12-02(a)(4)

To establish a claim of nondischargeability based on fraud or defalcation pursuant to § 523(a)(4), a creditor must prove by a preponderance of the evidence that: 1.) a fiduciary relationship existed between the parties and 2.) the Debtor is guilty of defalcation or fraud while acting in his fiduciary capacity. ... Therefore, this Court finds that no fiduciary relationship existed between the parties in this dispute.

Section 523(a)(4)’s fiduciary fraud or defalcation exception requires an express trust created independently of the alleged wrongdoing.

U.S. Export, Inc. v. Bell · filed 2004-02-10(a)(4)

Because no express trust was created independently of the alleged wrongdoing, the bankruptcy court’s conclusion that there was no fraud or defalcation while acting as a fiduciary within the meaning of 11 U.S.C. § 523(a)(4) was not erroneous.

Section 523(a)(4) bars discharge when a landlord spends a tenant’s security deposit that the landlord was required to hold as the tenant’s property.

McGee, Bertha v. Nelson, Gloria · filed 2003-12-23(a)(4)

These real attributes, not the labels applied by the ordinance, bring into play a fiduciary obligation and thus §523(a)(4).

Section 523(a)(4) makes a debt from fiduciary defalcation nondischargeable when an employer diverts withheld employee contributions that have become ERISA plan assets.

Trustees of the Colorado Ironworkers Pension Fund v. Gunter (In Re Gunter) · filed 2003-12-24(a)(4)

Under ERISA, the “amounts” that were withheld from participant-employee wages, whether characterized as cash or claims, became “plan assets,” or a res with respect to which these Debtors had fiduciary responsibilities. The diversion of these amounts to payment of other legitimate business expenses constituted defalcation of that fiduciary responsibility for purposes of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for fiduciary capacity; trust language in a security agreement alone does not create one.

Southwest State Bank v. Ellis (In Re Ellis) · filed 2004-01-08(a)(4)

Considering the substance of the security agreements, the Court holds that they did not impose a fiduciary duty as required by § 523(a)(4).

Section 523(a)(4) does not treat duties arising solely from an ordinary contract as a fiduciary relationship for a fraud or defalcation claim.

CFC Wireforms, Inc. v. Monroe (In Re Monroe) · filed 2004-02-02(a)(4)

The Quotation and Agreement does not contain language showing attributes of a fiduciary relationship, and TRI did not hold any fiduciary duties independent and apart from the contractual agreement. Therefore, CFC has failed to establish the existence of an express trust or fiduciary relationship.

Section 523(a)(4) does not treat an officer and controlling shareholder as a fiduciary of a technical trust merely because of duties owed to another officer and shareholder.

Dominie v. Jones (In Re Jones) · filed 2004-02-20(a)(4)

Based upon the foregoing, the Court concludes that the duties owed by a corporate officer and controlling shareholder in a closely-held corporation to another officer and minority shareholder are not those of a fiduciary within the meaning of § 523(a)(4). An officer and controlling shareholder of a closely-held corporation is not a fiduciary of a technical trust such that he is exposed to liability under § 523(a)(4) to an individual shareholder and officer of the corporation.

Section 523(a)(4) excepts from discharge debts a credit union director incurred by borrowing in breach of his fiduciary duty to the credit union.

NAFCO Federal Credit Union v. Lawson (In Re Lawson) · filed 2004-02-10(a)(4)

I conclude that Mr. Lawson did have a fiduciary duty to the credit union at the time he incurred all of the debts, except for the final September 2002 installment loan for the Volkswagen. He was no longer a member of the board or president at that time. I further conclude that he violated his fiduciary duty to the credit union by incurring such debt in violation of board policies. Therefore, I find that all of the obligations incurred by Mr. Lawson, except for his debt for the Volkswagen represented by the September 2002 note, are excepted from discharge under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) excepts a debt from discharge when a fiduciary’s use of building funds for overhead or other projects constitutes defalcation.

Kriegish v. Lipan · filed 2004-02-23(a)(4)

The record here is replete with evidence that Kriegish used the monies advanced by Lipan to pay for his general overhead expenses and to pay suppliers for their work on other projects — clear violations of the MBCFA and accordingly clear defalcations under § 523(a)(4).

