11 U.S.C. § 523

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity; a contractual hold harmless provision does not create one.

EBCO Construction Group, LLC v. Garretson (In Re Garretson) · filed 2007-10-23(a)(4)

The fiduciary relationship must be one arising from an express or technical trust. ... Accordingly, the Subcontract attached to EBCO’s State Court Summary Judgment Motion, which merely includes a hold harmless provision, does not create an express trust, even between Otis Elevator Co. and EBCO.

A creditor cannot obtain summary judgment on a § 523(a)(4) fiduciary fraud claim while material facts about the debtor’s fiduciary relationship remain disputed.

Merchants Financial Services Group, LLC v. Smith (In Re Smith) · filed 2007-12-18(a)(4)

The court will address the motion for partial summary judgment exclusively on the issue of whether the debtor perpetrated a fraud against Merchants while acting in a fiduciary capacity as contemplated by § 523(a)(4) of the Bankruptcy Code. ... In addition, considering the above authorities, there are also genuine issues of material fact remaining in dispute as to whether a fiduciary relationship existed between Merchants and the debtor. Therefore, the motion for partial summary judgment is not well taken and cannot be sustained.

Section 523(a)(4) requires a fiduciary relationship under non-bankruptcy law for a claim based on fraud or defalcation in a fiduciary capacity.

S & L Enterprises I, LLC v. Eisaman (Eisaman) · filed 2008-03-24(a)(4)

That is not the law in Indiana and without a fiduciary relationship under non-bankruptcy law there can be no claim for fraud or defalcation in a fiduciary capacity under § 523(a)(4).

Section 523(a)(4) treats a debtor whose fiduciary status derives from a role as a joint venture partner as a fiduciary.

Samuels v. CMW Joint Venture · filed 2008-04-16(a)(4)

Because she derived his fiduciary status from his role as a partner in the joint venture, he was a fiduciary within the meaning of section 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a fraud or defalcation claim based on fiduciary capacity; friendship or a contract alone is insufficient.

Simmons Capital Advisors, Ltd. v. Bachinski (In Re Bachinski) · filed 2008-07-31(a)(4)

Neither friendship nor contract alone, however, gives rise to a fiduciary capacity, which instead, as discussed above, requires the existence of an express or technical trust. Simmons Capital does not allege the existence of any such trust.

Section 523(a)(4) makes a debt nondischargeable when a debtor diverts construction proceeds held in trust for a material supplier, breaching a fiduciary duty.

R & R Ready Mix, Inc. v. Freier (In Re Freier) · filed 2008-08-25(a)(4)

The failure to pay the plaintiff out of proceeds received for materials furnished violated the statute and is a nondischargeable debt as a breach of fiduciary duty under 11 U.S.C. § 523(a)(4).

A § 523(a)(4) claim can proceed when a partner allegedly diverts partnership receivables during winding up, while the duty to account continues.

Shiboleth Ex Rel. Yerushalmi, Shiboleth, Yisraeli, & Roberts, LLP v. Yerushalmi (In Re Yerushalmi) · filed 2008-09-04(a)(4)

The alleged actions of Defendant to divert legal fees and disbursements owed to YSYR for the benefit of himself and Y & A occurred during the winding up period of the partnership, and he had a duty to account for the receivables that he collected. The failure to do so may be a breach of his fiduciary duty. Accordingly, Defendant’s motion is denied as to Plaintiffs’ § 523(a)(4) cause of action.

Section 523(a)(4) does not treat provisional Medicaid payments as creating an express trust between a provider and the state.

New York v. Khouri (In Re Khouri) · filed 2008-11-17(a)(4)

This single word does not implicate an express trust over the funds, impressed as of the date of the provider’s receipt.

Section 523(a)(4) makes a debt arising from defalcation while acting in a fiduciary capacity nondischargeable when a state construction trust fund statute establishes the required technical trust.

ASCI Readi-Mix & Asphalt Specialties, Co. v. Gamboa (In Re Gamboa) · filed 2008-12-16(a)(4)

This statutory trust satisfies the technical trust element of a fiduciary relationship necessary to establish a 11 U.S.C. § 523(a)(4) claim.

A claim based on fiduciary capacity under § 523(a)(4) requires an express or statutory trust relationship.

Shapiro v. Clark (In Re Clark) · filed 2009-01-16(a)(4)

The meaning of “fiduciary capacity” under Section 523(a)(4) is a question of federal law. Federal law has consistently limited this term to express or technical trust relationships.

Section 523(a)(4) treats a co-owner of a closely held New York corporation as a fiduciary when New York law imposes sufficient trustee-like obligations.

McDowell v. Stein · filed 2009-01-20(a)(4)

I conclude that, as held by the New York bankruptcy courts and the Bankruptcy Court below, New York law imposes sufficient trustee-like obligations to constitute a fiduciary duty under § 523(a)(4).

A creditor states a § 523(a)(4) claim by alleging that an agent with a power of attorney misused entrusted funds and caused a loss.

Eveland v. Kishbaugh (In Re Kishbaugh) · filed 2009-01-22(a)(4)

The entrustment of money or property pursuant to an executed power of attorney creates the fiduciary relationship necessary for an action under § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship for fraud or defalcation; a borrower’s control of a creditor’s collateral alone does not create one.

Oak Street Funding LLC v. Brown (In Re Brown) · filed 2008-12-12(a)(4)

Without allegations sufficient to suggest a fiduciary relationship between the debtor and the plaintiff, no claim is stated under the first portion of § 523(a)(4) and whether the debtor’s actions might constitute fraud or defalcation becomes irrelevant.

Section 523(a)(4) excepts a contractor officer’s debt from discharge when the officer fails to pay a subcontractor from funds held in a statutory trust.

Fischer Construction, LLC v. Ecker (In Re Ecker) · filed 2009-01-27(a)(4)

It is only necessary for the plaintiffs to prove that funds received from the owner should have been paid to a beneficiary of the statutory trust, and the debtor failed to do so. If an individual debtor is an officer, director, or agent responsible for misappropriation by an entity, the debt will be excepted from the discharge of the individual. ... Therefore, the amount owed to Team Fischer is nondischargeable under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires a qualifying fiduciary relationship; a towing lien statute that directs repayment of surplus sale proceeds does not, by itself, create one.

Armendariz v. Galvan (In Re Galvan) · filed 2009-05-19(a)(4)

Even if Defendant is a bailee, the lien statutes do not create a technical trust that imposes a fiduciary duty on the Defendant. Therefore, the Court finds that there was no trust relationship established between the parties rising to the level required by section 523(a)(4).

Section 523(a)(4)'s exception for defalcation in a fiduciary capacity applies only to express or technical trusts.

Kruse v. Murray (In Re Murray) · filed 2009-06-22(a)(4)

The exception in § 523(a)(4) precluding the discharge of “any debt ... for fraud or defalcation while acting in a fiduciary capacity” applies only to express or technical trusts.

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

Tulsa Spine & Specialty Hospital, L.L.C. v. Schoen (In Re Schoen) · filed 2009-07-06(a)(4)

The added language that the insurance proceeds are deemed to be held in trust does not change what is a financing arrangement into an express trust giving rise to the fiduciary relationship required under § 523(a)(4).

Section 523(a)(4) requires a technical or express trust for a debt based on fraud in a fiduciary capacity; an ordinary contract does not create one.

Williams v. White · filed 2009-08-05(a)(4)

In this case, there is no evidence that the Contract gave rise to an express trust in Cornerstone with the Plaintiffs as beneficiaries. The Contract was negotiated at arm’s length and provided only for an exchange of the Plaintiffs’ money for goods and services by Cornerstone. No express trust was created. This Court therefore finds that the Plaintiffs do not prevail on their cause of action for fiduciary fraud.

Section 523(a)(4) requires a fiduciary duty for a debt to be excepted from discharge based on fraud or defalcation in a fiduciary capacity; an equity participation loan does not itself create that duty.

