11 U.S.C. § 523

Section 523(a)(2)(A) permits a prior fraud judgment to establish nondischargeability when the judgment has preclusive effect and the fraud elements meet the section’s requirements.

Jaffe v. Dawson (In Re Dawson) · filed 2006-01-04(a)(2)(A)

Jaffe has met his burden of showing that the state court judgment should be given preclusive effect in determining the dis-chargeability of debt under § 523(a)(2)(A). As noted above, the elements of fraud under Ohio state law meet the requirements of § 523(a)(2)(A). Therefore, Jaffe has met his burden of showing that there is no genuine issue of material fact.

Section 523(a)(2) excepts a debt from discharge when facts established by a prior judgment satisfy its elements.

Hydro Partners, LLC v. Gilberti (In re Gilberti) · filed 2006-01-27(a)(2)

Accordingly, the facts established by the Ohio judgment satisfy the elements of Section 523(a)(2), and the debt owed by the Debtor to Hydro is within the exception to the discharge set forth in Section 523(a)(2), and is non-dischargeable.

Section 523(a)(6) permits a confirmed arbitration award to establish willful and malicious injury through issue preclusion when applicable state law allows it.

Khaligh v. Hadaegh (In Re Khaligh) · filed 2006-02-02(a)(6)

In the context of the specific bankruptcy nondischargeability issue under § 523(a)(6), the issues litigated in the defamation action would need to equate with “willful and malicious” injury. ... Imposition of issue preclusion as between the parties to the confirmed arbitration award was permissible under applicable California law. The bankruptcy court did not abuse its discretion when it entered summary judgment without relitigat-ing the issue of willful and malicious injury.

Section 523(a)(2)(A) requires proof of intentional deception, justifiable reliance, and resulting damage before a fraud debt is excepted from discharge.

Hood v. Bennitt (In Re Bennitt) · filed 2006-08-28(a)(2)(A)

Hence, for collateral estoppel to preclude litigation of the non-dischargeability of the debt owed by the defendant to the plaintiff pursuant to section 523(a)(2)(A), the state court jury would have had to have determined that the defendant made a false statement with the purpose and intention of deceiving the plaintiff; the plaintiff relied on such false statement; the plaintiffs reliance on the false statement was justifiably founded; and the plaintiff sustained damage as a result of the false statement.

Section 523(a)(4) requires a creditor relying on a prior fiduciary duty judgment to show that the same fiduciary capacity and defalcation issues were decided.

Kramer Consulting, Inc. v. McCarthy (In Re McCarthy) · filed 2006-09-28(a)(4)

To satisfy the “fiduciary” element of § 523(a)(4), the plaintiff was required to show that the same facts comprised the basis of both the Ohio judgment and the dischargeability complaint herein. Likewise “defalcation” under § 523(a)(4) requires a showing of the same elements of defalcation under bankruptcy law and under Ohio law.

In a § 523(a)(2)(A) proceeding, a default judgment may establish the required fraud findings through collateral estoppel when the debtor substantially participated in the earlier litigation.

International Strategies Group, Ltd. v. Pomeroy (In Re Pomeroy) · filed 2006-11-08(a)(2)(A)

Based upon the foregoing cases and the facts in this case, I conclude that Pomeroy substantially participated in the District Court Matter. I further conclude that Pomeroy did not offer supportive substantive facts which would mitigate this conclusion. As such, collateral estoppel applies to findings in the District Court Matter. As those findings are identical to what this Court must find for a judgment under 11 U.S.C. § 523(a)(2)(A), summary judgment is appropriate.

Section 523(a)(2) excepts a debt from discharge when a prior judgment establishes every element of actual fraud, including a default judgment following an inquest.

Evans v. Richard Ottimo A/K/A Richard J. Ottimo, Joyce Ottimo, A/K/A Joyce Ottimo, A/K/A Joyce Decarlo Ottimo · filed 2006-11-20(a)(2)

Because the state court’s entry of a default judgment, grounded in a finding of actual fraud and imposing punitive damages, resolved all issues necessary to establish nondischargeability under § 523(a)(2), it is decisive of the present action.

A prior arbitration award establishes fraud under § 523(a)(2)(A) through issue preclusion only if the record shows that all elements of fraud were necessarily decided.

Stanback v. Lambert · filed 2007-03-22(a)(2)(A)

Although the issue of fraud was apparently litigated during the arbitration, it is unclear from this record that the arbitrator “necessarily decided” that all the elements of common law fraud (and, hence, all the elements of 11 U.S.C. § 523(a)(2)(A)) were satisfied. ... We have a “reasonable doubt” as to what was actually decided by the prior judgment, and therefore refuse to apply preclusive effect in this case.

Section 523(a)(6) permits issue preclusion on whether a debtor’s conduct was willful and malicious, but the bankruptcy court has discretion whether to apply it.

Lopez v. Emergency Service Restoration, Inc. (In Re Lopez) · filed 2007-03-27(a)(6)

The bankruptcy court correctly determined that it was permissible for it to apply principles of issue preclusion to prohibit Lopez from relitigating whether his conduct was willful and malicious. However, the bankruptcy court made two errors: conflating the jurisdictional Rooker-Feld-man doctrine with nonjurisdictional rules of preclusion and failing to recognize that it had discretion in giving preclusive effect to the state court findings.

Section 523(a)(2)(A) excepts a debt for money obtained by fraud from discharge; a prior fraud judgment may establish the debt when the debtor had a full and fair opportunity to litigate.

Nortman v. Smith (In Re Smith) · filed 2007-03-30(a)(2)(A)

Accordingly, the Plaintiffs’ default judgment is entitled to be given preclusive effect in this adversary proceeding. Plaintiffs’ motion is granted and their debt is deemed nondischargeable under 11 U.S.C. § 523(a)(2)(A) as a debt for money obtained by fraud.

A state court fraud judgment can preclude relitigation of the fraud elements of nondischargeability under § 523(a)(2).

Thomas v. Ware (In Re Thomas) · filed 2007-03-30(a)(2)

Therefore, the state court’s determination as to Plaintiffs claim of fraudulent misrepresentation ... necessarily precluded the bankruptcy court from re-litigating the fraud elements of nondischargeability under § 523(a).

A default judgment that merely mentions misrepresentation and fraud does not establish false pretenses, false representation, or actual fraud under § 523(a)(2)(A).

Rivers Edge Condominium Homeowners Ass'n v. Cohen (In Re Cohen) · filed 2007-04-26(a)(2)(A)

The mere mention of misrepresentation and fraud in paragraph 7 is not the equivalent of a finding of false pretenses, false representation, or actual fraud for purposes of section 523(a)(2)(A).

A state court fraud judgment can establish that a debt is nondischargeable under § 523(a)(2)(A) when the fraud findings receive preclusive effect under state law.

Transnation Title Insurance v. Livingston (In Re Livingston) · filed 2007-04-27(a)(2)(A)

Therefore, Transnation is entitled to summary judgment in this adversary proceeding determining that the Wayne County Circuit Court judgment is a non-dischargeable debt under § 523(a)(2)(A).

Section 523(a)(2)(A) bars discharge of a fraud debt when a prior judgment necessarily established the required fraud elements and collateral estoppel applies.

Wellinger v. Borton (In Re Wellinger) · filed 2007-06-29(a)(2)(A)

Therefore, the circuit court’s finding of fraud under Michigan law necessary supports a judgment for fraud under § 523(a)(2)(A).

Ordinary collateral estoppel rules apply in § 523 dischargeability proceedings, including to prior factual findings.

Dobbs v. Mehrlich (In re Dobbs) · filed 2007-06-29(a)(2)(A)

Nor do we find persuasive debtor-appellant’s assertion that dicta in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), changed the fundamental rules of collateral estoppel with respect to § 523.

Section 523(c) does not displace the Full Faith and Credit Statute; state court default judgments receive the same issue preclusive effect in dischargeability proceedings that they receive under state law.

Colorado West Transportation, Inc. v. McMahon · filed 2007-08-13(c)

Accordingly, the Court finds that the Bankruptcy Court erred in finding that the dischargeability provisions of § 523(c) implicitly repealed the Full Faith and Credit Statute with respect to state court default judgments. The Bankruptcy Court must give preclusive effect to the default judgment against McMahon on the issue of fraud, if the same effect would be given under Colorado law.

Section 523(a)(2) and (a)(4) require proof of their respective nondischargeability elements before a prior judgment can establish that a debt is excepted from discharge.

