Bankruptcy Code Section 523(a)(9) - The Dischargeability of DUI Debts in Bankruptcy

According to Section 523(a)(9) of the Bankruptcy Code, debts related to death or personal injury caused by a debtor's drunk driving cannot be discharged in bankruptcy. This provision of the bankruptcy code does not specifically address property damage caused by a debtor's drunk driving. Therefore, property damage caused by the debtor's drunk driving can typically be discharged in bankruptcy.

One caveat to this rule, however, is property damage caused by the debtor's willful or malicious acts while drunk driving. In such an instance, the provisions of Section 523(a)(6) become applicable, which prohibit the discharge of debts "for willful and malicious injury by the debtor to another entity or to the property of another entity." Showing the proof necessary to prevent discharge for willful or malicious acts is much more difficult, however, because such property damage debts are generally held to be incapable of discharge under Section 523(a)(6).

The inability to discharge death and personal injury related drunk driving debts under Section 523(a)(9) applies to all forms of bankruptcy and therefore cannot be discharged under a Chapter 13 "super discharge." A creditor need not file an objection, complaint or appear in the bankruptcy proceedings to prove that such debts cannot be discharged. In fact, the creditor may seek to prove this fact in a court other than bankruptcy court and may pursue any and all normal collection practices following bankruptcy proceedings initiated by the debtor.

There is no requirement that the creditor of such a debt obtain a judgment defining the value of the debt, in order to make the claim incapable of discharge. In fact, there is no requirement that the debtor have even been convicted of a DUI offense for such a claim to survive a bankruptcy proceeding. Rather, the creditor must show only that the debtor was intoxicated under state law, that the debtor operated a motor vehicle while intoxicated, and that the claim for personal injury or death is a result of the operation of that motor vehicle, all by a preponderance of evidence standard. The creditor need not prove that the intoxication, in fact, caused the injury or death sought.

This exception to the general rule of discharge of debts in bankruptcy is due to Congress's wish to take a strong stance in opposition to DUI-related injuries. It is for this reason that the Bankruptcy Code, although generally favoring debtors, starkly opposes that general position in this particular provision.

Roger Priest, Attorney at Law is a Portland Oregon Bankruptcy Attorney who represents Oregon clients in both Chapter 7 and Chapter 13 bankruptcy. This article is not designed to be particularized legal advice for every situation and does not create an attorney-client relationship with Roger Priest. Therefore, call Roger Priest at (503) 222-7792 for help with your particular case.

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What Happens To My Debts After My Death?

Do my debts die with me is one of the most common questions asked of a probate solicitor. Sadly, like much in law, the vague answer is it depends. The main point to note is that it is the responsibility of your estate is to ensure that all your debts are paid before any money is given to those who benefit under your will, or the closest relatives where there is no will.

The simplest example is a situation where you die with no assets at all and just debt. In this case then your debts die with you. You cannot pass on your debts to your family, and those who are owed money will not be able to recover anything from your estate. Of course if you have given assets away knowing you owe money or in the hope of evading your creditors in some way, then the rules of insolvency still apply and your creditors can try to take action against your estate to undo the gifts and recover monies owed. If, however, you die penniless but leave behind a string of debts then your debts will die with you.

The position is more complex if you have assets, but not enough to pay everyone fully. Should this happen then your debts would not die with you as there are funds to pay some of your creditors. In such a circumstance, it is vital to take proper legal advice from a specialist probate solicitor. The reason is that there are rules governing who gets paid how much, and in what order. If debts are paid incorrectly, then you could can find yourself personally liable to pay anyone who has lost out because of an error.

Similarly if instead of paying off debts, money is paid to those who benefit under the will instead, then there is likely to be a legal responsibility on the person making the payment, to make good their mistake out of their own funds.

You should remember, however, that your estate should only meet the debts from the money it holds. Once the estate money has run out, and provided everyone has been paid correctly and in the right order, then any other debts outstanding will die with you. It is not down to those that could have benefitted under your Will or your family to pay the remaining debts. If they have received nothing, do not owe the money themselves as a joint debtor or guarantor and there is no money left then they do not have to make payments for your estate.

Are you are looking for probate solicitors? Talk to Hull Solicitors Myer Wolff. Ashley Easterbrook is a partner in the firm's private client department.

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