Gulati v. McClendon (In Re McClendon) · filed 2009-08-11(a)(4)

The Court finds that the arrangement between Gulati and the McClendon was one of lender and borrower, not of partners. Therefore, no fiduciary duty arose the breach of which could give rise to nondischargeability under Section 523(a)(4).

Section 523(a)(4) can except a debt for fiduciary defalcation from discharge when a statute creates a trust and imposes fiduciary duties before the wrongdoing.

Crowe v. Moran (In Re Moran) · filed 2009-09-11(a)(4)

This Court finds that Title 6, Chapter 35 satisfies the express or technical trust requirements of section 523(a)(4).

Section 523(a)(4) treats the trust-like duties that officers and directors of an insolvent corporation owe its creditors as a qualifying fiduciary relationship.

Centra Bank, Inc. v. Burton (In Re Burton) · filed 2009-09-18(a)(4)

Consequently, the fiduciary, trust-like obligations owed by directors and officers of an insolvent corporation to the corporation’s creditors qualifies as the type of fiduciary relationship contemplated in § 523(a)(4).

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity for a debt arising from defalcation.

North Carolina Lottery Commission v. Wells (In Re Wells) · filed 2009-12-23(a)(4)

The Court finds that neither a technical nor express trust was created here and, therefore, neither were the fiduciary obligations required by Section 523(a)(4). Consequently, the debt owed to NCLC, on behalf of NCEL, is dischargeable.

Section 523(a)(4) requires an actual trust relationship for fiduciary capacity; an employee’s general duty of loyalty, even as a general manager, is insufficient.

Braden Trust v. Chavez (Chavez) · filed 2010-02-24(a)(4)

And that path is a conservative one, requiring some sort of actual trust relationship, not just a generalized duty of loyalty.

Section 523(a)(4) requires an express trust that predates the wrong or a relationship in which the debtor has superior knowledge or power before a debt for defalcation can be excepted from discharge.

Follett Higher Education Group, Inc. v. Berman · filed 2010-03-29(a)(4)

The bankruptcy court correctly interpreted this circuit’s precedent in finding that a fiduciary relationship is formed only when an express trust exists prior to the alleged wrong or when one party has superior knowledge or power over the other party.

Without an actionable fiduciary duty, the creditor could not except the debt from discharge under § 523(a)(4).

True Value Co. v. Wiley (In Re Wiley) · filed 2010-04-01(a)(4)

In summary, the Court finds no fiduciary duty running from the Defendants to Plaintiff that is actionable under 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship; the trust fund doctrine alone does not establish one between a corporate director and the corporation’s creditors.

Economic Development Growth Enterprises Corp. v. McDermott (In Re McDermott) · filed 2010-05-04(a)(4)

This Court is of the view that the “equity-like interest” created under the “trust fund doctrine” is insufficient for purposes of Code § 523(a)(4), particularly in light of the fact that it has application only to derivative claims asserted on behalf of a corporation and not to any direct claims like those of the Plaintiffs.

Section 523(a)(4) excepts unpaid retirement plan contributions from discharge when the debtor was responsible for the plan payments as a fiduciary and failed to account for the funds.

Ershowsky v. Freedman (In Re Freedman) · filed 2010-06-04(a)(4)

Accordingly, because Freedman was solely responsible for making Image Marketing’s payments to the employees’ plans, Freedman is a fiduciary for purposes of Image Marketing’s agreement to contribute to Ershowsky’s IRA. Freedman did not dispute the failure to account for the unpaid funds. Therefore, Ershowsky’s debt to Freedman for failing to match the $4,415.16 is nondischargeable pursuant to 11 U.S.C. § 523(a)(4).

Section 523(a)(4) can apply when a debtor’s position of ultimate trust and contractual confidentiality duties create a fiduciary relationship.

Freedom Medical, Inc. v. Janssens (In Re Janssens) · filed 2010-06-15(a)(4)

However, the position of ultimate trust that Janssens held as branch manager, which is likened to that of a corporate officer, when coupled with the provisions of his employment contract which designated him as a “key employee” and imposed confidential duties upon him in the use of highly sensitive confidential information, created a fiduciary relationship in fact as well as in law. Therefore, this Court finds that Janssens was such a fiduciary for bankruptcy purposes and that he violated his fiduciary duties to his employer contained in his employment agreements.

Section 523(a)(4) requires proof of a trust res, beneficiary, and affirmative trust duties to establish a qualifying fiduciary relationship.

Kaplus v. Lorenzo in (In Re Lorenzo) · filed 2010-07-22(a)(4)

Plaintiffs did not establish the existence of a segregated trust res, an identifiable beneficiary, or affirmative trust duties established by contract or by statute. Plaintiffs thus failed to establish the first prong of Section 523(a)(4).

An employment relationship alone does not establish the fiduciary capacity required by § 523(a)(4).

Grow Up Japan, Inc. v. Yoshida (In Re Yoshida) · filed 2010-08-23(a)(4)

The only fact alleged by GUJ in its complaint to support the claim of a fiduciary relationship is Yoshida’s employee/manager status. However, an employment relationship alone does not give rise to a fiduciary relationship for purposes of § 523(a)(4).

Section 523(a)(4) applies federal law to decide whether a fiduciary relationship exists; a state law power of attorney alone does not settle the question.

Kafantaris v. Signore (In Re Signore) · filed 2010-09-17(a)(4)

In analyzing a section 523(a)(4) action, however, courts apply federal law regarding the existence of a fiduciary relationship. Pearson v. Howard, (In re Howard), 339 B.R. 913, 919 (Bankr.N.D.Ill.2006). More is needed to find such a relationship under federal law.

Section 523(a)(4) does not make a subcontractor’s debt to a supplier nondischargeable merely because New Mexico’s Retainage Act requires prompt payment and imposes interest for delay.

Chaparral Materials, Inc. v. Ramos (In Re Ramos) · filed 2010-09-22(a)(4)

The Retainage Act does not establish a technical trust giving rise to a fiduciary duty of the type contemplated by 11 U.S.C. § 523(a)(4). The statutory language does not include trust-like language obligating contractors or subcontractors to hold specific, identifiable funds in trust for the benefit of their suppliers.

Section 523(a)(4) does not except a debt for fiduciary fraud or defalcation when the record establishes no qualifying fiduciary relationship.

Maloney v. Harte (In Re Harte) · filed 2010-10-14(a)(4)

The court does not find in this record any facts supporting a fiduciary relationship within the meaning of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) does not treat an ordinary principal-agent or buyer-seller relationship, without more, as a fiduciary relationship that excepts a debt from discharge.

Follett Higher Education Group, Inc. v. Berman · filed 2011-01-20(a)(4)

Here, the bankruptcy judge correctly concluded that an ordinary principal-agent or buyer-seller relationship, without more, is not a fiduciary relationship under section 523(a)(4).

Section 523(a)(4) can recognize a debtor’s fiduciary relationship to a former spouse.

Mullen v. Jones (In Re Jones) · filed 2011-02-03(a)(4)

In summary, the court concludes that the Debtor was in a fiduciary capacity visa-vis the Ex-Mrs. Mullen for purposes of Section 523(a)(4) of the Bankruptcy Code.

A creditor cannot state a claim under § 523(a)(4) for breach of fiduciary duty without a viable individual fiduciary-duty claim under nonbankruptcy law.

Soverino v. Netzel (In Re Netzel) · filed 2011-01-20(a)(4)

Accordingly, Soverino has no standing under Illinois law to bring a direct action against Netzel for breach of the special circumstances fiduciary duty. Soverino therefore cannot state a claim under § 523(a)(4) based on a debt “for fraud or defalcation while acting in a fiduciary capacity.”

A California real estate license alone does not establish fiduciary capacity under § 523(a)(4); the relationship requires an express, technical, or statutory trust.

