Nelson Rodriguez and Belinda Georgeson had a daughter together and had been living together since some time in 2012. In June 2015, Rodriguez became physically abusive with Georgeson. Rodriguez was sent to jail for four days because of the abusive incident. Georgeson and her daughter quickly moved out of the shared home after the abusive incident, taking essential items but leaving many others. The items left behind included a bike and several sealed boxes.
Georgeson attempted to retrieve her belongings two times after Rodriguez was released from jail. Both times Georgeson went to Rodriguez’s residence, she was accompanied by the police. The first time, Rodriguez refused to let her into the home because he had had no prior notice. The second time Georgeson attempted to get her property was in early August 2015. It is not clear what happened, but Georgeson did not take her belongings even though many of her items were left on the front porch.
In late August 2015, Rodriguez threw away the left behind property at the city dump. Georgeson was able to obtain a judgment against Rodriguez in the Dane County CIrcuit Court for \($7,800\) as a consequence of her belongings being disposed of.
In March 2017, Rodriguez filed for bankruptcy. Georgeson then filed adversary proceedings seeking to have the previous \($7,800\) judgment declared nondischargeable in accordance to section 523(a)(6) for willful and malicious conduct that gave rise to that debt. In response, Rodriguez made the argument that he believed the remaining property was abandoned and therefore there was no malice in his action of throwing them away. The judge had to decide whether a person could reasonably have thought that the property was abandoned.
JUDGE FURAY Defendant argues his conduct does not meet the definition for maliciousness because he believed Plaintiff no longer wanted the items, as evidenced by her failure to pick them up. Plaintiff had keys to the home and could have picked up the property at any time, including when he was at work or in jail. She knew his work schedule. Plaintiff expressed an interest in the items on July 2, a number of weeks after she had moved out. It appears her interest was sincere—she went to the trouble of renting a truck, obtaining a police escort, and driving over to Defendant’s residence. Still, even with all that preparation, she didn’t bother to tell him about her plan to pick up the boxes until the moment she arrived at the home. Unwilling and unable to accommodate her on such short notice, he reasonably did not allow Plaintiff into the home on that date.
Plaintiff then waited more than a month before seeking to retrieve her things on August 9, 2015. The officer who responded with her contacted Defendant. He apparently checked the home to see if her belongings were still there. No other evidence about this contact was presented.
When asked why she waited so long to get the items, she said she was still trying to figure out where to put them once they were taken from the house.
Portions of her belongings had been on a porch. She didn’t retrieve those. No further explanation of what happened on that date was provided by Plaintiff. Suffice it to say she did not get her things back.
In late August, Defendant threw out the boxes and other items. He knew the property belonged to Plaintiff but did not know the contents of the boxes. While Plaintiff did nothing to affirmatively give Defendant the impression that she no longer wanted the items, neither did she take action, other than the two visits listed, to affirmatively confirm she wanted the property.
The boxes were inconvenient to Defendant because they took up so much space in his home. He had to “step over them” and he eventually set them out on the porch to get them out of his way. While Defendant may ultimately have been justified in throwing out the boxes, his actions also appear to have been motivated at least in some small part by anger.
As other courts have noted, for purposes of section 523(a)(6), “it is extremely difficult to probe into the inner processes of a party’s mind in order to establish such party’s intention.” Though Defendant obviously had ill feelings toward Plaintiff, it is also reasonable to believe he wanted to clear space in his home.
Plaintiff relies heavily on In re Shteysel, in which the Eastern District of Wisconsin addressed an analogous issue. In that case, the debtor’s wife filed for divorce. Shortly thereafter, he wrote checks to his son. The divorce court ordered the return of half the money the debtor had given away under the theory that he had intentionally written the checks to avoid sharing marital assets. He did not pay the judgment but filed bankruptcy instead. The ex-wife filed a motion under section 523(a)(6) to determine the divorce court’s order was nondischargeable. The Shteysel court ruled that the debtor had intentionally kept the assets out of his wife’s hands and therefore the judgment was nondischargeable under section 523.