DirecTV, Inc. v. Figler (In Re Figler) · filed 2008-07-30(a)(2), (a)(4)

The only conclusive facts this court has with regard to the jury trial are the verdict and the judgment, neither of which establish the requirements of § 523(a)(2) or (4).

Section 523(a)(2)(A) does not permit fraud findings against a debtor’s corporations to establish nondischargeability through collateral estoppel when the debtor lacked a full and fair opportunity to litigate his own liability.

Adler v. Ng (In Re Adler) · filed 2008-09-15(a)(2)(A)

As set forth below, the Bankruptcy Court erred in utilizing the doctrine of collateral estoppel to deny Debtor’s debt discharge, pursuant to Section 523(a)(2)(A). ... However, the Bankruptcy Court erred in applying the doctrine of collateral estoppel to the state court judgment because Debtor’s individual action was severed from the state court proceeding due to his bankruptcy filing and, therefore, he did not have a full and fair opportunity to litigate the fraud issue.

Section 523(a)(2)(A) excepts a fraud debt from discharge when a prior judgment establishes the same fraud elements, including justifiable reliance, and state law gives that judgment preclusive effect.

Wharton v. Shiver (In Re Shiver) · filed 2008-11-05(a)(2)(A)

The Court concludes that the elements of a denial of discharge claim under § 523(a)(2)(A) and the elements of the Florida common law fraud claims included in the Revised Amended Complaint are identical. The failure to include the label of “justifiable reliance” in the Revised Amended Complaint does not except the Judgment from the preclusive effect that Florida courts would give to the default judgment.

Section 523 requires an independent determination of nondischargeability when prior judgments do not establish that the elements of the asserted discharge exceptions were actually litigated and decided.

Colemichael Investments, L.L.C. v. Burke (In Re Burke) · filed 2008-12-18(a)(2)(A), (a)(4), (a)(6)

ColeMichael has failed to demonstrate that the doctrine of collateral estoppel applies with respect to the Final Default Judgment and the factual allegations found in the first amended original petition. As such, material questions of fact are still in dispute as to the dischargeability of the debt created by the Final Default Judgment. An independent determination is required to ascertain whether Burke’s conduct, as alleged in the first amended original petition, meets the requisite elements for a finding of non-dischargeability under § 523.

Section 523(a)(2)(A) permits a creditor to seek a ruling that a judgment debt is nondischargeable even when the state court judgment rests on a promissory note rather than fraud.

In Re Schafer · filed 2009-03-02(a)(2)(A)

The fact that Frazier may recover from Schafer in state court on the basis of the promissory note does not preclude Frazier from utilizing § 523(a)(2)(A) to prevent discharge of that debt in bankruptcy court.

Section 523(a)(2)(A) and (a)(6) except debts for fraud and willful and malicious injury from discharge; preclusive state court findings can establish the underlying conduct.

Hebbard v. Camacho (In Re Camacho) · filed 2009-05-14(a)(2)(A), (a)(6)

Pursuant to the foregoing, IT IS THE ORDER OF THIS COURT that summary judgment for the Plaintiff on the question of dischargeability under 11 U.S.C. § 523(a)(2) and (6) is GRANTED. The March 3, 2008, judgment by the Superior Court of Gwinnett County, Georgia, in the amount of $222,833.00 is determined to be non-dischargeable.

Section 523(a)(2)(A) requires a sufficient record showing that a state court actually decided the elements of nondischargeability before its judgment can have preclusive effect.

Baermann v. Ryan (In Re Ryan) · filed 2009-07-14(a)(2)(A)

Simply put, the record here lacks sufficient detail for the Court to determine whether all of the § 523(a)(2)(A) elements were actually decided before the state court. Absent an adequate showing of what evidence was submitted in the prior proceeding and an absence of detailed findings of fact and conclusions of law from that proceeding, the doctrine of collateral estoppel is not properly applied here.

A creditor cannot pursue a § 523 nondischargeability claim until a judgment creates the debt and the debtor files for bankruptcy.

Carmona v. Morrison · filed 2010-02-08(a)(6)

Similarly, in this case, Morrison and Gomez’ entitlement to pursue a claim that a debt is not dischargeable in bankruptcy is not apparent until the judgment creating the debt is entered. Moreover, such a claim cannot be pursued until the debtor has filed for bankruptcy.

A Chapter 93A violation does not by itself establish the fraud required to except a debt from discharge under § 523(a)(2)(A).

McHeffey v. Pereira (In Re Pereira) · filed 2010-05-05(a)(2)(A)

A Chapter 93A violation may be established without proof that the defendant knew his or her false representations to be false, intended to deceive or induce the plaintiffs to rely upon false statements, and that the plaintiff relied on the representation.

A state court judgment can establish § 523(a)(6) elements through collateral estoppel when those elements were litigated and necessary to the judgment.

Fairdale Area Community Ministries, Inc. v. Hollingsworth (In Re Hollingsworth) · filed 2010-08-27(a)(6)

Because the state court’s order clearly indicates that the § 523(a)(6) elements were “actually and directly litigated” and “necessary to the final judgment!,]” this Court must apply the collateral estoppel doctrine to Ministries’ § 523(a)(6) claim.

Section 523(a)(2)(A) excepts a fraud debt from discharge when a prior judgment necessarily decided the same fraud issues after a full and fair opportunity to litigate them.

Rzasa Ex Rel. Estate of Kozlowski v. Bugnacki (In Re Bugnacki) · filed 2010-09-01(a)(2)(A)

Section 523(a)(2)(A)’s requisite elements of fraud, having been fully and fairly litigated, actually decided, and being necessary to the Superior Court default judgment, are entitled to collateral estoppel effect, barring re-litigation of those issues before this Court. This Court therefore gives preclusive effect to the relevant determinations of the Superior Court in the Civil Action, and, consequently, determines that the Plaintiff has established, as a matter of law, that summary judgment is appropriate with respect to Count One — dis-chargeability under Section 523(a)(2)(A).

A prior judgment that does not establish the debtor’s specific intent to cause harm does not establish nondischargeability under § 523(a)(2), (a)(4), or (a)(6).

Hoffman v. Anstead (In Re Anstead) · filed 2010-09-03(a)(2), (a)(4), (a)(6)

Accordingly, the findings of the probate court are not conclusive as to the specific intent requirement of § 523(a)(2), § 523(a)(4) and § 523(a)(6).

Section 523(a)(2)(A) can except a restitution judgment from discharge when the state court judgment has preclusive effect.

State of Minnesota v. Moretto · filed 2010-12-09(a)(2)(A)

Application of these doctrines insulates the judgment from Moretto’s ... collateral attack and supports the bankruptcy court’s determination that the restitution award ordered in the judgment is nondischargeable under 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) excepts a fraud judgment from discharge when the earlier proceeding actually litigated and decided the elements of that exception.

Foreign Affairs Service, Inc. v. Pittman (In Re Pittman) · filed 2010-12-15(a)(2)(A)

Since the State Court proceeding actually litigated and decided the elements of § 523(a)(2)(A) the entire amount of Plaintiffs State Court judgment is not subject to discharge under Bankruptcy Code § 523(a)(2)(A), and Defendants are collaterally estopped from relitigating this claim.

Section 523(a)(4) and (a)(6) except a debt from discharge when a prior final judgment necessarily establishes defalcation in a fiduciary capacity and willful and malicious injury.

Shepard v. Conklin (In Re Shepard) · filed 2011-01-24(a)(4), (a)(6)

The bankruptcy court properly granted summary judgment based on issue preclusion because a prior, final state court decision between the parties necessarily decided that Shepard committed “defalcation while acting in a fiduciary capacity” with respect to Conklin and inflicted “willful and malicious injury” on him.

State-court findings can establish that a debt is nondischargeable under § 523(a)(2)(A) or (a)(6).

Thompson v. Monterey Mushrooms, Inc. · filed 2011-03-07(a)(2)(A), (a)(6)

The bankruptcy court properly determined that the debt was nondischargeable based on the Monterey County Superior Court’s findings of fact.

Section 523(a)(19) permits a state court default judgment to establish a securities law violation for dischargeability purposes even when the violation was not actually litigated.

Voss v. Pujdak (In Re Pujdak) · filed 2011-06-30(a)(19)

The Court is therefore able to apply issue preclusion to those matters not “actually litigated” and look to the face of the state court complaint, which is incorporated into the Amended Complaint for this adversary proceeding, to determine whether it sufficiently alleges those requirements set forth by § 523(a)(19). Consequently, South Carolina’s traditional approach to collateral estoppel, requiring that matter be “actually litigated,” is altered in § 523(a)(19) actions.

