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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I was renting a home where the occupants used hazardous levels

Customer Question

I was renting a home where the occupants used hazardous levels of meth. I am suing them in state court for $100,000 in damages. The occupant is planning to file bankruptcy to discharge the debt. I am wondering if I can ask a state court judge to order that the debt is criminal in nature and NOT dischargable in federal bankruptcy.

Can a state court judge issue an order that a debt is criminal in nature and is not dischargeable in federal bankruptcy?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.
Hi JACustomer,
State courts have no say over what happens in Bankruptcy courts - because Bankruptcy courts are federal.
Accordingly, you would have to have the debt deemed non-dischargeable in Bankruptcy court, where you would have to file a "4007 Determination of Dischargeability of a Debt" motion. If and when the time comes to file this motion, you should be able to get the necessary forms and instructions from the clerk at the Bankruptcy court.

I think this is what you wanted to know. If not, please let me know.
Thank you.
Customer: replied 5 years ago.
I suppose what I want then is for the state court to declare the charges were criminal in nature. That would give more standing in federal BK Court I think. What do you think?
Expert:  cfortunato replied 5 years ago.

The actual wording of the relevant Bankruptcy Code section is "willful and malicious injury". Bankruptcy Stat. 523(a)(6). If you can have the damage determined to be "willful and malicious" in state court, you will be able to have the debt deemed non-dischargeable in Bankruptcy court.

It is not necessary, nor possible, to have an action deemed "criminal" while in civil court. (This would have to be done in criminal court.)

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