Wednesday, May 19, 2010

Section 523(a)(6): Willful and malicious injury

Section 523(a)(6) prevents an individual debtor from

discharging any debt that is the result of willful and

malicious injury. The terms "willful" and "malicious" are

separate elements. An objecting creditor must prove both

elements in order for the discharge to be excepted.

Speaking to the "willful" element, the Supreme Court

specifically rejected a broad interpretation of the

exception by narrowly holding that "non-dischargeability

takes a deliberate or intentional injury, not merely a

deliberate act that leads to injury." Kawaaukau v. Geiger,

523 U.S. 57 (1998). The injury itself must be desired and in

fact anticipated by the debtor in order or for the debt to

be excepted from discharge. Thus, debts arising from

recklessly or negligently inflicted injuries do not fall

within the compass of §523(a)(6).

The term "malicious" refers to the debtor’s motivation in

committing the act and has been defined by the court to mean

wrongful and without just cause or excuse, even in the

absence of personal hatred, spite, or ill-will. Actual or

constructive malice will suffice and may be imputed to the

debtor in cases where a debtor seeks profit or some other

benefit only upon a finding of aggravated circumstances.

Warmest Regards,

Bob Schaller

Your Bankruptcy Advisor

Blog By: Attorney Robert Schaller (Bob's bio) of the Schaller Law Firm Click for Bankruptcy Lawyer Job Opportunities. You are invited to contact Attorney Schaller at 630-655-1233 or visit his website at Discharging Student Loans to learn about how the bankruptcy laws can help you. Bob is a member of the National Bankruptcy College Attorney Network, American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys. For information about Chapter 7 bankruptcy Click Here

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