11 U.S.C. § 523

Section 523(d) permits costs and reasonable attorney’s fees when a creditor’s unjustified § 523(a)(2) claim fails, unless special circumstances make the award unjust.

Adams v. Peisker (In re Peisker) · filed 1986-06-19(d)

In the instant case, the Court can find no special circumstances as contemplated by the statute which would render such an award unjust. ... Upon the elicited testimony and documentary evidence, there appears to be no basis other than harrassment for bringing the action; accordingly, $500.00 attorney’s fees and $51.84 costs are assessed against the plaintiff Adams.

Section 523(d) does not provide attorney’s fees for dischargeability claims involving crop production loans because those loans are not consumer debts.

Citizens Bank of Byhalia v. Byrd (In Re Byrd) · filed 1986-08-05(d)

In this proceeding, the debts, which were alleged to be non-dis-chargeable, resulted from crop production loans, and are obviously not consumer debts as contemplated by the statute.

Section 523(d) permits an award of attorneys’ fees only when the dischargeability proceeding concerns a consumer debt.

Connecticut National Bank v. Panaia (In Re Panaia) · filed 1986-10-02(d)

Therefore, no basis exists for an award of attorneys’ fees under either version of § 523(d) since no consumer debt existed.

Section 523(d) requires an award of costs and reasonable attorney's fees to a debtor when a creditor's position in a consumer debt dischargeability proceeding was not substantially justified, unless special circumstances would make the award unjust.

Matter of Vanburen · filed 1986-10-10(d)

While the previous standard required awarding fees unless the award would be "clearly inequitable," the present version requires the awarding of fees if the court finds that the position of the creditor was "not substantially justified" unless "special circumstances would make the award unjust".

Section 523(a)(5) excepts an attorney’s fee award in a divorce or custody proceeding from discharge as support only when the award addresses the recipient’s financial need to sue or defend the action.

Fitzpatrick v. Schiltz (In Re Schiltz) · filed 1986-12-04(a)(5)

This Court concludes that the only basis for finding that an award for attorney’s fees in a state court divorce, post-divorce, or child custody proceeding is actually in the nature of support, is to determine whether the award was intended to address a financial necessity of the nondebtor spouse to enable that person to sue or defend such an action.

Section 523(d) requires a consumer debt for a mandatory attorney’s fee award to a debtor who successfully defends a dischargeability action.

Farmers National Bank of Cynthiana v. Bernstein (In Re Bernstein) · filed 1987-01-07(d)

The debtor/defendant’s motion (C.P. No. 10) to recover attorney’s fees under 11 U.S.C. § 523(d), following the successful defense of an adversary proceeding seeking exception from discharge, was heard on December 16. The debtor is entitled to recover his legal expense: if (a) the position of the creditor was not substantially justified and (b) the debt in question was a consumer debt. ... It is for the foregoing reasons that I find the debt not to be a consumer debt. Defendant is not, therefore, entitled to a mandatory recovery.

Section 523(d) places the burden on a creditor that unsuccessfully challenges dischargeability of a consumer debt to show substantial justification to avoid paying the debtor’s attorney’s fees.

ITT Financial Services v. Woods (In Re Woods) · filed 1987-02-19(d)

By way of analogy to the EAJA, the Debtor herein is clearly the prevailing party, whereas ITT stands in the shoes of the government, and it must carry the burden of showing substantial justification; otherwise, attorneys fees will be awarded against it.

Section 523(a)(5) excepts a divorce attorney fee debt from discharge when the payment is in the nature of support.

Webb v. Soval (In Re Soval) · filed 1987-03-26(a)(5)

In effect, the payment to Webb was to be in lieu of maintenance (factor 2). ... The Court concludes that the relevant factors favor a finding of non-dischargeability.

Section 523(d) permits a court to consider a debtor’s attorney fees when a creditor’s dischargeability complaint is dismissed before evidence is presented.

Household Finance Co. v. Beam (In Re Beam) · filed 1987-04-29(d)

Although in this case the request for an award of attorney fees pursuant to § 523(d) appears prior to the presentation of the plaintiff’s case rather than following the presentation of the plaintiff’s case, nothing in the language or history of § 523(d) would prevent consideration of such an award.

Section 523(d) permits denial of a debtor’s fees and costs when the creditor established a significant element of its nondischargeability claim.

Citizens National Bank v. Burns (In Re Burns) · filed 1987-09-15(d)

Here I am satisfied the circumstances are such as to come within the proviso to § 523(d). The court found a misrepresentation had been made. The bank was justified in relying upon this fact and the distinct possibility the court would be prepared to infer a scheme from the evidence before it consistent with an intent to deceive on the part of the debtor. I feel it would be an impermissible extension of the statute to impose attorney’s fees or costs where such an important element of § 523(a)(2) had been found by the court.

Section 523(a)(5) excepts attorney’s fees and costs awarded to collect past-due child support from discharge when they are part of the child’s support.

Brazier v. Brazier (In re Brazier) · filed 1987-12-31(a)(5)

Debts for maintenance or support of a child of a debtor are not dischargeable in bankruptcy under 11 U.S.C. § 523(a)(5). ... Based upon the foregoing facts, the Court concludes that the attorney’s fees and costs of plaintiff’s award in the Circuit Court of Talladega County, Alabama, are part and parcel of the support granted for defendant’s child and are incapable of separation therefrom.

Section 523(d) permits an attorney-fee award to a debtor when a creditor’s unsuccessful challenge to discharge of a consumer debt was not substantially justified and no special circumstances make the award unjust.

Norwest Bank Des Moines, N.A. Card Services Division v. Stewart (In Re Stewart) · filed 1988-09-26(d)

Norwest has failed to establish that the complaint was substantially justified or that special circumstances make an award of attorney fees pursuant to 11 U.S.C. section 523(d) unjust.

Section 523(a)(5) does not except fees owed to a debtor’s own attorney from discharge merely because the fees arose in child support or custody litigation.

Frey, Lach & Michaels, P.C. v. Lindberg (In Re Lindberg) · filed 1988-11-03(a)(5)

Nowhere in Section 523 are attorney’s fees per se not dischargeable nor does the Code direct that the Court look to the nature of the debtor’s own attorney’s fees to determine their nondis-chargeability.

Section 523(d) does not authorize a prevailing creditor to recover attorney fees for pursuing a dischargeability claim.

Bud Antle, Inc. v. Elliott (In Re Elliott) · filed 1988-12-15(d)

Congress deals with fees only in the context of § 523(d). If Congress intended to allow a creditor to recover attorney fees for pursuing a discharge-ability claim, it could have easily spoken. It did not. The Court concludes, therefore, that plaintiff’s request for $25,746.00 in attorney fees should be denied.

Section 523(a)(5) excepts child support and attorney’s fees awarded as support from discharge.

Connors v. Connors · filed 1989-02-07(a)(5)

Child support, unpaid and accruing, as well as attorney’s fees for litigative support to appellee as wife as awarded after bankruptcy was filed, was not absolved by bankruptcy commencement eleven months after appellant started divorce proceedings.

Section 523(a)(5) treats attorney’s fees awarded for securing support as nondischargeable when the underlying support debt is nondischargeable.

Stanjevich v. Stanjevich (In Re Stanjevich) · filed 1989-02-10(a)(5)

It is by now a well established rule in federal bankruptcy law that whether or not an attorney’s fee is to be regarded as support for purposes of § 523(a)(5) turns upon whether the litigant awarded the attorney’s fee was successful in his suit to secure support. That is, dischargeability of attorney’s fees turns on the dischargeability of the underlying debt sought to be enforced.

Section 523(d) does not authorize attorney’s fees and costs for an action to deny a debtor’s discharge under § 727.

Leslie Womack Real Estate, Inc. v. Dunbar (In Re Dunbar) · filed 1989-04-21(d)

Because § 523(d) does not provide a statutory basis for an award of attorney’s fees and costs for actions under § 727, the Court denies the debtor’s request for fees and costs.

Section 523(a)(5) excepts a divorce-related attorney’s fee award from discharge when the award is in the nature of alimony, maintenance, or support.

Gard v. Gibson (In Re Gibson) · filed 1989-06-06(a)(5)

Therefore the bankruptcy court correctly determined that the attorney’s fee award was not alimony, maintenance or support under section 523(a)(5) and was therefore dischargeable.

Section 523(a)(5) excepts a divorce-related debt from discharge when the award functions as support; the party seeking to except the debt bears the burden of proof.