Section 523(a)(4) requires an express or technical fiduciary relationship for fraud or defalcation; a security agreement alone does not establish one.

Goodmar, Inc. v. Hamilton (In Re Hamilton) · filed 2004-03-04(a)(4)

In the present case, the Plaintiff failed to present any evidence of an “express or technical” fiduciary relationship between the Defendants and the Plaintiff, and the Court cannot imply that the Security Agreement between the Defendants and the Plaintiff created such a relationship. The Plaintiffs claim fails under this theory.

Section 523(a)(4)'s fiduciary capacity requirement can be satisfied by a PACA statutory trust.

Consumers Produce Co. v. Masdea (In Re Masdea) · filed 2004-03-19(a)(4)

A trust arising under § 499e(c)(2) is of the type required for § 523(a)(4) of the Bankruptcy Code to be operative.

Section 523(a)(4) does not treat a director of an insolvent corporation as acting in a fiduciary capacity solely because the director owes creditors a duty under state law.

Casini v. Graustein (In Re Casini) · filed 2004-03-31(a)(4)

A director of an insolvent corporation is not the type of fiduciary covered by § 523(a)(4); even if he is, Casini did not commit a defalcation because there were no valuable assets or business to preserve for creditors.

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity; a general fiduciary duty to shareholders is insufficient.

Estate of Harris v. Dawley (In Re Dawley) · filed 2004-04-16(a)(4)

In short, Plaintiff appears to rely merely on the State Court’s finding that Defendant breached his fiduciary duty to Harris and has not proven the elements of an express trust which is its burden under § 523(a)(4). Despite the fiduciary relationship Defendant had to Coin Call and its shareholders, I am unable to find that an express trust existed such that Dawley acted in a “fiduciary capacity” under § 523(a)(4).

Section 523(a)(4) does not cover a trust created by the fraud that gave rise to the debt; the trust relationship must already have existed.

Smith v. Khalif (In Re Khalif) · filed 2004-04-26(a)(4)

In other words, section 523(a)(4) is inapplicable to a trust created as result of fraud that gives rise to the debt. Hence, counts III and VIII fail to state a claim upon which relief can be granted.

Section 523(a)(4) does not treat a corporate officer as a fiduciary solely because state law imposes a fiduciary duty on that officer.

Michigan Web Press, Inc. v. Wilcox (In Re Wilcox) · filed 2004-06-09(a)(4)

Defendant, as an officer and director of Web, did not act in a “fiduciary capacity” as the term is used in section 523(a)(4). While there may be a question of fact as to whether Defendant breached his fiduciary duty under state law, there is no question of fact on the issue of whether he is a fiduciary as defined under 11 U.S.C. § 523(a)(4). Defendant is not a fiduciary for dischargeability purposes.

Section 523(a)(4)’s defalcation exception requires an express or technical trust.

Automated Handling v. Knapik (In Re Knapik) · filed 2004-06-17(a)(4)

Thus, without the existence of a trust, the defalcation exception to discharge under § 523(a)(4) is not available to the Plaintiffs, causing the issue in this case to turn and become focused on the Debtor’s intent.

Section 523(a)(4) requires an express or technical trust for a debtor to act in a fiduciary capacity; a merely contractual relationship does not qualify.

Legendary Loan Link, LLP v. Glatt (In Re Glatt) · filed 2004-06-21(a)(4)

In the instant case, neither the security agreement nor the letter of understanding imposed an express or technical trust. The Debtor was not acting in a fiduciary capacity toward Legendary Loan Link; rather, the relationship between the Debtor and Legendary Loan Link was merely contractual.

Section 523(a)(4) requires an express or technical trust for a debtor to act in a fiduciary capacity; a contractual lease alone does not suffice.

Legendary Leasing, Inc. v. Glatt (In Re Glatt) · filed 2004-06-21(a)(4)

In the instant case, the lease agreement did not impose an express or technical trust. The Debtor was not acting in a fiduciary capacity toward Legendary Leasing; rather, the relationship between the Debtor and Legendary Leasing was merely contractual. As such, Legendary Leasing has failed to establish the first element of “fraud or defalcation while acting in a fiduciary capacity” under section 523(a)(4).

Section 523(a)(4) requires more than ERISA fiduciary status; the debtor must have been legally obligated to hold the specific property for the creditor’s benefit.

