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Encyclopedia > Defalcation

Defalcation is a term used by the United States Bankruptcy Code to describe a category of bad acts that taint a particular debt such that it cannot be discharged in bankruptcy. The division is different from both criminal and civil rules describing permitted and unpermitted acts. Thus, parking fines garnered through illegal parking are generally dischargeable, but fines levied as part of a criminal conviction for drug trafficking generally are not. Similarly, debts of a civil (non-criminal) nature that are acquired through entirely legal means may not be dischargeable if discharge would allow a debtor to easily calculate declaration of bankruptcy into a profitable financial plan (e.g. by accumulating large cash advances before filing). The term is also used in legal proceedings outside of bankruptcy to refer more generally to embezzlement; it is often used in the context of the title insurance business. A title agent who misuses funds intended to be used to close insured transactions is said to be involved in a defalcation. Many title insurers have their own "defalcation units." Debt is that which is owed. ... Bankruptcy is a legally declared inability or impairment of ability of an individual or organization to pay their creditors. ...


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Case: Ridgon - Plews Shadley Racher & Braun, Indiana (4178 words)
Defalcation Rigdon contends that the FDIC's complaint does not allege that he engaged in acts of "defalcation" within the meaning of section 523(a)(11).
Judge Hand concluded that while a purely innocent mistake by the fiduciary may be discharge- able, a "defalcation" for purposes of this statute does not have to rise to the level of "fraud," "embezzle- ment," or even "misappropriation." Id. at 512.
Given this well-recog- nized principle, and the split of authority concerning whether a "defalcation" may result from negligence, we cannot say that Congress intended for a debt arising from a mere negligent breach of fiduciary duty to be excepted from discharge under section 523(a)(11).
USCA1 Opinion 02-1364 (5277 words)
The mental state required for defalcation is akin to the level of recklessness required for scienter.
Defalcation may be presumed from breach of the duty of loyalty, the duty not to act in the fiduciary's own interest when that interest comes or may come into conflict with the beneficiaries' interest:
It is a different matter whether her co-trustee's failure to bring her defalcation to the attention of the probate court was itself a defalcation.
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