Section 523(a)(2)(A) excepts fraudulently obtained benefits and related interest from discharge when binding agency findings establish the fraud.

Ohio Bureau of Workers' Compensation v. Damron (In Re Damron) · filed 2011-09-23(a)(2)(A)

For the foregoing reasons, the Court GRANTS the Motion as it relates to Count I; the Court determines as a matter of law that the Debtor’s debt to the OBWC for the Benefits, together with interest provided for under Ohio law, is excepted from discharge by § 523(a)(2).

Section 523(a)(4) excepts a debt from discharge when a stipulated judgment establishes civil theft that satisfies the section’s embezzlement or larceny requirement.

Martin v. Hauck (In re Hauck) · filed 2012-01-13(a)(4)

The Stipulated Judgment, when viewed in the context of those admissions to the allegations of the Fourth Claim for Relief, precludes this Court from relitigat-ing this matter and this Court will grant the Stipulated Judgment full force and effect and determine that the State Court Judgment is not dischargeable under 11 U.S.C. § 523(a)(4).

Section 523(a)(2)(A) excepts a fraud judgment from discharge when collateral estoppel precludes the debtor from relitigating the fraud.

Cheatham v. Bradley (In re Bradley) · filed 2012-08-23(a)(2)(A)

Consequently, debtor is estopped or precluded from contesting the dischargeability of plaintiffs’ judgment in the amount of $215,181.67. The judgment is therefore excepted from debtor’s discharge pursuant to 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(4) excepts a debt for intentional conversion from discharge when a Virginia conversion judgment and punitive damages award establish the required fraudulent intent.

Dean v. Hunter (In re Hunter) · filed 2012-09-21(a)(4)

This court agrees. Accordingly, the Debtor is precluded by the doctrine of collateral estop-pel from relitigating whether his judgment debt to the Plaintiffs for conversion and punitive damages for that conversion is nondischargeable under § 523(a)(4).

A state conversion judgment does not establish nondischargeable embezzlement under § 523(a)(4) through issue preclusion unless it necessarily determined the required circumstances of fraud or deceit.

In re: Susan Dantone v. · filed 2012-09-13(a)(4)

The Panel concludes that the bankruptcy court erred when it held that the issue of fraud was “necessarily determined” by the state court. Accordingly, the state court judgment cannot have issue preclusive effect as to this element for nondischargeability under the embezzlement portion of § 523(a)(4).

The willfulness element of § 523(a)(6) may be established through collateral estoppel from a Missouri malicious prosecution judgment.

Leventhal v. Schenberg · filed 2012-11-16(a)(6)

The bankruptcy court was entitled to apply collateral estoppel to the Missouri judgment to establish the “willful” element of § 523(a)(6).

Section 523(a)(2)(A) and (a)(6) except debts from discharge when a prior decision establishes that the money was obtained by false pretenses or that the debtor caused willful and malicious injury.

Whinery v. Aubrey · filed 2012-11-21(a)(2)(A), (a)(6)

The bankruptcy court properly determined that the debt in question was nondischargeable because a prior decision between the parties necessarily decided that the money at issue was obtained by “false pretenses” and that Aubrey and Todd inflicted “willful and malicious injury” on Fort Defiance Housing Corp.

Section 523(a)(2)(B) permits a fraud-based nondischargeability action despite an earlier state-court breach-of-contract judgment that did not decide fraud.

Collision Shop of America, Inc. v. Maurer (In re Maurer) · filed 2013-03-18(a)(2)(B)

Based primarily on the United States Supreme Court’s decision in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), courts have ruled that the doctrine of res judicata does not bar a nondischargeability action in this context. ... This Court agrees with these cases, and has so ruled in the past.

Section 523(a)(2)(A) and (a)(4) except a debt from discharge when a stipulated judgment binds the debtor to facts establishing false representation and larceny.

Martin v. Hauck (In re Hauck) · filed 2013-03-28(a)(2)(A), (a)(4)

As explained previously, the factual allegations of these claims fulfill the elements of § 523(a)(2)(A) and (a)(4), thus excepting the debt from discharge.

Section 523(a)(2)(A) excepts damages caused by fraud from discharge, but a prior judgment must identify those damages clearly enough for issue preclusion to establish nondischargeability.

Yust v. Henkel (In re Henkel) · filed 2013-04-19(a)(2)(A)

This is particularly true in the context of a non-dis-chargeability determination because it is only those damages proximately caused by the fraud that may be given preclusive effect. ... As a result, this Court finds that Yust has failed to establish that the issue of fraud was “actually and directly litigated” in the State Court Action because this Court is unable to determine the extent of the State Court’s findings of fraud or the amount of damages attributed to such fraud based on the record before this Court.

A state court fraud verdict can preclude relitigation under § 523(a)(2)(A) when the jury instructions and verdict establish the discharge exception’s requirements.

Brooke-Petit v. Spagnuolo (In re Spagnuolo) · filed 2013-05-15(a)(2)(A)

Thus, based on the preceding analysis, the jury instructions and the jury verdict comport with the requirements for an exception to discharge under § 523(a)(2)(A), and collateral estoppel applies to preclude relitigation of the Plaintiffs claim.

A state court default judgment on the underlying debt does not establish facts for determining dischargeability under § 523(a)(2) when dischargeability was not before the state court.

Bowersox v. Mann (In re Mann) · filed 2013-08-07(a)(2)

Because the issue of dischargeability was not before the state court, however, the state court default judgment against Defendant is not preclusive for the purposes of establishing any facts with respect to dischargeability.

Section 523(a)(19)(B) permits expanded issue preclusion only for a judgment or order that gives rise to the debt sought to be excepted from discharge.

Floyd v. Hill (In re Hill) · filed 2013-08-12(a)(19)(B)

It is only those judgments, orders or decrees which are the sources of the debts to be excepted from discharge which qualify for possible extended preclusive use.

In a § 523(a)(6) action, a guilty plea to felonious assault may be relevant evidence but does not conclusively establish willful and malicious injury.

Citizens Insurance Co. of America v. King (In re King) · filed 2013-10-15(a)(6)

Citizens also argues that King’s guilty plea in the criminal case is an admission of the necessary elements of § 523(a)(6), and that such admission is conclusive in this adversary proceeding. The Court disagrees. At most, any admission represented by the guilty plea is evidence that may be relevant in this nondis-chargeability action.

Section 523(a)(6) does not treat a battery judgment as conclusive proof of willful and malicious injury when it is unclear whether the debtor intended the injury.

Wilmers v. Yeager (In re Yeager) · filed 2013-10-15(a)(6)

The state court judgment does not definitively establish that the debtor’s actions were willful and malicious within the meaning of 11 U.S.C. § 523(a)(6) because it is unclear whether the state court found that the debtor intended to cause injury to the plaintiff or rather that he merely intended the acts that led to the injury.

Section 523(a) does not except a judgment debt from discharge through collateral estoppel unless the prior judgment necessarily determined a claim that qualifies for an exception.

Chamberlain v. Messer (In re Messer) · filed 2013-10-18(a)

Because Plaintiffs have failed to show that the prior state court Default Judgment was based on the fraud in the inducement count in the state court amended complaint, or on any other count that would be a nondischargeable claim under Bankruptcy Code § 523(a), Plaintiffs cannot show that the issue of fraud, or of any other nondischargeable claim, was “necessarily determined.”

Section 523(a)(6) makes a debt for willful and malicious injury nondischargeable, and prior findings can establish those elements through collateral estoppel.

Parris v. Delaney (In re Delaney) · filed 2014-01-29(a)(6)

Having determined that the four elements of federal collateral estoppel have been met, the Court finds that the doctrine of collateral estoppel precludes re-litigation of the § 523(a)(6) issues in the present proceedings. As there are no genuine issues of material fact left to be tried by this Court on the issue of nondischargeability under § 523(a)(6), the Plaintiff is entitled to judgment as a matter of law in each of these Adversary Proceedings.

Section 523(a)(2)(A) permits a prior fraud judgment to establish nondischargeability through collateral estoppel when the judgment decided the same elements, including justifiable reliance.

