11 U.S.C. § 523

Section 523(a)(10) does not make a debt nondischargeable in a later bankruptcy when a prior reaffirmation agreement did not effect a valid waiver of discharge.

Comerica Bank v. Johnson (In Re Johnson) · filed 2000-04-06(a)(10)

Plaintiffs second argument is that the Reaffirmation Agreement constituted a waiver by defendant of his right to deny nondischargeability in his second bankruptcy. This argument is also without merit. A case cited by plaintiff, McIntosh v. Webb (In re Webb), 157 B.R. 614 (Bankr.N.D.Ohio 1993), itself refutes this argument. The court there expressly held that to be effective, a waiver must be in writing and approved by the court, and there is no such waiver in evidence.

Section 523(a)(10)'s bar does not apply to debts from an earlier case when the discharge in that case was revoked rather than denied under § 727(a).

DuBois v. Faber (In Re Faber) · filed 2005-09-23(a)(10)

IT IS FURTHER ORDERED that revocation of discharge does not constitute denial of discharge under 11 U.S.C. § 727(a), and thus that the bar of nondis-chargeability provided by 11 U.S.C. § 523(a)(10) does not apply to debts which were scheduled or could have been scheduled in case number 02-62340.

Section 523(a)(10) prevents a debtor from discharging a debt in a later bankruptcy case when the debtor validly waived its discharge in a prior case.

Lichtenstein v. Barbanel · filed 2005-12-20(a)(10)

Because we have determined that the court-approved 1992 Stipulation of Nondischargeability entered in Dr. Lichtenstein’s first bankruptcy case is a valid and enforceable waiver of discharge under § 727(a)(10), it has a res judicata effect on the same debt that was the subject of that waiver in his subsequent bankruptcy case.

Section 523(a)(10) prevents a debtor from discharging debts in a later bankruptcy if they could have been included in an earlier case in which discharge was denied under § 727(a)(6).

Kovacs v. Basford (In Re Basford) · filed 2006-07-13(a)(10)

Under § 523(a)(10), if a discharge was previously denied under § 727(a)(6), debts which could have been included in the previous bankruptcy are not eligible for discharge in a subsequent bankruptcy case.

Section 523(a)(10) excepts a debt from discharge in a later bankruptcy if it was or could have been scheduled in a prior case in which the debtor was denied discharge, even if the debt was reduced to judgment afterward.

Jeffries v. Buckley (In Re Buckley) · filed 2009-04-24(a)(10)

Simply put, the claim that gave rise to the Debt was scheduled in the California Case; Buckley’s discharge was denied in that proceeding; and, hence, by operation of § 523(a)(10), the Debt is excepted from discharge in the Chapter 7 case pending before this Court.

Section 523(a)(10) excepts debts that could have been scheduled in a prior case where the debtor was denied discharge under § 727(a)(2) or (4) from a later Chapter 7 discharge.

In Re Mehlhose · filed 2012-03-22(a)(10)

Debtors admit that all or virtually all of their debts arose before they filed their 2009 Chapter 7 case, and they were denied a discharge in that case under 11 U.S.C. §§ 727(a)(2) and 727(a)(4). As a result, 11 U.S.C. § 523(a)(10) excepts those debts from discharge in any Chapter 7 case filed after the 2009 case.

Section 523(a)(10) does not except debts from discharge when a prior discharge was revoked for failure to comply with an order without a finding that the debtor refused to obey it.

McDermott v. Graft (In re Graft) · filed 2013-03-20(a)(10)

There is no doubt that the Court entered the Revocation Order based on the terms of the Agreed Order and that the Agreed Order made only the Debtor’s failure to comply, not her refusal, relevant for purposes of revoking her discharge. Under these circumstances, ... the Court cannot apply § 523(a)(10) to hold the Common Debts nondischargeable.

Section 523(a)(6) dischargeability claims based on willful and malicious injury use the preponderance of the evidence standard.

Century Surety Insurance v. Rainer (In Re Rainer) · filed 1989-12-06(a)(6)

There may be a question as to whether this same standard of proof should be employed by a bankruptcy court in hearing an issue premised on 11 U.S.C. § 523(a)(6). This Court, however, is persuaded by the reasoning found in In re Hall, 98 B.R. 777 (Bankr.S.D.Ohio 1989). The Hall court concluded that the preponderance of the evidence standard, rather than clear and convincing evidence standard, is the appropriate standard to be utilized in a dischargeability proceeding based on willful and malicious injury.

A creditor seeking to except a debt from discharge under § 523(a)(2)(A) bears the burden of proof by a fair preponderance of the evidence.

C.P.I. Corp. v. Treanor (In Re Treanor) · filed 1982-10-21(a)(2)(A)

The party seeking to have its debt excepted from discharge pursuant to § 523 bears the burden of proof by the fair preponderance of the evidence.

Section 523(a)(5) requires the claimant to prove both that a debt exists and that it is in the nature of alimony, maintenance, or support.

