America First Credit Union v. Gagle (In re Gagle), 230 B.R.174 (Bankr.D.Utah)
PUBLISHED
Debtor disassembled and sold off all parts of debtor's truck which was subject to a security interest. Secured creditor brought §523(a)(2)(A) action alleging fraudulent misrepresentation in obtaining the loan and § 523(a)(6) action alleging willful and malicious injury. The court looked to the Restatement of Torts for guidance on the meaning of both §523(a)(2)(A) and §523(a)(6). The creditor failed to establish its § 523(a)(2)(A) claim which was dismissed. The court relied on Kawaauhau v. Geiger (In re Geiger), 118 S.Ct. 974 (1998), and Dorr, Bentley & Pecha, CPA's P.C. v. Pasek (In re Pasek), 983 F.2d 1524 (10th Cir. 1993) in holding that "willful and malicious injury" requires a deliberate or intentional injury that is performed without justification or excuse. In a two part analysis, the court held there was no intent to injure the creditor because the debtor intended to repay the debt. However, the debt was held nondischargeable as the debtor intended to injure the creditor's property consisting of its security interest by disassembling and selling his truck, and did so without justification or excuse. The court based the measure of damages and the disallowance of attorney's fees on a tort analysis, rather than relying upon the underlying contract.