Schwalbe v. Gans (In Re Gans)’s Empirical Analysis

Citation profile

3 federal appellate · 5 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 94 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual from any debt- r, (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”

   3 later decisions quote this exact passage
   e.g. Extel Corp. v. Conley (In re Conley) · Ward v. Wyatt (In Re Wyatt)

2. “The rationale for applying such a strict, well-defined interpretation to fiduciary debts within the meaning of Section 523(a)(4) can perhaps be explained by the corresponding broad definition of fiduciary defalcation. Having once established that a fiduciary relationship exists, it merely need be shown that the underlying trust fund was used for a purpose other than that contemplated by the trust to constitute defalcation. See, e.g., In re Matheson, 10 B.R. 652, 656 (Bankr.S.D.Ala.1981). Proof of defalcation does not require evidence of any intentional wrong by the debtor. Whereas fraud under the Bankruptcy Code “refers to positive fraud, involving moral turpitude,” In re Materetsky, 28 B.R. [499] at 502 [ (Bankr.S.D.N.Y.1983) ], defalcation is broadly defined to include “the failure of a fiduciary to account for money he received in his fiduciary capacity” regardless of the fact that such failure may have resulted from ignorance or negligence. In re Wolfington, 47 B.R. [762] at 764 [ (Bankr.E.D.Pa.1985) ] (it “is irrelevant that the default by the fiduciary was innocent”); In re Gonzales, 22 B.R. 58 (Bankr. 9th Cir.1982); In re Owens, 54 B.R. [162] at 165 [ (Bankr.D.S.C.1984) ]. See, e.g., Hamby v. St. Paul Mercury Indemnity Co., 217 F.2d 78 (4th Cir.1954) (real estate agent’s misappropriation of entrusted funds is defalcation); Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir.1937) (money used by a receiver in mortgage foreclosure action allocated to him prio”

   1 later decision quote this exact passage
   e.g. Bamco 18 v. Reeves (In Re Reeves)

3. “In general, ‘a failure to disclose information may be characterized as a misrepresentation,’ within the meaning of Code Section 523(a)(2)(A). In re Hunt, 30 B.R. [425] at 439 [ (M.D.Tenn.1983) ]. See, e.g., In re Self, 51 B.R. [686] at 690 [ (Bankr.N.D.Miss.1985) ] (debtor’s concealment may amount to misrepresentation); In re Kramer, 38 B.R. 80, 82 (Bankr.W.D.La.1984) (a misrepresentation “may be implied” by the debtor’s conduct or silence); Matter of Weinstein, 31 B.R. 804, 809 (Bankr.E.D.N.Y.1983) (it is “well recognized that silence, or the concealment of a material fact, can be the basis of a false impression which creates a misrepresentation”); Matter of Hutchinson, 27 B.R. 247, 250 (Bankr.E.D.N.Y.1983) (a misrepresentation need not be overt); Bonosky v. Allen, 25 B.R. 566, 570 (Bankr.S.D.Ohio 1982) (nondisclosure may constitute mis representation); In re Satterfield, 25 B.R. [554] at 557 [ (Bankr.N.D.Ohio 1982)]; Matter of Milbank, 1 B.R. 150, 154 (Bankr.S.D.N.Y.1979) (a “deliberately created falsehood is the same as a spoken falsehood”).”

   1 later decision quote this exact passage
   e.g. Indo-Med Commodities, Inc. v. Wisell (In re Wisell)