Andrews v. McCarron (In re Vincent Andrews Management Corp.) · filed 2014-03-26(a)(2)(A)

The issues in the two proceedings are identical. The elements of a cause of action for fraud under California law are the same as the five elements a creditor must prove to establish that a debt is nondis-chargeable under § 523(a)(2)(A).

Section 523(a)(2)(A) allows a creditor to use a prior judgment to establish a fraud exception to discharge only if the relevant elements were actually litigated and determined.

Zilm v. Roberts (In re Roberts) · filed 2014-02-20(a)(2)(A)

Zilm has not sustained his burden of establishing, with undisputed evidence, that all elements of his § 523(a)(2)(A) claim were actually litigated in the Texas state court action and determined by the Final Default Judgment. Accordingly, Zilm is not entitled to judgment as a matter of law.

A default judgment does not establish fraud under § 523(a)(2)(A) through issue preclusion when it contains no express fraud finding and may have rested on a nonfraud claim.

In re: Tony L. Phan and Jenny Nguyen · filed 2014-02-24(a)(2)(A)

On this record, the bankruptcy court erred in concluding that the issue of whether Debtors committed fraud within the meaning of § 523(a)(2)(A) was precluded by the Default Judgment and could not be relitigated in the bankruptcy court.

An arbitration award for breach of contract does not itself make the awarded debt nondischargeable under § 523(a)(4) or (a)(6).

Mitelhaus v. Ramey (In re Ramey) · filed 2014-05-05(a)(4), (a)(6)

Therefore, although the Arbitration Award entitles Plaintiff to a claim for the KS Fees, it does not render those fees nondischargeable pursuant to § 523(a)(4) or (a)(6). That determination was reserved for this Court by way of the instant adversary proceeding.

Section 523(a)(2)(A) requires justifiable reliance, so a state fraud verdict requiring reasonable reliance can establish that element of nondischargeability.

Nebraska Department of Health & Human Services v. Zupancic (In re Zupancic) · filed 2014-06-12(a)(2)(A)

Accordingly, because the jury found that the State had proven all of the elements of fraudulent misrepresentation, including a higher standard of reliance, the state court verdict preclusively establishes the elements of § 523(a)(2)(A), and thus the non-dischargeability of the debt, in this proceeding.

Collateral estoppel applies in § 523(a) discharge exception proceedings and bars relitigation of issues decided in prior court actions.

Koonce v. Gambino · filed 2014-07-02(a)

Collateral estoppel bars relitigation of issues determined in prior court actions and applies to discharge exception proceedings under § 523(a).

Section 523(a)(4) excepts debts arising from embezzlement or a fiduciary’s fraud or defalcation from discharge; a prior disciplinary finding can establish the underlying issues through collateral estoppel.

Li v. Peng ex rel. Estate of Peng · filed 2014-08-22(a)(4)

While the Bankruptcy Court appeared to rely upon § 523(a)(4) disallowance of discharge of obligations incurred as a result of the debtor’s embezzlement, the facts found by the New Jersey Supreme Court support a finding against Appellant either as a disloyal fiduciary or an embezzler.

A prior judgment can establish nondischargeability under § 523(a)(6) through collateral estoppel when the willful and malicious injury issue was fully and fairly litigated and necessary to that judgment.

Custom Recycling Services, Inc. v. Blake (In re Blake) · filed 2014-08-25(a)(6)

As such, the parties are precluded from further litigation on the issue of nondischargeability as it relates to § 523(a)(6) and no further evidentiary presentation with regard to the underlying merits is necessary.

Section 523(a)(2)(A) excepts a fraud debt from discharge when a prior judgment conclusively establishes the fraud allegations and awards the full debt on the fraud count, even if the complaint includes other counts.

Howard Alternatives, Inc. v. Bentov (In re Bentov) · filed 2014-08-27(a)(2)(A)

In this proceeding, the State Court Complaint contained a fraud count that included allegations establishing all of the elements of the § 523(a)(2)(A) fraud exception to discharge. The full damage award in the State Court Final Judgment was awarded on each count, including the fraud count. Collateral estoppel bars the Defendant from relitigating the fraud allegations. The existence of other counts in the State Court Complaint does not change this result.

A penalty default judgment can establish fraud-based nondischargeability under § 523(a)(2)(A) when the fraud issues were necessary to the judgment and the judgment is entitled to preclusive effect.

In re: Kenneth Anderson v. · filed 2014-09-15(a)(2)(A)

The fraud issues in this case, like those of Bursack, were necessary to the outcome of the State Court Judgment and were, therefore, actually litigated. ... Accordingly, the Panel finds that the default judgment is entitled to preclusive effect.

Section 523(a)(6) requires a debtor’s subjective intent to injure, which a state default judgment does not establish through issue preclusion when that issue was neither raised in the pleadings nor necessary to the judgment.

In re: Cristie Tolotti · filed 2014-08-25(a)(6)

As a result, Seaboard failed to carry its burden to show that the state court’s § 523(a)(6) state of mind findings were actually litigated and, thus, they are not entitled to preclusive effect.

A state judgment’s repetition of § 523(a)(2)(A)’s fraud language does not establish nondischargeability when the fraud finding was unnecessary to the judgment.

SunTrust Bank v. Bennett (In re Bennett) · filed 2014-08-21(a)(2)(A)

Since the first two elements of that phrase do not serve as a basis for liability under state law and since the state court cannot make a finding of nondischargeability merely by parroting the language of Section 523(a)(2)(A), the only phrase that really has potential meaning for collateral estop-pel purposes is the third item in the list— “actual fraud.”

A divorce judgment finding that marital property was dissipated does not establish nondischargeability under § 523(a)(2)(A) by issue preclusion unless it determines the required fraud elements.

Gonsalves v. Gonsalves (In re Gonsalves) · filed 2014-10-01(a)(2)(A)

Accordingly, the court concludes that the Master’s Report and Judgment of Absolute Divorce cannot be given preclusive effect on plaintiffs claim under § 523(a)(2)(A).

Section 523(a)(2)(A)’s intent-to-deceive requirement corresponds to the intent-to-induce-reliance requirement for actual fraud under California law.

In re: Catherine Olsen · filed 2014-12-11(a)(2)(A)

We, thus, reject the notion that § 523(a)(2)(A)’s requirement of intent to deceive does not correlate to California’s requirement of intent to induce reliance.

Section 523(a)(9) permits litigation of intoxication in a nondischargeability proceeding when a state jury’s finding of no intoxication was unnecessary to its judgment.

Koopen v. Aberle (In re Aberle) · filed 2015-01-21(a)(9)

Bankruptcy courts can apply issue preclusion to findings made by state courts to determine if a debt is excepted from discharge under section 523(a). ... Therefore, this court concludes that preclusive effect should not be granted to the jury’s finding in this matter.

Section 523(a)(2)(A) requires intent to deceive, and a prior FTC Act judgment finding reckless indifference does not preclude litigation of that intent.

Federal Trade Commission v. Gugliuzza · filed 2015-03-12(a)(2)(A)

Ultimately, Gugliuzza did not have a full and fair opportunity to litigate whether he had the intent to deceive. Collateral estoppel based on the Underlying Judgment, therefore, cannot be applied to prevent Gugliuz-za from litigating this issue for the purposes of nondischargeability under Section 523(a)(2)(A).

A civil theft judgment establishes nondischargeability under Section 523(a)(6) through collateral estoppel only if the civil theft finding was critical and necessary to the judgment.

Flemm v. Trexler (In re Trexler) · filed 2015-03-30(a)(6)

To use civil theft as a basis for finding the State Court Judgment non-dischargeable under Section 523(a)(6), the Court must next conclude the finding was critical and necessary to the State Court Judgment. It was not.

A state court judgment cannot establish an exception to discharge under § 523(a)(2), (4), or (6) through issue preclusion when it lacks findings establishing the required elements.

Duley v. Thompson (In re Thompson) · filed 2015-03-31(a)(2), (a)(4), (a)(6)

As in Sweeney, the Court here is faced with an incomplete state court record consisting of a Final Judgment Entry that- lacks the specific findings required to establish an exception to discharge under §§ 523(a)(2), (4) or (6) of the Bankruptcy Code.

Section 523(a)(2)(A) and (a)(6) can except a state court default judgment from discharge when its well-pleaded allegations establish fraud and willful, malicious injury.

Chudzinski v. Hanif (In re Hanif) · filed 2015-04-30(a)(2)(A), (a)(6)

In considering' all the factors set forth above, the Court concludes that on *666 the facts of the instant case, the default judgment entered by the Washtenaw County Circuit Court collaterally estops Defendant from relitigating either the substantive issues of whether his conduct was fraudulent or willful and malicious, or the amount of damages.

