Artis et al v. West

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------x
In re:
Jerry B. West, 	Chapter 7
Case No. 105-16249-JF
Debtor.
------------------------------------------------------------x
James & Mary Artis,
Plaintiffs, 	Adv. Proc. No. 105-01219-JF
-against-
Jerry B. West,
Defendant.
-------------------------------------------------------------x
DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
EXCEPTING DEBT FROM DISCHARGE UNDER 11 U.S.C. § 523(a)(4)
JEROME FELLER
UNITED STATES BANKRUPTCY JUDGE
Appearances:
Koehler and Isaacs, LLP
61 Broadway, 25 th Floor
New York, New York 10006
Attorney for Plaintiffs
By: Mathew Paulose Jr., Esq.
Silverman Sclar Shin & Byrne PLLC
381 Park Avenue South
Suite 1601
New York, New York 10016
Attorneys for the Defendant
By: Thomas H. Herndon, Jr., Esq.
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

2
Plaintiffs James and Mary Artis commenced this adversary proceeding against
debtor/defendant Jerry B. West, seeking an order declaring a pre-petition judgment debt
owed by West nondischargeable. 	The complaint alleges that the judgment debt is
nondischargeable under 11 U.S.C. § 523(a)(2), (4), and (6). Before the Court is plaintiffs’
motion for summary judgment. Plaintiffs claim they are entitled to judgment as a matter
of law under the doctrine of collateral estoppel because the issues to be decided under §
523(a)(4) and (6) were already decided in their favor in the lawsuit that created the
judgment debt. 	For the reasons hereinafter set forth, we grant the motion for summary
judgment and find that the judgment debt is nondischargeable under § 523(a)(4).
I. Background
The saga set forth below is derived from the parties’ statements of facts. 	Jerry
West is a clergyman, serving as the reverend of the Mount Moriah Church of God
(“Mount Moriah”) located in Brooklyn, New York. 	Throughout the 1990’s he ran a
program at the church to assist persons with “financial difficulty.” The program offered
budget counseling and assistance to those seeking mortgage refinancing. 	The plaintiffs
are an elderly couple. In early 1995, they owned two inherited homes in New Jersey and
had difficulty staying current with the mortgage payments on the properties.
In February 1995, plaintiff Mary Artis heard an advertisement on the radio about
West’s program. She told her husband and together they went to meet with West. At the
meeting, West told them he could assist them in obtaining favorable refinancing through
the church and requested a power of attorney so that he could make the arrangements.
The plaintiffs agreed.
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

3
In or about September 1995, West contacted plaintiffs and told them to come to
the church with the deeds to their homes for another meeting. 	At the second meeting,
West had 	plaintiffs transfer ownership of the homes to Mount Moriah. 	The plaintiffs
were told that the homes must be in the name of Mount Moriah to obtain favorable
refinancing, but that six months after the refinancing they could regain title and assume
the new mortgage. The plaintiffs were further instructed that, until they regained
ownership of their homes, they must make payments on the new mortgage by paying rent
to Mount Moriah, with the rent to be about the same or less than their prior mortgage
payments.
Thereafter, the plaintiffs started to receive rent invoices, but from an entity named
the Interdenominational Brotherhood, Inc., (“Interdenominational”). 	The rent invoices
were for a higher amount than their prior mortgage payments. When the plaintiffs called
West to inquire, West informed them that title to the homes had been transferred from
Mount Moriah to Interdenominational and if they failed to pay rent, the homes would be
lost in foreclosure. The plaintiffs made the rent payments for a few months, but then
stopped upon the advice of an attorney. The homes were later lost in foreclosure.
On June 16, 1998, plaintiffs filed a diversity suit against West, James Christian,1
and Mount Moriah in the United States District Court for the Eastern District of New
York. James Artis and Mary Artis v. Mount Moriah Church of God, Rev. Jerry B. West,
and James Christian, Index No. 98-CV-4247 (“District Court Action”). 	The complaint,
as amended on March 24, 2003, asserted claims for fraudulent misrepresentation,
negligent misrepresentation, breach of fiduciary duty, and deceptive acts and practices in
violation of New York General Business Law § 349. In sum, the complaint alleged that
1 James Christian was an associate of West’s at Mount Moriah.
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

