In Re Gregory A. Lemaire, Debtor. Paul Handeen v. Gregory A. Lemaire

898 F.2d 1346, 22 Collier Bankr. Cas. 2d 1008, 1990 U.S. App. LEXIS 4374, 20 Bankr. Ct. Dec. (CRR) 521, 1990 WL 32239
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 26, 1990
Docket88-5275
StatusPublished
Cited by179 cases

This text of 898 F.2d 1346 (In Re Gregory A. Lemaire, Debtor. Paul Handeen v. Gregory A. Lemaire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Gregory A. Lemaire, Debtor. Paul Handeen v. Gregory A. Lemaire, 898 F.2d 1346, 22 Collier Bankr. Cas. 2d 1008, 1990 U.S. App. LEXIS 4374, 20 Bankr. Ct. Dec. (CRR) 521, 1990 WL 32239 (8th Cir. 1990).

Opinions

JOHN R. GIBSON, Circuit Judge.

The issue before us is whether a civil judgment awarded to the victim of an intentional shooting may be discharged under Chapter 13 of the Bankruptcy Act, 11 U.S.C. §§ 1301-1330 (1988). Paul Han-deen, the victim of the assault and subsequently a judgment creditor, asks this court to hold, as a matter of law, that the judgment arising out of criminal conduct may not be discharged. Alternatively, he argues that the bankruptcy court’s holding that the debtor Gregory LeMaire proposed his Chapter 13 plan in good faith was clearly erroneous. We conclude that the court’s finding of good faith was clearly erroneous and therefore reverse and remand for further proceedings consistent with this opinion.

On July 9, 1978, at about noon, Handeen went to pick up his son and found LeMaire waiting for him. When Handeen got out of his car, LeMaire shot at him nine times with a bolt action rifle. The first two shots missed Handeen, but the third struck him on the left side of his neck. Handeen then attempted to hide behind the car. LeMaire circled the car, shot at and missed Handeen twice more, and then hit him inside of his left knee. LeMaire circled again and Han-deen jerked his head back to avoid the bullet at the time he thought LeMaire would pull the trigger of the rifle aimed at his head. LeMaire fired, and the bullet went through Handeen s right nostril, shattering the roof of his mouth and going through his tongue. LeMaire then fired a shot at Handeen’s left arm. The bullet went through Handeen’s arm and lodged on his spine. LeMaire fired a final shot through Handeen’s ankle. In all, five of the nine shots fired by LeMaire struck Handeen. LeMaire declared that he had intended to kill Handeen. (Tr. Bankr.D. Minn. Oct. 28, 1987, at 23, 35-38). He pled guilty to a charge of aggravated assault and was sentenced to imprisonment for a term of one to ten years. He served twenty-seven months of his sentence and was released in 1981. LeMaire then returned to graduate school at the University of Minnesota and received his doctorate in experimental behavioral pharmacology in January 1986.

Handeen brought a civil suit against Le-Maire and obtained a consent judgment. LeMaire paid $3,000 of the judgment, but made no further payments, prompting Han-deen to commence garnishment proceedings to collect the $50,362.50 balance on the judgment. Soon after, on January 16, 1987, LeMaire filed this bankruptcy petition under Chapter 13.

Handeen objected to the bankruptcy court confirming LeMaire’s Chapter 13 plan; the bankruptcy court, however, rejected his assertion that the civil judgment arising out of the crime was not discharge-able. The court instead confirmed Le-Maire’s plan, which provided that his creditors be paid approximately 42% on their claims. The plan listed three claims: (1) Handeen’s judgment; (2) a student loan; and (3) a claim by LeMaire’s parents for loans to LeMaire, including $3,600 expended on his legal fees, $3,000 spent in partial payment on the judgment, and $2,172 lent to buy a computer. The record reveals that LeMaire’s debt to his parents was evidenced by a promissory note he signed the day before he filed his Chapter 13 petition.

Handeen appealed to the district court from the bankruptcy court’s order confirming LeMaire’s Chapter 13 plan. The district court affirmed and, upon appeal, a [1348]*1348panel of this court also affirmed. In re LeMaire, 883 F.2d 1373 (8th Cir.1989). We granted rehearing en banc, vacated the panel opinion, and heard oral argument. We now reverse.

I.

Handeen vigorously argues that, as a matter of law, his civil judgment cannot be discharged because it arose from a criminal act. The panel rejected this argument and we do likewise.

Handeen’s argument is based upon 11 U.S.C. § 523(a)(6) (1988),1 which provides that a debt arising from infliction of “willful and malicious injury by the debtor to another entity” may not be discharged under specified sections of the Bankruptcy Code. As the panel observed, there is no question that LeMaire’s assault inflicted a “willful and malicious” injury upon Handeen. 883 F.2d at 1376. Handeen’s reliance upon section 523(a)(6) is unavailing, however, because LeMaire filed his petition under Chapter 13, which does not include section 523(a)(6) in its list of nondischargeable debts. See 11 U.S.C. § 1328(a) (1988).2 Although section 523(a)(6) does by its express statutory terms apply to a petition for bankruptcy under Chapter 7, its applicability does not extend to a filing under Chapter 13. Therefore, a debt which falls within the scope of section 523(a)(6), such as the debt owed to Handeen, which may not be discharged under Chapter 7, may nevertheless be discharged if the debtor meets the requirements of Chapter 13.3

II.

Alternatively, Handeen argues that the bankruptcy court should not have confirmed LeMaire’s Chapter 13 plan because LeMaire did not propose it in good faith. Section 1325(a) of Title 11 of the Bankruptcy Code establishes six criteria which a debtor must meet in order to have his Chapter 13 plan confirmed by a bankruptcy court. The critical requirement, for present purposes, is that “the plan has been proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3) (1988).

In deciding whether LeMaire has met the good faith criterion, we recognize that legislative amendments to section 1325 have affected judicial interpretation of the phrase “good faith,” which is defined neither in the Bankruptcy Code nor in its legislative history. Prior to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (1984), our analysis focused upon “whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13.” In re Estus, 695 F.2d 311, 316 (8th Cir.1982). This required looking to the totality of circumstances to discern whether good faith existed, a task aided by the Estus court listing a number of factors it considered relevant to this analysis.4 This approach [1349]*1349was widely used in other circuits. See Neufeld v. Freeman, 794 F.2d 149,152 (4th Cir.1986); Flygare v. Boulden, 709 F.2d 1344, 1347 (10th Cir.1983); In re Kitchens, 702 F.2d 885, 888-89 (11th Cir.1983); In re Goeb, 675 F.2d 1386, 1390 (9th Cir.1982); In re Rimgale, 669 F.2d 426, 432-33 (7th Cir.1982).

After Estus,

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Bluebook (online)
898 F.2d 1346, 22 Collier Bankr. Cas. 2d 1008, 1990 U.S. App. LEXIS 4374, 20 Bankr. Ct. Dec. (CRR) 521, 1990 WL 32239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gregory-a-lemaire-debtor-paul-handeen-v-gregory-a-lemaire-ca8-1990.