Gartenberg v. Kranz (In Re Kranz) · filed 1989-06-06(a)(5)

A debtor’s obligation to make alimony, maintenance or support payments to his or her former spouse is not dis-chargeable pursuant to 11 U.S.C. § 523(a)(5). ... In short, the debt is not dischargeable if and only if the function of the award is support. ... On the record before it, the Court concludes that the Plaintiff has not established that the debt is in the nature of maintenance, alimony or support, and that, therefore, the debt in question is discharge-able in bankruptcy and the relief requested in this complaint is denied.

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 alimony or support.

Amlong & Amlong, P.A. v. Patrick (In Re Patrick) · filed 1989-09-18(a)(5)

Therefore, the debt for legal fees and costs is in the nature of alimony or support, and is nondischargeable under § 523(a)(5).

Section 523(d) permits a debtor’s attorney’s fee award when a creditor’s dischargeability complaint was not substantially justified; the creditor need not prove every element of nondischargeability to avoid the award.

Huntington National Bank v. Smith (In Re Smith) · filed 1989-10-03(d)

The required standard under § 523(d) is substantial justification, not a complete fullfillment of all requirements of § 523(a)(2). Without stipulations, only a trial proceeding would determine with certainty whether the remaining elements of § 523(a)(2) could be established by HNB. In consideration, however, of the Debtor’s aforementioned acknowledgement that there are only two remaining elements to be satisfied under § 523(a)(2), it is hereby determined that HNB’s Complaint filing was substantially justified.

Section 523(d) does not award costs or attorney’s fees when a creditor’s unsuccessful dischargeability claim was substantially justified.

Norwest Financial Ohio, Inc. v. West (In Re West) · filed 1989-10-30(d)

From the evidence submitted at trial, the Court finds that both Norwest and ITT were substantially justified in alleging their claims. ... As such, the Debtors’ request for costs and a reasonable attorney’s fee pursuant to 11 U.S.C. § 523(d) shall be denied.

Section 523(d) awards a debtor costs and reasonable attorney’s fees for defending a dischargeability complaint only when the creditor’s position in bringing it was not substantially justified.

First National Bank of Lincolnshire v. Cloud (In Re Cloud) · filed 1989-10-30(d)

A debtor receives costs and reasonable attorney’s fees for defending a determination of dischargeability only if the court finds that the position of the creditor in bringing the complaint was not substantially justified. 11 U.S.C. § 523(d).

Section 523(d) does not authorize attorney’s fees for a loan incurred to invest in stocks for profit because it is not a consumer debt.

In Re Randall Clark Burns and Deborah A. Burns, Debtors. Citizens National Bank v. Burns · filed 1990-01-18(d)

Accordingly, we conclude that the debt is not a consumer debt. Burns is not therefore entitled to an award of attorney fees under section 523(d).

Section 523(a)(5) makes divorce-related attorney’s fees nondischargeable when the award was intended as support rather than property division, as determined from all relevant circumstances.

Henry v. Henry (In Re Henry) · filed 1990-02-05(a)(5)

The proper approach under federal bankruptcy law is to determine whether the debt for the ex-spouse’s attorney’s fees was intended, at the time of the decree, to be part of the division of property, or part of the ex-spouse’s support and maintenance. This determination must be made in light of all the facts and circumstances relevant to the intent of the attorney’s fee award.

Section 523(a)(5)(A) does not make divorce attorney’s fees dischargeable when the decree awards them directly to counsel and the former spouse merely lists the judgment as an asset in bankruptcy.

In Re Edward Raymond Silansky, Bk 88-00039-At Bk Adver. 88-0116, Debtor. Edward Raymond Silansky v. Brodsky, Greenblatt · filed 1990-03-12(a)(5)(A)

Mr. Silansky’s debt for the attorney’s fees was not a debt owed directly to Mrs. Silansky. The fact that Mrs. Silansky listed the divorce judgment as an asset on the bankruptcy petition is not dispositive. ... The benefit she received when the divorce judgment ordered Mr. Silansky to pay her attorney’s fees is not a property right.

Section 523(d) bars an award of costs and attorney fees when special circumstances make it unjust, including a creditor’s reliance on the debtor’s sworn testimony.

America First Credit Union v. Shaw (In Re Shaw) · filed 1990-04-13(d)

Absent contrary evidence of what occurred at the section 341 meeting or some explanation of the Debtor’s prior inconsistent testimony, the court concludes that to award costs and fees against the Credit Union would be unjust. The Credit Union’s reliance on the Debtor’s sworn testimony represents special circumstances such as to relieve the Credit Union from the imposition of the punitive provisions of section 523(d).

Section 523(a)(2)(A) permits reasonable contractual attorney’s fees and costs incurred before bankruptcy to be included in a nondischargeable fraud debt.

Commercial Factors of Salt Lake City, Inc. v. Jensen (In Re Jensen) · filed 1990-04-13(a)(2)(A)

If the contract provides that the losing party shall bear such fees and costs in enforcing the contract, then those fees and costs may be included as part of a debt found to be nondischargeable under the Code and judgment may be rendered accordingly. ... The court can find no valid distinction between fees incurred in collecting a contractual debt prepetition and those incurred postpetition.

Section 523(d) permits a prevailing debtor to recover attorney’s fees and costs when a creditor brings an adversary proceeding under § 523(a)(2) to determine dischargeability.

Galitz v. Edghill (In Re Edghill) · filed 1990-04-13(d)

With respect to the debtor’s counterclaim for attorney’s fees, § 523(d) permits the court to award attorney’s fees and costs to a debtor who prevails in an adversary proceeding commenced by a creditor pursuant to § 523(a)(2). 11 U.S.C. § 523(d). Through this adversary the creditor did not seek a determination on the dischargeability of the debt owed by the debtor. Although the creditor mistakenly sought to recover damages against the debtor, the creditor did have a right to seek this Court’s determination as to the validity and extent of the charging lien. Thus, the debtor is not entitled to an award of attorney’s fees under 11 U.S.C. § 523(d).

Section 523(d) requires an award of reasonable costs and attorney’s fees when a creditor unsuccessfully challenges the dischargeability of a consumer debt under subsection (a)(2) without substantial justification.

Chevy Chase Federal Savings Bank v. Jeffares (In Re Jeffares) · filed 1990-10-12(d)

Based on the foregoing, this Court is satisfied that the Complaint filed by the Plaintiff was baseless and without substantial justification, especially in light of the fact that the Plaintiff could have without doubt ascertained that it had no .viable claim of nondischargeability. Therefore, the Debtor’s Motion should be granted, and in accordance with 11 U.S.C. § 523(d), the Debtor should be entitled to an award of the sum of $2,000.00 indemnifying the Plaintiff as reimbursement for his reasonable costs to defend this adversary proceeding incurred by him in this matter.

Section 523(d) awards a debtor reasonable attorney fees when a creditor’s unsuccessful § 523(a)(2) claim concerns a consumer debt, lacks substantial justification, and no special circumstances make the award unjust.

Upadhyay v. Burse (In Re Burse) · filed 1990-11-14(d)

The court makes the same award against the plaintiff under this second theory of recovery. The debt sought to be declared nondischargeable here was one for rent of the debtor’s primary residence, clearly a consumer debt under the definition in 11 U.S.C. § 101(7). A significant portion of the plaintiff’s supposed case concerned his allegations of fraud under § 523(a)(2). This court finds that the plaintiff’s position was substantially unjustified, that $1,500.00 is a reasonable attorney’s fee, and that no special circumstances exist that make this award unjust.

Section 523(a)(5) does not except an attorney’s fee award from discharge when the award is unrelated to alimony or support.

Liston v. Moore (In re Moore) · filed 1990-11-14(a)(5)

In this case, where not only alimony but the entire divorce was denied, it is clear that the attorney’s fee award has nothing to do with alimony or support of Debtor’s wife.

Section 523(d) gives the court discretion to award a debtor costs and attorney fees when a creditor seeks to except a consumer debt from discharge under subsection (a)(2).

FCC National Bank v. Dobbins (In re Dobbins) · filed 1990-10-22(d)

The Court takes that to mean that the award of costs and attorney fees is discretionary with the Court.

Section 523(d) requires courts to focus on creditor conduct when deciding whether special circumstances make an attorney’s fee award unjust.