4
West engineered a scheme to swindle plaintiffs out of their homes. 	The complaint
charged that West was using his position as a reverend at Mount Moriah to induce
unsophisticated retirees to transfer their homes to Mount Moriah so that West could
transfer them to Interdenominational, an entity owned by West. 	Further, the complaint
alleged that once the homes were transferred to Interdenominational, West refinanced
them at a higher amount, taking out all the equity for himself.
A three day trial was held in the District Court Action, running from August 9,
2004, through August 11, 2004. 	West was represented by counsel during the pretrial
discovery process, but not during trial. At trial both plaintiffs and two witnesses testified
for the prosecution, and West testified on his own behalf in defense.
Two causes of action were tried: breach of fiduciary duty, and deceptive acts and
practices in violation of New York General Business Law § 349. In regard to the breach
of fiduciary duty claim, the jury was instructed as follows:
Plaintiffs’ first claim is for breach of fiduciary duty. 	The law recognizes
that sometimes a special relationship, known as a “fiduciary relationship,”
may exist between parties. It exists either by express agreement between
the parties, or by implied conditions or circumstances found in the facts,
such as when a person reposed special confidence in another person. If a
fiduciary relationship is found to exist, then the law imposes upon the
parties certain duties to each other. 	These duties include the duty of full
disclosure, the duty of care and loyalty, the duty to account, the duty to act
fairly, and the duties of good faith and fidelity. 	If these duties are
breached, then the party who committed the breach is liable to the other
party for any damages sustained as a result of the breach. Accordingly, in
this case, if you find, from the evidence, that a fiduciary relationship
existed 	between 	the 	plaintiffs 	and 	defendant 	Jerry 	West, 	and 	that
defendant West breached that duty, then you shall find for the plaintiffs as
against defendant West.
(Trial Tr. of District Court Action, 332-33, Aug. 10, 2004). The jury was also instructed
on punitive damages as follows:
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

5
If you should find that the defendant [sic] is liable for the plaintiff’s [sic] injuries,
then you have the discretion to award, in addition to compensatory damages,
punitive damages. 	You may award punitive damages if the plaintiff [sic] proves
that 	the 	Defendants’ 	conduct 	was 	malicious 	and 	reckless, 	not 	merely
unreasonable. An act is malicious and reckless if it is done in such a manner and
under 	such 	circumstances, 	as 	to 	reflect 	utter 	disregard 	for 	the 	potential
consequences of the fact on the safety and rights of others.
(Id. at 337).
On August 11, 2004, the jury returned a verdict in favor of plaintiffs. The verdict
sheet contained a number of questions in which the jury was requested to provide yes/no
answers and dollar amounts, if applicable. 	The questions and answers were, in relevant
part, as follows:
1. 	Was 	there 	a 	fiduciary 	relationship 	between 	defendant 	Jerry 	West 	and
plaintiffs?
Answer: Yes
2. 	Did defendant West breach his fiduciary duties to plaintiffs?
Answer: Yes
6. 	Did plaintiffs suffer damages as a result of the breach?
Answer: Yes
If yes, in what amount? $390,000
7. 	Did defendant West act intentionally and deliberately and with evil motive
when breaching his duty to plaintiffs?
Answer: Yes
If yes, what amount would sufficiently punish him? $75,000
(Decl. of Matthew Paulose, Esq., Ex. E). 	In accordance with the verdict, 	plaintiffs
obtained a judgment against West on November 5, 2004, in the amount of $390,000 in
compensatory 	damages 	and 	$75,000 	in 	punitive 	damages 	(the 	“District 	Court
Judgment”).
On April 22, 2005, West initiated his bankruptcy case. The plaintiffs were listed
by West on his Chapter 7 petition as having an undisputed, unsecured nonpriority claim
in the amount of $510,000. No other creditors were listed. On June 14, 2005, plaintiffs
filed 	the 	instant 	complaint 	seeking 	to 	have 	the 	District 	Court 	Judgment 	deemed
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