Zimmer v. Zimmer (In Re Zimmer) · filed 1983-02-09(a)(5)

In this action under § 523(a)(5), plaintiff has the affirmative burden of proving the existence of a debt and that the debt in question is in the nature of alimony, maintenance, or support.

A creditor seeking to except a debt from discharge for false pretenses or fraud bears a heavy burden of proof.

Kargo, Inc. v. Walker (In re Walker) · filed 1983-04-29(a)(2)(A), (a)(4)

This court has considered the totality of facts and circumstances in this record, and has concluded that plaintiff has not sustained the heavy burden of proof which reposes on one seeking to prove false pretenses or fraud.

A creditor must prove that a debt falls within a Section 523 exception to discharge.

Brenton National Bank of Perry v. Kistler (In Re Kistler) · filed 1985-02-19

The Court further finds that the appellant has not sustained its burden of proving the appellees’ debt is not dischargeable under any of the Code sections set out in the issues presented for review.

Section 523 requires a creditor seeking to except a debt from discharge for fraud to prove the debtor’s intent to defraud.

Fancher v. Szeman (In re Szeman) · filed 1985-02-28(a)(2)(A)

It is axiomatic that the plaintiff carries the burden of proof to show the fraud necessary to declare a debt nondischargeable. Upon careful review of the evidence, I am constrained to find that Fancher has not met his burden of proof as to Szeman’s intent to defraud. Thus, Szeman’s debt to Fancher is dischargeable.

Section 523(a)(1)(A) places the burden on the government to prove by a preponderance of the evidence that the debtor was responsible for withholding taxes and willfully failed to pay them before the alleged debt is excepted from discharge.

Terrell v. United States (In Re Terrell) · filed 1986-06-23(a)(1)(A)

The government must, therefore, prove by a preponderance of the evidence that Mr. Terrell was a “responsible person” for the withholding taxes of Cahaba and S.A.F. and that his alleged omissions were “willful” for the alleged tax indebtedness to be non-dischargeable pursuant to 11 U.S.C. Section 523(a)(1)(A) (1984).

Section 523(a)(4) requires the creditor to prove each element of nondischargeability by clear and convincing evidence.

Hermann Hospital Estate v. Coffee (In Re Coffee) · filed 1987-05-13(a)(4)

The plaintiff has the burden to prove each element of nondis-chargeability under section 523(a)(4) by clear and convincing evidence.

Section 523(a)(6) requires creditors to prove by a preponderance of the evidence that the debtor’s acts were willful and malicious.

Combs v. Richardson · filed 1988-01-29(a)(6)

The Bankruptcy Code is silent as to the standard of proof necessary to establish the exceptions to discharge in § 523. In the face of this silence, courts may not imply a higher standard than the preponderance standard normally applied in civil proceedings.

Section 523(a)(2)(C) shifts to the debtor the initial burden of producing evidence about intent, but leaves the ultimate burden of proof with the creditor.

Norwest Financial Consumer Discount Co. v. Koch (In Re Koch) · filed 1988-03-15(a)(2)(C)

Thus, the presumption of § 523(a)(2)(C) only shifts to the debtor the initial burden of production regarding the issue of intent; it does not, by itself, shift the ultimate burden of proof or the initial burden of production on any other issues.

A creditor must prove a debt is excepted from discharge under § 523(a)(2)(A) by a preponderance of the evidence.

Kleiner v. Daboul (In Re Daboul) · filed 1988-04-21(a)(2)(A)

We believe that the Fourth Circuit’s analysis has equal application to § 523(a)(2) cases, and conclude that the proper burden of proof under § 523(a)(2)(A) is one of preponderance of the evidence.

Section 523(a)(6) requires a creditor to prove willful and malicious injury by a preponderance of the evidence.

Borg-Warner Acceptance Corp. v. Watkins (In Re Watkins) · filed 1988-09-19(a)(6)

After considering the nature of dischargeability actions, the risks faced by the defendants, and the interest of the plaintiffs, and pursuant to Huddleston, I hold that the plaintiff s burden in this action was to show by a mere preponderance of the evidence that the defendants willfully and maliciously injured the property of the plaintiff. Since I am so convinced by that quantum of evidence, I hold that the debt due to the plaintiff is not dischargeable in the defendants’ bankruptcy cases.

Section 523(a)(6) requires proof of willful and malicious injury by a preponderance of the evidence.

Scott v. Hall (In Re Hall) · filed 1989-03-07(a)(6)

Having determined that a preponderance of the evidence is the proper standard of proof in a dischargeability proceeding under section 523(a)(6) of the Bankruptcy Code, and noting that this was the standard of proof utilized in the prior state court litigation, this court must decide if the elements of collateral estoppel have been satisfied by the previous state court trial.

Section 523(a)(2)(A) and (a)(6) require proof by a preponderance of the evidence.

Cardenas v. Stowell (In Re Stowell) · filed 1989-07-06(a)(2)(A), (a)(6)

... we have determined to refuse to “punt” and now hold that the standard of proof required in a § 523(a)(2)(A) case and the standard of proof required in a § 523(a)(6) case is “preponderance of the evidence."

A creditor must prove a debt falls within § 523(a)(6) by a preponderance of the evidence.