Honkanen v. Hopper (In Re Honkanen) · filed 2011-02-16(a)(4)

Based on the requirements set forth in Cantrell, a California real estate licensee does not meet the fiduciary cápacity requirement of § 523(a)(4) solely based on his or her status as a real estate licensee. General fiduciary obligations are not sufficient to fulfill the fiduciary capacity requirement in the absence of a statutory, express, or technical trust.

Section 523(a)(4) can apply to a person charged with carrying out a company’s fiduciary duties even if that person does not personally owe the creditor a fiduciary duty.

Hawks Holdings, LLC v. Kalinowski (In Re Kalinowski) · filed 2011-03-08(a)(4)

Bankruptcy Code Section 523(a)(4) does not require that the debtor owe the fiduciary duty to the creditor, only that the debtor act in a “fiduciary capacity.” ... Based on the foregoing, the Court finds that both Karen Kalinowski and William Kalinowski were acting in a fiduciary capacity within the meaning of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) does not treat an employer’s contractual obligation to make retirement plan contributions as a fiduciary duty.

Adams v. Volpitto (In Re Volpitto) · filed 2011-03-22(a)(4)

The employment contracts did not create a fiduciary duty for § 523(a)(4) purposes, but rather an employee-employer relationship.

Section 523(a)(4) requires an actual fiduciary relationship; a floor-planning agreement does not establish one without proof that sale proceeds existed as trust property.

Dealer Services Corp. v. Erb (In Re Erb) · filed 2011-04-08(a)(4)

While the Agreement may have provided a basis for an express trust, DSC has failed to prove that any “sale proceeds” ever existed. ... For this reason, I cannot find that an actual trust existed and likewise that a fiduciary relationship was ever formed between the parties.

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

Arvest Mortgage Company v. Nail · filed 2011-04-15(a)(4)

Finally, we hold that, if the settlement proceeds should be determined to be Miscellaneous Proceeds under either a contract or tort theory, the Arkansas statutes relied on by the bankruptcy court did not create an express trust giving rise to a fiduciary duty under § 523(a)(4) that would require the Debtor to pay the settlement proceeds to the Creditor. Absent such a fiduciary duty, there cannot be a non-dischargeable debt under § 523(a)(4).

Section 523(a)(4) does not except a corporate officer’s debt from discharge based on Delaware’s Construction Trust Statute when the officer does not qualify as a contractor under that statute.

Tri Supply & Equipment, Inc. v. Brady (In Re Brady) · filed 2011-05-18(a)(4)

In the absence of any clear authority establishing that Debtor was a “contractor” within the meaning of the Construction Trust Statute, Tri Supply cannot successfully state a claim for exclusion under section 523(a)(4). Therefore, the Motion is granted as to Count One of the Complaint and it is dismissed.

Section 523(a)(4) requires a qualifying fiduciary relationship for a defalcation claim; an operating agreement that creates no trust does not establish one.

Davis v. Olson (In Re Olson) · filed 2011-05-13(a)(4)

Even if the parties had signed the Operating Agreement, there is nothing in that document that establishes a trust relationship to satisfy § 523(a)(4).

A defalcation claim under § 523(a)(4) requires a preexisting express or technical trust covering the disputed property.

Bush v. Roberts (In Re Roberts) · filed 2011-07-06(a)(4)

Under Sixth Circuit authority only fiduciary relationships based on the existence of a preexisting express or technical trust whose res encompasses the property at issue can give rise to a defalcation-based nondischargeability claim under § 523(a)(4). Plaintiff did not prove the existence of a preexisting technical or express trust.

Section 523(a)(4) requires a trustee relationship for a debt arising from fraud or defalcation in a fiduciary capacity; ordinary corporate officer duties alone do not suffice.

ABC Sun Control, Inc. v. McMahon-Jones (In re McMahon-Jones) · filed 2011-07-27(a)(4)

ABC has failed to prove that the Defendants were fiduciaries under § 523(a)(4). The Defendants were not “trustees,” a prerequisite for violation of the statute. ABC has failed to prove its claim under § 523(a)(4).

Section 523(a)(4) requires money or property to have been entrusted to the debtor for a fiduciary relationship to support nondischargeability.

Grove v. Beaver (In Re Beaver) · filed 2011-08-08(a)(4)

In order for the Court to find the existence of a fiduciary relationship under § 523(a)(4), money or property must have been placed in the custody of the debtor. ... Since Plaintiff has constructively admitted that there were no such advances, Plaintiffs claim under § 523(a)(4) fails as a matter of law on that basis.

Section 523(a)(4) treats a Montana LLC member who holds company property as acting in a fiduciary capacity because Montana law makes that member a trustee before any wrongdoing.

Blixseth v. Blixseth (In Re Blixseth) · filed 2011-09-28(a)(4)

As discussed above, Montana state law creates an express trust relationship between members of an LLC who hold company property and the members of the LLC. Edra exercised control of company assets in pledging them as collateral to First Bank. In doing so, she made herself trustee of those assets and assumed a fiduciary duty within the meaning of § 523(a)(4).

Section 523(a)(4) does not treat the trustee of a constructive trust as a fiduciary.

Reshetar Systems, Inc. v. Thompson (In Re Thompson) · filed 2011-10-04(a)(4)

The trustee of a constructive trust is not a fiduciary within the meaning of § 523(a)(4).

Section 523(a)(4) recognizes the fiduciary duties imposed by 29 U.S.C. § 501(a) on a labor organization’s agents, officers, and representatives concerning its money and property.

United Healthcare Workers-West v. Kristal (In re Kristal) · filed 2011-11-01(a)(4)

Accordingly, UHW has adequately alleged that Kristal was a fiduciary under § 523(a)(4) by alleging that he was an agent, officer, or representative under § 501(a), with duties pertaining to the “money and property” of the organization.

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

Drennan v. Hunnicutt (In Re Hunnicutt) · filed 2011-11-08(a)(4)

A fiduciary relationship arises only in those situations in which there exists an express or technical trust.

Section 523(a)(4) treats a corporate officer who controls the corporation’s property as its fiduciary without requiring an express or technical trust.

IBD, Inc. v. Jenkins (In re Jenkins) · filed 2011-11-21(a)(4)

Debtor’s motion is denied because while a corporate officer may not always stand in a fiduciary capacity in relation to a corporate creditor or an individual shareholder, the corporate officer is the steward of the corporation’s property and stands in a fiduciary capacity when the corporation itself objects to the officer’s mishandling of corporate property. IBD prevails on this issue as a matter of law.

Section 523(a)(4) allows a corporation to pursue a nondischargeability claim against an officer who misappropriates corporate property entrusted to the officer.

Hartwig v. Markley (In Re Markley) · filed 2011-11-29(a)(4)

Debtor’s motion is denied because while a corporate officer may not always stand in a fiduciary capacity in relation to an individual shareholder, the corporate officer is the steward of the corporation’s property and stands in a fiduciary capacity when the corporation itself objects to the officer’s mishandling of corporate property.

Section 523(a)(4) requires a fiduciary relationship between the debtor and creditor to except a debt for fiduciary fraud or defalcation from discharge.

Sherwood Fine Art, Inc. v. Burrik (In Re Burrik) · filed 2011-11-30(a)(4)

Therefore, the Court is constrained to rule that Mrs. Burrik was not a fiduciary with respect to Sherwood, which means that Sherwood’s claim cannot be excepted from her discharge pursuant to § 523(a)(4), that is such claim must be discharged as to Mrs. Burrik.

Section 523(a)(4) treats a debtor who holds proceeds under an express trust as acting in a fiduciary capacity, even when those proceeds share a bank account with the debtor’s funds but are separately accounted for.

Racetrac Petroleum, Inc. v. Khan (In Re Khan) · filed 2011-12-30(a)(4)

Because an express trust was created with respect to the gasoline sales proceeds, the loss of which gave rise to Khan’s debt to Racetrac, it must be concluded that Khan was “acting in a fiduciary capacity” under § 523(a)(4) while he possessed and controlled those proceeds.