6
nondischargeable. 	West filed an answer denying nondischargeability. The instant
summary judgment motion was filed on November 11, 2005. 	On January 12, 2006, the
Court heard final argument and thereafter supplemental papers were submitted, including
the entire transcript of the three day trial in the District Court Action.
II. Discussion
Federal 	Rule 	of 	Civil 	Procedure 	56(c), 	made 	applicable 	to 	bankruptcy
proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that summary
judgment is proper if, in light of the evidence presented, there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as a matter of law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 	The burden to demonstrate
that no genuine issue of material fact exists falls on the moving party. See Federal
Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994). In deciding a summary
judgment motion, the trial court must resolve all ambiguities and draw all reasonable
inferences in favor of the opposing party. See Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
The plaintiffs assert that they are entitled to summary judgment under the doctrine
of collateral estoppel. 	As a general rule, collateral estoppel precludes the relitigation of
issues that were actually litigated and decided in a prior proceeding. It is well established
that 	collateral 	estoppel 	is 	an 	appropriate 	method 	of 	adjudicating 	dischargeability
proceedings when the factual issues underlying the determination of dischargeability
were decided in a prior proceeding. See Grogan v. Garner, 498 U.S. 279, 285 n.11
(1991); Giaimo v. Detrano (In re Detrano), 326 F.3d 319, 322 (2d Cir. 2003). According
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

7
to plaintiffs, the issues to be decided under § 523(a)(4) and (6) have already been decided
in their favor in the District Court Action.
New York preclusion law applies in determining the collateral estoppel effect of
the District Court Action. 	See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497,
508-09 (2001); see also Nas Electronics, Inc., v. Transtech Electronics PTE LTD., 262
F.Supp.2d 134, 143 (S.D.N.Y. 2003). Under New York law, there are two prerequisites
that must be satisfied before the Court can employ the doctrine of collateral estoppel.
First, the issues to be decided in the present proceeding must be identical to the issues
that were necessarily decided in the prior proceeding. Second, there must have been a full
and fair opportunity to litigate the issues in the prior proceeding. See Parker v. Blauvelt
Volunteer Fire Co., Inc., 93 N.Y.2d 343, 349, 712 N.E.2d 647, 651, 690 N.Y.S.2d 478,
482 	(1999). The party seeking the benefit of collateral estoppel has the burden of
demonstrating the first prerequisite, while the party opposing the use of collateral
estoppel bears the burden of establishing the absence of a full and fair opportunity to
litigate the issues in the prior proceeding. 	See Ryan v. New York Telephone Co., 62
N.Y.2d 494, 501, 467 N.E.2d 487, 491, 478 N.Y.S.2d 823, 827 (1984).
The plaintiffs have offered the record of the District Court Action and a copy of a
document granting West a power of attorney in support of their motion for summary
judgment. 	We begin with an analysis of whether the issues to be decided under §
523(a)(4) and (6) are identical to those already decided in the District Court Action.
A. Section 523(a)(6)
Section 523(a)(6) provides that a debt “for willful and malicious injury” is not
dischargeable. 	The terms “willful” and “malicious” are separate elements under §
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