Hunnicutt v. Wellever (In Re Wellever) · filed 1989-07-25(a)(6)

For the above reasons, I conclude that the proper standard of proof under § 523(a)(6) should be the preponderance of the evidence.

A creditor may prove that a debt arose from fraud under § 523(a)(2)(A) by a preponderance of the evidence.

Seery v. Basham (In Re Raymond) · filed 1989-10-06(a)(2)(A)

Because the Court accepts the preponderance standard as sufficient, I hold that the indebtedness represented by the $14,-900.00 check passed by the debtors to Seery is excepted from discharge under § 523(a)(2)(A).

Section 523(a)(2)(A) and (a)(6) claims require proof by a preponderance of the evidence.

Cardenas v. Stowell (In Re Stowell) · filed 1990-04-20(a)(2)(A), (a)(6)

... we refuse to “punt” and now hold that the standard of proof required in a § 523(a)(2)(A) case and the standard of proof required in a § 523(a)(6) case is “preponderance of the evidence.”

Section 523(a)(6) requires a creditor to prove willful and malicious injury by a preponderance of the evidence to except the resulting debt from discharge.

Laganella v. Braen (In re Braen) · filed 1990-04-27(a)(6)

We therefore hold that creditors claiming a nondischargeable debt under Sec. 523(a)(6) must prove a malicious and willful injury inflicted by the debtor by a preponderance of the evidence.

Section 523(a)(2)(A) requires the creditor seeking to except a debt from discharge to prove that the debt falls within the fraud exception.

Bankr. L. Rep. P 73,521 in the Matter Of: Brian Carl Foreman, Debtor. Allstate Insurance Company v. Foreman · filed 1990-07-02(a)(2)(A)

Such exceptions to dischargeability are narrowly construed and the burden of proving the non-dischargeability of a debt rests on the creditor seeking to prevent discharge.

Section 523(a)(6) requires proof of willful and malicious injury by a preponderance of the evidence.

Chemical Bank v. Neman (In Re Neman) · filed 1990-10-02(a)(6)

After a careful consideration of the matter, this court concludes that a “preponderance of the evidence” standard should be applied in discharge matters involving § 523(a)(6).

Section 523(a) requires a creditor to prove an exception to discharge by a preponderance of the evidence.

Grogan v. Garner · filed 1991-01-15(a)

For these reasons, we hold that the standard of proof for the dischargeability exceptions in 11 U. S. C. § 523(a) is the ordinary preponderance-of-the-evidence standard.

Fraud determinations under § 523 require proof by a preponderance of the evidence.

National Acceptance Company of America v. Bathalter · filed 1991-12-09

The Supreme Court held in Grogan that the preponderance of the evidence standard applies to the fraud determinations under 11 U.S.C. § 523. See also In re Tsamasfyros, 940 F.2d 605, 607 (10th Cir.1991). The defendant's contention that the Illinois district court used a standard that was too lenient must fail.

Section 523(a) nondischargeability claims are subject to the preponderance of the evidence standard, including in pending cases.

Melton v. Moore · filed 1992-01-13(a)

To ensure that the Meltons receive the benefit of Grogan's new rule, just as the litigants in Grogan did, we remand this case to the district court for remand to the bankruptcy court to determine whether the Meltons proved their claim of nondis-chargeability by a preponderance of the evidence.

Section 523(a) nondischargeability claims are subject to the preponderance of the evidence standard, including claims tried before that standard was announced.

Melton v. Moore · filed 1992-05-15(a)

To ensure that the Meltons receive the benefit of Grogan's new rule, just as the litigants in Grogan did, we remand this case to the district court for remand to the bankruptcy court to determine whether the Meltons proved their claim of nondischargeability by a preponderance of the evidence.

The creditor bears the ultimate burden of proving that a debt falls within § 523(a)(4)'s exception to discharge.

In re Nicholas · filed 1992-05-20(a)(4)

This observation ignores that federal law, although initially requiring the debtor to make a prima facie showing that he is entitled to a discharge, ultimately places the burden on the creditor to prove that the debt falls within the § 523(a)(4) exception.

Section 523(a)(2)(B) requires a creditor to prove each element of its claim by a preponderance of the evidence when opposing judgment on partial findings.

Community Bank of Homewood-Flossmoor v. Bailey (In Re Bailey) · filed 1992-09-15(a)(2)(B)

To make out a prima facie case under § 727(a) and § 523(a)(2)(B) causes of action, the Bank must show each element of the appropriate cause of action by a preponderance of the evidence.

A creditor seeking to except a debt from discharge for fraud under § 523(a)(2)(A) must prove the fraud by a preponderance of the evidence.

In RE McLAREN · filed 1993-04-07(a)(2)(A)

We first find that the proper burden upon the plaintiffs in this quest for nondischargeability was to show proof of McLaren's fraud by a preponderance of the evidence only.

Section 523(a)(2)(A) requires a creditor to prove by a preponderance of the evidence that a debt was incurred by fraud.

