In the Matter of Donald Weber and Roxanne Webers Appeal of Michael C Ablan’s Empirical Analysis
Citation profile
3 federal appellate · 1 district ·
How this case has been cited
Cited by 83 later decisions — most recently April 2019 · most notably In the Matter of Phyllis Maxine Pence Appeal of Pacesetter Bank of Montpelier, Stoecker Raleigh
3 federal appellate · 1 district ·
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
Relationships
Applies 11 U.S.C. § 523
Relies on Anderson v. City of Bessemer City · Moore v. United States · Hazeltine Corp. v. RCA Corp. · First National Bank v. Kimzey · Equal Employment Opportunity Commission v. Sears, Roebuck & Co.
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 83 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.
“By requiring the Appellant to prove the elements of misrepresentational fraud in support of its embezzlement claim, the bankruptcy court imposed an overly restrictive definition of “circumstances indicating fraud.” Fraud comes in many sizes, shapes, and shades of gray. In other contexts, courts have defined “fraud” as “enconapass[ing] ‘any deceit, artifice, trick, or design involving direct and active operation of the mind, used to circumvent and cheat another.’ ” Under this broad definition, a creditor may establish circumstances indicating a debt- or’s fraudulent intent, even if the debtor did not make a misrepresentation or misleading omission on which the creditor relied. This is not to say that a debtor’s misrepresentations or omissions are irrelevant to the embezzlement analysis. To the contrary, misrepresentations, omissions, or other concealment of a debtor’s actions regarding a creditor’s property are important circumstances that might pierce the shadows to illuminate a debt- or’s fraudulent intent. On the other hand, a debtor’s fraudulent intent might be negated by circumstantial evidence showing “that the debtor used [the creditor’s property] openly, without attempting to conceal, and had reasonable grounds to believe he had the right to so use.””
2 later decisions quote this exact passage · from the majority“findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.”
2 later decisions quote this exact passage · from the majority“Section 523(a)(4) of the bankruptcy code does not allow a debtor to discharge a debt incurred as a result of the debtor’s embezzlement. Bankruptcy courts define embezzlement as the “fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.” Moore v. United States, 160 U.S. 268, 269 , 16 S.Ct. 294, 295 , 40 L.Ed. 422 (1895), quoted in In re Bevilacqua, 53 B.R. 331, 333 (Bankr.S.D.N.Y.1985), In re Myers, 52 B.R. 901, 905 (Bankr.E.D.Va.1985), In re Graziano, 35 B.R. 589, 594 (Bankr.E.D.N.Y.1983); see also In re Belfry, 862 F.2d 661, 662 (8 th Cir.1988). To prove embezzlement, the creditor must show by clear and convincing evidence that (1) the debtor appropriated funds for his or her own benefit; and (2) the debtor did so with fraudulent intent or deceit. In re Taylor, 58 B.R. 849, 855 (Bankr.E.D.Va. 1986); In re James, 42 B.R. 265, 267 (Bankr.W.D.Ky.1984); In re Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983); Graziano, 35 B.R. at 595 . Ablan initially argues that the bankruptcy court should have applied the embezzlement and conversion laws of Wisconsin. Although he cites no authority for this proposition, and admits that ultimately the issue of nondischargeability is a question of federal law, he claims that state law is “useful” in defining the elements of embezzlement. Ablan claims that the Wisconsin cases he cites “do not in any event conflict with the [federal standards]”; his analysis of this case law”
1 later decision quote this exact passage · from the majority
How this case has been treated — in progress
Whether each later court followed, distinguished, criticized, or overruled this decision. The treatment classification (task #35) runs highest-cited cases first and lights up here as it reaches this one.