Section 523(a)(4) requires a statutory trust to impose sufficient trust-like duties to establish a fiduciary relationship for the defalcation exception to discharge.

T.D. Farrell Construction, Inc. v. Schreiber (In re Schreiber) · filed 2012-01-26(a)(4)

The court finds that Farrell has not demonstrated that the Texas Construction Trust Fund Act imposes sufficient trust like duties on a contractor to meet the requirements of § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship that imposes real duties before the alleged breach.

Organic Family, LLC v. Pawlak (In re Pawlak) · filed 2012-02-07(a)(4)

A fiduciary relation only qualifies under § 523(a)(4) if it “imposes real duties in advance of the breach.”

Section 523(a)(4) requires an express or technical trust that predates the alleged defalcation; a director’s duty to a creditor of an insolvent California corporation does not alone satisfy that requirement.

Swimmer v. Moeller (In Re Moeller) · filed 2012-03-05(a)(4)

The Court concludes that Debtor owed a duty to Plaintiff assuming and as of Envision’s insolvency, but that neither a technical nor express trust arose under California law upon insolvency or prior to the Debtor’s alleged defalcation.

Section 523(a)(4) requires the debtor to have acted in a fiduciary capacity in connection with the conduct that gave rise to the debt.

Zielinska v. Smith (In Re Smith) · filed 2012-03-12(a)(4)

Since the Defendant Mrs. Smith, as one of the movants herein, has failed to meet her burden of establishing that there are no issues of material fact in dispute on the issue of whether she was acting in a “fiduciary capacity” in connection with the Plaintiff and the real estate sale, summary judgment cannot enter in her favor.

Section 523(a)(4) requires a fiduciary relationship before the alleged wrong; an ordinary partnership between parties with comparable power does not establish one.

Amundson v. Slaton (In Re Slaton) · filed 2012-04-06(a)(4)

Ted and Vicki may have breached their agreement with the plaintiffs and may have failed to return their investment, but at the outset of their relationship the parties were far closer to joint venturers or equals than anything else. As such, the debt cannot be excepted from discharge under this section of the code.

For a debt arising from defalcation to be nondischargeable under § 523(a)(4), the debtor must have acted in a fiduciary capacity; control over an employer’s payments and failure to remit plan contributions do not alone establish that capacity.

Raso v. Fahey (In Re Fahey) · filed 2012-05-14(a)(4)

It would be illogical and contrary to ERISA’s purpose if an employer’s breach of contract singlehandedly brought the employer within ERISA’s definition of fiduciary. The Debtor is not an ERISA fiduciary, and as no other basis exists for a finding a fiduciary status under 11 U.S.C. § 523(a)(4), the elements of the Plaintiffs nondischargeability action have not been met.

Section 523(a)(4) requires an express or technical trust for defalcation in a fiduciary capacity; a statute's use of the word “trustee” alone does not establish one.

Arvest Mortgage Co. v. Nail (In Re Nail) · filed 2012-06-05(a)(4)

In these circumstances, we agree with the BAP that the mere use of the word “trustee,” when viewed in the context of the statute as a whole, does not reflect a legislative intent to create the kind of express or technical trust required in the strict and narrow sense under § 523(a)(4). Therefore, the $65,000 debt was not nondischargeable under the fiduciary capacity subpart of § 523(a)(4).

Section 523(a)(4) requires a narrowly defined fiduciary relationship; Minnesota’s construction-payment statute does not create one, even if it creates an express trust.

Reshetar Systems, Inc. v. Thompson · filed 2012-07-30(a)(4)

Even construing § 514.02, subd. 1(a), as creating an express trust would not change our conclusion that the statute did not create a fiduciary responsibility in the “strict and narrow sense” that § 523(a)(4) requires.

Section 523(a)(4) requires a qualifying fiduciary relationship for a debt based on defalcation to be nondischargeable.

Ratliff v. Cochise Agricultural Properties, LLC · filed 2012-08-01(a)(4)

For the portion of the NK proceeds that may be the subject of a conversion claim in favor of the Campbells, we affirm the BAP’s finding that the “type of relationship required for non-dischargeability purposes under § 523(a)(4) did not exist” between the Ratliffs and the Campbells.

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

Infinity Group LLC v. Lucas (In re Lucas) · filed 2012-08-01(a)(4)

As there is no express trust, there can be no breach of a fiduciary duty and hence the failure to pay the debt owed is not excepted from discharge pursuant to § 523(a)(4).

Section 523(a)(4) does not except a debt from discharge for fraud or defalcation in a fiduciary capacity when an ordinary construction contract creates no fiduciary relationship.

Webb v. Isaacson (In re Isaacson) · filed 2012-08-22(a)(4)

Accordingly, no fiduciary relationship was created by the Cabinet Contract and to the extent the Complaint sounds under Section 523(a)(4), it must be dismissed.

Section 523(a)(4) gives fiduciary capacity a narrow meaning under federal bankruptcy law.

Erie Materials, Inc. v. Dombroski (In re Dombroski) · filed 2012-10-02(a)(4)

The term “fiduciary capacity” in the context of § 523(a)(4) is a narrow concept that is determined by federal bankruptcy law, not state law.

Section 523(a)(4) requires a trust that predates the wrongdoing for a claim based on fraud or defalcation in a fiduciary capacity; a trust arising from a member’s misconduct does not suffice.

Cody Farms, Inc. v. Deerman (In re Deerman) · filed 2012-10-24(a)(4)

The Court concludes that the statute creates a trust that arises from a member’s malfeasance which cannot support a non-dischargeability claim under 11 U.S.C. § 523(a)(4). Thus, Plaintiffs claims premised on a breach of fiduciary duty while acting in a fiduciary capacity fail as a matter of law.

Section 523(a)(4)’s fiduciary-capacity requirement is met when a debt arises from an ERISA fiduciary acting in that capacity.

Fahey v. Fahey · filed 2012-11-20(a)(4)

Thus, we conclude that where the debt arises from an ERISA fiduciary acting in his fiduciary capacity under that statute, then § 523(a)(4)’s “fiduciary capacity” requirement will be met.

Section 523(a)(4) requires an express or technical trust that predates the wrongdoing for a debtor to act in a fiduciary capacity.

Griego v. Gonzales (In re Gonzales) · filed 2012-11-21(a)(4)

The fiduciary capacity contemplated by § 523(a)(4) is extremely narrow; it only arises when there is an express or technical trust, and must exist prior to and not a result of the wrongdoing.

Section 523(a)(4) requires a definable trust res; people, relationships, and efforts do not qualify.

Clear Sky Properties, LLC v. Roussel (In re Roussel) · filed 2012-12-03(a)(4)

This Court finds that people, relationships, and efforts do not make a valid res for purposes of § 523(a)(4).

A surety indemnity agreement can establish an express trust for purposes of § 523(a)(4).

Poynter v. Great American Insurance · filed 2012-10-16(a)(4)

This Court is persuaded by the reasoning in Federal Insurance and In re Smith, as well as the Bankruptcy Court’s distinction of Acuity from the case at present, and holds that an express trust was created.

Section 523(a)(4) requires an express or technical trust for a debt based on fraud or defalcation in a fiduciary capacity; the Massachusetts insurance premium statute does not establish one by itself.

Breed's Hill Insurance Agency, Inc. v. Fravel (In re Fravel) · filed 2013-01-02(a)(4)

Although the Massachusetts statute refers to holding premiums in trust, it does not require the segregation of the premiums or otherwise spell out fiduciary duties. Accordingly, the Court finds that the statute does not satisfy the requirements imposed by the bankruptcy appellate panel in Fahey, 482 B.R. at 688.

Section 523(a)(4)’s fiduciary capacity requirement is narrower than a general duty owed by a financial adviser.