Hunter v. Philpott · filed 2004-07-01(a)(4)

We are not satisfied that the simple determination than an individual is an ERISA fiduciary is enough to satisfy the requirements of § 523(a)(4).

Section 523(a)(4) makes a controlling officer’s debt for defalcation of construction trust funds nondischargeable when the officer directs those funds to other business or personal uses.

Fowler & Peth, Inc. v. Regan (In Re Regan) · filed 2004-07-06(a)(4)

Section 523(a)(4) provides that an individual debtor is not discharged from any debt for defalcation while acting in a fiduciary capacity. ... The TFS has created a fiduciary obligation upon “controlling” officers and directors of contractors to insure that monies received from construction projects are used to pay the suppliers and material-men who contributed to a project’s completion. When a conscious decision is made by those officers or directors to redirect the statutorily-created trust funds to other corporate or personal purposes, they must suffer the consequences of those actions even if they seek the protection of the bankruptcy laws.

Section 523(a)(4) excepts a guardian’s debt from discharge when a probate finding that the guardian wasted or failed to deliver ward funds establishes defalcation.

Clark v. Sanders (In Re Sanders) · filed 2004-07-14(a)(4)

Based on the foregoing and the Probate Court’s conclusion that Debtor “wasted or failed to deliver $53,738.41,” I hold that the Probate Court found a defalcation occurred such that the debt in question should be excepted from discharge pursuant to § 523(a)(4).

Section 523(a)(4) does not except a debt from discharge for defalcation under a statutory trust when the creditor is not a beneficiary of that trust.

Stetson Ridge Associates, Ltd. v. Walker (In Re Walker) · filed 2004-09-17(a)(4)

The Colorado mechanic’s lien trust fund statute does not create liability for statutory trust claims in favor of owners or general contractors. Accordingly, Tri-C/Stetson Ridge fails to state a claim for breach of trust that could create a debt from Walker to them that is nondis-chargeable under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) does not treat a debtor as acting in a fiduciary capacity merely because the debtor was the claimant’s partner; an additional fact, such as an express trust, is required.

Lowther v. Insley (In re Insley) · filed 2004-08-24(a)(4)

The Court so rules because ... (c) there does not exist, indeed there was not even pled, in the instant matter an express trust or, for that matter, any other such additional fact so as to make actionable under § 523(a)(4) the partnership capacity of the Debtor, and (d) the Debtor, with respect to Lowther, thus did not act in a “fiduciary capacity” within the meaning of such phrase for purposes of § 523(a)(4) by mere virtue of the Debtor’s status as a partner of Lowther.

Section 523(a)(4) requires more than ERISA fiduciary status: the debtor must have been obligated to hold the particular property at issue for the creditor.

Hunter v. Philpott · filed 2004-08-30(a)(4)

We are not satisfied that the simple determination than an individual is an ERISA fiduciary is enough to satisfy the requirements of § 523(a)(4). Instead, we believe that the prior holdings of our court and the United States Supreme Court require that we look specifically at the property that is alleged to have been defalcated to determine whether Philpott was legally obligated to hold that specific property for the benefit of the Funds.

Section 523(a)(4) excepts debts for defalcation while acting in a fiduciary capacity from discharge.

Sliva v. May (In Re May) · filed 2004-12-14(a)(4)

In summation, the Court finds that under 11 U.S.C. § 523(a)(4), the obligation owed by the Defendant to the Plaintiff is a nondischargeable debt.

Section 523(a)(4) excepts a debt from discharge when it arises from fraud or defalcation while the debtor was acting in a fiduciary capacity.

Johnston v. Youngdale · filed 2004-11-19(a)(4)

The BAP properly affirmed the bankruptcy court’s dismissal of Johnston’s 11 U.S.C. § 523(a)(4) claim because Johnston did not challenge the discharge of a debt “for fraud or defalcation while [Debtors were] acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4); see also Cal-Micro, Inc. v. Cantrell (In re Cantrell), 329 F.3d 1119, 1127 (9th Cir.2003) (holding that corporate officers are not trustees with respect to corporate assets and are therefore, not fiduciaries within the meaning of Section 523(a)(4)).