Carthage Bank v. Kirkland · filed 1990-12-04(d)

However, this Court concludes that the focus of any analysis undertaken pursuant to section 523(d) should be on the creditor, since the primary purpose of that provision is to act as a deterrent to unjustifiable creditor conduct.

Section 523(d) does not require a merits hearing or an adjudication of dischargeability before a debtor may recover costs and reasonable attorney fees.

ITT Consumer Financial Corp. v. Mull (In Re Mull) · filed 1991-01-11(d)

Next, it is equally clear that the applicability of § 523(d) is not limited to situations in which there has been a hearing on the merits and an adjudication of dischargeability in which the debtor is the “prevailing party.”

Section 523(d) permits a fee award after a creditor dismisses its consumer debt dischargeability complaint; a judgment or trial is not required.

First Chicago FCC National Bank v. Willett (In Re Willett) · filed 1991-03-27(d)

I also concur with Judge Ryan that a judgment is not required as a condition to a § 523(d) award. ... There is no statutory requirement that there be a trial on the merits.

Section 523(d) does not entitle a debtor to attorney fees and costs when the creditor’s position was substantially justified.

United States v. Taylor (In Re Taylor) · filed 1991-08-08(d)

Although the Debtor is entitled to-dismissal of the complaint, the Court concludes that the United States’ position was substantially justified, given the unsettled legal issue involved, and that the Debtor is not entitled to attorney fees and costs under 11 U.S.C. section 523(d).

Section 523(a)(5) makes a former spouse’s attorney’s fees nondischargeable to the extent they were incurred to obtain nondischargeable support or maintenance awards.

Howard v. Moore · filed 1991-11-14(a)(5)

Under federal bankruptcy law, all attorney's fees related to obtaining these awards are nondischargeable as well. The record, however, does not reveal what portion of attorney's fees are related to obtaining the nondischargeable debts, and what portion of such fees are related to the division of marital assets.

Section 523(a)(2) does not entitle a prevailing creditor to contractual attorney’s fees for a dischargeability action.

American Express Travel Related Services Co. v. King (In Re King) · filed 1992-01-21(a)(2)

When one more fully examines the legislative history discussion leading up to that statement, in light of the enacted language of the statute, one sees that section 523(d) was intended to be the exclusive basis upon which attorney’s fees might be awarded in a section 523(a)(2) action and that a contractual provision in favor of creditors will not avail.

Section 523 neither entitles a successful debtor to attorney’s fees in a dischargeability proceeding nor bars recovery of those fees under a contract.

Citibank (South Dakota), N.A. v. Nealy (In re Nealy) · filed 1992-02-26

Section 523 of Title 11 of the United States Code neither provides that alleged debtors, successful in dischargeability proceedings, are entitled to recover attorney’s fees nor precludes such debtors from recovering fees expended in defending unsuccessful claims.

Section 523(d) does not permit a court to deny attorney’s fees based on personal notions of equity or family justice under its special-circumstances exception.

In the Matter of Alan D. HINGSON, Debtor-Appellant · filed 1992-03-03(d)

It is true that section 523(d), like the Equal Access to Justice Act on which it is modeled, authorizes the denial of an award of attorney’s fees on the ground of “special circumstances.” But we do not view this authorization as a license to the bankruptcy judge to base decision on idiosyncratic notions of equity, fair dealing, or, in this case, family justice.

Section 523(a)(5) requires a bankruptcy court to examine the nature of a divorce award when deciding whether it is dischargeable as alimony, maintenance, or support.

Dunscombe v. Dunscombe (In re Dunscombe) · filed 1992-03-05(a)(5)

Although the parties and a non-bankruptcy court may describe a particular award in a decree of dissolution as being something other than alimony, maintenance or support, the Bankruptcy Court must look to the nature of the award when considering the question of dischargeability under the Bankruptcy Code.

Section 523(a)(5) excepts periodic alimony and divorce attorney’s fees from discharge when they are in the nature of support.

Townsend v. Townsend (In Re Townsend) · filed 1992-03-06(a)(5)

The Court is satisfied that while the terms and duration of the alimony payments are fixed, which is indicative of alimony in gross, the nature of the payments is rehabilitative and in the nature of maintenance and support. The payments will provide Townsend the ability to meet immediate living expenses necessary to reestablish herself in the community and are nondis-chargeable pursuant to 11 U.S.C. § 523(a)(5). ... The $500.00 attorney fee owed to Pilgrim is in the nature of alimony and is a nondischargeable debt.

Section 523(d) requires the debtor to show that a creditor challenged the discharge of a consumer debt and that the debt was discharged; the creditor must then show that its challenge was substantially justified.

FCC National Bank v. Dobbins · filed 1992-04-29(d)

In order to award attorney’s fees under this section, the debtor must prove that (1) the creditor requested a determination of the dischargeability of the debt, (2) the debt is a consumer debt, and (3) the debt was discharged. ... Once the debtor establishes these elements, the burden shifts to the creditor to prove that the creditor’s action was substantially justified.

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

Solomon v. Fenimore (In Re Fenimore) · filed 1992-06-23(a)(5)

For the reasons which follow, we find that the attorney’s fees were incurred in the acquisition of an order of alimony, support or maintenance and that the fees themselves are actually in the nature of alimony, support or maintenance. Therefore, the fees are nondischargeable pursuant to 11 U.S.C. § 523(a)(5).

Section 523(d) does not provide attorney fees for dischargeability actions involving business debts rather than consumer debts.

In Re Kingsbury · filed 1992-10-19(d)

Consequently, there is more than one reason which § 523(d) does not apply here. First, the dischargeability actions did not involve consumer debts: The claims arising from the Lord and Valentine transactions related to dairy cattle used in the debtors’ business.

Under § 523(d), the creditor bears the burden of showing special circumstances that would make an attorney’s fee award to the debtor unjust.

Firstbanks v. Goss (In Re Goss) · filed 1992-12-23(d)

The burden is therefore on the Plaintiff to convince me that the requisite special circumstances exist here. Because the Plaintiff has failed to show that special circumstances exist in this case which would make the award of Defendant’s attorney’s fees unjust, there is no legal reason why Defendant should be deprived of her statutory right to such fees under § 523(d).

Section 523(a)(5) excepts attorney’s fees awarded in a divorce decree from discharge when they function as maintenance, even if owed to the attorney.

Kruger v. Ellis (In Re Ellis) · filed 1993-01-26(a)(5)

The fees owed to Mr. Kruger are nondischargeable because they functioned as maintenance.

Section 523(a)(5) excepts divorce-related attorney’s fees from discharge when they are sufficiently tied to support.

Kahoe v. Williams (In Re Williams) · filed 1993-03-09(a)(5)

Since the support obligations of defendant were vulnerable during such attack, the cost of the defense was linked to support. Consequently, pursuant to § 523(a)(5), the $6,650.00 debt is excepted from defendant’s discharge. In addition the $675.00 awarded to plaintiff Dorsey for his representation of plaintiff Kahoe concerning the contempt motion is also sufficiently tied to support to be included within the purview of § 523(a)(5).

Section 523(d) requires an award of costs and reasonable attorney fees when a creditor’s unsuccessful consumer debt dischargeability claim under § 523(a)(2) lacked substantial justification.

Rochester Hills Chrysler Plymouth v. Phillips (In Re Phillips) · filed 1993-03-16(d)

Plaintiff’s complaint and trial brief show no substantial justification in law or in fact for the § 523(a)(2) dischargeability claims raised. The facts were stipulated and the law clear cut. Under these circumstances, a § 523(d) award is mandated.

Section 523(a)(6) allows attorney’s fees alone to constitute injury when they result from willful and malicious conduct.

Adams v. Zentz · filed 1993-03-25(a)(6)

On remand, the bankruptcy court must consider that injury within the meaning of § 523(a)(6) can consist solely of attorneys’ fees.

Section 523(a)(5) excepts divorce attorney’s fees from discharge when the obligation is in the nature of support rather than a property settlement.

Louis v. Coleman (In Re Coleman) · filed 1993-03-29(a)(5)

The state court evaluated defendant’s ability to pay and the recipient spouse’s need in making the award of fees. The obligation was not intended as a property settlement and was in the nature of support. Accordingly, the fees shall be excepted from defendant’s discharge pursuant to § 523(a)(5).

Section 523(d) awards a debtor reasonable attorney’s fees when a creditor’s unsuccessful consumer debt dischargeability complaint under § 523(a)(2) was not substantially justified and no special circumstances make the award unjust.

