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2. Attorney Fees
Busch v. Hancock (In re Busch), 369 B.R. 614 (B.A.P. 10th Cir. 2007) (Applying Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., ___ U.S. ___, 127 S. Ct. 1199, 167 L. Ed. 2d 178 (2007), because Utah law would allow attorney fees to prevailing spouse in litigation to enforce divorce decree, bankruptcy court appropriately awarded prevailing ex-spouse attorney fees incurred in bankruptcy litigation in prior Chapter 13 and Chapter 7 cases; these fees are included in the nondischargeable debt under S 523(a)(5). "[B]ankruptcy courts have [generally] refused to award attorney's fees to S 523(a)(5) prevailing parties for fees incurred in connection with litigating the issue of dischargeability. The primary reason has been lack of a specific provision under the Bankruptcy Code authorizing fee awards to prevailing creditors in S 523 dischargeability actions. However, after the Supreme Court's recent decision in Travelers . . . , this rationale is no longer persuasive. Although in Travelers, the issue was raised in the context of attorney's fees which were shifted by contract, the reasoning in Travelers is equally applicable to attorney's fees shifted by state statute. This is particularly so given the Supreme Court's emphasis on the long recognized principle that the basic federal rule in bankruptcy is that state law governs the substance of claims. Further, the Supreme Court stated '[p]roperty interests are created and defined by state law,' and '[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.' . . . Here, if Ex-Wife were the prevailing party in state court litigation enforcing the obligations owed her under the divorce decree, the court would be permitted to award her attorney's fees pursuant to [Utah law]. Ex-Wife's participation in the second and third Chapter 13 cases seeking payment of her priority claim, and her litigation in the Chapter 7 nondischargeability adversary are certainly actions in the nature of enforcing the terms of the divorce decree. And no dispute exists regarding who is the prevailing party. . . . According to the Supreme Court, Ex-Wife's enforcement of her interests in the bankruptcy court actions should not be analyzed differently than enforcement of her interests in state court. In state court, attorney's fees may be awarded. There is no federal interest requiring a different result in a bankruptcy action. Thus, attorney's fees may be awarded in the bankruptcy actions. . . . [Additionally, there is no] reason why our interpretation of S 523(a)(5) debt should differ from the Supreme Court's interpretation of S 523(a)(2)(A) debt in Cohen v. de la Cruz, 523 U.S. 213, 118 S. Ct. 1212, 140 L. Ed. 2d 341 (1998). The attorney's fees in Cohen and here are both based on a state statute authorizing such an award. Therefore, we interpret the S 523(a)(5) debt to encompass the attorney's fees liability that has arisen as a result of Debtor's nonpayment of the underlying debt imposed on him by the divorce decree.").
E. 11 U.S.C. S 523(a)(6):
"for willful and malicious injury by the debtor . . . ."
1. In general
Nunnery v. Rountree (In re Rountree), 478 F.3d 215 (4th Cir. 2007) (Debtor, a private investigator working for an insurance company, committed fraud by pretending friendship with the plaintiff and