8
523(a)(6) and in order to declare a debt nondischargeable under this provision both must
be satisfied. See Rupert v. Krautheimer (In re Krautheimer), 241 B.R. 330, 340 (Bankr.
S.D.N.Y. 1999).
In Kawaauhau v. Geiger, 523 U.S. 57 (1998), the Supreme Court articulated a
definitive interpretation of the willfulness element. The Supreme Court stated:
The word “willful” in (a)(6) modifies the word “injury,” indicating that
nondischargeability takes a deliberate or intentional injury, not merely a
deliberate or intentional act that leads to injury. Had Congress meant to
exempt debts resulting from unintentionally inflicted injuries, it might
have described instead “willful acts that cause injury.” Or, Congress might
have selected an additional word or words, i.e., “reckless” or “negligent,”
to modify “injury.” Moreover, as the Eighth Circuit observed, the (a)(6)
formulation triggers in the lawyer’s mind the category “intentional torts,”
as distinguished from negligent or reckless torts.
Geiger, 523 U.S. at 61. 	As such, only debts stemming from intentional torts, and not
reckless or negligent torts, satisfy the willfulness element of § 523(a)(6).
The plaintiffs assert that the jury found West acted with the willfulness necessary
under § 523(a)(6) when it answered yes to the question on the verdict sheet as to whether
West acted “intentionally and deliberately.” However, a review of the record in the
District Court Action reveals that the affirmative answer may have been based on a jury
instruction using the recklessness standard. The jury was instructed as follows:
You may award punitive damages if the plaintiff [sic] proves that the
defendants’ conduct was malicious and reckless, not merely unreasonable.
An act is malicious and reckless if it is done in such a manner and under
such 	circumstances, 	as 	to 	reflect 	utter 	disregard 	for 	the 	potential
consequences of the fact on the safety and rights of others.
(Trial Tr. of District Court Action, 337, Aug. 10, 2004). Thus, one standard was used for
the jury instruction and another was used in the jury verdict sheet. 	This apparent
inconsistency makes it difficult to determine whether the jury “actually decided” that
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

9
West acted willfully within the meaning of § 523(a)(6). 	Bender v. Tobman (In re
Tobman), 107 B.R. 20, 24 (S.D.N.Y. 1989) (“In order to apply collateral estoppel, the
issue in the prior proceeding must have been ‘actually decided.’”). 	The jury may have
answered “yes” to either the question on the verdict sheet or the earlier jury instruction
given by the judge. If the “yes” answer was in response to the jury instruction, than the
issue “actually decided” in the District Court Action was whether West acted recklessly,
a degree of intent which does not satisfy the willfulness requirement under § 523(a)(6).
Geiger, 523 U.S. at 64 (“We hold that debts arising from recklessly or negligently
inflicted injuries do not fall within the compass of § 523(a)(6).”). Therefore, because we
are unable to ascertain whether the jury “actually decided” that West acted intentionally,
we must conclude that the plaintiffs have failed in their burden to demonstrate the
willfulness element of § 523(a)(6). 	Accordingly, collateral estoppel may not be
employed in respect of plaintiffs’ request for summary judgment on their § 523(a)(6)
claim.
B. Section 523 (a)(4)
Section 523(a)(4) excepts from discharge any debt “for fraud or defalcation while
acting in a fiduciary capacity, embezzlement, or larceny.” 	The plaintiffs’ claim under §
523(a)(4) is that West committed a “defalcation while acting in a fiduciary capacity.”
Therefore, 	to 	except 	the 	District 	Court 	Judgment 	from 	discharge, 	plaintiffs 	must
establish, (i) West was acting in a fiduciary capacity; and (ii) he committed defalcation
while serving in that fiduciary capacity. 	See The Andy Warhol Foundation for Visual
Arts, Inc., v. Hayes (In re Hayes), 183 F.3d 162 (2d Cir. 1999). The plaintiffs argue that
both elements were already decided in the District Court Action, when the jury found that
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