FCC National Bank/First Card v. Friend (In Re Friend) · filed 1993-06-17(d)

The filing of this action by plaintiff was not substantially justified. Further, plaintiff offered no evidence that there are special circumstances involved in this case that would make an award of attorney’s fees and costs unjust.

Section 523(a)(5) excepts a debtor’s obligation to pay a former spouse’s attorney’s fees from discharge when the obligation is in the nature of support.

In Re Michaels · filed 1993-07-23(a)(5)

In view of these findings, I conclude that the Debtor’s obligation to pay his former spouse’s attorney’s fees and costs constitutes alimony or support within the meaning of 11 U.S.C. § 523(a)(5) and therefore is excepted from discharge.

Section 523(d) does not authorize a bankruptcy court to award a debtor attorney’s fees for appellate representation.

In Re Massoud Vasseli, Susan A. Vasseli. Massoud Vasseli, Susan A. Vasseli v. Wells Fargo Bank, National Association · filed 1993-08-31(d)

We hold that while § 523(d) does authorize attorney’s fees for the debtor, it does not grant the bankruptcy court authority to award attorney’s fees to the debtor for appellate representation, and refuse to read the authority to award fees incurred on appeal into § 523(d).

Section 523(a)(5) treats court-ordered attorney’s fees from post-divorce custody proceedings as support obligations that are not dischargeable, absent unusual circumstances.

In Re Debbie Jean Jones, Debtor. Alvin Jones and John Mantooth v. Jones · filed 1993-11-16(a)(5)

Therefore, in order that genuine support obligations are not improperly discharged, we hold that the term “support” encompasses the issue of custody absent unusual circumstances not present here. Consequently, court-ordered attorney’s fees arising from post-divorce custody actions are deemed in the nature of support under § 523(a)(5) as being incurred on behalf of the child. This debt is nondischargeable.

Section 523(d) provides attorney fees to successful debtors but does not provide fees to successful creditors.

In re Martin · filed 1994-01-19(d)

Section 523(d) now provides for the mandatory award of attorney fees to successful debtor litigants. Congress did not provide for the award of fees for a successful creditor litigant to avoid the shift in balance of power between the parties in the litigation process.

Section 523(a)(5) excepts a divorce-related attorney's fee award from discharge when the award itself reflects a balancing of the parties' financial needs.

Joseph v. J. Huey O'Toole, P.C. (In Re Joseph) · filed 1994-03-14(a)(5)

An attorney's fee award granted pursuant to a divorce decree does not elude discharge because it tangentially relates to an award of support and maintenance; rather, the attorney's fee award is deemed nondischargeable if the award itself reflects a balancing of the parties' financial needs.

Section 523(d) requires an award of reasonable attorney’s fees and costs when a creditor’s unsuccessful consumer-debt dischargeability complaint lacks substantial justification and no special circumstances make the award unjust.

Boatmen's Bank-Delaware v. Holmes (In Re Holmes) · filed 1994-05-19(d)

Once this Court finds that the debt is dischargeable, plaintiff must demonstrate to this Court that the complaint was substantially justified. ... The filing of this action by plaintiff was not substantially justified. Further, plaintiff offered no evidence that there are special circumstances involved in this case that would make an award of attorney’s fees and costs unjust.

Section 523(d) allows attorney’s fees for a debtor who defeats a creditor’s consumer debt dischargeability claim when the creditor lacked a reasonable basis in law and fact; creditor bad faith is not required.

American Savings Bank v. Harvey (In Re Harvey) · filed 1994-10-06(d)

Accordingly, this court holds that a bankruptcy court shall award attorney’s fees to a debtor under 523(d), absent a finding that the creditor acted in bad faith, unless the creditor establishes that its non-dis-chargeability action had a reasonable basis in law and fact, or special circumstances exist.

Section 523(a)(5) does not protect a divorce-related attorney’s fee debt from discharge when the debt is owed directly to the attorney rather than to the debtor’s spouse or child.

Holliday v. Kline (In Re Kline) · filed 1994-10-19(a)(5)

Because the plain language of § 523(a)(5) does not protect third-party creditors, the court concludes that appellant’s debt to appellee is not protected from discharge.

Section 523(d) precludes a prevailing creditor from recovering attorney’s fees in a dischargeability proceeding, even under a contract.

Bank One Columbus, N.A. v. McDonald (In Re McDonald) · filed 1994-10-21(d)

The Court believes, however, that Congress clearly intended to preclude creditors from recovering attorneys’ fees when it enacted section 523(d).

Section 523(d) does not support an attorney’s fee award when the record does not establish that the creditor’s position lacked substantial justification.

Illinois Department of Public Aid v. Wilder (In re Wilder) · filed 1995-03-22(d)

In addition to the foregoing, the Court has determined that the Defendant’s request to find that the position of the Plaintiff/Creditor was not substantially justified in this Adversary Proceeding is not supported by the record in this matter. Therefore, IT IS FURTHER ORDERED that the Defendant’s motion for attorney’s fees pursuant to 11 U.S.C. § 523(d) is denied; and that all other requests in this matter are denied.

Section 523(d) does not require a debtor to request costs and attorney’s fees before trial.

Mercantile Bank of Illinois v. Williamson (In Re Williamson) · filed 1995-04-07(d)

The language is mandatory, so creditors are on notice of its potential applicability. There is no basis for departing from the plain language of the statute by requiring that the debtor pray for such relief prior to trial.

Section 523(d) permits attorney fees for prevailing debtors in consumer debt actions under § 523(a)(2) when the creditor’s position was not substantially justified; it does not authorize fees for prevailing creditors in other dischargeability actions.

Colbert v. Colbert (In Re Colbert) · filed 1995-08-11(d)

The only authorization for fees in dischargeability actions appears in § 523(d), which permits fees to prevailing debtors in § 523(a)(2) actions on consumer debts, where the creditor’s position was not substantially justified.

Section 523(a)(5) excepts attorney’s fees incurred to enforce support from discharge when the fees are in the nature of support, even if payable to a third party.

In Re Slater · filed 1995-08-18(a)(5)

As noted above, the payment of the fees to a third party is not in and of itself sufficient to exclude the payment from the 523(a)(5) exception to dischargeability. We therefore find the attorney’s fees to be in the nature of support and non-dis-chargeable.

Section 523(a)(4) makes legal expenses arising from a fiduciary’s defalcation nondischargeable when the primary debt is nondischargeable.

American Title Insurance Co. v. Marderosian (In Re Marderosian) · filed 1995-09-22(a)(4)

Instead, we conclude that American Title is entitled to reimbursement of its legal expenses under its claim for equitable indemnity, and that said claim should survive the bankruptcy, where the primary debt is nondischargeable under § 523(a)(4).

Section 523(a)(5) does not except divorce-related attorney’s fees from discharge when they serve to equalize a property division rather than provide support.

Wester v. Wester (In Re Wester) · filed 1995-10-10(a)(5)

Former husband has established by preponderance of the evidence that the attorney’s fees are not excepted from discharge pursuant to 11 U.S.C. § 523(a)(5) because the fees are not in the nature of support.

Section 523(a)(5) makes a divorce decree’s attorney’s fee award nondischargeable when it is in the nature of support.

Champion v. Champion (In Re Champion) · filed 1995-11-03(a)(5)

The law is well settled that attorney’s fees awarded to a spouse may be non-dischargeable when they are in the nature of support or maintenance. ... For the foregoing reasons, the Court finds the debt for attorney’s fees in the amount of $34,000.00 to be nondischargeable.

Section 523(a)(5) excepts divorce-related attorney’s fees from discharge when the award is in the nature of alimony, maintenance, or support.

Person v. Karell (In Re Karell) · filed 1995-11-22(a)(5)

Therefore, the court finds and concludes that defendant’s obligation to pay the attorney’s fees awarded to plaintiff in their divorce action is in the nature of alimony, maintenance, or support.

Section 523(a)(5) makes a divorce attorney’s fee award nondischargeable when the award functions as support, even if payment is owed directly to the attorney.

Robinson v. Robinson (In Re Robinson) · filed 1996-03-04(a)(5)

Just as a direction of fee reimbursement to the spouse may create an obligation of support, an order of payment directly to the attorney will create a nondischargeable debt, provided that it truly came “in the nature of alimony, support or maintenance.”