Section 523(a)(4) bars discharge of a debt arising from knowing misappropriation of client funds when a prior decision precludes relitigation of that conduct.

In Re Feng Li · filed 2015-06-10(a)(4)

Because the New Jersey Supreme Court determined that Li had knowingly misappropriated client funds, Li was collaterally estopped from raising this issue in his bankruptcy proceeding and was ineligible for discharge under § 523(a)(4).

Section 523(a)(2)(A) requires proof of a knowing or reckless material misrepresentation, intent to deceive, justifiable reliance, and resulting loss; a prior judgment that does not establish those elements cannot support nondischargeability through collateral estoppel.

Gray v. Vinsant (In re Vinsant) · filed 2015-10-07(a)(2)(A)

Because, however, the default judgment does not actually address and, thus, is not dispositive of the § 523(a)(2)(A) elements, summary judgment is not appropriate.

A Chapter 93A judgment may have preclusive effect in a § 523(a)(6) proceeding when the prior record establishes the elements of willful and malicious injury.

O'Rorke v. Porcaro (In re Porcaro) · filed 2016-02-03(a)(6)

Nonetheless, this does not mean that a Ch. 93A judgment may not be given preclusive effect in a § 523(a)(6) nondischargeability proceeding.

A prior fraud judgment can establish that a debt is excepted from discharge under § 523(a)(2)(A) when the litigated fraud issues satisfy the provision’s requirements.

Marini v. Adamo (In re Adamo) · filed 2016-10-31(a)(2)(A)

Second, the fraud issue was actually litigated and decided in the District Court action, and is decisive of the issue before this Court in plaintiffs non-dis-chargeability action. This is made plain by comparing the elements of common law fraud under New York law and the findings required under § 523(a)(2)(A).

Section 523(a)(2)(A) requires intent and reliance, so a CUTPA judgment that does not resolve those elements does not preclude a debtor from defending a nondischargeability claim.

Ferguson v. Zering (In re Zering) · filed 2016-11-02(a)(2)(A)

As key elements of § 523(a)(2)(A) are irrelevant to a determination under CUTPA, the default judgment cannot be preclusive as to the Plaintiffs first claim in this proceeding.

Issue preclusion bars a § 523(a)(2)(A) or (a)(6) claim when a prior state judgment conclusively negates a required element, such as justifiable reliance or causation.

Estate of Kimberly Kempton v. Clark · filed 2016-11-22(a)(2)(A), (a)(6)

Kempton’s nondischargeability claim under § 523(a)(2)(A) fails because the state court’s adverse determination of her lack of justifiable reliance barred Kempton from relitigating the issue. ... In addition, by finding that Kempton lacked justifiable reliance on the purported misrepresentations, the state court necessarily decided that there was “no causal connection” between the purported misrepresentations and Kempton’s injury. ... Causation is an element of a nondischargeability claim under section 523(a)(6).

Section 523(a)(2)(A), (6), and (19) require findings that establish the relevant discharge exception before a state court judgment can preclude litigation of dischargeability.

Schmidt v. Panos (In re Panos) · filed 2017-05-26

For the forgoing reasons, the Court finds that the doctrine of issue preclusion does not apply to Plaintiffs causes of action under 11 U.S.C. § 523(a)(2)(A), (6), or (19), and therefore the Plaintiffs are not entitled to judgment as a matter of law.

A creditor seeking to establish a § 523(a)(2)(A) claim through issue preclusion from an Oklahoma judgment must produce the entire judgment roll.

Grassmann v. Brown (In re Brown) · filed 2017-06-23(a)(2)(A)

Without the entire judgment roll, it is not possible for this Court to determine what issues were actually litigated and the legal standards employed by the State Court. As no preclusive effect can be given to the Judgment, Plaintiffs have not satisfied their burden of proof. See Hagmaier v. Cooley (In re Cooley), 551 B.R. 498, 501 n.2 (Bankr. W.D. Okla. 2016). Therefore, Plaintiffs Motion must be denied with respect to their Section 523(a)(2)(A) claim.

Section 523(a)(19) can except a securities fraud debt from discharge based on a state court default judgment even when the issues were not actually litigated.

Simon v. Boccarsi (In re Boccarsi) · filed 2017-12-14(a)(19)

The reasoning of Meyer is equally applicable to nondischargeability actions under § 523(a)(19). Given that reasoning, along with the plain language of the statutory exception and Congress’ intent to protect victims of securities fraud and to prevent securities regulators and investors from having to relitigate securities law violations in the bankruptcy court, “preclusive effect must now be given to default judgments before administrative tribunals subject to § 523(a)(19).” Friedman, 531 B.R. at 747.

Section 523(a)(2)(A) requires proof of false pretenses, a false representation, or actual fraud; a default judgment without findings on those issues does not establish nondischargeability through issue preclusion.

Launder v. Doll (In re Doll) · filed 2018-03-06(a)(2)(A)

Thus, the Default Judgment cannot be regarded as having dealt with issues identical to those under § 523(a)(2)(A) because the latter requires a showing of "false pretenses, a false representation, or actual fraud."

Section 523(a)(2)(A) excepts debts for money obtained by fraud from discharge, and a California fraud judgment can establish the required elements through issue preclusion.

Lopez v. Raicevic · filed 2018-06-25(a)(2)(A)

Finally, the elements necessary to prove fraud under California law are identical to those necessary to prove nondischargeability under 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) requires proof that the creditor was damaged, so a false-pretenses conviction that does not require damage cannot alone establish nondischargeability.

Martin v. Mowery (In re Mowery) · filed 2018-09-20(a)(2)(A)

Section 523(a)(2)(A) contains a requirement that the creditor be damaged, while the West Virginia statute is silent on damages.

Section 523(a)(2) excepts debts arising from fraud from discharge, and § 523(a)(6) excepts debts arising from willful and malicious injury; findings established in a prior judgment can satisfy those requirements.

Javahery v. Javaheri-Leitner · filed 2018-11-14(a)(2), (a)(6)

Contrary to Javahery’s assertion that the state court decision lacked an adequate finding of fraud,1 the record reflects that the issues of fraud and malice, as required by 11 U.S.C. §§ 523(a)(2) and (a)(6), were “identical to [those] decided in [the state court] proceeding,” were “actually litigated,” and were “necessarily decided” against Javahery.

Section 523(a)(2)(A) excepts a fraud debt from discharge when an earlier fraud judgment has preclusive effect.

In re Bell · filed 2018-12-13(a)(2)(A)

Accordingly, the bankruptcy court did not err in applying issue preclusion to District Court’s fraud judgment, resulting in its determination that the debt owed to Aviation is non-dischargeable under § 523(a)(2)(A).

Section 523(a)(6) excepts a debt for willful and malicious injury from discharge, but issue preclusion requires a showing that the earlier proceeding actually decided malice.

NLRB v. Calvert · filed 2019-01-22(a)(6)

That’s not enough to establish that Calvert is precluded from contesting the malice issue under § 523(a)(6).

A state court default judgment does not establish willful and malicious injury under § 523(a)(6) when those issues were neither actually litigated nor necessary to the judgment.

DR v. Andrea (In re Andrea) · filed 2019-02-01(a)(6)

The court finds that the Plaintiff has failed to demonstrate that the Debtor actually litigated the issue of malice and willfulness in the state court proceeding or that the issue was necessary to the judgment in the state court litigation. ... As such, the Plaintiff has not shown that the state court judgment precludes this court from determining the dischargeability of the judgment debt under Section 523(a)(6).

Section 523(a)(6) dischargeability cannot be established through issue preclusion based on a default judgment when the debtor did not participate in or actually litigate the prior case.

Cunningham v. Kinikini · filed 2019-09-20(a)(6)

Even though the default judgment was entered after an evidentiary damages hearing, Kinikini did not participate or actually litigate any issues in the Tennessee Case before the entry of default judgment. Therefore, the actually litigated element required under federal precedent is not met, and issue preclusion is inapplicable.

A final agency fraud determination can establish elements of § 523(a)(2)(A), but the creditor must separately prove justifiable reliance if the agency did not decide it.

State of Kansas, ex rel. Delia Garcia, Secretary o v. Jones · filed 2019-09-23(a)(2)(A)

The remaining issue to be resolved, because it was not resolved by the agency determination and thus not covered by collateral estoppel, is whether there is a genuine issue of material fact as to element four of §523(a)(2)(A)- that the KDOL justifiably relied on Debtor’s representation.

