AP notice received today ... scared ... stressed ... long story thanks for helping

[AngelinaCat]

I wish I could help, but I am totally out of my realm. Good wishes!

[scbendel]

Thanks anyhow.

[justbroke]

If anyone can point me to some Arizona case law regarding conversion and 523(a)(6), that would be awesome. I'm trying to polish this off by tomorrow as the deadline for submission is Friday.

Thanks again.

There isn't a LOT of caselaw because, from what I read, the "willful AND intentional" part in 523(a)(6) is hard to define. As you have found, there is some precedence from the Supreme Court in Kawaauhau v. Geiger, 118 S.Ct. 974, 523 U.S. 57 (1998). The best summary, from the SCOTUS precedence in Gieger is that they found that "Section 523(a)(6)'s words strongly support the Eighth Circuit's reading that only acts done with the actual intent to cause injury fall within the exception's scope." (Emphasis added is mine.) I wonder whether you or the plaintiff will point that part out.

In other words, you would have needed to cash the check "knowing" that it would cause injury and that you did it to cause that injury. That's a high bar for willful and intentional! There's nothing else, really, in 523(a)(6). They must prove "willful AND intentional" which is pretty high. I'm not an attorney and can not advise you on this. I can say, that I would just keep repeating Geiger and 523(a)(6) requires the act to be both willful and intentional as in performed to cause injury. That means you would have to "know" that it would have caused injury and that calls for operation of the mind of a third party.

I can't really add much more. If they are relying heavily on 523(a)(6), then you have to get them to die by it (as in Geiger). (By the way, do they reference Geiger the supreme court ruling, or are they just looking at the lower court!!!!!)

[scbendel]

My position is this: I cashed the check and used the money to pay another contractor, but wasn't intending on not paying the first one. I would have paid them if they had deducted the charges from their bill that I was requesting, since the second contractor did that work too (only correctly). I have a letter from my insurance company saying that the insurance wouldn't cover the work done by the second company because they already paid for that in the first check. The same letter also says that if I had issues with the first company's work, to take it up with them.

They're quoting Geiger, Thiara, and some others. They're citing a local Arizona case saying that conversion can bar discharge, but I've got a 9th circuit case out of California saying that conversion does not constitute willful and malicious. Will that help, even though it's from a different state? I'm finalizing my half of the pretrial tonight.

[justbroke]

Based on what you're attacking, willful and intentional, that is what you do. You can use other 9th Circuit cases as persuasive, but I think Geiger is the more power Supreme Court case. If they can't prove either willful or intentional, then the debt is dischargeable (not protected by 523(a)(6)). It seems they are hanging their case on that, and so are you.

My question about Geiger was whether they are citing the Supreme Court case of the lower court case! The Appellate overturned the lower bankruptcy court, BAP and District Court with the Supreme Court affirming the Appellate.

[scbendel]

Just sent you a pm. Another argument I'm using is that cashing the check may have led to the injury, but was not the injury itself. The action must be directly caused by the injury, not just a result of the action per Geiger.

[justbroke]

No, the action was not willful (period). The fact that the third party may have been injured is immaterial since you have to get to "willful AND intentional" first before you can get to whether the party was in fact injured. But, I do understnad how you're trying to build on Geiger! At least that's my theory, and I'm sticking to it.

[scbendel]

Here's a few they're citing.

Kawaauhau v Geiger, 523 US 57,61,118 S Ct 974, 140 LP ed 2d 90 (1998). In order for a debt to be nondischargeable, the injury must be willful such that the debtor must have intended the consequences of his action and not just the action itself.

Petralia v Jercich (in Re Jercich) 238 F3d 1202, 1208 (9th circuit 2001)
The willful injury requirement of section 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.


In Re Jercich, supra: In addition, the injury must be malicious. This means that it must also be a wrongful act done intentionally which necessarily causes injury in which is done without just cause or excuse.

[justbroke]

I think they are grasping. It must be willful AND malicious to be non-dischargeable (exact words from 523(a)(6)). That's the Geiger test and that is the precedence from the Supreme Court.

So it looks like they are hanging it on the willful and malicious clause. I can't really tell you how to fight it other than I would personally attack the willful and then malicious parts. I think it could go either way but that really depends on what testimony they have. That letter that you have, would probably be attacked as hearsay at trial unless authenticated by the agency that wrote the letter and has knowledge.

I'm sure the plaintiff is picking on you because you are pro se. You would have to attack their evidence (Fed Rules of Evidence) and show that they can't prove willful or malicious.

[scbendel]

Thank you! I'm going to sleep on it, garner a few more case citations, and type up the rest and send it tomorrow.

[scbendel]

Oh, and the only testimony they claim to have is from reps of the company claiming that I signed the contract, and that I cashed the check. Nothing else, at least from the witnesses they listed.

[justbroke]

Oh, and the only testimony they claim to have is from reps of the company claiming that I signed the contract, and that I cashed the check. Nothing else, at least from the witnesses they listed.

You get to cross-examine the witnesses if they testify.

[scbendel]

Exactly. And I can't wait. I'm not calling any witnesses, as I don't really have anyone who can strengthen my case. I'm going to cross examine as necessary though. I just honestly want this to be over, win or lose. My life has been an absolute hell since the flood, living every day in constant anxiety and stressing about the outcome. I feel good about the outcome, but still can't shake that feeling.

[LadyInTheRed]

You can use other 9th Circuit cases as persuasive

If the ruling is by the 9th circuit appellate panel, it is not just persuasive, it is binding precedence in Arizona which is part of the 9th Circuit.

[despritfreya]

If the ruling is by the 9th circuit appellate panel, ir is not just persuasive, it is binding precedence in Arizona which is part of the 9th Circuit.

Need to be careful here. I have not researched the issue of conversion but bk courts may look to state law regarding property rights and claims. Also, BAP decisions are not "binding". The BAP is an advisory level court. However, all but one bk judge in AZ will automatically defer to BAP rulings. If the appellant elects to have the matter heard by the Federal District Court, District of Arizona (instead of the BAP) then the decision would be binding on the bk court in Arizona.

Edt. . . You can disregard the BAP comment if LITR's post was directed at the 9th Cir. Court of Appeals (not the Bankruptcy Appellate Panel), which clearly is binding.

Des.