Section 523(d) requires an award of fees and costs when a creditor’s unjustified challenge to the discharge of a consumer debt fails, unless special circumstances make the award unjust.

At & T Universal Card Services Corp. v. Grayson (In Re Grayson) · filed 1996-07-29(d)

If the Court determines the Complaints were not substantially justified, the Court is required to award fees, unless special circumstances would make such award unjust.

Section 523(a)(5) makes an attorney's fee award nondischargeable when the awarding court intended it as maintenance or support for a spouse or child.

In Re: John J. Genovese Debtor. A. Charles D'Agostino v. Genovese · filed 1996-09-12(a)(5)

Under § 523(a)(5), the question asked is whether the court making the award did so in a judicial order and intended the award as maintenance or support owed to the spouse or child.

Section 523(a)(15) includes attorney’s fees and costs in a nondischargeable debt when an enforceable contract entitles the prevailing creditor to them.

Thornton v. Denton (In Re Denton) · filed 1996-09-17(a)(15)

Thornton’s success in the dischargeability proceeding entitles her to attorney’s fees and costs provided for by an enforceable contract. Thornton’s attorney’s fees and costs are included as part of the nondischargeable debt.

Section 523(d) permits a court to deny a prevailing debtor attorney’s fees when special circumstances make an award unjust, even if the creditor’s position was not substantially justified.

At & T Universal Card Service v. Bermingham (In Re Bermingham) · filed 1996-10-09(d)

11 U.S.C. § 523(d). I find that the position of AT & T was not substantially justified, given its failure to examine the debtor, and discover facts relative to her intent, prior to filing its Complaint. However, I also find, given the failure of debtor’s counsel to file a timely Answer, or to fully advise his client regarding the proposed settlement, that special circumstances exist which would make an award of fees unjust.

Section 523(d) requires a creditor to pay a consumer debtor’s defense fees and costs when its unsuccessful dischargeability complaint was not substantially justified.

At & T Universal Card Services Corp. v. Chinchilla ((In Re Chinchilla) · filed 1996-12-03(d)

After AT & T agreed to a voluntary dismissal, the burden fell on AT & T to prove that it was substantially justified in filing its complaint. AT & T failed to meet its burden since the Complaint was not justified, substantially or otherwise. Therefore AT & T must pay the fees and costs of Mr. Chinchilla’s defense.

Section 523(a)(6) makes attorney's fees and interest accompanying a debt for willful and malicious injury nondischargeable, including post-judgment interest.

Gober v. Terra + Corporation · filed 1996-12-10(a)(6)

When the primary debt is nondischargeable due to willful and malicious conduct, the attorney's fees and interest accompanying compensatory damages, including post-judgment interest, are likewise nondischargeable.

Section 523(d) requires an award of reasonable attorney fees and costs when a creditor unsuccessfully seeks to except a consumer debt from discharge without substantial justification, unless circumstances make the award unjust.

At & T Universal Card Services Corp. v. Duplante (In Re Duplante) · filed 1996-12-26(d)

Where such conduct is not substantially justified, as is the case here, it is mandatory the Court award attorney fees and costs under § 523(d).

Section 523(d) awards a debtor costs and reasonable attorney’s fees when a creditor unsuccessfully seeks to except a consumer debt from discharge under § 523(a)(2) without substantial justification.

At & T Universal Card Services Corp. v. Arroyo (In Re Arroyo) · filed 1997-01-30(d)

Section 523(d) of the Bankruptcy Code provides that if a creditor requests a determination of dischargeability of a consumer debt under subsection § 523(a)(2), and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs and a reasonable attorney’s fee for the proceeding if the court finds that the position of the creditor was not substantially justified. The factual situation underlying this action more than meets the criteria of § 523(d). The Court finds that AT & T’s act of bringing this non-dischargeability action against the Debtor was not substantially justified.

Section 523(d) does not authorize attorney's fees for a prevailing debtor when the debt is commercial rather than consumer debt.

In the Matter of Robert Sheridan, Debtor-Appellant · filed 1997-03-12(d)

Instead, the Bankruptcy Code specifies a single instance in which a prevailing debtor may recover the fees incurred in a dischargeability action--where the creditor's challenge to the dischargeability of a consumer debt was not substantially justified. 11 U.S.C. § 523(d). Sheridan concedes that section 523(d) has no application here, and because he can point to no other authority for an award of attorney's fees to a prevailing debtor in a federal dischargeability action, we must agree with the lower courts that he is not entitled to an award of fees.

Section 523(d) does not allow a debtor to recover attorney’s fees when the debt was incurred for business purposes rather than as a consumer debt.

American Express Travel Related Services Co. v. Baker (In Re Baker) · filed 1997-03-27(d)

Thus, based on the Debtor’s own admission, the debt incurred was not a consumer debt. ... Accordingly, the Debtor has failed to prove all the threshold elements under § 523(d) and the motion must be denied.

Section 523(a)(5) generally excepts attorney’s fees incurred in connection with alimony or support awards from discharge.

Konicki v. Kelly (In Re Konicki) · filed 1997-04-24(a)(5)

Attorney’s fees incurred in connection with alimony or support awards are generally deemed to be within the exception to discharge under § 523(a)(5).

Section 523(d) does not permit an attorney’s fee award to a debtor who represents herself and is not an attorney.

Citicorp National Credit & Mortgage Services for Citibank, N.A. v. Welch (In Re Welch) · filed 1997-05-08(d)

Although we find no occasion to disturb the Bankruptcy Court’s conclusion that Citibank’s position was not substantially justified, the fact remains that Welch, appearing pro se, is not an attorney and is therefore not eligible to collect fees payable to an attorney for legal work.

Section 523(d) requires the debt at issue to be a consumer debt before a debtor can recover attorney fees; a business debt does not qualify.

American Express Travel Related Services Co. v. Baker · filed 1997-09-30(d)

By specifying “consumer debt,” the statute protects debtors who buy goods and services for their personal maintenance rather than debtors who incur debt in order to earn a profit.

Section 523(d) requires an award of reasonable fees and costs when a creditor continues an unjustified consumer debt dischargeability action, though special circumstances may reduce the award.

People's Bank v. Poirier (In Re Poirier) · filed 1997-10-14(d)

If at any point in the prosecution of a plaintiffs case, that case fails to be substantially justified, the plaintiff is subject to Section 523(d) sanctions. ... In essence, the Court concludes that the Plaintiffs presumed failure to conduct discovery by oral deposition or Rule 2004 Examination of the only critical witness prior to trial tolls and terminates whatever “special circumstances” protection it enjoyed by virtue of the “unexplained” nature of the Disputed Charges.

Section 523(d) requires an award of fees and costs when a creditor pursues a consumer-debt nondischargeability action without substantial justification and the other conditions for an award are met.

Providian Bancorp v. Stockard (In Re Stockard) · filed 1997-12-16(d)

A credit card company may not bring a nondischargeability action with the knowledge and intent that it will not produce discoverable information central to the issues and then, when threatened with having to do so, dismiss the action. It is this sort of abuse that § 523(d) is designed to redress. ... Under § 523(d), Mrs. Stockard is entitled to an award of all fees and costs incurred in association with this adversary.

Section 523(d) does not authorize an attorney's fee award when the creditor was substantially justified in filing its dischargeability complaint.

At & T Universal Card Services Corp. v. Duplante (In Re Duplante) · filed 1997-11-25(d)

Considering these factors in their totality, the Plaintiff was substantially justified in filing the complaint. ... Consequently, we REVERSE the decision of the bankruptcy court to award Debtor her attorney's fees and costs under section 523(d).

Section 523(a)(5) does not except a debtor’s own attorney’s fees from discharge when a separation agreement and divorce decree merely acknowledge a preexisting obligation to pay them.

In Re Akamine · filed 1998-01-09(a)(5)

For the reasons discussed above, we find that Akamine's debt to BF & N for services rendered during child support and custody litigation was not a debt incurred "in connection with a separation agreement, divorce decree or other order of a court of record" as required by § 523(a)(5) of the Bankruptcy Code.

Section 523(d) permits an award of reasonable fees and costs when a creditor brings an unjustified § 523(a)(2) dischargeability claim and the debt is discharged.

Household Credit Services v. Melton (In Re Melton) · filed 1998-02-02(d)

Section 523(d) builds in its own sanction for this sort of unjustified lawsuit measured by a reasonable fee and costs. In light of the groundless nature of the complaint against Mrs. Melton and the frequency with which this Court sees such carelessness on the part of plaintiffs’ counsel in these actions, it is appropriate that fees and costs be awarded.