Fidelity Financial Services, Inc. v. Cornell-Cooley (In Re Cornell-Cooley) · filed 1993-06-15(a)(2)(A)

The court AFFIRMS the bankruptcy court’s denial of summary judgment based on collateral estoppel, and REMANDS this case to the bankruptcy court for a determination of whether Fidelity proved by a preponderance of the evidence that Cornell-Cooley incurred the state court debt by fraud.

A creditor must prove fraud by a preponderance of the evidence to except a debt from discharge under § 523(a)(2)(A).

Bankr. L. Rep. P 75,430 in Re William J. McLaren Debtor. William Longo, Sr. v. McLaren · filed 1993-08-30(a)(2)(A)

Additionally, the proper burden upon Longo “in this quest for nondis-chargeability was to show proof of McLaren’s fraud by a preponderance of the evidence only.”

Section 523(a)(1)(C) places the burden on the creditor to prove that a tax debt falls within the fraudulent return or wilful tax evasion exception, even when the debtor brings the dischargeability action.

Imel v. United States, Internal Revenue Service (In re Imel) · filed 1994-06-24(a)(1)(C)

Section 523(a)(1) excludes from the effect of a discharge, inter alia, any tax with respect to which it is found that the debtor made a fraudulent return or wilfully attempted in any manner to evade or defeat the tax. 11 U.S.C. § 523(a)(1)(C). That is precisely the contention made by the United States in its answer to this complaint. Clearly, it is up to the United States to prove its contention, and not the responsibility of the debtor to disprove it.

A creditor seeking to except a debt from discharge under § 523(a)(2)(A) must prove each element of the claim by a preponderance of the evidence.

Fleet Factors Corp. Ex Rel. Ambassador Factors Division v. Roth (In Re Roth) · filed 1994-09-28(a)(2)(A)

From this vantage point, Ambassador is going to bear the burden at trial of proving by a preponderance of the evidence that each of the five necessary elements of a cause of action under § 523(a)(2)(A) are met.

Section 523(a)(6) requires a creditor to prove malicious injury by a preponderance of the evidence.

In Re Rodney Rummelsburg, Aka: Ronny Rummelsburg, Debtor, Rodney Rummelsburg, Aka: Ronny Rummelsburg v. Amtec Systems Co · filed 1994-11-04(a)(6)

A creditor must only prove a "malicious injury" under section 523(a)(6) by a preponderance of the evidence, Transamerica Commercial Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554 (9th Cir.1991), and the California jury found by a preponderance that Rummelsburg intentionally injured Amtec's property without just cause or excuse.

Section 523(a) uses the preponderance of the evidence standard for dischargeability determinations.

Ragone v. Internal Revenue Service (In re Ragone) · filed 1994-12-27(a)

The Tax Court applied clear and convincing standard which is a higher standard than preponderance of the evidence which is the standard of proof for the dischargeability standards contained in 11 U.S.C. Section 523(a).

Section 523(a)(15) places the burden of proving that a divorce debt is nondischargeable on the objecting creditor.

Kessler v. Butler (In Re Butler) · filed 1995-09-18(a)(15)

The context of (a)(15) hearings, their commencement and substance, leads us to the inescapable conclusion that the objecting creditor must bear the burden of proof.

Section 523(a)(15) places the burden of proving that a divorce-related debt is nondischargeable on the plaintiff.

Frey v. Frey (In Re Frey) · filed 1996-12-30(a)(15)

This Court agrees with the reasoning expressed in the Butler and Dressier decisions and concludes that the burden of proof under Code § 523(a)(15) rests with the plaintiff.

A creditor seeking to except a tax debt from discharge bears the burden of proving nondischargeability, even when the issue arises in the debtor’s contempt motion.

In Re Torres · filed 1990-08-16(a)(1)

Even if the parties waived the Adversary requirement, use of the contested motion procedure would not shift the burden of proof on dischargeability of debts from the IDR to Torres.

Section 523(a)(15) places the burden on the debtor to show an inability to pay a divorce debt or that discharge would benefit the debtor more than it would harm the former spouse.

Johnson v. Rappleye (In Re Rappleye) · filed 1997-05-28(a)(15)

Under the provisions of § 523(a)(15), the burden is on Debtor to show either his inability to pay the joint indebtedness or to show that the benefit to Debtor of receiving a discharge of these debts outweighs the detriment to Plaintiff from Debtor’s non-payment of the debts.

A creditor must prove by a preponderance of the evidence that a debt falls within a § 523 exception to discharge.

Humble v. Louisiana, Dept. of Revenue & Taxation (In re Humble) · filed 1997-05-30

The creditor seeking to establish that a debt is nondischargeable bears the burden of proof under 11 U.S.C. § 523 by a preponderance of the evidence.

Section 523(a)(6) places the burden of proving a willful and malicious injury claim on the creditor.

In Re Emmerling · filed 1997-08-18(a)(6)

If Emmerling can prove the facts suggested by his counsel, he may be able to successfully defend a section 523(a)(6) claim in which Batstone has the burden of proof.

Section 523(a)(8) places the burden of proving undue hardship on the debtor seeking to discharge a student loan debt.