10
West was in a fiduciary relationship with the plaintiffs and breached his fiduciary duties
to them “intentionally and deliberately and with evil motive.”
Whether a debtor acts in a fiduciary capacity under § 523(a)(4) is a question of
federal bankruptcy law. 	Hayes, 183 F.3d at 166. Thus, a finding by a court under
nonbankruptcy law that the debtor was a fiduciary may be insufficient for collateral
estoppel purposes to establish that a debtor was acting in a “fiduciary capacity” under §
523(a)(4). 	The state or federal law at issue may bestow a broader meaning to the term
fiduciary than it might have under § 523(a)(4). 	See In re Marchiando, 13 F.3d 1111,
1116 (7th Cir. 1994) (Posner, C.J.) (“If… a fiduciary is anyone whom a state calls a
fiduciary… states will have it in their power to deny a fresh start to their debtors by
declaring all contractual relations fiduciary.”) (citation omitted). 	Before estopping a
debtor from arguing that he was not acting in a fiduciary capacity under § 523(a)(4), a
bankruptcy court must first determine that the finding of a fiduciary relationship in a prior
proceeding fits within the contours of § 523(a)(4).
Generally, a debtor acts in a fiduciary capacity under § 523(a)(4) if he serves
under a technical or express trust. See Zohlman v. Zoldan, 226 B.R. 767, 772 (S.D.N.Y.
1998); Sandak v. Dobrayel (In re Dobrayel), 287 B.R. 3, 14 (Bankr. S.D.N.Y. 2002);
Race Place of Danbury, Inc. v. Scheller (In re Scheller), 265 B.R. 39, 52 (Bankr.
S.D.N.Y. 2001). “Constructive or implied trusts, or any trust where the existence of the
trust is created merely on the basis of wrongful conduct (a trust ex maleficio) do not
create a fiduciary relationship [under § 523(a)(4)].” 	Zohlman, 226 B.R. at 772.
Moreover, the fiduciary relationship must exist prior to and independently of the
wrongful conduct giving rise to the claim of nondischargeability. 	See Davis v. Aetna
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

11
Acceptance Co., 293 U.S. 328, 333 (1934). 	As such, a trust that might be imposed as a
result of a breach of contract does not engender a fiduciary relationship within the
meaning of § 523(a)(4). Id.
Nevertheless, the fiduciary connection arising from a technical or express trust
does not exhaust the universe of fiduciary relationships that fall within the ambit of §
523(a)(4). See Hayes, 183 F.3d at 168-69. The fiduciary requirement of § 523(a)(4) may
also include relationships in which trust-type relationships are forged under state
statutory or common law. As stated by the Second Circuit in Hayes:
It has been clear, at least since 1841, that the defalcation exception is not
limited to express trusts, i.e., situations where a trustee is a beneficial
owner of a res held and managed for a named beneficiary. Indeed, the act
stated as much in specifying “executor[s], administrator[s], guardian[s] or
trustee[s]” and then adding others “acting in any other fiduciary capacity.”
….
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.”
Hayes, 183 F.3d at 167 (citing Marchiando, 13 F.3d at 1116). 	Thus, in the Second
Circuit an attorney is deemed to be acting in a fiduciary capacity in regard to his clients,
Hayes, 183 F.3d at 168, corporate officers are deemed to be acting in a fiduciary capacity
to the corporation, In re Bernard, 87 F.2d 705, 706 (2d Cir. 1937), and partners have
been held to stand in a fiduciary capacity with respect to one another, Zohlman, 226 B.R.
at 774.
In this case, West acted under a power of attorney. 	A power of attorney is a
written instrument by which one person, the principal, appoints another person, the
attorney-in-fact, as agent and confers on the attorney-in-fact the authority to perform acts
on behalf of the principal. Black's Law Dictionary 1171 (6th ed.1990). The granting of a
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

