Sunday, May 23, 2010

When does a state court judgment for Larceny Satisfy Section 523(a)(4)?

In re Ormsby, 591 F.3d 1199 (9th Cir. 2010). The debtor argued that summary judgment was inappropriate because a state court judgement against debtor for larceny should not preclude debtor from contending that debtor did not commit larceny within the federal definition of the term. The 9th Circuit disagreed and held that summary judgment against debtor was appropriate because the state court judgment was sufficient to preclude relitigation of whether debtor's conduct meets the requirements of Section 523(a)(4).

The court cited Collier on Bankruptcy, which states that for purposes of Section 523(a)(4), a bankruptcy court is not bound by the state law definition of larceny but, rather, may follow federal common law, which defines larceny as a "felonious taking of another's personal property with intent to convert it or deprived the owner of the same."

The 9th Circuit determined that it was not bound to the state court's judgment. Nevertheless, the 9th Circuit found that the state court judgment provided enough information to determine that debtor's action amounted to fraud, since "intent may properly be inferred from the totality of the circumstances and the conduct of the person accused. Citing Kaye v. Rose (In re rose), 934 F.2d 901, 904 (7th Cir. 1991).
 
Warmest Regards,

Bob Schaller

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