Stennis v. Davis (In re Davis) · filed 2013-01-23(a)(4)

Consistent with the reasoning and holding of Honkanen, Defendant was not acting in a fiduciary capacity as required by § 523(a)(4).

Section 523(a)(4) requires a fiduciary relationship for fraud or defalcation claims, and allegations of the debtors’ involvement in the creditor’s agent can sufficiently plead that relationship.

Old Republic National Title Insurance v. Presley (In re Presley) · filed 2013-02-19(a)(4)

Here, Plaintiff has alleged facts showing both Defendants’ involvement in Gateway Title, which served as Plaintiffs agent in issuing the title insurance policies. While at trial, Plaintiff may ultimately have a greater hurdle to overcome in proving that a fiduciary relationship existed for purposes of § 523(a)(4), the allegations are sufficient to withstand the Motion to Dismiss.

Section 523(a)(4) covers a trustee under Arizona’s Adult Protective Services Act when the statutory trust meets the criteria for fiduciary capacity.

Ferrara v. Condit (In Re Ferrara) · filed 2013-02-25(a)(4)

But, it may be argued, to be a trustee under the Arizona statute is not to be a trustee under § 523(a)(4) of the bankruptcy statute. In this instance, we reject this argument. We agree with the BAP that the Arizona statutory trust that exists here meets the three criteria articulated in Hemmeter, 242 F.3d at 1190.

Section 523(a)(4) applies a narrower federal standard for fiduciary capacity, so a state-law finding of breach of fiduciary duty alone does not establish fiduciary defalcation.

Syncom Industries, Inc. v. Wood (In re Wood) · filed 2013-03-08(a)(4)

Because Syncom has not provided this Court with sufficient evidence to establish that the state-law breach of fiduciary duty found by the Superior Court falls within the narrower scope of § 523(a)(4)’s fiduciary defalcation exception to discharge, Syncom has not met its burden of proof to establish that the issue resolved by the Superior Court is identical to the issue in the instant proceeding, as is required to avail oneself of the doctrine of collateral estop-pel.

Section 523(a)(4) treats Washington spouses as fiduciaries when they manage community property because their trust relationship arises at marriage.

Mele v. Mele (In re Mele) · filed 2013-03-08(a)(4)

This trust relationship between spouses in Washington thereby creates “fiduciary capacity” for purposes of § 523(a)(4).

Section 523(a)(4) does not except a defalcation debt from discharge when the required fiduciary relationship has not been established.

Fleming v. Gordon (In re Gordon) · filed 2013-03-26(a)(4)

The Court concludes that Plaintiffs have failed to meet their burden in establishing that a fiduciary relationship existed among Plaintiffs and Defendant, to the extent required for a finding of defalcation under § 523(a)(4).

A complaint seeking to except a debt from discharge for fiduciary defalcation under § 523(a)(4) must allege how the debtor was a fiduciary to the creditor.

Lerner Master Fund, LLC v. Paige (In re Paige) · filed 2013-04-01(a)(4)

A review of the LMF Complaint regarding Count III fails to articulate in what manner Christopher Paige was a fiduciary for LMF, and so, the Motion to Dismiss must be granted as to this Count.

Section 523(a)(4) requires an actual fiduciary relationship for a debt based on fraud or defalcation in a fiduciary capacity; falsely claiming to be an executor does not establish one.

Smith v. Smith (In re Smith) · filed 2013-04-02(a)(4)

The plaintiff essentially reads into § 523(a)(4) an estoppel component. But § 523(a)(4) is clear: the debtor must act in a fiduciary capacity.

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity; a corporate officer’s general fiduciary duties alone do not suffice.

Jenkins v. IBD, Inc. · filed 2013-04-11(a)(4)

Because IBD has failed to demonstrate an express or technical trust, the Court finds that the bankruptcy court erred in holding that Jenkins’s general fiduciary duties gave rise to fiduciary capacity under § 523(a)(4).

A corporate officer was not a fiduciary under § 523(a)(4) on the facts of this case.

Hot Shot Kids Inc. v. Pervis (In re Pervis) · filed 2013-07-24(a)(4)

Pervis was not a fiduciary as that term is used in 11 U.S.C. § 523(a)(4).

Withdrawal liability distinct from unpaid pension contributions was dischargeable on the facts considered under § 523(a)(4).

Carpenters Pension Trust Fund v. Moxley · filed 2013-08-20(a)(4)

Accordingly, even if we assume that unpaid contributions can be considered assets of the Fund under the particular provisions of this agreement, and non-dischargeable, the withdrawal liability is not an unpaid contribution. We therefore agree with the conclusion of both the bankruptcy and district court that this withdrawal liability is dischargeable.

Section 523(a)(4) covers a manager’s diversion of an insolvent company’s assets when California’s trust fund doctrine imposed a fiduciary duty to creditors before the diversion.

Houng v. Tatung Co. · filed 2013-09-11(a)(4)

As a consequence, the court finds that the bankruptcy court properly applied Jacks to determine that Houng owed Tatung fiduciary duties that arose upon WDE’s insolvency pursuant to California’s “trust fund doctrine.”

Section 523(a)(4) can treat an equal business partner as a fiduciary when unequal access to information puts that partner in a position of ascendancy.

Catrambone v. Adams · filed 2013-09-10(a)(4)

The nominally equal partnership between Catrambone and Adams in which each party held a fifty percent interest in Great Lakes does not preclude the existence of a fiduciary duty. ... This inequality in knowledge and power placed Catrambone in a position of “ascendancy” and imposed a corresponding fiduciary obligation to Adams.

Section 523(a)(4)’s fraud or defalcation exception requires a fiduciary relationship between the debtor and the creditor seeking to except the debt from discharge.

Huntington National Bank v. Aman (In re Aman) · filed 2013-09-20(a)(4)

But the court, for purposes of determining whether the Plaintiffs default judgments against Mr. Aman stemmed from “fraud or defalcation,” is only concerned with whether he was acting in a fiduciary capacity with respect to the Plaintiffs.

Section 523(a)(4) recognizes fiduciary capacity arising from a PACA trust, allowing a claim that a debt owed to a trust beneficiary is nondischargeable.

Michael Farms, Inc. v. Lundgren (In re Lundgren) · filed 2013-12-17(a)(4)

The majority view, which this Court is convinced is the correct one, is that a PACA trust does create fiduciary capacity for purposes of section 523(a)(4).

Section 523(a)(4) requires an express or technical trust relationship for a debt to be excepted from discharge on the basis of fiduciary duty.

Birch Hollow, LLC v. Tardugno (In re Tardugno) · filed 2014-04-30(a)(4)

There is nothing in the record of this proceeding that establishes either an express or technical trust relationship between Mr. Tardugno and BH. BH has offered no evidence to establish that Mr. Tardugno owed it a statutory or common law duty. Thus whatever fiduciary duty the superior court determined was breached by Mr. Tardugno, it was not the kind that supports a § 523(a)(4) exception to discharge and thus BH is not entitled to judgment under that statutory provision.

Section 523(a)(4) requires the debtor to have been acting as a fiduciary to the creditor when the debt was created.

Wan Ho Industrial Co. v. Hemken (In re Hemken) · filed 2014-07-16(a)(4)

Second, the debtor must be acting as a fiduciary to the creditor “at the time the debt was created.” Here, the debts to Towsley’s and Wan Ho were created long before the bulk sale and other transactions that allegedly constituted defalcations. In short, there is no express trust between the Debtor and the creditors, and § 523(a)(4) does not apply.

Section 523(a)(4) excepts debts for a landlord’s breach of fiduciary duties in handling a tenant’s security deposit from discharge.

Davis v. Clemon (In re Clemon) · filed 2014-06-10(a)(4)

The $500 award to Davis made in paragraph 1(e) was based on the state court’s ruling that Clemon failed to account for and return a security deposit. The Motion for Summary Judgment is granted in favor of Davis as to Count VI. demon’s conduct therein amounts to a violation of a fiduciary duty. The $500 awarded therein is not discharge-able.