Section 523(a)(4) requires an express or technical trust that existed before the wrongdoing to except a debt for fraud or defalcation in a fiduciary capacity from discharge.

James Cape & Sons Co. v. Bowles (In Re Bowles) · filed 2004-12-16(a)(4)

A state statute can create the express trust which will be sufficient under § 523(a)(4), but the statute must define the trust res, spell out the trustee’s fiduciary duties and, most importantly, impose the trust prior to and without reference to the wrong which created the debt.

Section 523(a)(4) requires a fiduciary duty that satisfies the federal standard; a state finding based solely on a relationship of trust and confidence does not establish nondischargeability through collateral estoppel.

Gupta v. Eastern Idaho Tumor Institute, Inc. · filed 2004-12-17(a)(4)

In short, the state court findings are insufficient to warrant collateral estoppel here, because they are based on a standard that Angelle held insufficient, and they do not indicate that the facts actually litigated and decided comport with those limited areas of responsibility that still may be deemed “fiduciary” under Texas partnership law.

Section 523(a)(4) requires an express or technical trust for fraud or defalcation while acting in a fiduciary capacity; a real estate agent’s ordinary fiduciary duties under state law are insufficient.

Abdel-Hak v. Saad (In Re Saad) · filed 2004-12-30(a)(4)

The Court concludes that Ally Saad did not act in a fiduciary capacity for purposes § 523(a)(4) when he represented Abdel-Hak. Therefore, the § 523(a)(4) count must be dismissed.

Section 523(a)(4) requires an express or statutory trust and a fiduciary defalcation; the debtor’s disclosed use of trust funds with the surety’s approval did not establish a breach.

Fidelity & Deposit Co. of Maryland v. McIntosh (In Re McIntosh) · filed 2005-01-31(a)(4)

Pertinent to this case, the plaintiff must prove that there is either an express or statutory trust in which the defendant had trust-like duties — clearly defined duties giving rise to a fiduciary obligation to treat the trust res according to those defined fiduciary duties — and that the defendant had breached his duties through a defalcation. ... The Court finds, however, no breach of fiduciary duty under the circumstances presented here. The monies were accounted for, and they were used for purposes that were fully disclosed in advance by McIntosh and approved by the Bond Surety’s representatives.

Section 523(a)(4) requires a debtor accused of defalcation to have held funds in trust for another to establish the required fiduciary relationship.

Commonwealth Land v. Blaszak · filed 2005-02-04(a)(4)

In addition, to satisfy § 523(a)(4) in the context of a defalcation, the debtor must hold funds in trust for a third party to satisfy the fiduciary relationship element of the defalcation provision of § 523(a)(4).

Section 523(a)(4) excepts from discharge a debt for defalcation committed while acting in a fiduciary capacity.

RLI Insurance v. Stevens (In Re Stevens) · filed 2005-02-23(a)(4)

Here, Plaintiff obtained the Second Judgment, which stated that the Debt was the result of Debtor’s defalcation while acting in the fiduciary capacity of Personal Representative of the Louis Estate. Therefore, the Debt is for defalcation while acting in a fiduciary capacity. Consequently, Plaintiff is entitled to judgment as a matter of law as to the nondischargeability of the Debt pursuant to 11 U.S.C. § 523(a)(4).

Section 523(a)(4) can bar discharge of a judgment arising from a debtor’s use of disputed partnership funds held in trust.

Ingram v. Womack (In Re Womack) · filed 2005-01-27(a)(4)

Applying the standards set out above, we hold that the bankruptcy court correctly denied the discharge in bankruptcy, and we therefore AFFIRM the bankruptcy court’s judgment for substantially the same reasons as those stated by the BAP in its February 4, 2004 order and judgment.

Section 523(a)(4) excepts a debt from discharge when the debtor commits defalcation while acting in a fiduciary capacity.

Eberhart v. US Trustee · filed 2005-02-17(a)(4)

We agree with the Bankruptcy Court that, in so doing, MIA created an express trust in Eberhart; and that Eberhart, by accepting the funds under those expressed terms, assumed the normal fiduciary responsibilities owed by a trustee to trust beneficiaries under federal and Connecticut law. We further agree with the Bankruptcy Court’s finding that, by failing to execute his fiduciary duties to MIA, Eberhart committed a defalcation. As we agree with these conclusions, we also agree that the debt owed by Eberhart to MIA was not dischargeable “for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an attorney to have been entrusted with funds or property for a debt to be excepted from discharge as fraud or defalcation while acting in a fiduciary capacity.