Fowler v. Connecticut Student Loan Foundation (In Re Fowler) · filed 2000-07-11(a)(8)

The burden of proof in a § 523(a)(8) proceeding on the issue of undue hardship rests on the debtor, Borrero v. Connecticut Student Loan Foundation (In re Borrero), 208 B.R. 792, 795 (Bankr.D.Conn.1997).

Section 523(a)(8) requires a debtor seeking to discharge a student loan to bring an action and prove that excepting the loan from discharge would impose undue hardship.

Janc v. Coordinating Board for Higher Education (In Re Janc) · filed 2000-08-08(a)(8)

Under § 523(a)(8), however, the debtor must institute the action and bears the burden of proving that excepting the student loan from discharge will impose an undue hardship.

Section 523(a) requires a creditor to show that a claim is excepted from discharge once the debtor produces a certified discharge order.

Elrick v. Merrill · filed 2000-08-31(a)

Furthermore, a debtor may establish a defense to an action to collect a debt by introducing a certified copy of the order of discharge. The burden then shifts to the creditor to show that the claim is excepted from discharge under 11 U.S.C. $ 523(a) (1994).

Section 523(d) places the ultimate burden of proving entitlement to costs and fees on the debtor, but shifts the burden of production on substantial justification and special circumstances to the creditor once the debtor shows that the creditor sought a consumer debt dischargeability determination and the debt was discharged.

Northeast Alliance Federal Credit Union v. Garcia (In Re Garcia) · filed 2001-04-11(d)

Although the Debtor-Defendants shoulder the ultimate burden of persuading the Court of their entitlement to costs and fees under Section 523(d), once they establish (1) that the Plaintiff requested a determination of the dischargeability of a consumer debt, and (2) that the debt nonetheless was discharged, the burden of production then shifts to the Plaintiff on the questions of “substantial justification” and “special circumstances”.

Section 523(a)(2)(A) shifts the burden of producing evidence of an intervening cause to the debtor once the creditor makes an initial showing of factual and legal causation.

Gem Ravioli, Inc. v. Creta (In Re Creta) · filed 2002-01-07(a)(2)(A)

Therefore, once a creditor has met its initial burden of production regarding the two elements of proximate cause, the burden of production then shifts to the debtor to establish that intervening events, not the debtor’s misrepresentation, are the factual or legal cause of the creditor’s loss.

Section 523(a)(2)(A) places the burden on a creditor contesting discharge to prove each element of fraud.

Chase Manhattan Bank v. Alnajjar (In Re Alnajjar) · filed 2002-01-16(a)(2)(A)

Before conducting this analysis, however, the Court begins by noting that the burden to prove this requirement, as with all of the other elements under § 523(a)(2)(A), is placed upon the creditor as the party contesting the dischargeability of the debt.

A creditor seeking to except a divorce debt from discharge under § 523(a)(5) or (a)(15) must prove the claim by a preponderance of the evidence.

Summiel v. Tuoni (In Re Tuoni) · filed 2002-02-19(a)(5), (a)(15)

(14) Summiel has the burden of proof on all issues under Section 523(a)(5) and (a)(15), and must prove her case by a preponderance of the evidence.

Section 523(a)(6) uses a preponderance of the evidence standard, so failure to prove malice under a higher state court standard does not preclude a nondischargeability claim.

S.L. Pierce Agency, Inc. v. Painter (In Re Painter) · filed 2002-10-31(a)(6)

The standard required in 11 U.S.C. § 523(a)(6) determinations is “preponderance of the evidence,” a lesser burden of proof. Failure by the Plaintiff to meet the heightened “clear and convincing” evidence standard, does not equate to mean that the evidence also failed to meet the lesser burden of proof under 11 U.S.C. § 523(a)(6).

Section 523(a)(8) requires the creditor to establish a qualifying educational debt, after which the debtor must prove that excepting the debt from discharge would impose an undue hardship.

Tollison v. Suntech, Inc. (In Re Tollison) · filed 2004-03-08(a)(8)

In a § 523(a)(8) cause of action, both the creditor and the debtor have respective burdens of proof. The creditor has the initial burden of establishing the following: (1) the existence of a debt; (2) made for an educational loan; (3) made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution. If the creditor meets this burden, the debtor must then prove that excepting the debt from discharge will impose an undue hardship.

A creditor seeking to except a debt from discharge under § 523(a)(6) bears the burden of establishing the debt and its nondischargeability.

Anderson v. Demis · filed 2004-03-19(a)(6)

Upon review, we conclude that the bankruptcy court’s findings of fact are not clearly erroneous nor its conclusions of law incorrect. The record contains ample evidence supporting the bankruptcy court’s finding that Anderson had not met his burden of establishing that the debtor was indebted to Anderson, or that any possible debt was nondischargeable under 11 U.S.C. § 523(a)(6).

Under the version of § 523(a)(15) applicable to cases filed before October 17, 2005, the debtor bears the burden of proving an affirmative defense to dischargeability for a divorce-related debt.

