No Discharge of Debt Arising From Willful and Malicious Injury
Non-Dischargeability under 11 U.S.C. § 523(a)(6)
A primary purpose of filing for bankruptcy is to provide the debtor with the opportunity to discharge their debts, thereby obtaining a fresh start. However, not all debts are dischargeable under the United States Bankruptcy Code. One category of debt which is not dischargeable, also known as non-dischargeablity, is a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity. . .” 11 U.S.C. § 523(a)(6).
If you’ve been sued for non-dischargeability, a bankruptcy attorney can help you understand that: “The Supreme Court in Kawaauhau v. Geiger (In re Geiger), 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), made clear that for section 523(a)(6) to apply, the actor must intend the consequences of the act, not simply the act itself. Id. at 60, 118 S.Ct. 974. Both willfulness and maliciousness must be proven to block discharge under section 523(a)(6).” In re Ormsby, 591 F.3d 1199, 1206 (9th Cir. 2010).
The requirements of “willfulness” and “maliciousness” are distinct elements required to be shown by a creditor to the bankruptcy court.
1) Willful Injury Requirement
On the first factor, “‘§ 523(a)(6)’s willful injury requirement is met only when the debtor has a subjective motive to inflict injury or when the debtor believes that injury is substantially certain to result from his own conduct.’ Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002). The Debtor is charged with the knowledge of the natural consequences of his actions. Cablevision Sys. Corp. v. Cohen (In re Cohen), 121 B.R. 267, 271 (Bankr.E.D.N.Y.1990); see Su, 290 F.3d at 1146 (‘In addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.’).” In re Ormsby, 591 F.3d 1199, 1206 (9th Cir. 2010).
2) Malicious Injury Requirement
On the second factor: “’A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001) (internal citations omitted). Malice may be inferred based on the nature of the wrongful act. See Transamerica Commercial Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554(9th Cir.1991). To infer malice, however, it must first be established that the conversion was willful. See Thiara, 285 B.R. at 434.” In re Ormsby, 591 F.3d 1199, 1207 (9th Cir. 2010).
Contact an Experienced Non-Dischargeability Attorney in California
On both factors, courts will carefully scrutinize a debtor who they believe is a bad person, but may give a pass if they believe the injury was simply a mistake by a good person. Explaining to the court why the debtor should or should not be trusted, particularly as to their testimony about their subjective motives, will be essential to obtaining the desired result.
Even further, numerous courts have further interpreted these requirements within the Ninth Circuit and beyond, meaning it can be very complicated for those without experience in bankruptcy nondischargeability litigation in Bankruptcy Court. If you have been sued, contact a skilled bankruptcy adversary attorney in California.
The bankruptcy attorneys at Talkov Law are skilled in the areas of:
- Business Bankruptcy
- Chapter 7 Bankruptcy
- Bankruptcy Adversary Proceedings
- Bankruptcy Nondischargeability
- Involuntary Bankruptcy
- Bankruptcy & Divorce
- Creditor Representation
Talkov Law provides bankruptcy attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.