Anderson v. Ingeneri (In Re Ingeneri) · filed 2005-03-15(a)(4)

Consequently, the exception to discharge under § 523(a)(4) “for fraud or defalcation while acting in a fiduciary capacity” will not apply to a lawyer unless he or she has been entrusted with funds or property.

Section 523(a)(4) requires an express or technical trust for a debt to be excepted from discharge as defalcation while acting in a fiduciary capacity.

Cardile Bros. v. McCue (In Re McCue) · filed 2005-03-30(a)(4)

Because a PACA res is not a segregated trust res, Plaintiffs cannot prove the existence of an express or technical trust. Because Plaintiffs cannot prove the existence of an express or technical trust, McCue’s debt to Plaintiffs resulting from his breach of the PACA trust is not a debt for defalcation while acting in a fiduciary capacity pursuant to 11 U.S.C. § 523(a)(4).

Section 523(a)(4) makes a contractor’s debt to a homeowner nondischargeable for defalcation only to the extent the contractor breaches a statutory trust duty to pay lienable claims.

Duncan v. Neal (In Re Neal) · filed 2005-03-31(a)(4)

Since it is only express or technical (e.g., statutory) trusts which are implicated by § 523(a)(4), the only relevant fiduciary duty here is that prescribed by the construction trust fund statutes, i.e. to pay lienable claims.

Section 523(a)(4) requires an express or technical trust for a debt arising from a breach of fiduciary duty to be excepted from discharge; calling a contractual obligation a trust does not create one.

Electrolux Financial Corp. v. Grant (In Re Grant) · filed 2005-05-03(a)(4)

The mere use of the word “trust” does not create a trust for purposes of § 523(a)(4).

Section 523(a)(4) permits an owner or general contractor to seek a nondischargeability judgment when a debtor breaches the trust created by Colorado’s Mechanics’ Lien Trust Fund Statute.

Stetson Ridge Associates, Ltd. v. Walker (In Re Walker) · filed 2005-05-23(a)(4)

Moreover, this Court cannot agree that in the circumstances presented here, a judgment of nondischargeability is not permitted according to 11 U.S.C. § 523(a)(4).

Section 523(a)(4) excepts a debt from discharge when the debtor commits defalcation while acting in a fiduciary capacity.

Valley Memorial Homes v. Hrabik (In Re Hrabik) · filed 2005-07-28(a)(4)

The outstanding obligation owed by Debtor Wayne Arthur Hrabik to Valley Memorial Homes in the amount of $3,941.75 is nondischargeable pursuant to 11 U.S.C. § 523(a)(4).

A debt under Wisconsin’s theft-by-contractor statute is nondischargeable under § 523(a)(4) only if the firm acted as a prime contractor and the debtor was responsible for its defalcation.

Romes Design, Inc. v. Dinkins (In Re Dinkins ) · filed 2005-06-30(a)(4)

To recover under the theft by contractor statute, and to have the debt held nondischargeable under 11 U.S.C. § 523(a)(4), the plaintiffs must show that TSA acted as a prime contractor, and Mr. Dinkins is responsible for its defalcation. This court holds that as that term is applied under Wisconsin law, TSA was not a prime contractor.

Section 523(a)(4) prevents discharge of a debt for fraud or defalcation committed while acting in a fiduciary capacity.

Reliance Insurance v. Miller · filed 2005-08-18(a)(4)

Under § 523(a)(4), bankruptcy “does not discharge an individual from any debt . . . for fraud or defalcation while acting in a fiduciary capacity. . . .” This record establishes that Miller and Mannino committed constructive fraud and defalcations while acting in a fiduciary capacity.

Section 523(a)(4) makes a conservator’s surcharge debt nondischargeable when a shortage in the conservatorship account results from defalcation while acting in a fiduciary capacity.

Swihart v. Starzer (In Re Starzer) · filed 2005-09-06(a)(4)

The Judgment establishes that Defendant breached her fiduciary duties and was surcharged as a result. The surcharge compensates Plaintiff for a shortage in Defendant’s account as conservator. Therefore, the court concludes that Defendant’s conduct that resulted in the Judgment constituted a defalcation while acting in a fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4).