Harden v. Harden (In Re Harden) · filed 2006-09-25(a)(15)

Once it has been established that the obligations exist and are of the type described in § 523(a)(15), the obligations are nondischargeable unless one of the two affirmative defenses set forth in subsections (A) & (B) is plead and proven. If the affirmative defenses are raised, as they were in this case, the burden of proof shifts to the Debtor to establish the elements of one or both of such defenses.

A creditor seeking to except a debt from discharge under § 523(a)(6) must prove its claim by a preponderance of the evidence.

Farmers & Merchants Bank v. Gonzales (In Re Gonzales) · filed 2006-11-28(a)(6)

In a proceeding brought to determine the dischargeability of a debt under § 523(a)(6), the moving party bears the burden to establish its entitlement to a finding of nondischargeability by a preponderance of the evidence.

A creditor seeking to except a debt from discharge under § 523 must prove the elements of a listed exception by a preponderance of the evidence.

Buckeye Retirement Co., L.L.C. v. Howells (In Re Howells) · filed 2007-05-07

In order to establish a prima facie case under § 523, Buckeye must establish by a preponderance of the evidence the elements of an exception to discharge enumerated pursuant to § 523. Buckeye did not present any evidence that purported to support a claim of exception to discharge under § 523 and also made no arguments in support of a claim of exception to discharge under § 523. For these reasons, Buckeye has not met its burden of proof for a claim of exception to discharge under § 523.

Section 523(a)(1)(A) requires a creditor seeking to except a priority tax debt from discharge to prove that the tax liability exists and is nondischargeable by a preponderance of the evidence.

Internal Revenue Service v. Donahue (In Re Donahue) · filed 2009-03-25(a)(1)(A)

As a result, the IRS failed to prove, by a preponderance of the evidence, that the tax liability for the 2004 tax year existed and that it was a nondischargeable priority tax debt pursuant to § 523(a). Consequently, this Court affirms the decision of the Bankruptcy Court and holds that the Debtors’ 2004 tax liability is dischargeable.

Section 523(a) requires a creditor to prove each element of a claimed exception to discharge by a preponderance of the evidence.

Belfor USA Group, Inc. v. Williams (In re Williams) · filed 2011-04-08(a)

The creditor must prove each of the elements under the asserted provision of § 523(a) by a preponderance of the evidence.

Section 523(a)(6) requires a creditor to prove by a preponderance of the evidence that a debt falls within the exception for willful or malicious injury.

Ebert v. McGrath (In Re McGrath) · filed 2011-05-16(a)(6)

In other words, because bankruptcy courts “apply a presumption in favor of discharge in bankruptcy, the creditor bears the burden to demonstrate by a preponderance of the evidence that the exception applies.”

Section 523(a)(2)(A) requires a creditor to prove every element of a fraud claim by a preponderance of the evidence to except a debt from discharge.

In re: Glenn S. Thomas · filed 2011-10-07(a)(2)(A)

Mr. Parrish failed to carry his burden of proving by a preponderance of the evidence the elements required to support a judgment in his favor pursuant to § 523(a)(2)(A).

Section 523(a)(2)(A) requires a creditor to prove all five elements of its discharge exception claim by a preponderance of the evidence.

In re: Brenda Kay Narada and Ty Estus Narada · filed 2012-03-12(a)(2)(A)

In order to meet its burden to ... except a debt from discharge under § 523(a)(2)(A), a creditor ... must establish each of five elements by a preponderance of the ... evidence.

A creditor seeking to except a debt from discharge for a false representation must prove every required element by a preponderance of the evidence.

deBenedictis v. Brady-Zell (In Re Brady-Zell) · filed 2014-06-25(a)(2)(A)

The burden of proving the elements underlying each of these six steps by a preponderance of the evidence rests with the party seeking nondischargeability. ... A creditor arguing for an exception to nondischargeability must prove all six elements; if her proof falls short on any element, her quest for nondischargeability fails.

A creditor seeking to except tax debt from discharge bears the burden of proving that the debt is nondischargeable.

United States v. Kemendo · filed 2015-08-21(a)(1)(B)

As the party seeking an exception to discharge in this case, the IRS bears the burden of proof as to non-discharge-ability of the tax debts for 1995 and 1996.

A creditor seeking to except a debt from discharge under § 523(a)(4) or (a)(6) must prove the claim by a preponderance of the evidence.

Johnson v. King (In re King) · filed 2015-11-10(a)(4), (a)(6)

To except a debtor’s debt from discharge under 11 U.S.C. § 523(a)(4) or (a)(6), a plaintiff creditor must prove his claim by a preponderance of the evidence. ... In this case, Plaintiff has not met his burden.

Once a student loan is established as a debt covered by § 523(a)(8), the debtor bears the burden of proving that repayment would cause undue hardship.

Johnson v. U.S. Department of Education (In re Johnson) · filed 2015-11-24(a)(8)

Mr. Johnson acknowledges in the Stipulation that the debt owed to the Department of Education is the type of debt contemplated by § 523(a)(8), and he does not dispute that he owes it. Therefore, the burden at trial was shifted to Mr. Johnson to prove that repayment of the debt would be an undue hardship on him and his dependents.