A stipulated judgment admitting fraud can establish a nondischargeable debt under § 523(a)(2)(A) when the parties intended it to have issue-preclusive effect.

Johnson v. W3 Investment Partners, Lp · filed 2019-11-12(a)(2)(A)

The stipulated judgment is thus nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A).

A default judgment’s finding of malice, oppression, or fraud alone does not establish the elements of § 523(a)(2), (a)(4), or (a)(6).

Welch v. Giron · filed 2019-12-13(a)(2), (a)(4), (a)(6)

This finding is not nearly enough to prove every elements of a claim under §§ 523(a)(2), (a)(4), or (a)(6).

Claim preclusion does not bar dischargeability claims under § 523(a)(2), (4), or (6) based on an earlier state court judgment.

Allen Hood - Adversary Proceeding · filed 2019-12-23

As for his arguments concerning res judicata and collateral estoppel, thedetermination of dischargeability is not within the province of a state court and claim preclusion does not apply in § 523(a)(2), (4), or (6) proceedings.

A creditor cannot relitigate a false-representation issue under § 523(a)(2)(A) when that issue was fully and fairly litigated in state court.

Treehouse Studio, LLC, a Nebraska Limited Liabilit v. Bonnell · filed 2020-05-28(a)(2)(A)

This adversary proceeding involves the same parties as Case No. CI 16-276, and the issue of fraudulent misrepresentation was fully and fairly litigated in the state court action. Plaintiff’s section 523(a)(2) claim premised on false representations is barred by the doctrine of collateral estoppel.

Section 523(a)(2)(A) and (a)(4) fraud claims are barred by collateral estoppel when the same fraud allegations were fully and fairly litigated in state court.

784 Cafe Inc. v. Chin · filed 2020-07-07(a)(2)(A), (a)(4)

The Plaintiffs’ claims under § 523(a)(2)(A) and (a)(4) are barred by collateral estoppel.

In a § 523(a)(4) proceeding, a default establishes liability for nondischargeable debts supported by well-pled facts, and the creditor must identify the claims it seeks to have declared nondischargeable.

Bioconvergence LLC v. Attariwala · filed 2020-06-23(a)(4)

The entry of default against the debtor in this adversary proceeding establishes liability for any debts of a nondischargeable character established by well-pled facts. However, the motion for default judgment failed to identify which claims Singota believes are of a nondischargeable character.

In a Section 523 dischargeability action, issue preclusion requires a final prior judgment and specific factual findings on the same dischargeability issue.

Reticulum Management, LLC v. Dean, III · filed 2020-08-04

In addition to needing a final judgment for collateral estoppel to apply to dischargeability actions, the first court must have made specific, subordinate, factual findings on the identical dischargeability issue in question, and the facts supporting the court’s findings must be discernible from that court’s record.

A prior fraud judgment establishes nondischargeability under § 523(a)(2)(A) only if the creditor shows that the required elements were actually and necessarily decided.

Northern Hills Collections, Inc. v. McArthur · filed 2023-08-29(a)(2)(A)

These omissions are critical because a finding of these elements cannot be inferred from a bald finding of fraud. Therefore, the state court’s bald finding of fraud is insufficient to establish all of the elements of 11 U.S.C. 8523(a)(2)(A).

A prior state court dismissal of a fraud claim does not necessarily bar a creditor from proving that a debt is nondischargeable under § 523(a)(2)(A).

Teves v. Costa · filed 2025-09-30(a)(2)(A)

This Court has exclusive jurisdiction of the § 523(a)(2)(A) action. See Brown, 442 U.S. at 135–36. Notwithstanding the Superior Court Order, claim preclusion does not bar the Plaintiff from establishing in this adversary proceeding that the debt owed established by the state court judgment was on account of money or property obtained by a fraudulent representation.

Conclusory recitals in a consent judgment do not establish an exception to discharge under § 523 without specific factual findings on the issues actually litigated.

Ralls · filed 2026-04-10

Conclusory statements, without specific factual findings, are not enough to establish that an identical nondischargeability issue was actually litigated.

A state court default judgment does not preclude litigation of dischargeability under § 523(a)(2)(A) or (a)(4) when the issues were not actually litigated and the judgment lacks findings on the identical dischargeability issues.

Holley · filed 2026-06-09(a)(2)(A), (a)(4)

Furthermore, the Default Judgment does not contain any factual findings, let alone specific factual findings that are identical to those necessary to find a debt nondischargeable under § 523(a)(2)(A) and/or (a)(4).72 Therefore, the Default Judgment cannot have a preclusive effect on the issues in this proceeding.

Section 523(b)'s exceptions imply that a prior nondischargeability determination generally remains binding in a later bankruptcy, even if the earlier judgment was entered by default.

In Re Smith · filed 2008-11-25(b)

Section 523(b) only states exceptions to the “once nondischargeable, always non-dischargeable” rule. Nevertheless, bankruptcy courts have unanimously held that by negative inference, Section 523(b) codifies judge-made principles of res judicata that would preclude re-determinations of dischargeability. ... Res judicata is applicable even though the prior judgment was entered by default.

Section 523(d) places the burden on the creditor to prove that its nondischargeability claim was substantially justified.

In Re: Rory Dean Hunt, Debtor. First Card v. Rory Dean Hunt J. Calvin Hermansen · filed 2001-02-06(d)

The BAP has also held that the creditor bears the burden of proving that its position is substantially justified. ... For these reasons, we adopt this rule as well.

Section 523(d) permits an award of attorney’s fees when a debtor is represented by pro bono counsel.

Stine v. Flynn (In Re Stine) · filed 2000-10-04(d)

The language of § 523(d) does not limit an award of costs and fees to private attorneys.

Section 523(d) authorizes attorneys’ fees for a debtor who successfully defends a dischargeability action, but provides no fee award for a prevailing creditor.

Garcia v. Odom (In Re Odom) · filed 1990-04-12(d)

At the same time, there is no statutory basis on which to award fees in this instance. Section 523(d) of the Bankruptcy Code authorizes the awarding of fees to a debtor who successfully defends a dischargeability action; there is no such provision for prevailing creditors.

Section 523(d) requires a creditor to pay a consumer debtor’s attorney’s fees and costs when the creditor continues a dischargeability suit after learning it cannot prove its case.

Manufacturers Hanover Trust Co. v. Hudgins · filed 1987-01-15(d)

No, we think better the construction of 523(d) is that when a creditor learns that it will not be able to prove its case, but continues to pursue the case, it falls within the statute, and thus must pay the debtor’s attorneys’ fees and costs.

Section 523(a)(5) makes divorce decree attorney’s fees nondischargeable when they are based on a duty of support, even if payable directly to the attorney.

Bennett v. Knabe (In Re Knabe) · filed 1981-01-09(a)(5)

The court therefore concludes that since the obligation to pay attorney’s fees in a final divorce decree in Indiana is essentially based on the duty of support, such fees are nondischargeable under § 523(a)(5) of the Code. Knabe’s paying the fees to Bennett directly benefits Paula and her children, in that Paula would otherwise have to pay those fees herself.

Section 523(d) places the burden on a creditor to show why attorney’s fees should not be awarded after the debtor wins at trial.

Household Finance Corp. v. McClane (In Re McClane) · filed 1981-02-05(d)

In applying the terms of this statute in this court, the effect of the statute will be deemed procedural and whenever the defendant prevails, after trial, the burden of proof to avoid imposition of attorney’s fees will shift to plaintiff as an evidentiary element.

Section 523(a)(5) excepts an obligation to pay a spouse’s attorney’s fees from discharge unless it is clearly in the nature of a property settlement.

Leonhardt v. Whitehurst (In Re Whitehurst) · filed 1981-04-03(a)(5)

This Court has independently considered the question, and concludes that, unless the obligation to pay a spouse’s attorney’s fees is clearly in the nature of a property settlement, it will be deemed non-dischargeable. In examining the Final Judgment of Dissolution of Marriage entered in this case, the Court is unable to conclude that the attorney’s fee obligation was in the nature of a property settlement.

Section 523(d) provides a limited basis for compensating a debtor’s attorney for services in a dischargeability proceeding.