The Shteysel analysis has some applicability here. Defendant knew the items belonged to Plaintiff. He had some idea that she may want them back. He kept the items for more than two months before taking them to the city dump. Disposing of the items certainly kept them out of Plaintiff’s hands.
But the facts of Shteysel are distinguishable. The debtor in that case quickly shifted assets less than a month after being served with divorce papers. He liquidated his retirement, savings, and investment accounts and transferred the funds to his son in California. The sole purpose of liquidating those accounts was to keep them out of the hands of his ex-wife. The court observed his actions were “part of an orchestrated scheme by him to deprive [his spouse] of any share in these assets.” That court also found the debtor was an unreliable witness, offering untrue testimony and evasive answers. Under the circumstances of the case, the court held the debtor’s behavior was “blatant and egregious” and thus rose to the level of willful and malicious.
In this case, Defendant simply threw away some boxes, an old bike, and furniture that he believed were abandoned and had minimal value. He kept those items for more than two months before disposing of them. Plaintiff made two attempts to pick items up. When portions of the property were left on the porch, she did not take them. Neither did she use her keys to retrieve the property while the Defendant was at work. She could have done so accompanied by the police if she was truly fearful or genuinely intent on retrieving the items.
There is no indication that Defendant’s actions were part of an “orchestrated scheme” to deprive Plaintiff of her property. To some extent, the items were in his way and were taking up space in his home. The relationship between the parties ended badly. It is reasonable that he would want to clear out her property.
Adding to the differences, in Shteysel the transfer occurred within a month of service of the divorce papers and had the sole purpose of depriving the wife of the assets. In the instant case, the disposition occurred more than two months after Plaintiff moved. Plaintiff had the ability to retrieve the items when Defendant was at work or in jail. She chose not to do so. The disposition may have been motivated in some part by anger, but he waited more than two months after she left to dispose of the items. It is reasonable that Defendant would have wanted to clear space in his home.
…In In re Everett, a court addressed a factual scenario that more closely resembles the instant case and Plaintiff’s argument. There, plaintiff brought an action against her former landlord to determine a state court judgment was nondischargeable. Plaintiff had moved out of her apartment and left various items of personal property. Defendant-landlord believed the abandoned items were trash and threw them out. A state court rendered a decision in favor of the plaintiff for violation of Kansas law governing the disposition of abandoned property. Plaintiff-tenant then brought an action against the landlord under section 523(a)(6), claiming the landlord had maliciously thrown out her property. The landlord testified she thought the items were trash.
The Everett court denied plaintiff’s claim and held that “[a]bsent some extrinsic evidence of defendant’s intent to injure plaintiff’s property interests, plaintiff has not proven her § 523(a)(6) claim.” On the one hand, Everett is distinguishable because the plaintiff there had not expressed any interest in the property. The Plaintiff here expressed some interest, albeit half-hearted at best. The first was timed at the end of Defendant’s workday and the beginning of a holiday weekend.
More than a month passed before another unannounced visit was made. There was no explanation provided for the failure to pick up items then or at any other time that might have been possible in Defendant’s absence. Defendant was credible in his claim he believed Plaintiff abandoned the property. Plaintiff has failed to rebut Defendant’s excuse or otherwise show his actions were motivated entirely—or even mostly—out of maliciousness.
Ultimately, it was Plaintiff’s burden at trial to produce some extrinsic evidence that Defendant acted willfully and maliciously. It is both reasonable and predictable that Defendant would eventually throw out abandoned boxes and furniture that belonged to a person who no longer lived in his house. There is nothing in the record that undercuts his defense that he legitimately believed the items were abandoned. Plaintiff has not articulated any other theory under which Defendant would have had a duty to keep the property. Plaintiff has also failed to show that Defendant acted maliciously.
CRITICAL THINKING
In the opinion, the judge stated that “There is nothing in the record that undercuts his defense that he legitimately believed the items were abandoned.” In other words, there was no evidence for malice. Is this the same as saying that there is evidence of no malice?
ETHICAL DECISION MAKING
Georgeson had previously obtained a judgment for \($7,800\) against Rodriguez for the discarded property. Why do you think the outcomes between the previous judgment and the judgment by the bankruptcy court are so different? What differences in goals or values would cause the difference in judgment?