12
power of attorney creates an agency relationship. See Matter of Ferrara, 22 A.D.3d 578,
802 N.Y.S.2d 471, 472 (2 nd Dep’t 2005). 	It is true that an agency relationship does not
necessarily bring into existence a fiduciary relationship under § 523(a)(4). See 4 Collier
on Bankruptcy ¶ 523.10[1][d] at 523-73 (15th ed. rev. 2004); see also Cundy v. Woods
(In re Woods), 284 B.R. 282, 290 (D.Colo. 2001); Van De Water v. Van De Water (In re
Van De Water), 108 B.R. 283, 289-90 (Bankr. D.N.M. 1995); Bast v. Johnson (In re
Johnson), 174 B.R. 537, 541-42 (Bankr. W.D.Mo. 1994); Air Traffic Conference of Am.
v. Paley (In re Paley), 8 B.R. 466, 469 (Bankr. E.D.N.Y. 1981). 	However, where an
agent’s obligations to a principal are heightened by state statutory or common law and the
agent is in a position of power over the principal, a fiduciary relationship within the
meaning of § 523(a)(4) arises. 	See e.g., Valley Memorial Homes v. Hrabik (In re
Hrabik), 330 B.R. 765, 773 (Bankr. D.N.D. 2005); Lexington Health Care Ctr. of
Elmhurst, Inc. v. McDade (In re McDade), 282 B.R. 650, 659 (Bankr. N.D.Ill. 2002);
Jacobs v. Mones (In re Mones), 169 B.R. 246, 257 (Bankr. D.C. 1994); Rech v. Burgess
(In re Burgess), 106 B.R. 612, 620 (Bankr. D.Neb. 1989); Merrywell v. Barwick (In re
Barwick), 24 B.R. 703, 706 (Bankr. E.D.Va. 1982).
Under New York law, a power of attorney creates a fiduciary relationship
between principal and attorney-in-fact. 	See State St. Assocs., L.P. v. New York State
Urban Dev. Corp. 	(In re State St. Assocs., L.P.), 323 B.R. 544, 559 (Bankr. N.D.N.Y.
2005); In re Garson, 2 Misc.3d 847, 849, 774 N.Y.S.2d 644, 646 (Sup. Ct. New York Co.
2003); In re Guardianship of Kent, 188 Misc.2d 509, 510, 729 N.Y.S.2d 352, 353 (Sup.
Ct. Dutchess Co. 2001); In re Luby, 180 Misc.2d 621, 624, 691 N.Y.S.2d 289, 292 (Sup.
Ct. Suffolk Co. 1999). 	The duties of an attorney-in-fact are clearly defined, and exist
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

13
prior to and are independent of any conduct that may give rise to a claim by the principal.
As stated by a New York State appellate court: “the attorney-in-fact ‘must act in the
utmost good faith and undivided loyalty toward the principal, and must act in accordance
with the highest principles of morality, fidelity, loyalty and fair dealing.’” 	Semmler v.
Naples, 166 A.D.2d 751, 752, 563 N.Y.S.2d 116, 117 (3d Dep’t 1990) (citing In re
DeBelardino, 77 Misc.2d 253, 256, 352 N.Y.S.2d 858, 862 (Sur. Ct. Monroe Co. 1974)).
These responsibilities mirror those imposed on relationships with no technical or express
trust, but which nonetheless satisfy § 523(a)(4)’s fiduciary requirement, such as partners,
Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (“the punctilio of an
honor most sensitive”), and attorneys, In re Cooperman, 83 N.Y.2d 465, 472, 633 N.E.2d
1069, 1071, 611 N.Y.S.2d 465, 467 (1994) (“[t]he duty to deal fairly, honestly, and with
undivided loyalty”). See Hayes, 183 F.3d at 168; Zohlman, 226 B.R. at 774.
Furthermore, in plaintiffs’ interactions with West there was a wide gap in
“knowledge or power,” which gave West a position of ascendancy. 	The plaintiffs were
unsophisticated retirees who sought assistance in refinancing their homes. 	West was a
reverend who claimed he could obtain favorable refinancing for the plaintiffs through a
program at his church. 	The plaintiffs clearly reposed a deep confidence in West when
they followed his advice and transferred their homes to Mount Moriah. 	And, once the
homes were transferred, the plaintiffs could not monitor West’s activities with them. This
difference in power and knowledge is what often distinguishes a fiduciary relationship
under § 523(a)(4) from one that falls outside its scope. 	As stated eloquently by Judge
Posner:
If we probe more deeply the distinction between the fiduciary relation that
imposes real duties in advance of the breach and the fiduciary relation that
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