Section 523(a)(2)(A) requires proof of fraud by a preponderance of the evidence, so an earlier failure to prove fraud under a higher standard does not preclude the creditor’s claim.

Trost v. Trost (In re Trost) · filed 2016-02-03(a)(2)(A)

However, in non-dischargeability actions under section 523(a) of the Bankruptcy Code, a plaintiff need only prove fraud by a preponderance of the evidence. ... Because the burden of proof for the fraud-based claims in the District Court action was higher, the Plaintiff is not precluded from pursuing his claim under section 523(a)(2)(A) in this adversary proceeding.

Section 523(a)(2)(A) places the burden on creditors to prove that a debt is nondischargeable because the debtor obtained money by false pretenses, a false representation, or actual fraud.

Ghadimi v. Ashai · filed 2016-09-29(a)(2)(A)

The appellant creditors have the burden of proof on their section 523(a)(2)(A) claim that Ashai’s remaining debt from the Vineyard Bank loan is not dischargeable in bankruptcy because Ashai obtained the money by false pretenses, by a false representation, and/or by actual fraud.

Under § 523(a)(4), the creditor bears the ultimate burden of proving that a debt is excepted from discharge.

Monaco v. TAG Investments, Limited · filed 2016-10-06(a)(4)

Moreover, TAG had the burden to prove that Monaco misapplied the funds. Nicholas, 956 F.2d at 114 (“[A]lthough initially requiring the debtor to make a prima facie showing that he is entitled to a discharge, [federal law] ultimately places the burden on the creditor to prove that the debt falls within the § 523(a)(4) exception.”). Simply showing that the progress payment certifications were false is insufficient to overcome the affirmative defense. “Because the Texas statute permits application of trust fund receipts for ‘actual expenses directly related’ to the project, . . . a beneficiary seeking to avail itself of § 523(a)(4) must adduce some evidence that funds were misapplied under this test.” Nicholas, 956 F.2d at 114. TAG was unable to show that the funds received by BBM were spent on impermissible expenses under the CTFA.

In a § 523(a)(2)(A) fraud action, a debtor may assert setoff and recoupment as defenses to the creditor's claim.

In Re Nasr · filed 1990-07-03(a)(2)(A)

Debtor is asserting the actions of setoff and recoupment as affirmative defenses to the claim of fraud under § 523(a)(2)(A). As defenses, these actions are not exclusive to the trustee and may be asserted by the debtor.

Section 523’s fraud exception is not waived, or barred by estoppel, merely because a creditor accepts interest payments after discovering the fraud or deducts the loss as a bad debt.

In Re Vernon Rae Twyman, Jr., A/K/A Vernon Ray Twyman, Debtor. J. Wayne Philpot, Wayne Leasing, Inc. v. Twyma · filed 1991-10-04

Debtor contends that when Creditor discovered the promises to keep the funds in escrow had been broken, Creditor allowed Debtor to make interest payment upon this debt thereby treating it as a loan. Debtor also contends that Creditor treated this loan as an ordinary business transaction bad debt by deducting the loss on his income tax return. ... The actions described, even if supported by the evidence, are not sufficient to establish a waiver. Nor are these actions sufficient to invoke the doctrine of estoppel.

Section 523(a) does not automatically except a malpractice judgment from discharge.

Outlaw v. Cuffey (In Re Cuffey) · filed 1993-09-29(a)

And it does not follow, as their counsel has argued, that a malpractice judgment is necessarily excepted from discharge under § 523(a).

Section 523(a)(6) creates a federal right to seek an exception from discharge that is not subject to Maryland’s corporate door-closing statute.

Tandy Credit v. Hallyburton (In re Hallyburton) · filed 1994-01-27(a)(6)

The discharge afforded to a debtor pursuant to 11 U.S.C. § 727 and the right to have a particular claim excepted from discharge pursuant to 11 U.S.C. § 523, are substantive rights created by Congress. Accordingly, this adversary proceeding is not subject to the “door closing” statute of the Maryland Code.

A secured creditor that knows of a debtor’s use of collateral proceeds and fails to enforce its rights can waive the § 523(a)(6) exception to discharge.

Wolfson v. Equine Capital Corp. · filed 1995-06-27(a)(6)

We find that since ECC failed to enforce whatever rights it may have had regarding the disposition of its collateral, it waived its right to assert under 11 U.S.C. § 523(a)(6) that its claim is non-dischargeable and that it suffered "willful and malicious" injury by Wolfson.

Section 523(a) requires a valid statutory ground to except a debt from discharge.

Beto v. Morris (In Re Morris) · filed 1996-05-22(a)

There having been no valid assertions made as to the nondischargeability of Debtor’s liability to Plaintiff pursuant to § 523(a) or § 727, Plaintiffs complaint fails to state a claim upon which relief can be granted.

Section 523(a) is inapplicable when the debtor is denied discharge of all scheduled debt under § 727(a).

Miller v. Bauer (In Re Bauer) · filed 2005-04-05(a)

The BAP, however, properly determined § 523(a) to be inapplicable in this case.