A divorce decree creates the fiduciary relationship required by § 523(a)(4) only if it specifically creates a trust or state law supplies one.

Humphries v. Rogers (In re Humphries) · filed 2014-08-29(a)(4)

Only if the trust is specifically created in the divorce decree or if the trust arises as a matter of state law, will the requisite fiduciary relationship be created for purposes of § 523(a)(4). Thus, while the Plaintiffs failure to abide by the Divorce Decree created a claim, the requisite fiduciary relationship was not created by the Divorce Decree.

Section 523(a)(4) treats managers of California limited liability companies as fiduciaries under the California law applicable to this debt.

Plikaytis v. Roth · filed 2014-09-05(a)(4)

Therefore under California law, managers of a limited liability company are fiduciaries for purposes of § 523(a)(4).

Section 523(a)(4) requires an express or technical trust; a state-court finding of a fiduciary relationship alone does not establish that a debt is nondischargeable.

Taatjes v. Maggio (In re Maggio) · filed 2014-09-22(a)(4)

In particular, the Court is unable to unequivocally find the existence of an express or technical trust. Accordingly, the Superior Court’s finding of a fiduciary relationship between Barrett and the Debtor is not entitled to collateral estoppel effect because it was predicated upon state law.

Section 523(a)(4) does not treat corporate officers or directors as fiduciaries solely because state law imposes duties of loyalty and good faith.

Larson v. Bayer (In re Bayer) · filed 2014-12-02(a)(4)

In other words, I reject the per se rule that corporate officers or directors are fiduciaries in jurisdictions in which their obligations are those of loyalty and good faith.

Section 523(a)(4) does not except a debt based on fiduciary misconduct from discharge unless the debtor was the creditor’s fiduciary.

Palm Finance Corp. v. Eberts (In Re Eberts) · filed 2015-05-26(a)(4)

The bankruptcy court properly concluded that NTF’s claim was not excepted from discharge under 11 U.S.C. § 523(a)(4) because Eberts was not a fiduciary of NTF.

An alleged oral agreement to hold funds in escrow can sufficiently plead fiduciary capacity under § 523(a)(4).

Matthews v. Nealon (In re Nealon) · filed 2015-07-02(a)(4)

Accordingly, the allegation that the parties orally agreed that the Debtor would create an escrow account to hold funds received from Matthews sufficiently states a claim that the Debtor was acting in a fiduciary capacity with respect to those funds within the meaning of § 523(a)(4).

Section 523(a)(4) requires fiduciary obligations to exist before the defalcation; California’s alter ego doctrine alone cannot create them.

Double Bogey Lp v. Enea · filed 2015-07-22(a)(4)

Regardless of the ends to which the alter ego “procedural device” may be put in California state court, it does not clearly and expressly impose trust obligations prior to defalcation as required by Section 523(a)(4).

Section 523(a)(11) requires a debt arising from fraud or defalcation while the debtor acted as a fiduciary with respect to a depository institution or insured credit union.

Risk v. Hunter (In re Hunter) · filed 2015-08-03(a)(11)

Plaintiff has neither alleged nor provided evidence to the court of a necessary element: that the debt arose from any act- of fraud or defalcation while Defendant acted in a fiduciary capacity with respect to any depository institution or insured credit union.

Section 523(a)(4) does not except unpaid employer contributions from discharge as defalcation, embezzlement, or larceny when the debtors neither controlled nor possessed plan assets.

Board of Trustees v. Quinones (In re Quinones) · filed 2015-09-15(a)(4)

The Board cannot prevail on its § 523(a)(4) defalcation and fraud claim because it has failed to establish that an express trust existed. ... Therefore, there is no genuine issue of material fact as to the first element of an embezzlement claim under § 523(a)(4) and the Quinoneses are enti-tied to judgment as a matter of law. ... The Quinoneses are entitled to judgment as a matter of law on the Board’s larceny claim under § 523(a)(4).

Section 523(a)(4) requires a technical or express trust to establish fiduciary capacity for its fraud exception to discharge.

Aamodt v. Narcisi (In re Narcisi) · filed 2015-10-08(a)(4)

For purposes of § 523(a)(4), the term “fiduciary” is narrowly construed; it refers to technical or express trusts.

Section 523(a)(4) requires a fiduciary relationship between the debtor and creditor; the debtor’s agency for a third party does not establish one.

Hernandez v. Sulier (In re Sulier) · filed 2015-11-25(a)(4)

Whether the defendant acted as an agent for Ms. Sweno is irrelevant. The fiduciary relationship must be between the defendant and the plaintiff.

Section 523(a)(4) requires a fiduciary relationship that existed before the debt and arose independently of the alleged wrongdoing.

Schwarz v. Liechti (In re Liechti) · filed 2015-12-16(a)(4)

Because Liechti’s debt to Molly dates back to 2006 and because the fiduciary relationship alleged by Molly refers to Liechti’s wrongdoing in failing to comply with the writs in year 2014, § 523(a)(4) does not apply.

Section 523(a)(4) treats duties imposed by California’s trust fund doctrine as a fiduciary relationship for purposes of nondischargeability.

Houng v. Tatung Co. (In Re Houng) · filed 2016-01-11(a)(4)

We agree with Tatung that the duties created by the trust fund doctrine satisfy the criteria for a “fiduciary” relationship for purposes of nondischargeability under § 523(a)(4).

Section 523(a)(4) treats an ERISA fiduciary as a fiduciary for discharge purposes, but the creditor must also prove defalcation.

Sheet Metal Workers' National Pension Fund v. Kern (In re Kern) · filed 2015-12-10(a)(4)

Thus, this Court will follow the courts that have adopted the per se test — that is, an ERISA fiduciary is a fiduciary for § 523(a)(4) purposes. ... Thus, while Debtor was a fiduciary, he did not commit a defalcation under the Bullock standard.

Section 523(a)(4) requires an express or technical trust that predates the alleged defalcation; Oregon partnership status alone does not establish the required fiduciary capacity.

Chapman v. Bond (In re Bond) · filed 2016-03-07(a)(4)

Because Oregon partners, as such, do not act as trustees, ... they are not fiduciaries within the scope of § 523(a)(4).

Section 523(a)(4) requires an express or statutory trust for a debt arising from fraud or defalcation in a fiduciary capacity; a constructive trust is insufficient.

Jackson v. Jackson (In re Jackson) · filed 2016-04-11(a)(4)

The District Court imposed a constructive trust on the Property, but it is well-established that the exception from discharge for breach of fiduciary duty under § 523(a)(4) requires an express or statutory trust; the existence of a constructive trust is not sufficient.

Section 523(a)(4) requires an express or technical trust for fiduciary capacity; an implied partnership alone does not establish one.

White v. White (In re White) · filed 2016-04-15(a)(4)

Therefore, the Court holds that Defendant did not owe Robbie White a fiduciary duty within the meaning of Section 523(a)(4), and summary judgment in favor of Defendant is appropriate for claims requiring fiduciary capacity under 11 U.S.C. § 523(a)(4).

Section 523(a)(4)’s fiduciary fraud or defalcation exception requires an express or technical trust; corporate officer status alone is insufficient.

TotalFacility, Inc. v. Brown (In re Brown) · filed 2016-08-30(a)(4)

The Complaint does not contain any allegation as to the existence of an express or technical trust. Because the Complaint fails to allege any trust-like features, such as an identifiable res, TotalFacility has failed to state a plausible a § 523(a)(4) cause of action.

Section 523(a)(4)'s fiduciary exception requires a qualifying fiduciary duty; the auctioneer's contract and the cited Pennsylvania statutes created none.

Aamodt v. Narcisi (In re Narcisi) · filed 2016-09-28(a)(4)

After a de novo review, the Court agrees that no fiduciary duty existed under contract or statute for purposes of § 523(a)(4).