Matter of Sawicki · filed 1981-07-13(d)

In the absence of controlling precedent or reason supporting the position of the applicant, I will not depart from the general rule denying a debtor’s attorney compensation for services in dischargeability proceedings beyond those contemplated and provided for under the Code in 11 U.S.C. § 523(d). There is nothing in the pleadings nor in the record of settlement which would indicate that Walnut Grove Products pursued its claim of non-dischargeability on less than a reasonable basis or with less than a proper motive.

Section 523(d)’s fee policy supports awarding a debtor reasonable costs and attorney’s fees when a creditor voluntarily dismisses a dischargeability complaint after the deadline to refile has passed.

New Britain General Hospital Employees Credit Union v. Begley (In Re Begley) · filed 1981-07-20(d)

Here, a dismissal will have the effect of granting the defendants a result indistinguishable from a decree on the merits in their favor. Therefore, based on the circumstances of this proceeding and the equities involved therein, I believe that the plaintiff should pay the defendants their reasonable costs and attorney’s fees incurred up to the date of the motion filed for dismissal, such as they would have received had the case been decided in their favor at trial, pursuant to § 523(d).

Section 523(a)(5) excepts divorce attorney’s fees from discharge when they are in the nature of support, even if payable directly to the attorney.

Richards v. Loncar · filed 1981-08-07(a)(5)

We hold that such a debt is in the “nature of alimony,” or support which directly benefits the spouse, and is therefore non-dischargea-ble notwithstanding the fact that it is to be paid directly to the attorney.

Section 523(a)(2)(A) permits a creditor to recover a reasonable contractual attorney’s fee as part of a debt excepted from discharge for fraud.

First American National Bank v. Crosslin (In Re Crosslin) · filed 1981-09-30(a)(2)(A)

It would appear as a matter of logic, however, that the benefit-of-the-bargain rule should entitle the creditor to all of its rights under the contract, including recovery of a reasonable attorney’s fee.

Section 523(a)(2)(B) allows a defrauded creditor to recover reasonable attorney’s fees provided by the contract with the debtor.

First American National Bank v. Carter (In Re Carter) · filed 1981-09-30(a)(2)(B)

In neither of these opinions did the court address the issue of whether the relief available to creditors under either subsection (A) or (B) included reasonable attorney’s fees as provided in the contract with the debtor. ... Having concluded that compensatory relief includes recovery of these fees, it follows that a creditor who is entitled to a larger measure of relief — one that is punitive in nature — should also be entitled to recover such fees. The attorney for the debtor having agreed that a twenty-percent fee would be reasonable, an appropriate order will be entered amending the judgment to include that amount.

Section 523(d) does not authorize costs or attorney’s fees when a dischargeability complaint is dismissed as untimely, because that dismissal is not a proceeding to determine dischargeability.

Menke v. Petersen (In Re Petersen) · filed 1981-12-02(d)

Even if the debts were consumer debts, there was no “proceeding to determine dischargeability” since the Court dismissed the Complaint as untimely.

Section 523(a)(5) excepts an obligation to pay a former spouse’s attorney’s fees from discharge when the fees are in the nature of support for the spouse, even if the debtor must pay the attorney directly.

Friedland v. Friedland (In Re Friedland) · filed 1982-02-08(a)(5)

The Court finds that while the debtor has been ordered to pay the wife’s attorney directly, the underlying obligation is to and for the benefit of the wife and therefore, this debt is non-dischargeable under the provisions of 11 U.S.C. Section 523(a)(5).

Section 523(a)(5) makes divorce attorney’s fees nondischargeable when the obligation is in the nature of alimony or support rather than a division of property.

Abitua v. Abitua (In Re Abitua) · filed 1982-03-31(a)(5)

The court must look to the substance of the obligation to determine whether it is in the nature of alimony or maintenance, or whether it constitutes a division of property. ... Applying the above factors in the instant case clearly indicates that the obligation to pay attorney’s fees was in the nature of alimony and support.

Section 523(a)(5) can except an attorney’s fee award for alimony or support from discharge even when the debt is payable directly to the attorney.

Porter v. Gwinn (In Re Gwinn) · filed 1982-04-05(a)(5)

Those decisions are supported by the legislative history of § 523(a)(5) which discloses that Congress intended not to exclude a debt for alimony or support from the non-dischargeability provisions for the sole reason that the debt is not payable directly to a spouse, former spouse, or child of the debtor.

Section 523(d) requires a debtor to request costs and attorney’s fees in the answer to a nondischargeability complaint.

West Springfield M. E. Credit Union v. Finnie (In Re Finnie) · filed 1982-07-01(d)

This Court is of the opinion, and I so hold, that henceforth awards under § 523(d) shall be made only when they are requested in the debtor’s answer to a non-dischargeability complaint.

Section 523(d) includes an unsecured loan used to purchase a home within the consumer debts eligible for an award of costs and attorney’s fees.

Bank of Columbia Falls v. Burgess (In Re Burgess) · filed 1982-06-22(d)

For these reasons, the court concludes that the term consumer debt in 11 U.S.C. § 523(d) includes an unsecured debt incurred by an individual to purchase his or her home.

Section 523(a)(5)(A) does not make a support award dischargeable merely because attorney’s fees are payable directly to the spouse’s attorney.

Brennan, Steil, Ryan, Bastin & MacDougall, S. C. v. Rodriguez (In Re Rodriguez) · filed 1982-08-03(a)(5)(A)

Thus, in a case where an award of attorney’s fees has been made for the purpose of providing support, their being payable directly to the attorney does not make the debt dischargeable. In the present case, the debt of $600 to Brennan must be declared nondischargeable.

Section 523(d)’s required fee award in qualifying consumer debt cases does not displace a bankruptcy court’s discretion to award fees for bad-faith litigation.

Bankers Trust Co. v. Lichstrahl (In Re Lichstrahl) · filed 1983-02-09(d)

However, this provision requiring assessment of a fee in one instance is entirely consistent with discretionary assessment of fees under the principle recognized in Aleyska and Love and, therefore, did not overrule Love.

Section 523(a)(5) makes attorney’s fees awarded in divorce proceedings nondischargeable when they are in the nature of alimony, maintenance, or support.

Frumkes v. Kaytes (In Re Kaytes) · filed 1983-02-18(a)(5)

In summary, the Court finds that the debt which arose as a result of the court ordered award of attorney’s fees is not in the nature of a property settlement, but rather, is related to alimony, maintenance, or support. The Court further finds that the attorney’s fees which are in the nature of maintenance, alimony, or support are nondischargeable, thus the debt in the instant case is nondischargeable as contemplated by Section 523(a)(5) of the Bankruptcy Code.

Section 523(d) does not authorize attorney’s fees when the debt at issue is not a consumer debt.

Gibbs v. Randolph (In Re Randolph) · filed 1983-03-22(d)

The defendant’s request for an award of attorney’s fees pursuant to 11 U.S.C. § 523(d) must fail, however, because the debt which the plaintiff sought to be determined to be nondischargeable was not a consumer debt.

Section 523(d) does not award costs or attorney’s fees for a dischargeability proceeding involving a business debt.

Mason & Lawrence of Ohio, Inc. v. Digby (In Re Digby) · filed 1983-05-03(d)

Under the circumstances of this case, however, § 523(d) is inapplicable. Although the complaint asserts a cause of action pursuant to 11 U.S.C. § 523(a)(2), the obligation in question, the cost of having erected a silo, is clearly not a consumer debt since it was not a “debt incurred by an individual primarily for a personal, family, or household purpose.” 11 U.S.C. § 101(7). On the contrary, the present claim was clearly for a business debt.

Section 523(d) provides attorney’s fees and costs to a debtor who defeats a creditor’s challenge to discharge of a consumer debt under subsection (a)(2), unless an award would be clearly inequitable. A debt secured by real property does not qualify as a consumer debt.

Brunswick Employees Credit Union v. Nenninger (In Re Nenninger) · filed 1983-08-30(d)

Because the underlying debt in the dischargeability action was not a consumer debt, debtors’ request for attorney’s fees and costs must be denied.

Section 523(d) does not authorize costs or attorney fees when a creditor disputes a reorganization plan’s terms without seeking an exception to discharge.

In Re Wise · filed 1983-10-04(d)

The bank did not seek that the debtors discharge in bankruptcy be set aside for any of the exceptions listed in 11 U.S.C. Section 523, but instead argued the meaning of the language of the Plan. Admittedly, the bank used inappropriate language in talking about personal liability of debtors. The Court overlooks the bank’s inappropriate language, and finds that 11 U.S.C. Section 523 does not serve as a basis to award the DIP the costs including attorney fees for these proceedings.

