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Willful and Malicious: What the Dukes of Hazzard teaches us about bankruptcy discharge.

Wednesday, April 7th, 2010

The Bankruptcy Code at 11 USC 523(a)(6) says that debts arising from willful or malicious injury to person or property cannot be discharged in bankruptcy.  Defining willful or malicious is like trying to get Daisy Duke to cover up, it’s darn near impossible.

It can be argued that every act a person takes is willful.  Let’s say you slide into the driver’s side window of the General Lee and in so doing kick Bo in the head.  Bo gets a judgment for the damage to his pearly whites.  Is that judgment dischargeable in bankruptcy since you jumped in the driver’s side window on purpose even though you’d never harm an icon like Bo on “purpose”?  The U.S. Supreme Court has held that willful and malicious requires a “specific intent” to invoke harm on a person or his property.  Specific intent is a matter generally left to the trier of fact, i.e., the court that tries the case of Bo v. You.

After we clear the willful or malicious hurdle, like jumping over the river in the General Lee, we need to show injury to person or property.  We all know what a person is; Bo, Luke, Boss Hogg, Sheriff Rosco P. Coltrane, but what is property?  Is a credit score property?  What about cash money?  What about future income? Are these property for purposes of 523(a)(6)?

For example, if because of a transaction gone awry, Luke harmed Daisy’s credit score or caused her a financial loss that is not directly related to one of the intentional torts identified by most courts, i.e., battery, conversion, trespass to chattel, Daisy cannot successfully argue that she was injured under (a)(6) and have Luke’s debt to her survive Luke’s bankruptcy.  Your Los Angeles or Orange County bankruptcy lawyer will tell you that the debt would still be dischargeable under the Bankruptcy Code.  That is a nugget of good news for Luke and is enough to make anyone want to race around Hazzard County in a 1969 Dodge Charger with the doors welded shut.

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