In re Turner

52 Citing cases

  1. In re McKinney

    151 B.R. 944 (Bankr. N.D. Okla. 1993)   Cited 6 times

    In re Manley, 135 B.R. 137, 147 (B.C., N.D.Okla. 1992) (emphasis original). "Statutory exceptions to discharge should be construed and applied" accordingly — so as to provide "an effective fresh start, but only for deserving debtors," In re Turner, 134 B.R. 646, 659 (B.C., N.D.Okla. 1991). As a general rule, bankruptcy does discharge debts which are of an ordinary commercial character or which result from ordinary inadvertence or negligence. An exception to discharge for debts incurred by misconduct "in a fiduciary capacity" has long been part of bankruptcy law; and for the last century and a half, the United States Supreme Court has attempted to "limit its application" so as not to include within the exception "almost all the commercial transactions of the country" and "le[ave] but few debts on which the [discharge] could operate," Chapman v. Forsyth, 43 U.S. (2 How.) 202, 208, 11 L.Ed. 236, 238 (1844).

  2. In re Hayes

    183 F.3d 162 (2d Cir. 1999)   Cited 178 times   1 Legal Analyses
    Holding the attorney-client relationship is a fiduciary relationship under § 523

    Ch. IX, § 1, 5 Stat. 441 (1841) (repealed 1843). See generally In re Turner, 134 B.R. 646 (Bankr. N.D. Okla. 1991). The common link among the specific positions listed is that they involve "a difference in knowledge or power between fiduciary and principal which . . . gives the former a position of ascendancy over the latter."

  3. In re Storie

    216 B.R. 283 (B.A.P. 10th Cir. 1997)   Cited 117 times
    Holding that a defalcation is any failure to account for funds entrusted to the fiduciary, whether intentional, willful, reckless, or negligent

    See, e.g., Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 20 (4th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Otto v. Niles (In re Niles), 106 F.3d 1456, 1460 (9th Cir. 1997); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir. 1996); Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir. 1993); San Saba Pecan, Inc. v. Failing (In re Failing), 124 B.R. 340, 344 (W.D.Okla. 1989); Semilof v. Waskew (In re Waskew), 191 B.R. 34, 37 (Bankr.S.D.N.Y. 1995); State v. Kaczynski (In re Kaczynski), 188 B.R. 770, 777 (Bankr.D.N.J. 1995); Burt Bldg. Material Corp. v. Silba (In re Silba), 170 B.R. 195, 201 (Bankr.E.D.N.Y. 1994); Discount Home Ctr., Inc. v. Turner (In re Turner), 134 B.R. 646, 658 (Bankr.N.D.Okla. 1991); see also Kansas State Bank Trust Co. v. Vickers (In re Vickers), 577 F.2d 683, 687 (10th Cir. 1978) ("`fiduciary capacity' as used in Section 17(a)(4) [the predecessor to section 523(a)(4)] refers to money or property entrusted by one to another." (citing Allen v. Romero (In re Romero), 535 F.2d 618, 621 (10th Cir. 1976))). Courts also agree that fiduciaries are charged with knowledge of their duties and of applicable law, and that a subjective intent to breach a fiduciary duty or a law is irrelevant. See, e.g., Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir. 1994) (interpreting "defalcation" under section 523(a)(11)); Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 257 (6th Cir. 1982); Carey Lumber Co. v. Bell, 615 F.2d 370, 376 (5th Cir. 1980); Central Hanover, 93 F.2d at 512; Turner, 134 B.R. at 658; Anderson v. Currin (In re Currin), 55 B.R. 928, 934 (Bankr.D.Colo.

  4. In re Storie

    BAP No. EO-97-008 (B.A.P. 10th Cir. Dec. 3, 1997)

    Since Central Hanover, courts have agreed that the word "defalcation" is a failure to account for funds entrusted to a fiduciary. See, e.g., Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 20 (4th Cir.), cert. denied, 118 S. Ct. 298 (1997); Otto v. Niles (In re Niles), 106 F.3d 1456, 1460 (9th Cir. 1997); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir. 1996); Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir. 1993); San Saba Pecan, Inc. v. Failing (In re Failing), 124 B.R. 340, 344 (W.D. Okla. 1989); Semilof v. Waskew (In re Waskew), 191 B.R. 34, 37 (Bankr. S.D.N.Y. 1995); State v. Kaczynski (In re Kaczynski), 188 B.R. 770, 777 (Bankr. D.N.J. 1995); Burt Bldg. Material Corp. v. Silba (In re Silba), 170 B.R. 195, 201 (Bankr. E.D.N.Y. 1994); Discount Home Ctr., Inc. v. Turner (In re Turner), 134 B.R. 646, 658 (Bankr. N.D. Okla. 1991); see also Kansas State Bank Trust Co. v. Vickers (In re Vickers), 577 F.2d 683, 687 (10th Cir. 1978) ("`fiduciary capacity' as used in Section 17(a)(4) [the predecessor to section 523(a)(4)] refers to money or property entrusted by one to another." (citing Allen v. Romero (In re Romero), 535 F.2d 618, 621 (10th Cir. 1976))). Courts also agree that fiduciaries are charged with knowledge of their duties and of applicable law, and that a subjective intent to breach a fiduciary duty or a law is irrelevant. See, e.g., Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir. 1994) (interpreting "defalcation" under section 523(a)(11)); Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 257 (6th Cir. 1982); Carey Lumber Co. v. Bell, 615 F.2d 370, 376 (5th Cir. 1980); Central Hanover, 93 F.2d at 512; Turner, 134 B.R. at 658; Anderson v. Currin (In re Currin), 55 B.R. 928, 934 (Bankr. D. Colo. 1985); see also In re Hammond, 98 F.2d 703, 705 (2nd Cir. 1938).

