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Board of Trustees v. Bucci (In re Bucci), 493 F.3d 635 (6th Cir. July 3, 2007) (Debtor's obligation to make employee pension and fringe benefit contributions was dischargeable because it was not a debt for fraud or defalcation while acting in a fiduciary capacity under S 523(a)(4). Debtor's collective bargaining agreement with employees provided that unpaid contributions were assets of the pension fund. Although this may have made the debtor an ERISA fiduciary, "fiduciary capacity" under S 523(a)(4) is defined more narrowly than in other contexts. There was no fiduciary capacity under S 523(a)(4) since the debtor was not the trustee of the contributions, and a simple breach of contract is not enough to make a debt non-dischargeable.)
Estate of Denton v. Hyman (In re Hyman), 502 F.3d 61 (2d Cir. Sept. 6, 2007) (In the context of non-dischargeability of a debt under S 523(a)(4), "defalcation" requires a showing of conscious misbehavior or extreme recklessness - a showing akin to the showing required for scienter in the securities context. Pre-petition state court judgment against debtor did not have preclusive effect on the question of whether debtor engaged in defalcation in a fiduciary capacity because the state court made no express findings with regard to debtor's state of mind.)
Ditto v. McCurdy, --- F.3d ----, 2007 WL 4355367 (9th Cir. Dec. 14, 2007) ((1) A physician's failure to disclose his qualifications, or lack thereof, does not give rise to a non-dischargeable debt under S 523(a)(6). For S 523(a)(6) non-dischargeability to apply, the debtor must have intended the injury that occurred. An action based on the failure to obtain informed consent, though sometimes classified as an intentional tort, ultimately focuses on the reasonableness of the physician's disclosure to the patient. Without proof that the physician desired to injure the patient or believed that injury was substantially certain to occur, the physician's debt to the patient is not nondischargeable under S 523(a)(6). (2) After it had granted discharge to Chapter 7 debtor, bankruptcy court did not err in denying creditor's motion to amend non-dischargeability complaint to assert additional basis for finding of non-dischargeability that had previously been voluntarily dismissed. Creditor originally obtained a judgment of non-dischargeability. After that judgment was entered, creditor voluntarily dismissed an alternative basis for a finding of non-dischargeability. The judgment was later set aside pursuant to Rule 60(b). More than 15 months after the bankruptcy court granted debtor a discharge, creditor moved to amend her complaint to reinstate the alternative basis for non-dischargeability. This would effectively revoke the debtor's discharge. Given the strong interests