An ERISA employee welfare benefit plan can qualify as an express or technical trust under Section 523(a)(4).

Chao v. Duncan (In Re Duncan) · filed 2005-09-02(a)(4)

For these reasons, and consistent with the broad meaning accorded to “employee welfare benefit plans” by courts that have considered the issue, this Court finds that the Plan is an “express or technical trust,” and thus the first element of a nondischargeability action under Section 523(a)(4) is met.

Section 523(a)(4) requires an express or technical trust for a debt based on fraud or defalcation while acting in a fiduciary capacity; violation of the Maryland Construction Trust Statute alone does not suffice.

Metropolitan Steel, Inc. v. Halversen (In Re Halversen) · filed 2005-09-14(a)(4)

The Court finds that the Maryland statute does not create an express or technical trust as required by § 523(a)(4) of the Bankruptcy Code, and that a violation of the statute, without more, does not constitute grounds for determining that a particular debt is nondischargeable.

Section 523(a)(4) requires an express, technical, or qualifying statutory trust for a debt arising from fraud or defalcation in a fiduciary capacity; a broker’s general fiduciary duties are insufficient.

Carney v. Dupree (In Re Dupree) · filed 2005-10-14(a)(4)

Although the Debtor owed fiduciary duties to his client under Florida common law, these duties do not appear to be established by an express or technical trust. Additionally, there is no allegation of a statutorily-created trust. Therefore, as a matter of law, the facts established by the pleadings in connection with Count II of the amended complaint are not sufficient to give rise to an action pursuant to 11 U.S.C. § 523(a)(4).

Section 523(a)(4)’s fiduciary capacity requirement is not satisfied by a broker’s general fiduciary duties under state law without an express, technical, or statutory trust.

Barnes v. Dupree (In Re Dupree) · filed 2005-10-14(a)(4)

Although the Debtor owed fiduciary duties to his client under Florida common law, these duties are not established by an express or technical trust. Additionally, there is no allegation of a statutorily-created trust. Therefore, as a matter of law, the facts established by the pleadings in connection with Count II of the amended complaint are not sufficient to give rise to an action pursuant to 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires some mental culpability for defalcation; mere negligence or an innocent act is insufficient.

Denton v. Hyman (In Re Hyman) · filed 2005-11-30(a)(4)

“Defalcation requires more than mere negligence, and cannot be a completely innocent act. While defalcation may not require actual intent, nor may it rise to the level of misappropriation, it does require some level of mental culpability.”

Section 523(a)(4) requires a substantial inequality in power or knowledge for a fiduciary obligation between business owners to support nondischargeability.

Pierce v. Carlson (In Re Carlson) · filed 2005-12-08(a)(4)

Under these circumstances, the Court finds, as a matter of law, that there was, and could be, no fiduciary relationship between Mr. Pierce and the Defendant as defined and required under § 523(a)(4).

Section 523(a)(4) does not apply to an employer’s failure to maintain workers compensation insurance when the obligation is a state statutory duty rather than a fiduciary duty.

Seller v. Parks (In Re Parks) · filed 2006-01-06(a)(4)

Because this Court finds the defendant’s obligation to maintain workers compensation insurance is a state statutory obligation and not a fiduciary duty, 11 U.S.C. § 523(a)(4) is not applicable, therefore, the defendants’ Motion for Summary Judgment must be GRANTED and the adversary proceeding DISMISSED.

Section 523(a)(4) excepts a contractor’s debt from discharge when the contractor commits defalcation while holding project funds under a technical trust.

Crossingham Trust v. Baines (In Re Baines) · filed 2006-01-10(a)(4)

Based on the foregoing, the Court concludes that Plaintiffs are entitled to summary judgment on their claim for non-dischargeability of debt against Defendant Robert Baines based on defalcation while acting in a fiduciary capacity in accordance with 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an express or technical trust that exists before the wrongdoing to establish fiduciary capacity.

