Central District Consumer Bankruptcy Attorney's Association

I don't think a state cause of action is required at all. What is required is willful and malicious conduct which causes injury. Willful is almost any act where the actor was awake. Malicious is determined under federal law, not state; determined by what Congress meant when it wrote (a)(6)(a long time ago). Take a look at Kawaauhau v. Geiger, 523 U.S. 57 (1998).

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Ernest Robles

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Who is your judge?
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I'm considering a 12(b)(6) motion in response to a nondischargeability complaint alleging 11 U.S.C. 523(a)(6) damages as part of an attorney fees award in a probate action. My client was forced into bankruptcy recently as the result of litigation he initiated against his sister who had received most of the inheritance and was trustee of the trust. He petitioned to remove her as trustee of the trust. My client lost and the sister was awarded huge attorney fees. The judge found in the state court action that "the petition seeking trustee's removal as trustee was filed and pursued in bad faith."
The Plaintiff is stating that this finding is sufficient to under 11 U.S.C. 523(a)(6). I think that there also has to be a cognizable action under state law that also falls under the rubric of 11 U.S.C. 523, such as defamation, assault, conversion, etc. In this case, they are basically alleging "malicious prosecution" and so the state law elements of malicious prosecution would also have to be met.
To succeed in a malicious prosecution case you have to prove at least 2 elements, (1) lack of probable cause; and (2) malice. I'm not sure that "bad faith" is the same as "malice" but assuming that it is for now, it seems they would have to prove lack of probable cause to succeed under 11 U.S.C.
My question is (1) am I correct in my analysis that 523(a)(6) does not give an independent cause of action, and that a state law cause of action and all its elements needs to be proven as well, such as malicious prosecution under these facts, and (2) if the first part is in the affirmative, can you show there was probable cause to file the probate cause of action in a 12(b)(6) motion using the pleadings and Requests for Judicial Notice of the state court action documents such that the judge can analyze whether probable cause existed at the pleading stage of litigation.
I researched 11 U.S.C. 523(a)(6) and malicious prosecution before sending this question, and I have done research long ago that Request for Judicial Notice can be admitted at the pleading stage. I have no idea at present how to research the question of state law causes of action in relationship to bankruptcy nondischargeability statutes. Any comments would be appreciated. Thank you.
Steve
Law Offices of Steven B. Lever
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