Section 523(d) allows a debtor to recover reasonable attorney’s fees and costs when a creditor brings an unjustified dischargeability claim under § 523(a)(2)(A) and then voluntarily dismisses it.

At & T Universal Card Services Corp. v. Parsons (In Re Parsons) · filed 1998-02-04(d)

Therefore, this court finds that AT & T was not reasonably justified in bringing the claim for fraud under 11 U.S.C. § 523(a)(2)(A) and, therefore, should be ordered to pay attorney’s fees and costs under 11 U.S.C. § 523(d).

Section 523(d) permits an attorney’s fee award when a creditor was not substantially justified in pursuing an unsuccessful consumer-debt dischargeability claim; the debtor need not show bad faith or frivolousness.

At & T Universal Card Services Corp. v. Williams (In Re Williams) · filed 1998-02-17(d)

The court disagrees and concludes that a reasonable creditor in the plaintiffs shoes would not have litigated with the debtor and that the plaintiff was not substantially justified in so proceeding. The court need not find that the plaintiff acted in bad faith or frivolously — only that the plaintiff proceeded past a point where it knew, or should have known, that it could not carry its burden of proof.

Section 523(d) requires an award of attorney's fees to a debtor who defeats a creditor's challenge to discharge of a consumer debt unless the creditor proves substantial justification or special circumstances that would make the award unjust.

In Re MacK · filed 1998-03-20(d)

If a creditor challenges a debtor's discharge and fails, the court shall award the debtor costs and attorney's fees if the court finds that the creditor was not substantially justified in filing the complaint, absent special circumstances that would make the award unjust. 11 U.S.C. § 523(d) (1998). ... Based on the evidence presented, the Plaintiff has not met its burden in this case. Thus, the Defendant's motion for attorney's fees will be granted.

Section 523(a)(5) excepts child custody attorney’s fees from discharge when they serve a child support function, including fees incurred defending the initial award.

Moore v. Harr (In Re Harr) · filed 1998-03-25(a)(5)

The Court finds that the $2,500.00 of attorney’s fees the Circuit Court for St. Louis County awarded to Moore at the conclusion of the custody hearing served a support function for Debt- or’s daughter. These fees, therefore, are non-disehargeable under section 523(a)(5). The Court also finds that the additional attorney’s fees of $1,500.00 the Circuit Court for St. Louis County ordered Debtor to pay to Moore served a support function because they were incurred defending the initial $2,500.00 award.

Section 523(d) allows attorney fees for a debtor in a dischargeability action only when its qualifying circumstances exist.

DiSalvo v. DiSalvo (In Re DiSalvo) · filed 1998-05-15(d)

11 U.S.C. § 523(d) provides for an award of attorney fees to a debtor in a dischargeability action under certain circumstances. Those circumstances do not exist in this case.

Section 523(a)(2)(A) permits contractual attorney’s fees to be included in a debt excepted from discharge.

Alport v. Ritter · filed 1998-05-29(a)(2)(A)

The Ritters’ attorney’s fees were properly included in the nondis- chargeable debt under § 523(a)(2)(A) because attorney’s fees provided by contract, like accrued interest, can become part of the debt.

Section 523(d) permits an award of costs and reasonable attorney’s fees when a creditor’s consumer debt nondischargeability action lacks substantial justification, even without proof that the action was frivolous or brought in bad faith.

First Deposit National Bank v. Stahl (In Re Stahl) · filed 1998-07-01(d)

Under § 523(d) there is no requirement that the creditor-initiated lawsuit be frivolous or commenced in bad faith before costs and fees may be awarded.

Section 523(d) requires an award of reasonable fees and costs to a debtor whose consumer debt is discharged after a creditor’s unjustified dischargeability claim, unless special circumstances make the award unjust.

Bank of New York v. Le (In Re Le) · filed 1998-07-14(d)

There is no room for discretion unless the court finds there are “special circumstances” that would make the award unjust. ... Accordingly, the court concludes there was no substantial justification for the plaintiffs conduct and must enter judgment for the defendants, allowing them to recover their reasonable fees and costs from the plaintiff.

Section 523(d) shifts the burden to the creditor to show substantial justification once the debtor establishes that the creditor sought to except a consumer debt from discharge and the debt was discharged.

At & T Universal Card Services Corp. v. Jenkins (In Re Jenkins) · filed 1998-09-08(d)

The burden of proof, accordingly, shifts to AT & T to establish that it was substantially justified in bringing its complaint against the defendant.

Section 523(a)(2) does not itself entitle a prevailing creditor to attorney’s fees incurred proving nondischargeability; the award requires a statute or another recognized exception to the American Rule.

Wegmans Food Markets, Inc. v. Lutgen (In Re Lutgen) · filed 1998-09-10(a)(2)

If attorney’s fees are to be awarded to a creditor in § 523(a)(2) litigation that does not implicate a statute providing for such fees, the award would have to be based on malicious conduct, harassment or oppressive action, or the other recognized bases for an exception to the American Rule.

Section 523(d) requires a creditor to remain substantially justified throughout a dischargeability proceeding to avoid paying the debtor’s attorney’s fees.

In Re Williams · filed 1998-09-24(d)

We hold that the creditor must be substantially justified at all times through trial to be insulated from paying attorneys' fees under § 523(d).

Section 523(d) does not authorize attorney’s fees when the debt is not a consumer debt, but that limit does not preempt enforcement of a contractual fee agreement.

Karve Family Ltd. Partnership v. Mowji (In Re Mowji) · filed 1999-01-04(d)

Because the parties have stipulated the debt owing Plaintiff was not a consumer debt Defendant is precluded from seeking to recover attorney’s fees under § 523(d) of the Bankruptcy Code. However, the lack of statutory authority under § 523 does not preempt the enforcement of a contractual agreement regarding such an award.

Section 523(d) provides costs and reasonable attorneys fees to a consumer debtor when a creditor was not substantially justified in seeking to have a debt declared nondischargeable.

Nelson v. Providian National Bank (In Re Nelson) · filed 1999-01-20(d)

Section 523(d) expressly provides a remedy for frivolous and baseless suits filed by creditors who sought a determination of the nondischargeability of a debt. This Section permits the entry of a judgment in favor of a consumer debtor for costs and reasonable attorneys fees if the court finds that the creditor was not substantially justified in filing the complaint. See 11 U.S.C. § 523(d). This is the one and only remedy available to a consumer debtor and the Bankruptcy Code does not provide an independent right to sue for recovery.

Section 523(d) allows fees and costs when a creditor’s unjustified dischargeability action ends in default; the default judgment does not replace the fee award.

Household Bank, N.A. v. Sales (In Re Sales) · filed 1999-01-21(d)

While entry of a default judgment may be sufficient if the creditor proves “substantial justification” or “special circumstances” exist, it should not serve as a substitute for the award of fees and costs under section 523(d) when such standards have not been met.

Section 523(d) allows reasonable attorney’s fees without a finding that the creditor acted in bad faith or frivolously.

At&T Universal Card Services, Inc. v. Nguyen (In Re Nguyen) · filed 1999-04-14(d)

The award of reasonable attorney’s fees under 11 U.S.C. § 523(d) is within the Bankruptcy Court’s sound discretion. ... The Court need not find that the Plaintiff acted in bad faith or acted frivolously before fees and costs may be awarded.

Section 523(d) awards a debtor fees and costs when a creditor's unsuccessful consumer debt nondischargeability claim was not substantially justified, absent special circumstances.

Chase Manhattan Bank, USA v. Talarico (In Re Talarico) · filed 1999-04-20(d)

The Plaintiff was not substantially justified in bringing its claim for nondischargeability of the debt under 11 U.S.C. § 523(a)(2)(A). ... Under the circumstances, an award under Section 523(d) is warranted.

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

Citizens First National Bank v. Hunter (In Re Hunter) · filed 1999-09-22(d)

Defendant concedes that the debt is not a consumer debt, and therefore, he is precluded from seeking attorney’s fees under § 523(d) of the Bankruptcy Code.

Section 523(d) allows fees and costs for defending an unjustified § 523(a)(2) consumer debt action even when the creditor voluntarily dismisses the complaint.

Universal Bank N.A. v. Rocco (In Re Rocco) · filed 1999-09-30(d)

A voluntary dismissal, particularly one so belated, does not, however, abate a § 523(d) motion.