Foxworth Gailbraith Lumber Co. v. Manelos (In Re Manelos) · filed 2006-01-17(a)(4)

Any trust imposed by N.M.S.A. § 48-2A-11(B) (Repl.Pamp.1995) arises as a result of the wrongdoing, and, therefore, constitutes a trust ex maleficio which does not fall within the application of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) treats an agent as acting in a fiduciary capacity when state law heightens the agent’s duties and the agent holds a position of power over the principal.

James & Mary Artis v. West (In Re West) · filed 2006-03-21(a)(4)

However, where an agent’s obligations to a principal are heightened by state statutory or common law and the agent is in a position of power over the principal, a fiduciary relationship within the meaning of § 523(a)(4) arises.

Section 523(a)(4) requires an express or technical trust for a debt based on fraud or defalcation in a fiduciary capacity to be nondischargeable.

Moore v. Hermes (In re Hermes) · filed 2006-03-29(a)(4)

Instead, for purposes of § 523(a)(4), a fiduciary relationship requires an express or technical trust.

Section 523(a)(4) does not except unpaid employer contributions to an employee benefit plan from discharge when the employer had no preexisting fiduciary relationship with the plan.

Delange v. Tsikouris (In Re Tsikouris) · filed 2006-03-30(a)(4)

There is no principle in the law under 11 U.S.C. § 523(a)(4) which elevates an employer’s promise to pay an ERISA-qualified fund a debt for the “employer’s component” share of plan contributions, above that same employer’s promise to pay any other debt which it owes.

Section 523(a)(4) excepts from discharge debts arising from defalcation while the debtor acts in a fiduciary capacity.

Rain Bird Corp. v. Milton (In Re Milton) · filed 2006-04-03(a)(4)

Based on the district court’s findings and the authorities set forth hereinbe-low, this court concludes that the damages awarded in the sums of $1,314,000.00 and $8,349.00 were related to Milton’s breach of his fiduciary duty to Rain Bird and his defalcation while serving in a fiduciary capacity, all as contemplated by § 523(a)(4) of the Bankruptcy Code.

Section 523(a)(4) makes a debt arising from a public officer’s defalcation nondischargeable when the officer holds public funds in trust and fails to account for them.

County of Simpson v. Palma (In Re Palma) · filed 2006-04-14(a)(4)

The Court finds under these circumstances that a public officer such as the Debtor was a fiduciary for purposes of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) makes a debt for fraud or defalcation while acting in a fiduciary capacity nondischargeable.

Letrud v. Kurmel · filed 2006-04-26(a)(4)

After de novo review, see Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005), we conclude that the debt is nondischargeable under § 523(a)(4) for the reasons explained by the district court.

Section 523(a)(4) excepts from discharge a debt caused by a debtor’s defalcation while acting as a fiduciary under an express trust.

Lefelstein v. Donlevy (In re Donlevy) · filed 2006-05-25(a)(4)

Accordingly, the amount of the mechanics lien placed on Plaintiffs property in the amount of $10,985 as a direct result of Defendant’s defalcation while acting in a fiduciary capacity is found nondischargeable under § 523(a)(4).

Section 523(a)(4) does not except a debt from discharge for defalcation when the debtor’s obligation creates no fiduciary duty or technical trust.

Guerra v. Fernandez-Rocha (In Re Fernandez-Rocha) · filed 2006-06-12(a)(4)

Accordingly, the district court and bankruptcy court did not err in concluding that the Guerras’ claim against the Debtor based on his failure to comply with § 458.320 falls outside the defalcation exception to discharge set forth in § 523(a)(4).

Section 523(a)(4) treats a fiduciary’s unlawful commingling of trust funds as defalcation when it exposes those funds to seizure for the fiduciary’s debt.

Oklahoma Grocers Ass'n v. Millikan (In Re Millikan) · filed 2006-06-28(a)(4)

“Defalcation” requires, at least, “some portion of misconduct.” Cent. Hanover Bank, 93 F.2d at 512. W e conclude that the district court did not err in holding that, in these circumstances, there was a defalcation for purposes of § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship arising from a technical or express trust; a loan covenant to segregate vehicle sale proceeds does not create one.

First National Bank v. Parr (In Re Parr) · filed 2006-06-29(a)(4)

The vehicles did not belong to the bank, the proceeds from vehicle sales were to be held in “trust” by the Debtor, but this was merely a covenant in the loan agreement for the Debtor to segregate the funds and deliver them to the bank, this did not rise to the level of a trust agreement with the Plaintiff.