  5. Quaif v. Johnson

    4 F.3d 950 (11th Cir. 1993)   Cited 236 times
    Finding a defalcation where the improper transfer of funds by a fiduciary "was far more than an innocent mistake or even negligence"

    In nineteenth century jurisprudence, the concept of "trust" generally fell into two categories: (1) a voluntary trust, created by contract, often referred to as an "express" trust, and (2) a trust created by operation of law, such as a constructive trust or resulting trust, which generally served as a remedy for some dereliction of duty in a confidential relationship, regardless of the intentions of the parties. In re Turner, 134 B.R. 646, 650 (Bankr.N.D.Okl. 1991). In the early judicial interpretation of the predecessors to § 523(a)(4), the courts seemed to include the voluntary, "express" trust within the scope of "fiduciary capacity," while excluding the involuntary resulting or constructive trust from the scope of the exception.

  6. In re Lobato

    No. 7-07-10301-MA, Adversary No. 07-1071 M (Bankr. D.N.M. Nov. 4, 2008)   Cited 3 times

    An express trust may involve a formal declaration of trust or a situation where the intention of the parties to form a trust relationship may be inferred by the surrounding facts and circumstances.In re Turner 134 B.R. 646, 649 (Bankr. Okla. 1991) (both state and federal must be consulted to determine whether a fiduciary relationship exists); see also In re Shultz, 205 B.R. 952, 958 (Bankr. N.M. 1997).Shultz, 205 B.R. at 958 (applicable state law determines whether express or technical trust relationships exist and whether a trust was created.

  7. In re Neal

    324 B.R. 365 (Bankr. W.D. Okla. 2005)   Cited 18 times
    Finding that Oklahoma construction trust fund statutes imposed fiduciary duty within the meaning of § 523, but that actions of the debtor-contractor did not fall within the scope of the fiduciary duty imposed by the statute

    The question of fiduciary status is one of federal law; however, state law is important when determining whether a trust relationship exists. Discount Home Ctr. v. Turner (In re Turner), 134 B.R. 646 (Bankr. N.D. Okla. 1991). "The existence of a fiduciary relationship is a threshold issue to be determined under § 523 (a)(4)." Klenda v. Hogue (In re Hogue), 221 B.R. 786, 793 (Bankr. N.D. Okla. (1998).

  8. Amie Tuyet Vo King v. Cobbs (In re Cobbs)

    Case No. 16-14638-JDL (Bankr. W.D. Okla. Sep. 18, 2017)

    The Court denied the Plaintiff's Motion for Leave to Amend for failure to prosecute [Doc. 15]. Plaintiffs contend that the Debtor was a fiduciary of the funds paid to him to be used exclusively to the construction of the home and exclusively for the purpose of paying lienable claims related to that construction. It is well established that a fiduciary relationship is created within the meaning of § 523(a)(4) by virtue of the Oklahoma construction funds trust statutes which impose a fiduciary duty on the contractor to pay lienable claims of subcontractors or materialmen.Discount Home Center v. Turner (Inre Turner), 134 B.R. 646 (Bankr. N.D. Okla. 1991); Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir. 1980); In re Harris, 2002 OK 35, 49 P.3d 710; Duncan v. Neal (In re Neal), 324 B.R. 365 (Bankr. W.D. Okla. 2005) aff'd 342 B.R. 384 (10th Cir. BAP 2006). 42 Okla. Stat. §152 providing:

  9. In re Ramos

    442 B.R. 37 (Bankr. D.N.M. 2010)   Cited 1 times

    However, state law is relevant to this inquiry.See In re Turner 134 B.R. 646, 649 (Bankr.Okla.1991) (both state and federal must be consulted to determine whether a relationship exists); see also In re Shultz, 205 B.R. 952, 958 (Bankr.N.M.1997). section the Court must find that an express or technical trust existed between the parties.

  10. In re Steele

    No. 02-10052 SBB, Adversary No. 02-1161 HRT (Bankr. D. Colo. May. 2, 2003)

    Express trusts are those trust relationships which are intentionally entered into by the parties. An express trust may involve a formal declaration of trust or a situation where the intention of the parties to form a trust relationship may be inferred by the surrounding facts and circumstances. In re Turner, 134 B.R. 646, 649 (Bankr.N.D.Okla. 1991). There is no allegation that Steele and Horejs entered into an intentional trust relationship.