Section 523(a)(8) does not authorize an award of attorney’s fees to a debtor who obtains a student loan discharge.

Burns v. Great Lakes Higher Education Corp. · filed 1999-12-30(a)(8)

There is no statutory authority for an award of attorney’s fees under 11 U.S.C. § 523(a)(8).

Section 523 contains no exception to discharge for unpaid fees for legal services performed before a bankruptcy petition is filed.

In Re Nieves · filed 2000-02-23

It is unnecessary for this court to decide whether there is such an “unwritten doctrine” because § 727(b) is very clear on the subject of the discharge of pre-petition claims, and in 11 U.S.C. § 523, there is no exception to discharge for pre-petition attorney’s fees.

Section 523(a)(2)(A) makes attorney’s fees for a fraud claim nondischargeable if the creditor could recover them outside bankruptcy.

At & T Universal Card Services, Corp. v. Hung Tan Pham (In Re Hung Tan Pham) · filed 2000-06-13(a)(2)(A)

We agree that, after Cohen, the determinative question in cases under § 523(a)(2) is whether the successful plaintiff could recover attorney’s fees in a non-bankruptcy court.

Section 523(d) requires an award of reasonable attorney fees to a debtor who defeats a creditor’s consumer debt dischargeability claim if the creditor’s position was not substantially justified, unless special circumstances make the award unjust.

Bank of America v. Miller (In Re Miller) · filed 2000-06-26(d)

Considering this “totality of circumstances,” at least by the time the defendant filed his Motion for Summary Judgment and the plaintiff knew that it could not controvert the facts set out in his supporting affidavit, it was not substantially justified in going on.

Section 523(a)(5) excepts divorce counsel fees from discharge when the award functions as support, even if the fees are payable directly to counsel.

Rosenman & Colin LLP v. Jarrell (In Re Jarrell) · filed 2000-06-27(a)(5)

In this case, both the function of the fee award and the intent of the state court overlap, and lead to the conclusion that the fee award is nondischargeable under § 523(a)(5).

Section 523(d) permits an award of attorneys’ fees and costs only when the creditor’s position on dischargeability is not substantially justified.

Desert Palace, Inc. v. Baumblit (In Re Baumblit) · filed 2000-08-09(d)

Although Section 523(d) does not appear to require that a request for attorneys’ fees and costs be made by separate motion, it authorizes a bankruptcy court to award fees and costs only where it finds that the creditor’s position on the dischargeability of a debt is “not substantially justified.” Considering the novel facts presented in this case and the absence of legal authority directly rejecting the novel legal position presented by Caesars, I cannot agree that Caesars was not substantially justified in arguing that a debt should not be discharged where the debtor intends to repay the money with misappropriated funds.

Section 523(a)(6) makes statutorily authorized attorney’s fees and costs nondischargeable when they are part of a judgment for willful and malicious injury.

Merriex v. Beale (In Re Beale) · filed 2000-10-02(a)(6)

Taken together, these statutes supply the necessary basis for allowing Plaintiffs judgment to include their attorneys’ fees and costs and make them nondischargeable under § 523(a)(6).

Section 523(a)(5)(A)'s assignment exception does not make support-related attorney’s fees dischargeable when a spouse assigns the fee award to her attorney.

Adams v. Council, Baradel, Kosmerl & Nolan, P.A. (In Re Adams) · filed 2000-10-23(a)(5)(A)

Instead, the cases in this District support the proposition that the assignment clause under 523(a)(5)(A) does not pertain to the assignment of counsel fees by a spouse to her attorney.

In a § 523(a)(15) proceeding, attorney’s fees authorized by a divorce decree and state law may cover litigation over the debt’s validity and amount under state law, but not the federal dischargeability questions.

Renfrow v. Danny J. Draper, Bankruptcy Appeals, Interested Party · filed 2000-11-14(a)(15)

A party who files an adversary complaint to seek a declaration that a debt is nondischargeable under § 523(a)(15) is also entitled to attorney’s fees incurred in meeting its burden of demonstrating the validity of the debt under state law and the amount that is owing. Such a party is not entitled to attorney’s fees incurred in litigating the questions presented in § 523(a)(15)(A)-(B) concerning the ability of the debtor to meet his obligations under the divorce decree, and whether a discharge of the debt will result in a benefit that outweighs the detrimental consequences to the spouse of the debtor.

Section 523(d) limits a debtor’s recovery of attorney’s fees for defending a § 523(a)(2) action to consumer debt cases.

Deutsche Financial Services Corp. v. Osborne (In re Osborne) · filed 2000-12-28(d)

Since Congress has specifically limited fee-shifting to consumer cases only, thereby excluding commercial debt by the express language of § 523(d), it necessarily follows the debtor’s present fee request is prohibited under § 523(d).

A § 523(a)(8) dischargeability proceeding is not an action to collect a debt and does not invoke state contract law for attorney’s fees.

Burns v. Great Lakes Higher Education Corp. · filed 2001-01-10(a)(8)

A § 523(a)(8) proceeding is not one taken in the process of collection of a debt and, thus, does not invoke state contract law.

Section 523(a)(5) excepts support obligations from discharge, but an attorney’s fee award that is not support falls outside that exception.

Parrish v. Parrish · filed 2001-01-26(a)(5)

Unlike an award for support, an award of attorney’s fees is an unsecured provable debt other than one not dischargeable under 11 U.S.C. § 523(a)(1) or (5).

Section 523(d) does not permit a fee award to a debtor when the creditor was substantially justified in bringing an unsuccessful consumer debt dischargeability complaint.

Colabianchi v. Thomas (In Re Thomas) · filed 2001-02-05(d)

Therefore, rather than “clear inequity,” the proper inquiry in this case is whether the Plaintiff was substantially justified, or whether special circumstances exist to make the award unjust. ... As determined above, the Plaintiff herein was substantially justified in the prosecution of his complaint. ... Accordingly, the Motion is hereby denied.

Section 523(a)(5) excepts attorney’s fees from discharge when they are in the nature of support.

Blackburn-Gardner v. Edwards (In Re Edwards) · filed 2001-04-19(a)(5)

Plaintiff has established by preponderance of the evidence that the attorney’s fees are in the nature of support, and therefore, are excepted from discharge pursuant to 11 U.S.C. § 523(a)(5).

Section 523(d) permits an award of attorney’s fees and costs when a debtor is represented without charge by a legal aid organization, if the statutory requirements are met.

Brattleboro Housing Authority v. Stoltz (In Re Stoltz) · filed 2001-08-29(d)

This Court finds the reasoning of these courts to be compelling and holds that it may award costs and attorney’s fees, notwithstanding the fact that the defendant/debtor is represented by a legal aid organization, if the facts and circumstances satisfy the statutory requirements of 11 U.S.C. § 523(d).

Section 523(d) permits an award of attorney’s fees and costs when a debtor is represented by a legal aid organization, if the statutory requirements are met.

Brattleboro Housing Authority v. Stoltz (In Re Stoltz) · filed 2001-09-27(d)

This Court finds the reasoning of these courts to be compelling and holds that it may award costs and attorney’s fees, notwithstanding the fact that the defendant/debtor is represented by a legal aid organization, if the facts and circumstances satisfy the statutory requirements of 11 U.S.C. § 523(d).

Section 523(d) requires a discharged debt before a debtor can seek attorney’s fees; the fee claim is independent of the discharge judgment.

Dimeff v. Good (In Re Good) · filed 2002-08-07(d)

Specifically, a discharged debt is a prerequisite to and totally independent of an action for an award of fees under § 523(d).

Section 523(a)(5) allows discharge of custody-related attorney’s fees in unusual circumstances when payment would impair a parent’s ability to support the child.

Lowther v. Lowther (In Re Lowther) · filed 2002-12-31(a)(5)

To hold that the general rule of nondischargeability should prevail despite adverse effects upon the child would be to ignore the policy considerations behind § 523(a)(5).

Section 523(d) does not award a debtor attorney’s fees and costs when the creditor was substantially justified in filing its dischargeability complaint.

Walker v. Star USA Federal Credit Union (In Re Walker) · filed 2003-09-24(d)

The Court finds that Star was substantially justified in filing the Complaint in the Adversary Proceeding, pursuant to 11 U.S.C. § 523(d), and thus, Debtor is not entitled to an award of attorney’s fees and costs. The Court finds that a reasonable basis existed at law for the Complaint, a reasonable basis existed in truth for the facts alleged in the Complaint, and a reasonable connection existed between the facts alleged and the legal theory advanced.