Section 523(a)(4) does not except unpaid employer benefit contributions from discharge when the debtor had no fiduciary relationship with respect to a plan asset.

Trustees of the Colorado Ironworkers Pension Fund v. Popovich (In Re Popovich) · filed 2006-08-15(a)(4)

The Trustees have failed to show that the Debtor had a fiduciary relationship with respect to a plan asset, and have therefore failed to establish one of the required elements of nondischargeability under Section 523(a)(4).

Section 523(a)(4) excepts a debt from discharge when the debtor commits fraud or defalcation while acting in a fiduciary capacity.

Homes Ex Rel. DeeSign, Inc. v. Anderson (In Re Anderson) · filed 2006-09-15(a)(4)

In this case, the Court finds that the Plaintiff has shown that Defendant Anderson was acting in a fiduciary capacity to the Plaintiff as to the Defendant’s handling of the Plaintiffs books and records. The evidence is also clear that Defendant Anderson was guilty of fraud and defalcation as to her fiduciary duties when she represented that bills for suppliers and sub-contractors had been paid, when, in fact they had not; and for her actions in taking draws from loan funds for the benefit of herself and her development company in contravention of the express agreement with the Plaintiff.

Section 523(a)(4) requires more than the general fiduciary duty created by a power of attorney to except a debt for fiduciary defalcation from discharge.

Estate of Smith v. Marcet (In Re Marcet) · filed 2006-09-26(a)(4)

The general fiduciary duty created by a power of attorney does not necessarily give rise to the fiduciary capacity required by § 523(a)(4).

Section 523(a)(4) does not make an attorney’s professional negligence nondischargeable solely because the attorney owes the client a fiduciary duty.

Davis v. Rickabaugh (Rickabaugh) · filed 2006-09-28(a)(4)

A debt arising from an attorney’s professional negligence does not come within § 523(a)(4) solely by reason of the attorneys fiduciary duty to the client.

Section 523(a)(4) excepts from discharge a fiduciary’s debt arising from defalcation, including a managing member’s unaccounted use of company funds.

Andrews v. Wells (In Re Wells) · filed 2006-11-21(a)(4)

His use of $4,665 for which he cannot account is a defalcation under 11 U.S.C. § 523(a)(4) and excepted from his discharge.

Section 523(a)(4) can make a profit sharing plan trustee’s debts to plan beneficiaries nondischargeable.

Hearn v. Goodwin (In Re Goodwin) · filed 2006-10-13(a)(4)

The issue is whether the defendant can discharge any debt he may owe as a plan trustee under a terminated profit sharing plan to the plaintiffs, who are each beneficiaries under the plan. After considering the evidence, the Court holds that the defendant’s debts to the plaintiffs are non-dischargeable and will enter a judgment in favor of the plaintiffs.

Section 523(a)(4) requires a fiduciary relationship for a debt arising from defalcation to be excepted from discharge; South Carolina’s construction lien statute creates no such relationship.

In Re Bleam · filed 2006-10-13(a)(4)

No true trust relationship is imposed by the South Carolina construction lien statute sufficient to create a "fiduciary capacity" for purposes of federal law and dischargeability under the Bankruptcy Code.

Section 523(a)(4)'s exception for fraud or defalcation in a fiduciary capacity requires an express or technical trust; an alleged joint venture without such a trust does not suffice.

Hosey v. Hosey (In Re Hosey) · filed 2006-11-14(a)(4)

In order to qualify under § 523(a)(4) there must be an express or technical trust imposing trustee-like obligations upon Debtor. There is no express trust in this case and the Plaintiff has not provided any Alabama state statute or case law indicating a technical trust imposing specific trustee-like obligations upon members of a joint venture.

A general contractor’s status alone does not establish the fiduciary capacity required for a debt to be excepted from discharge under § 523(a)(4).

In Re Burke · filed 2006-11-22(a)(4)

Similarly, although the Plaintiff argued that the Debtor as a general contractor is a fiduciary or akin to a fiduciary under state law, that argument is incorrect as a matter of law and, if there is any written contract that might impose such an obligation, it is not in the record before the court. ... Thus there is nothing in the state court judgment that demonstrates that § 523(a)(4) was satisfied.