14
does not we find that the first group of cases involve a difference in
knowledge or power between fiduciary and principal which… gives the
former a position of ascendancy over the latter…. 	The fiduciary may
know much more by reason of professional status, or the relation may be
one that requires the principal to repose a special confidence in the
fiduciary…. These are all situations in which one party to the relation is
incapable of monitoring the other’s performance of his undertaking, and
therefore the law does not treat the relation as a relation at arm’s length
between equals.
Marchiando, 13 F.3d at 1116 (citations omitted). Accordingly, upon consideration of the
legal obligations imposed on an attorney-in-fact under New York law, and the facts and
circumstances of the relationship between plaintiffs and West, we find that West was
acting in a fiduciary capacity within the meaning of § 523(a)(4) when the transactions at
issue in the District Court Action occurred.
The second element that must be satisfied to find the District Court Judgment
nondischargeable is that West committed a defalcation while acting in that fiduciary
capacity. 	The meaning of “defalcation” under § 523(a)(4) is a matter of federal
bankruptcy law. See Otto v. Niles (In re Niles), 106 F.3d 1456, 1460 (9th Cir. 1997).
Neither the Bankruptcy Code, nor the legislative history of § 523(a)(4) define defalcation.
Based on a review of the case law there appears to be three lines of cases addressing the
type of misconduct necessary to establish defalcation under § 523(a)(4). See 4 Collier on
Bankruptcy ¶ 523.10[1][c] at 523-71 (15th ed. rev.2004). 	The first line is that even an
innocent mistake involving property handled in a fiduciary capacity can constitute a
defalcation. Republic of Rwanda v. Uwimana (In re Uwimana), 274 F.3d 806, 811 (4th
Cir. 2001); Tudor Oaks Ltd. P’ship v. Cochrane (In re Cochrane), 124 F.3d 978, 984 (8th
Cir. 1997); Lewis v. Scott (In re Lewis), 97 F.3d 1182 , 1186 (9 th Cir. 1996). The second
line is that defalcation requires negligent conduct by the fiduciary. Antlers Roof-Truss &
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

15
Builders Supply v. Storie (In re Storie), 216 B.R. 283, 288 (B.A.P. 10 th Cir. 1997). The
third line is that defalcation requires reckless conduct by the fiduciary. 	Schwager v.
Fallas (In re Schwager), 121 F.3d 177, 185 (5th Cir. 1997); Meyer v. Rigdon, 36 F.3d
1375, 1384-85 (7th Cir. 1994).
In the Second Circuit the level of misconduct necessary to constitute a defalcation
in the context of § 523(a)(4) is unclear. The decisions of the Second Circuit on the issue
only suggest that “some portion of misconduct” may be necessary. See Central Hanover
Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir. 1937) (stating that “although [the
word 	misappropriation] 	probably 	carries 	a 	larger 	implication 	of 	misconduct 	than
‘defalcation,’ ‘defalcation,’ may demand some portion of misconduct; we will assume
arguendo that it does.”); see also Hayes, 183 F.3d at 172 (stating that the court need not
decide the issue because the debtor had committed misconduct).
Here, we need not struggle with the question as to whether West’s misconduct
constituted defalcation. 	Under all of the aforementioned views, a debt arising from
reckless conduct while acting in a fiduciary capacity satisfies the definition of defalcation
under § 523(a)(4). 	In the District Court Action, the judge instructed the jury to impose
punitive damages on West if his breach of fiduciary duty was “malicious and reckless.”
(Trial Tr. at 337). 	In the verdict sheet the jury imposed punitive damages, finding that
West had breached his fiduciary duty to the plaintiffs “intentionally and deliberately and
with evil motive.” 	(Decl. of Matthew Paulose, Esq., Ex. E). 	Accordingly, we find that
the verdict in the District Court Action easily satisfies the defalcation requirement of §
523(a)(4).
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

16
III. West’s Contentions
West opposes the use of collateral estoppel on two grounds. First, he asserts that
he did not have a full and fair opportunity to litigate the issues decided in the District
Court Action because he appeared there pro se. Second, he asserts that the District Court
Judgment was wrong.
West’s contention that collateral estoppel should not apply because he proceeded
in the District Court Action pro se is unavailing. In determining whether there has been a
full and fair opportunity to litigate in a prior proceeding, we consider “the ‘realities of the
[prior] litigation’, including the context and other circumstances which, although not
legal impediments, may have had the practical effect of discouraging or deterring a party
from fully litigating the determination which is now asserted against him.” 	People v
Plevy, 52 N.Y.2d 58, 65, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980) (citing Schwartz v
Pub. Adm’r of County of Bronx, 24 N.Y.2d 65, 72, 246 N.E.2d 725, 298 N.Y.S.2d 955
(1969). 	The nature of the party’s representation in the prior action is only one factor
among many to consider in determining whether there was a full and fair opportunity to
litigate. “Among the specific factors to be considered are the nature of the forum and the
importance of the claim in the prior litigation, the incentive and initiative to litigate and
the actual extent of litigation, the competence and expertise of counsel, the availability of
new evidence, the differences in the applicable law and the foreseeability of future
litigation.” Ryan, 62 N.Y.2d at 501.
Here, the “realities of the prior litigation” are that it was a fully contested trial
presided over by a district court judge. 	West was present throughout the trial, cross
examined the plaintiffs’ witnesses, and took the stand to testify on his own behalf.
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