Section 523(a)(4) does not except a debt for fraud or defalcation in a fiduciary capacity when the parties’ business relationship creates no fiduciary duty.

Korrub v. Cohn (In re Cohn) · filed 2016-11-15(a)(4)

While Korrub and Cohn had different types of expertise, the testimony did not establish that the differences in their knowledge or power gave Cohn a position of ascendancy over Kor-rub. No fiduciary relationship was established, and thus Cohn’s debt to Korrub is not excepted from discharge pursuant to § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a debt based on fraud or defalcation while acting in a fiduciary capacity; an employment relationship alone is insufficient.

Federal Insurance Co. v. Sorge (In re Sorge) · filed 2017-02-06(a)(4)

Thus, the broad, general definition of “fiduciary” relationship commonly applying under state law as involving just confidence, trust, and good faith is inapplicable in a § 523(a)(4) dischargeability proceeding, where for a debtor to stand in a “fiduciary capacity” to a creditor, the parties must share an express or technical trust relationship. A mere employment relationship is not enough to establish a fiduciary capacity for purposes of § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a fraud or defalcation claim based on fiduciary capacity; a partnership relationship alone does not qualify.

Ruiz v. Kennedy (In re Kennedy) · filed 2017-02-08(a)(4)

As to Lircostew, the Court also finds that Lira’s fraud and defalcation claims under section 523(a)(4) are barred because courts have limited the scope of this section to fiduciary duties imposed by express or technical trusts.

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

Hebel v. Windeshausen (In re Windeshausen) · filed 2017-03-03(a)(4)

The existence of a fiduciary relationship contemplated by section 523(a)(4) is extremely narrow and arises only when there is an express or technical trust that exists prior to and not as a result of the wrongdoing.

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

Utah Behavior Services, Inc. v. Bringhurst (In re Bringhurst) · filed 2017-06-30(a)(4)

An “express or technical trust” cannot be implied or assumed based on Bringhurst’s actions while employed at UTBS. The parties did not have an express agreement creating a trust relationship and state law does not impose a trust relationship between the parties. Accordingly, summary judgment is appropriate on cause of actions one, two and three as to claims asserted by UTBS under § 523(a)(4) for fraud or defalcation while a fiduciary and those claims should be dismissed.

Section 523(a)(4) treats an ERISA fiduciary who controls plan assets as acting in a fiduciary capacity.

Trustees of the Sheet Metal Workers' National Pension Fund v. Kakareko (In re Kakareko) · filed 2017-07-19(a)(4)

Accordingly, based on the record placed before it, the Court finds that defendant, an ERISA fiduciary, had fiduciary capacity under § 523(a)(4).

Section 523(a)(4) excludes ordinary commercial relationships from its fiduciary exception to discharge.

Hackerman v. Demeza (In re Demeza) · filed 2017-07-28(a)(4)

Ordinary commercial relationships are excluded from the reach of § 523(a)(4).

Section 523(a)(4) does not treat a consignment agreement creating an agency relationship, by itself, as establishing a fiduciary relationship.

Aamodt v. Pasquale B. Narcisi, II · filed 2017-07-26(a)(4)

And a consignment agreement creating an agency relationship does not, by itself, establish a fiduciary relationship for purposes of § 523(a)(4).

Section 523(a)(4) requires the fiduciary duty to be owed to the creditor whose debt is at issue.

Pappas v. Gucciardo (In re Gucciardo) · filed 2017-11-21(a)(4)

This argument reflects a misunderstanding of the fiduciary capacity element of § 523(a)(4); the fiduciary duty in question must be owed to the plaintiff, not to another party.

Section 523(a)(4) requires a technical or express trust for a debt arising from defalcation in a fiduciary capacity; a mere contractual relationship does not suffice.

Dinsdale Bros., Inc. v. Leonard · filed 2018-01-17(a)(4)

At most, the evidence shows that the parties here had a contractual relationship and, as noted above, a mere contractual relationship does not support an exception from discharge for defalcation by a fiduciary.

Section 523(a)(4)’s fiduciary capacity requirement covers technical trusts, not constructive trusts.

Matthew E. Jackson, Jr. v. Jackson · filed 2018-04-16(a)(4)

Frances was not a “fiduciary” within the meaning § 523(a)(4), because that rule refers only to “technical,” not constructive, trusts.

Section 523(a)(4)’s fiduciary fraud exception requires an express or technical trust; a constructive trust does not suffice.

Gallo v. Palmiter (In re Palmiter) · filed 2018-09-26(a)(4)

The fiduciary fraud exception is triggered by an express or technical trust, not by a constructive trust which a court may impose as an equitable remedy.

A durable power of attorney creates the fiduciary capacity required by § 523(a)(4) only when it establishes an express trust.

Bruinsma v. Wigger (In re Wigger) · filed 2018-12-04(a)(4)

Accordingly, despite the fact that a durable power of attorney may create a general fiduciary relationship under state law, this relationship will only rise to the level required by § 523(a)(4) when the DPOA establishes an express trust.

A parent-child relationship alone does not establish the fiduciary capacity required by § 523(a)(4).

Tinsman v. Chaney (In re Chaney) · filed 2018-12-20(a)(4)

While the Plaintiff argues that she placed a special trust and confidence in her father by loaning money to him with the understanding that he would place her name on the deed of any real property he purchased with the funds, their father-daughter relationship alone is insufficient to create a fiduciary relationship for purposes of § 523(a)(4).

Under § 523(a)(4), an express trust created by an indemnity agreement can establish fiduciary capacity without segregating trust assets.

Great Am. Ins. Co. v. Brandt (In re Brandt) · filed 2019-01-03(a)(4)

The trust provision contained in the indemnity agreement is sufficient to establish an express trust. The provision provided for a trust corpus and an intent by the parties to create a fiduciary relationship. Therefore, there existed a fiduciary relationship between Plaintiff and Defendant, regardless of segregation.

Section 523(a)(4)'s fiduciary defalcation exception requires proof that the debtor acted in a fiduciary capacity, such as under an express or technical trust.

McGuinness v. Gannon (In re Gannon) · filed 2019-02-15(a)(4)

The plaintiffs have not established the existence of a technical trust under a statute or common law or that Mr. Gannon was acting in a "fiduciary capacity" for purposes of Code § 523(a)(4), a term that must be narrowly construed in the context of dischargeability of debts.

Section 523(a)(4) requires an express or technical trust to establish fiduciary capacity based on a trust; Maryland's construction trust statute does not satisfy that requirement.

K&M Elec. Servs., Inc. v. Vito (In re Vito) · filed 2019-03-08(a)(4)

The Court thus holds that, in the context of trusts, only express or technical trusts create the kind of fiduciary relationship covered by section 523(a)(4) and the Trust Statute does not satisfy that standard.

Section 523(a)(4) generally does not treat an employee as a fiduciary to the employer for purposes of excepting a debt from discharge.

Premier Network Solutions, Inc. v. McCarty · filed 2019-06-20(a)(4)

Generally, employees are not fiduciaries to their employers, as that term is defined for purposes of §523(a)(4).

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

Long v. Piercy · filed 2019-08-20(a)(4)

Because the undisputed facts of this case do not support a finding that there was an express or technical trust sufficient to prove that the parties were in the type of fiduciary relationship required to proceed under the defalcation prong of § 523(a)(4) as defined by the Sixth Circuit, Plaintiff’s argument to the contrary fails.

Section 523(a)(4) requires a qualifying trust for a debt to be nondischargeable as defalcation while acting in a fiduciary capacity.

Lester Dan Piercy, Jr. - Adversary Proceeding · filed 2019-08-20(a)(4)

Further, no actual or constructive trust existed as necessary to establish the third prong of a § 523(a)(4) claim – defalcation while acting in a fiduciary capacity.

An informal relationship of trust does not establish fiduciary capacity under § 523(a)(4).