Section 523(d) does not award costs and attorney’s fees when the debt was incurred for business supplies rather than a consumer purpose.

H.A. Building Products, Inc. v. Pelen (In Re Pelen) · filed 1983-10-18(d)

The problem with Pelen’s position is that the debt in this case is not a “consumer debt” and therefore subsection (d) of § 523 is not applicable.

Section 523(d) does not require a finding that the creditor acted frivolously or in bad faith before awarding attorney's fees to a debtor.

In Re Dale Edward Carmen & Madeline Elizabeth Carmen, Debtors. Thorp Credit, Inc. v. Dale Edward Carmen, Madeline Elizab · filed 1983-12-09(d)

Since this language was specifically omitted from the final version of Sec. 523(d), we hold that the issue of whether to award attorney's fees under Sec. 523(d) is not dependent upon a finding of frivolity or bad faith on the part of the creditor.

Section 523(a)(5) also excepts reasonable attorney’s fees from discharge when they are incurred to enforce an actual support obligation under a divorce decree.

Chambers v. Chambers (In Re Chambers) · filed 1984-01-05(a)(5)

Since plaintiff is seeking to except from discharge a debt incurred in pursuit of an obligation of her former husband under the original divorce decree, and one which this court has found to be for actual support, the ancillary proceeding is sufficiently related to the primary obligation to render the award of a reasonable attorney’s fees equally nondischargeable.

Section 523(a)(5) makes a divorce-related attorney’s fee award nondischargeable when it is in the nature of support, even if the debt is payable to the former spouse’s attorney.

Anderson v. Barth (In Re Barth) · filed 1984-01-10(a)(5)

Since an award of attorney’s fees in North Dakota must be based on the financial circumstances of the parties, this Court will find that an award of attorney’s fees in North Dakota is in the nature of a support payment. ... IT IS ORDERED that the $1,696.80 debt which Kasper Barth owes Damon Anderson is not dischargeable in his bankruptcy proceedings under section 523(a)(5) of the Bankruptcy Code.

Section 523(d) permits attorney’s fees for debtors who successfully contest dischargeability of a consumer debt, but does not cover commercial debts.

In Re Reginald Charles Fox, Sr., Debtor, All American of Ashburn, Inc. v. Reginald Charles Fox, Sr. · filed 1984-02-24(d)

Section 523(d) of the Bankruptcy Code provides that the court may award attorney’s fees to debtors who successfully contest a determination of dis-chargeability with regard to a consumer debt, but this provision is inapplicable here.

Section 523(a)(5) excepts an obligation to pay a former spouse’s attorney’s fees from discharge when the obligation is in the nature of support, even if the award is not labeled as support.

D'Antuono v. Sullivan (In Re D'Antuono) · filed 1984-03-16(a)(5)

After consideration of the Master’s Report and the Probate Court judgment, it is my conclusion that the order to pay the wife’s attorney’s fees was in the nature of alimony or support, even though the Probate Court Judgment did not specifically characterize the award as alimony or support.

Section 523(a)(5) excepts reasonable attorney’s fees awarded to a former spouse for divorce and support matters from discharge when discharging them might impair the spouse’s ability to support herself.

Van Vleet v. Van Vleet (In re Van Vleet) · filed 1984-05-01(a)(5)

Attorney’s fees awarded against a debtor and in favor of his divorced spouse are nondischargeable when the fees are reasonable, wheñ there is no allegation that the fees relate to legal issues not strictly related to the divorce/support issues, and when it appears that discharging the debt might affect the dependent spouse’s ability to support herself.

Section 523(d) entitles a debtor who prevails in a creditor’s § 523(a)(2) action over a consumer debt to attorney’s fees.

Commercial Union Insurance v. Sidore (In Re Sidore) · filed 1984-06-18(d)

In summary, the overpayment of Worker’s Compensation benefits is a consumer debt. Since the debtor was the prevailing party in the § 523(a)(2) litigation brought by the creditor, he is entitled to attorney’s fees under § 523(d).

Section 523(a)(5) excepts attorney’s fees from discharge only when the award is in the nature of alimony or support; fees awarded after a contempt finding are punitive.

Tressler v. Tressler (In Re Tressler) · filed 1984-08-21(a)(5)

Attorney’s fees are excepted from discharge under 11 U.S.C. § 523(a)(5) only if the award is in the nature of alimony or support. An award of fees to the other party following a finding of contempt is punitive in nature and is not an award in the nature of alimony or support. Further, Eva never had an obligation to pay Eugene support or alimony. Thus, the award of attorney’s fees cannot be excepted from discharge.

Section 523(a)(2)(A) does not make a creditor’s attorney’s fees nondischargeable when the creditor did not incur them in reliance on the debtor’s fraud.

Check Central of Oregon, Inc. v. Barr (In Re Barr) · filed 1984-10-30(a)(2)(A)

Although in one sense the attorney’s fees debt was “caused” by the debtor’s writing the NSF checks, clearly the creditor was not relying on any fraudulent representation of the debtor in authorizing the services underlying the attorney’s fee debt. Therefore, the attorney’s fee award is not nondischargeable.

Section 523(d) does not prevent a creditor from recovering attorney's fees and costs under a contract valid under state law.

Bill Martin and Brenda Martin v. Bank of Germantown · filed 1985-05-07(d)

We do not think that section 523(d) prevents the award of attorney's fees and costs to creditors so entitled as a matter of contract under state law.

Section 523(d) does not bar a creditor from recovering attorney’s fees and costs under a contract enforceable by state law.

Martin v. Bank of Germantown · filed 1985-05-07(d)

We do not think that section 523(d) prevents the award of attorney’s fees and costs to creditors so entitled as a matter of contract under state law.

Section 523(a)(5)(A)’s assignment exception does not cover an attorney’s fee award payable to a spouse’s attorney in a divorce proceeding.

Lathouwers v. Lathouwers (In Re Lathouwers) · filed 1985-06-04(a)(5)(A)

Nor can the award of attorney’s fees be construed as coming within the assignment exception set forth in 11 U.S.C. § 523(a)(5)(A). ... Thus, it is clear that the award of attorney’s fees made in the interlocutory judgment was in the nature of support and, as such, is a debt that is not dischargeable in subsequent bankruptcy proceedings.

Section 523(d) allows attorney’s fees against a creditor only when the action concerns a consumer debt; a loan used for a business does not qualify.

Walter v. Walter (In re Walter) · filed 1985-06-11(d)

It must be noted, however, that this subsection applies only if the debt is a consumer debt. ... This debt arose out of a father’s need for funds in his business operations and his inability to obtain a commercial loan. ... This is not the kind of debt Congress envisioned when it enacted this subsection. Consequently, defendant/debtor’s motion for an order directing John T. Walter to pay John A. Walter’s counsel fees must be denied.

Section 523(d) can entitle a debtor to attorney’s fees even when the creditor’s dischargeability proceeding was dismissed.

Bernstein v. Poskanzer (In Re Poskanzer) · filed 1985-11-27(d)

Relying upon Begley, this Court likewise rules that this debtor is entitled to attorney’s fees under § 523[d], irrespective of the fact of the dismissal of the underlying adversary proceeding.

Section 523(d) permits an award of costs and reasonable attorney’s fees for an unjustified complaint to determine dischargeability under § 523(a)(2); it does not apply to a complaint objecting to the debtor’s discharge.

Bartlett Bank & Trust Co. v. Wolmer (In Re Wolmer) · filed 1986-01-08(d)

That section provides the Court with the power to award costs and a reasonable attorney’s fee when a creditor is found to have filed a complaint to determine dischargeability under § 523(a)(2) which was not substantially justified. The complaint before the Court seeks denial of debtors discharge and does not involve questions of non-dischargeability of the judgment owed to the bank. Therefore, § 523(d) is not pertinent and the request thereunder for costs and fees is denied, without prejudice to the possible filing of an application for fees under Bankruptcy Rule 9011 and/or 28 U.S.C. § 1927, supported by case authority and an affidavit showing fees and disbursements claimed, should debtors believe they are entitled to relief thereunder.

Under the 1978 version of section 523(d), a debtor may recover attorney’s fees for defending an appeal of a creditor’s dischargeability claim.

Morrissey v. Wiencek (In Re Wiencek) · filed 1986-03-12(d)

The Court therefore reads section 523(d) as authorizing an award of fees for appellate representation.