17
Indeed, nothing prevented West from opposing plaintiffs’ claims. 	Moreover, West had
the assistance of counsel during pre-trial discovery and presumably could have retained
counsel for trial if he chose to do so. The mere fact that West represented himself should
not force plaintiffs to relitigate vigorously contested issues already decided in their favor.
See e.g., Shirley v. Danziger, 252 A.D.2d 969, 971, 676 N.Y.S.2d 369 (4th Dep’t 1998)
(rejecting the plaintiff’s contention that she did not have a full and fair opportunity to
litigate in the first action because she was proceeding pro se). 	Accordingly, West has
failed to meet the burden of showing that he did not have a full and fair opportunity to
defend himself in the District Court Action.
West’s contention that collateral estoppel should not apply because the District
Court Judgment was in error also must fail. West contends that the jury erred because the
judge erroneously instructed the jury on the concept of proximate cause. 	First, West
presents no credible factual or legal basis to support this claim. 	Second, collateral
estoppel applies even to an erroneous ruling. See People v. Berkowitz, 50 N.Y.2d 333,
345, 406 N.E.2d 783, 428 N.Y.S.2d 927 (1980); Reubens v. New York City Dep’t of
Juvenile Justice, 930 F.Supp. 887, 892 (S.D.N.Y. 1996); Hampton Heights Dev. Corp. v.
Bd. of Water Supply of City of Utica, 136 Misc.2d 906, 912, 519 N.Y.S.2d 438 (Sup. Ct.
Oneida Co. 1987). 	Underlying the doctrine of collateral estoppel is the “desire to
conserve the time and resources of the court and the parties, and to avoid possible
inconsistent determinations.” People v. Aguilera, 82 N.Y.2d 23, 30, 623 N.E.2d 519, 603
N.Y.S.2d 392 (1993). 	Therefore, when a court with competent jurisdiction decides an
issue, and the decision has not been vacated on appeal, reconsideration, or otherwise, the
conclusiveness of the ruling is not impaired, even if it is incorrect. 	See 50 C.J.S.
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39

18
Judgments § 795 (2005). 	As the Supreme Court reiterated nearly 75 years ago “the
general and well-settled rule [is] that a judgment, not set aside on appeal or otherwise, is
equally effective as an estoppel upon the points decided, whether the decision be right or
wrong.” 	Reed v. Allen, 286 U.S. 191, 201 (1932). If West believed the district court
judge committed an error, the proper course of action would have been to move for
reconsideration or file an appeal.
IV. Conclusion
Based on all of the foregoing, we find that the doctrine of collateral estoppel bars
relitigation of the issues necessary to adjudicate plaintiffs’ § 523(a)(4) claim. Since the
issues were adjudicated for the plaintiffs in the District Court Action, there exists no
genuine issue as to any material fact and the plaintiffs are entitled to judgment as matter
of law. Accordingly, the plaintiffs motion for summary judgment is granted and the
District Court Judgment is declared nondischargeable under 11 U.S.C. § 523(a)(4).
IT IS SO ORDERED
Dated: March 21, 2006
Brooklyn, New York
s/Jerome Feller
Jerome Feller
United States Bankruptcy Judge
Case 1-05-01219-jf Doc 19 Filed 03/21/06 Entered 03/21/06 15:53:39