Once a creditor proves the elements of § 523(a)(2)(A), the debt is nondischargeable; the provision supplies no statutory defenses.

6050 Grant, LLC v. Hanson (In Re Hanson) · filed 2010-05-10(a)(2)(A)

Once a plaintiff establishes those elements, the debt becomes non-dischargeable as a matter of law. Section 523(a)(2)(A), unlike 11 U.S.C. § 547(c), does not provide for any statutory defenses.

Section 523’s exceptions to discharge do not preclude dismissal of a bankruptcy case for cause under § 707(a).

In Re: Craig Piazza, Craig Piazza v. Nueterra Healthcare Physical Therapy, LLC · filed 2013-06-26(a)

Both the specific terms of the provisions as well as the general design of the Bankruptcy Code show that neither § 523 nor § 727 precludes alternative remedies “to prevent an abuse of process.”

Section 523(a)(4) does not permit unclean hands to bar relief when a lawyer steals funds from a client, even if the client engaged in illegal conduct.

Northbay Wellness Group v. Beyries · filed 2015-06-05(a)(4)

We similarly now hold that the doctrine of unclean hands cannot prevent recovery of funds stolen from a client by his or her lawyer.

Section 523(a)(6) allows a debtor to assert self-defense against a claim for willful and malicious injury, but the debtor bears the burden of proving it.

Vyshedsky v. Soliman (In re Soliman) · filed 2015-10-22(a)(6)

Unless preclusion principles ' bar assertion of self-defense, a debtor may raise self-defense as an affirmative defense to a non-dischargeability claim under section 523(a)(6). ... A self-defense claim is an affirmative defense and, as such, the debtor bears the burden of proof with respect to self-defense.

Under § 523(a)(2)(A), the debtor need not rebut a fraud claim unless the creditor first demonstrates fraud.

Bosman v. Glod · filed 2017-03-02(a)(2)(A)

Bosman, however, never demonstrated fraud, (Dkt. No. 6 at 18-25, 27-29), and, therefore, Glod did not have to explain or rebut Bosman’s evidence.

Section 523(a)(2), (4), and (6) do not except an ordinary loan from discharge merely because the debtor inaccurately scheduled it.

In re Haltermon · filed 2018-02-27(a)(2), (4), (6)

Nothing in the complaint suggests that the loan at issue was a fraudulently incurred debt. As such, the debt was not of the type covered by § 523(a)(2), (4) or (6) and therefore was not excepted from discharge.

Section 523(a)(9) excepts from discharge a debt for death caused by a debtor’s unlawful operation of a motor vehicle while intoxicated; issue preclusion can establish the necessary facts.

Birdsall Ex Rel. Estate of Birdsall v. Tulloch (In Re Tulloch) · filed 2007-08-28(a)(9)

Plaintiff has carried his burden of proving the § 523(a)(9) exception to discharge by collateral estoppel, and nothing in the interpretation of that section gives this court cause to view the Superior Court Liability Decision as anything but disposi-tive here.

Section 523(a)(9) does not except property damage claims from discharge, even when an intoxicated driver caused the damage.

Metro Government of Nashville v. Williams (In Re Williams) · filed 1994-12-07(a)(9)

Only claims for personal injury or wrongful death can be nondischargeable under 11 U.S.C. § 523(a)(9); property damage claims are outside the scope of that section.

Section 523(a)(9) does not require a state court to determine that liability resulted from driving while intoxicated.

Gary L. Whitson, Jr. Gary L. Whitson, Sr. v. Middleton · filed 1990-01-29(a)(9)

Section 523(a)(9) does not require a legal determination by a state court that liability resulted from use of a motor vehicle while intoxicated.

Section 523(a)(9) applies based on when the debtor filed for bankruptcy, even if the accident occurred before the provision took effect.

Leach v. Reckley (In Re Leach) · filed 1986-08-19(a)(9)

The applicability of § 523(a)(9) is therefore determined by the date the debtor filed in bankruptcy, not the date of any accidents which may have given rise to debtor liability.

Section 523(a)(9) applies to bankruptcy cases filed after October 8, 1984, even when the injury occurred before that date.

Avitto v. Cardona (In Re Cardona) · filed 1985-06-24(a)(9)

Section 523(a)(9) is unambiguously applicable as a restriction on discharges granted in bankruptcy cases filed after October 8, 1984.

Section 523(a)(9) excepts from discharge a judgment debt arising from a debtor’s operation of a motor vehicle while legally intoxicated under applicable law.

Brunswick v. Cunningham (In Re Cunningham) · filed 1985-04-26(a)(9)

In the ease at bar, all the requirements to except a debt from discharge under Section 523(a)(9) are present. The Plaintiff has a valid judgment against the Debtor, the liability was incurred by the Debtor as a result of the Debtor driving his automobile while legally intoxicated under Tennessee law, as evidenced by the guilty plea entered by the Debtor in the state court. Therefore, this Court holds that the $790,-000.00 debt in question is nondischargeable pursuant to 11 U.S.C. § 523(a)(9).