Li v. Chu · filed 2019-08-29(a)(4)

Instead, Plaintiff alleged in the State Court Complaint the existence of an informal relationship of trust between the parties, which clearly does not qualify as a fiduciary relationship as the term is used in Section 523(a)(4).

A confidentiality and noncompetition agreement alone does not establish the express or technical trust required for fiduciary capacity under § 523(a)(4).

Skycasters, LLC v. Kister · filed 2019-09-27(a)(4)

It is a typical confidentiality and non-compete agreement that many employers require employees to sign as a condition of their employment. Without more, which has not been shown, it is insufficient to establish the existence of an express or technical trust for purposes of a fiduciary capacity under § 523(a)(4).

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

AUCTION CREDIT ENTERPRISES, LLC v. Ferreira · filed 2019-10-24(a)(4)

Because the Agreement did not create an express or technical trust, Mr. Ferreira was not a fiduciary as that term is used in Section 523(a)(4) and his discharge is not barred pursuant to that section.

Section 523(a)(4) does not require a fiduciary relationship for debts arising from embezzlement or larceny.

Compton v. Moschell · filed 2019-10-25(a)(4)

Thus, to state a claim under the “larceny” or “embezzlement” provisions of section 523(a)(4), Mr. Compton need not plead or show that Ms. Moschell was a fiduciary.

Section 523(a)(4) limits fiduciary relationships to express or technical trusts for claims based on fraud or defalcation.

Davila v. Peralta, Sr. · filed 2019-11-14(a)(4)

The meaning of “fiduciary” for purposes of section 523(a)(4) is limited to relationships involving express or technical trusts.

Section 523(a)(4)’s fiduciary exception requires an express or technical trust established before the alleged wrongdoing; a construction contract alone does not suffice.

Kapish v. Cruz-brewer · filed 2019-11-26(a)(4)

The above leads to the conclusion that Count I fails to plead a plausible claim for non- dischargeability based upon the fiduciary exception in § 523(a)(4).

Section 523(a)(4) does not treat a PACA trust alone as creating the fiduciary relationship required for a debt to be excepted from discharge.

CR ADVENTURES LLC d/b/a CR-FARMS v. Hughes · filed 2019-12-18(a)(4)

Because a PACA “trust” creates no fiduciary relationship under section 523(a)(4) as a matter of law, National Produce was not CR Farms’ fiduciary, and Hughes cannot be liable for National Produce’s debt as its controlling person.

Section 523(a)(4) requires a fiduciary duty owed to the creditor for a debt to be excepted from discharge as fraud or defalcation in a fiduciary capacity.

Avren v. Daniel · filed 2020-01-21(a)(4)

Plaintiff did not present any evidence that Debtor owed a fiduciary duty to Plaintiff or that Debtor served as a fiduciary of an express trust. The Court finds that Plaintiff failed to allege or prove a claim under § 523(a)(4) of the Bankruptcy Code.

Section 523(a)(4) excepts from discharge a debt arising from a fiduciary’s knowing or grossly reckless failure to remit funds owed to another.

Oklahoma DHS Child Support Services v. Bryan · filed 2020-01-15(a)(4)

The Court finds that Bryan is indebted to DHS in the sum of $5,050.78, and that this amount is non-dischargeable under § 523(a)(4).

Section 523(a)(4) makes a debt nondischargeable when a debtor’s failure to account for construction trust funds constitutes defalcation while acting in a fiduciary capacity.

Gypsum Supply Company v. Marinelli · filed 2020-01-16(a)(4)

Plaintiff’s Motion for Summary Judgement is GRANTED because no fact issues exist as to whether Defendant’s actions amounted to defalcation while acting in a fiduciary capacity, resulting in the damages to Plaintiff as just stated. Pursuant to Section 523(a)(4), this warrants a finding of nondischargeability.

Section 523(a)(4) requires a claim that fraud is nondischargeable to allege fraud while acting in a fiduciary capacity.

Merritt v. Kulla · filed 2020-01-31(a)(4)

Count II alleges fraud by the Defendant, but it fails to allege that such fraud was “fraud while acting in a fiduciary capacity,” as required by 11 U.S.C. § 523(a)(4).

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

Robson v. Smith · filed 2020-03-27(a)(4)

Since there is no express or technical trust between Smith and either of the Robsons or RISE, they failed to establish a claim under § 523(a)(4) for defalcation by a fiduciary.

Section 523(a)(4) excepts debts for fraud or defalcation while acting in a fiduciary capacity from discharge; a prior judgment can establish those elements through collateral estoppel.

Browning v. Peters · filed 2020-03-05(a)(4)

In this case, the elements of a section 523(a)(4) cause of action were established in the Probate Court Judgment and are entitled to preclusive effect.

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

Sawyer v. Thompson · filed 2020-04-28(a)(4)

Analysis of a fiduciary relationship under Section 523(a)(4) requires an inquiry into the following: (1) whether the debtor held a fiduciary position in relation to the plaintiff under a technical, express, or statutory trust; (2) whether the trust existed at the time of the alleged wrongdoing; and (3) whether there was fraud or defalcation.

Section 523(a)(4) can cover a small-estate affiant’s defalcation when the affiant’s statutory duties over estate property create a technical trust.

Credit Associates, Inc. v. Blevins · filed 2020-05-15(a)(4)

Thus, under section 523(a)(4) and the facts alleged in the complaint, Blevins’s affiant duties are sufficiently trust-like to constitute a technical trust, and a debt for defalcation while acting in that capacity is nondischargeable.

For fiduciary fraud, § 523(a)(4) requires an express or technical trust; a joint venture alone does not suffice.

Trumley v. Kubik · filed 2020-08-27(a)(4)

Even if Trumley had shown the existence of a joint venture as defined under state law, Sixth Circuit law requires an express or technical trust in order for a fiduciary duty to arise between parties for purposes of 11 U.S.C. § 523(a)(4).

Section 523(a)(4) requires an express or technical trust for a claim based on fraud or defalcation in a fiduciary capacity; a corporate officer’s general duties to creditors do not suffice.

Strategic Funding Source, Inc. d/b/a Kapitus v. Dodge · filed 2020-10-01(a)(4)

The Court concludes that no fiduciary relationship within the meaning of § 523(a)(4) existed between the parties.

Section 523(a)(4)’s fiduciary-capacity exception requires an express or technical trust that existed before the wrongful act; an ordinary business relationship does not qualify.

King v. Skolness · filed 2020-10-14(a)(4)

The Minnesota Parties failed to allege King was acting in a fiduciary capacity in accordance with an express or technical trust; they failed to establish anything other than an ordinary business relationship. Accordingly, the Court finds there is no genuine issue of material fact; King did not commit fraud or defalcation while acting in a fiduciary capacity and summary judgment is appropriate in favor of King on this portion of the Minnesota Parties’ section 523(a)(4) claim.

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

Mayo v. Jackson · filed 2020-12-18(a)(4)

However, this common law fiduciary relationship is insufficient for § 523(a)(4), and the Complaint contains no factual allegations alleging either an express or technical trust.

Section 523(a)(4) does not treat an LLC manager’s ordinary business relationship with the LLC as a fiduciary capacity.

Lenox Pines, LLC v. Smith, Jr. · filed 2021-03-31(a)(4)

Accordingly, as between Plaintiff and Defendant, Plaintiff has established only an ordinary business transaction, which is outside the scope of § 523(a)(4).

Section 523(a)(4) does not except unpaid employer contributions from discharge when the debtor’s fiduciary status arose only from the failure to pay them.

I.U.P.A.T. District Council No. 57 Combined Funds v. Hawranko · filed 2021-04-06(a)(4)

In this particular instance, the Court recognizes that while the Debtors may have been fiduciaries under ERISA in connection with the unpaid contributions, they were not acting in a fiduciary capacity within the meaning of Section 523(a)(4).