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

[LadyInTheRed]

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.

Thanks for the clarrification Des! I didn't realize the limits of the BAP. I don't know whether the case mentioned is a BAP case or a Court of Appeals case. All I know is what scbendel said about it:

but I've got a 9th circuit case out of California saying that conversion does not constitute willful and malicious.

Even if it is a Court of Appeals case, you do have to make sure it is still good law before you rely on it as precedent.

[scbendel]

Thank you Des. Thank you everyone else too! Conversion may be the stickler here, but I'm including all citations I can find, even from other courts.

[scbendel]

9. “The failure to obtain informed consent, without evidence of intent to injure, does not give rise to a willful and malicious injury within the meaning of § 523(a)(6).” Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th Cir. 2007)
10. Section 523(a)(6) only applies to conduct that is an intentional tort under state, and the intentional breach of a contract does not qualify as such under Arizona law. - Lockerby v. Sierra, 535 F.3d 1038 (9th Cir. 2008)
11. “A judgment for conversion under California substantive law decides only that the defendant has engaged in the “wrongful exercise of dominion” over the personal property of the plaintiff. It does not necessarily decide that the defendant has caused “willful and malicious injury” within the meaning of § 523(a)(6).” - In re Peklar, 260 F.3d 1035 (9th Cir. B.A.P. 2001)
12. Failure to turnover insurance proceeds to secured creditor constituted a conversion under California law, but in the absence of a finding of subjective intent to harm, it could not be deemed a nondischargeable debt. - In re Thiara, 285 B.R. 420 (9th Cir. B.A.P. 2002

[scbendel]

There's some of what I'm adding. Should I include these?

[scbendel]

Here's another:

15. The 9th circuit Court of Appeals determines: "We hold that §523(a)(6)'s willful injury requirement is met only when the debtor has a subjective motive to inflict injury" and that "The BAP correctly observed that in In re Jercich, we treated the “malicious” injury requirement of §523(a)(6) as separate from the “willful” requirement." Stating that BOTH items "willful" and "malicious" be treated separately and be proved in order to exempt discharge under 523(a)(6). The 9th Circuit also states the following: "The BAP correctly observed that in In re Jercich, we treated the “malicious” injury requirement of §523(a)(6) as separate from the “willful” requirement. According to In re Jercich: “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.’” Emphasis added.

[scbendel]

I also noticed that they are quoting Thiara, an Arizona case where conversion applies, but only what benefits them. I'm quoting the same case, but this:
12. Failure to turnover insurance proceeds to secured creditor constituted a conversion under California law, but in the absence of a finding of subjective intent to harm, it could not be deemed a nondischargeable debt. - In re Thiara, 285 B.R. 420 (9th Cir. B.A.P. 2002

All 9th circuit cases I've seen regarding conversion in BK have a final ruling by the BAP that allowed discharge of the debt. Am I prematurely excited?

After the pretrial conference this Tuesday, should I just let it go to trial? I'm afraid they'll roll all over me being that I'm pro se. Or should I attempt to file a MSJ based on the facts we're presenting?

[justbroke]

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.

Thank LITR. I meant the cases that were from other Districts within the 9th Circuit but not rulings from the 9th Circuit Court of Appeals. Just to reaffirm, anything from the 9th Circuit Court of Appeals would be binding in the 9th Circuit.

[scbendel]

Do I insert my case citations under the "agreed issues of law" section? Or under the "disputed issues of law" section?

For the record, the plaintiff's citations are all under "agreed", and under "disputed" they have NONE.

thanks guys for the quick replies!

[scbendel]

Okay I've got no choice at this point, I'm going to send it all to the Plaintiff's attorneys. We've got to get it submitted to the courts tomorrow, and I want the judge to have as much time as possible to look over all the citations and famliarize himself with my case before Tuesday's pre-trial hearing. If any of you are doing research for me, I REALLY REALLY REALLY appreciate all of this. I'm sure I'll have plenty more questions as trial approaches, so any more tech help y'all wanna give will be much appreciated also.

Thank you again!!! I read this forum daily, and will be posting more as to the attorney's reaction to our pre-trial statement, and again after our pre-trial conference on Tuesday.

[AngelinaCat]

Good wishes to you~~~

[scbendel]

thank you so much AgelinaCat!

[scbendel]

Well, at the hearing today, the judge said "looks like you have willful, but you need malicious; we will set this for a full day of trial, no experts, character witnesses only." So now we wait until February of next year for the trial.

What happens at an adversary trial? Do we get a jury? Opening and closing statements? Anyone been through this before?

I'm kinda lost again. Grrrrrreat.

[despritfreya]

No jury trials in bk court.

At trial it will just be you, your spouse, any witnesses you or the other side might call, the other side and. . . the Judge. Your demeanor will be critical for your credibility. You get to explain why things happened and how your actions were not malicious. The other side will try to do the opposite by its cross examination of you and any witness you may call.

Go back to researching and focus in on what constitutes "malicious" conduct in the 9th Circuit.

Over the next few weeks I will watch the Court calendar for you. If I see a trial come up that might help you see how things work I will shoot you a PM. You might want to just sit in the courtroom and observe - nothing wrong with that.

Des.

[scbendel]

Des you are amazing! Thank you.

[despritfreya]

SC,

There is a trial set in the below case for Thursday. There is a 523(a)(6) aspect to the case but I do not know any details. It appears there was an attempt to continue it but the judge said No. . .

2-11-ap-00826 (there is also a companion case but I lost the case number)

Pull it up on PACER. You can call the Court to see if it is still a go.

Ok, got to get back to work.

Des.