Sunday, May 23, 2010

Plaintiff must Provide Evidence of Debtor's Conduct to Prove a Malicious Injury per Section 523(a)(6).

In re Powell, 423 B.R. 201 (Bankr. N.D.TX 2010). The court found that an adversary plaintiff seeking to deny debtor's discharge under Section 523(a)(6) must prove, by a preponderance of the evidence, a willful and malicious injury by the debtor to plaintiff or plaintiff's property. The word "willfull" in Section 523(a)(6) modifies "injury" and, therefore, required plaintiff to prove "a deliberate or intentional act that leads to injury."

Following the Supreme Court's decision in Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998), the court determined that either an objective substantial certainty of injury or a subjective motive to cause injury meets the Surpreme Court's definition of "willful" in Section 523(a)(6).

Then, the Powell court rejected plaintiff's claim because plaintiff failed to prove the underlying conduct from which debtor's intent could have been inferred. In fact, plaintiff offered no evidence to support the claim.
Warmest Regards,

Bob Schaller

Your Bankruptcy Advisor

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