Attorney’s fees awarded in a child custody dispute are nondischargeable under § 523(a)(5) when they are in the nature of child support.

In Re Jarski · filed 2003-11-06(a)(5)

Having found that the judicial liens are in the nature of support they are therefore nondischargeable and unavoidable. Bern-reuter’s motion for summary judgment is granted as to both nondischargeability of the debts and unavoidability of the liens.

Section 523(d) permits an award of attorney’s fees for the time spent seeking a fee award.

Sears Roebuck & Co. v. Dayton (In Re Dayton) · filed 2004-02-24(d)

As previously discussed, section 523(d) is modeled on the EAJA and therefore, it is appropriate to award attorney’s fees for bringing the motion to receive attorney’s fees.

Section 523(a)(5) treats attorney’s fees for representing a debtor’s children in matters affecting their welfare as nondischargeable support.

Kretschmer v. Levin (In Re Levin) · filed 2004-02-25(a)(5)

Accordingly, using a “realistic” interpretation of “support” (see Blaemire, 229 B.R. at 668), Plaintiffs award of attorney’s fees is in the nature of support and thus non-dischargeable under 11 U.S.C. § 523(a)(5).

Section 523 does not except a Chapter 7 debtor’s prepetition attorney’s fees from discharge.

In Re Shell · filed 2004-07-30

Attorney’s fees are not excepted from discharge pursuant to 11 U.S.C. § 523, nor do attorney’s fees receive a priority.

Section 523(a)(5) makes divorce-related attorney’s fees nondischargeable when the award is in the nature of support.

Casseb & Pearl, Inc. v. Skaja (In Re Skaja) · filed 2004-08-16(a)(5)

Thus, because the attorney’s fees are in the nature of support, the obligation is nondischargeable under § 523(a)(5).

Section 523(d) permits an award of attorney’s fees to a debtor when a creditor pursues an unsuccessful dischargeability claim despite knowing it lacks evidence to meet its burden.

Capital Chevrolet v. Bullock (In Re Bullock) · filed 2004-12-07(d)

The Plaintiff proceeded to trial when it knew or should have known that it could not carry its burden, as it had no evidence of the Debtor’s intent. ... Furthermore, this Court grants judgment in favor of the Debtor for reasonable attorney’s fees pursuant to 11 U.S.C. § 523(d).

Section 523(d)'s fee remedy does not apply when the debts in a dischargeability action are primarily business debts, even if one note may have been a consumer debt.

Monroe Bank & Trust v. Nowatzke (In Re Nowatzke) · filed 2004-12-21(d)

Even if the Court concludes that the $230,000 note was a consumer debt, that note only represents 16% of the total debt. It is undisputed that the remainder of the debt was for business purposes. Accordingly, the Court concludes that the debt was not primarily for a personal, family or household purpose and thus is not a consumer debt.

Section 523(d) applies only to actions seeking a determination of nondischargeability under § 523(a)(2), so it does not apply to an action to deny discharge under § 727(a).

Citrus & Chemical Bank v. Floyd (In Re Floyd) · filed 2005-02-28(d)

First, § 523(d) applies by its terms only to actions seeking a determination of nondischargeability under § 523(a)(2) of the Bankruptcy Code. 11 U.S.C. § 523(d). In the Complaint filed in this case, the Bank is seeking to deny the Debtor’s discharge under § 727(a), and § 523(d) is therefore inapplicable.

Section 523(d) permits attorney’s fees only for qualifying consumer debts; a debt arising from unintended negligence is not incurred for a household purpose.

Davis v. Melcher (In Re Melcher) · filed 2005-03-10(d)

The court concludes that the alleged debt is not a consumer debt. ... It may have been incurred incident to renovating a house (a household purpose) but negligence by definition is unintended and thus cannot be a debt incurred for a household purpose.

Section 523(d) does not require a debtor to request attorney’s fees before the court awards them when the creditor’s position was not substantially justified.

Capitol Chevrolet v. Bullock (In Re Bullock) · filed 2005-03-11(d)

The plain language of the statute mandates an award of attorney’s fees if the position of the creditor is not substantially justified, unless special circumstances would make the award unjust. The statute does not require a motion or request from the debtor.

Section 523(a)(5) excepts attorney’s fees for defending an appeal from a divorce decree from discharge when the fees are in the nature of support.

Larson v. Larson · filed 2005-05-17(a)(5)

Accordingly, we conclude that the award of attorney’s fees was exempted from the plaintiffs discharge in bankruptcy under § 523 (a) (5) of the Bankruptcy Code because it was in the nature of support.

Section 523(d) does not provide attorney’s fees for a commercial debt, but a prevailing debtor in a dischargeability action may recover fees under an enforceable contractual right provided by state law.

Cadle Co. v. Martinez · filed 2005-07-13(d)

The sole federal statutory authority for an award of attorney’s fees and costs in a dischargeability proceeding under section 523(a)(2) appears at section 523(d), which provides attorney’s fees and costs for a prevailing debtor if a creditor “requests a determination of dischargeability of consumer debtor under subsection (a)(2) of this section, and such debt is discharged . . ..” 11 U.S.C. § 523(d). Here, it is undisputed that Martinez’s debt involved commercial rather than consumer debt so that federal statutory provision thus does not apply.

Section 523(d) allows a debtor to recover attorney’s fees when a creditor’s dischargeability action lacks a reasonable factual basis and no special circumstances make the award unjust.

Commercial Federal Bank v. Pappan (In Re Pappan) · filed 2005-12-05(d)

CFB’s total failure to investigate the § 523(a)(2) action prior to filing it shows that it did not have a reasonable basis for the facts that it asserted. As a result, we do not have a definite and firm conviction that the bankruptcy court erred in concluding that CFB’s § 523(a)(2) complaint was not substantially justified.

Section 523(a)(5) encompasses attorney's fees incurred in bankruptcy litigation to enforce a support obligation when state law authorizes the fees.

Busch v. Hancock (In Re Busch) · filed 2007-06-04(a)(5)

Therefore, we interpret the § 523(a)(5) debt to encompass the attorney's fees liability that has arisen as a result of Debtor's nonpayment of the underlying debt imposed on him by the divorce decree.

Section 523(d) does not authorize attorney fees for defeating a dischargeability claim over a business debt, even when some business funds were used for personal expenses.

Swartz v. Strausbaugh (In Re Strausbaugh) · filed 2007-09-18(d)

Thus, the Court concludes that the debts in question are not consumer debts as that term has been defined in the caselaw interpreting § 523(d). Strausbaugh accordingly is not entitled to recover his attorney fees and costs.

Section 523(d) allows attorney fees only if the consumer debt at issue is discharged.

Spoerer Burke 1 LLC v. Feige · filed 2007-10-30(d)

Attorneys fees under 11 U.S.C. § 523(d) are available only if the consumer debt at issue is discharged.

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

Dains v. Dains (In Re Dains) · filed 2008-03-24(d)

Therefore, based on the testimony presented, Debtor has not established that the debt in question was a consumer debt, but rather has shown that the loan was for his limited liability company and thus a commercial/business debt. Accordingly, the Court will deny Debtor’s request for attorney’s fees under § 523(d).

Section 523(d) allows attorney’s fees for a debtor whose consumer debt is discharged when the creditor’s fraud complaint was not substantially justified; a creditor needs evidence supporting its claim.

FIA Card Services, N.A. v. Flowers (In Re Flowers) · filed 2008-07-11(d)

To have been substantially justified in bringing this suit, FIA would have had to conduct some kind of pre-filing investigation to determine whether there was evidence to support fraud by Flowers.

Section 523(d) does not allow a debtor to recover fees and costs for a business debt.

CIT Small Business Lending Corp. v. Diaz (In Re Diaz) · filed 2008-09-23(d)

The alleged CIT loan debt is a business debt incurred for the Debtors’ automotive business. It is not a consumer debt. The Debtors are not entitled to a recovery of fees and costs pursuant to 11 U.S.C. Section 523(d).

Section 523 does not except debts for attorney’s fees incurred in a Chapter 7 case from discharge.

In Re Mansfield · filed 2008-10-02

There is no exception listed under § 523 for a debt for attorneys’ fees incurred in a Chapter 7 case.