Understand the complexities and nuances of the Bankruptcy Code to better advise clients and prepare for court.
By Daniel Gill
A man who was found civilly liable for creating pornographic images of children as a consultant and expert witness can have that debt wiped out in his Chapter 13 bankruptcy case, an Ohio bankruptcy judge ruled May 26 ( Doe v. Boland (In re Boland) , Bankr. N.D. Ohio, ADV. NO. 16-1058. CASE NO. 16-10250, 5/26/17 ).
The plaintiffs were unable to satisfy their burden that the debt owed for the damages was for “willful and malicious injury” by the debtor, wrote Judge Jessica E. Price Smith of the U.S. Bankruptcy Court for the Northern District of Ohio.
Two plaintiffs, known as Jane Doe and Jane Roe, obtained a $300,000 judgment in 2011 against Dean Maynard Boland under a federal law prohibiting child pornography. The district court granting that judgment found that Boland “morphed” images of real identifiable children into child pornography, to the injury of the plaintiffs.
Boland had apparently used the images in his capacity as an expert defense witness during a child pornography prosecution against someone else. There were no allegations that he held or used the images for any other purpose or shared them with anyone other than in his consultation and witness duties, the court said.
Moreover, there was no evidence that Boland intended to harm the plaintiffs or knew that harm was certain to occur. He didn’t know the identity of the children when he created the “morphed” images.
Boland filed a Chapter 13 case on Jan. 20, 2016. Chapter 13 allows individuals receiving regular income to obtain debt relief while retaining their property.
To do so, the debtor must propose a plan that uses future income to repay all or a portion of his debts over a three- to five-year period. Once the plan payments are concluded, the debtor receives an order discharging, or wiping out, his remaining debt.
The plaintiffs filed a lawsuit in the bankruptcy court to have their debt declared non-dischargeable—that is, so it would survive the bankruptcy case—on the theory that the debt arose “as the result of a willful and malicious injury by the debtor” under 11 U.S.C. §523(a)(6).
Boland “created and possessed the images for purposes of consultation and expert witness testimony in both state and federal courts,” the court said.
The court found that the debt was not the result of a willful and malicious injury and that it could be discharged in the bankruptcy case.
Jane Doe and Jane Roe were represented by Jonathan E. Rosenbaum, Elyria, Ohio. Stephen D. Hobt, Cleveland, represented Boland.
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To contact the editor responsible for this story: Jay Horowitz at JHorowitz@bna.com
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