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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

(Alexandria Division)

IN RE: :

ADAM M. BESTHOFF :

:

Debtor. :

:

____________________________________:

: Case No. 16-11644-RGM

WILLIAM MENJIVAR : Chapter 13

:

Plaintiff, :

: Adversary Proceeding No. 

v. :

:

ADAM M. BESTHOFF, :

:

Defendant. :

AMENDED COMPLAINT TO DETERMINE

NONDISCHARGABILITY OF DEBT PURSUANT TO 11 U.S.C. § 523

William Menjivar (“Plaintiff” or “Menjivar”), by counsel, pursuant to 11 U.S.C. 

§523(a)(2), (4) and (6) and Rule 7001 (6) of the Federal Rules of Bankruptcy Procedure, files this 

Amended Complaint against Adam M. Besthoff (“Debtor”) in the above referenced Chapter 13 

bankruptcy case, to determine the dischargeability of certain debt and in support thereof, states as 

follows:

PARTIES

1. Debtor is a citizen and resident of Fairfax County in the Commonwealth of 

Virginia. 

2. Plaintiff is a citizen and resident of the Fairfax County in the Commonwealth of 

Virginia.

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JURISDICTION AND VENUE

3. On May 9, 2016, Debtor filed for relief pursuant to Chapter 7 of the Bankruptcy 

Code in the United States Bankruptcy Court for the Eastern District of Virginia. The case was 

converted to a Chapter 13 bankruptcy on June 21, 2016. 

4. On July 26, 2016 Debtor’s meeting of creditors was held 

5. As of this date, Debtor has not been granted a discharge. 

6. The above-captioned Complaint is timely because the date by which a Complaint 

to determine dischargeability of debt must be filed is September 26, 2016. 

7. The Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 157(a), 

(b)(1) and 1334 and 11 U.S.C. § 105(a). 

8. This is a core proceeding arising in a bankruptcy case pending in this district 

pursuant to 28 U.S.C. § 157(b)(2)(I).

9. Venue is appropriate pursuant to 28 U.S.C. §1409(a). 

GENERAL ALLEGATIONS

10. Debtor and Plaintiff were next-door neighbors during 2015.

11. For over a year during their time as neighbors, Debtor verbally and physically 

harassed Plaintiff (who is Hispanic), using derogatory racial epithets like “spic” and threatening 

to “get [Plaintiff] deported.”

12. On or about May 2, 2015, Debtor posted a video on YouTube.com showing 

Plaintiff being led away from his home in handcuffs. The video was paired with explanatory text 

claiming that Plaintiff was “getting arrested for child molestation” and referring to Plaintiff as a 

“little taco bean eating punk ass boy.”

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13. In fact, Plaintiff was not “getting arrested for child molestation” and Debtor knew 

or should have known this as he was the person who called the police to make a frivolous 

complaint of excessive noise coming from Plaintiff’s residence, resulting in Plaintiff’s arrest.

14. There are several young children in Plaintiff’s neighborhood. There is also a bus 

stop for a Fairfax County elementary school directly across the street from Plaintiff’s home. As a 

result, young children pass frequently in front of Plaintiff’s home. 

15. On June 14, 2015, Plaintiff filed a civil action against Debtor for defamation in 

the Circuit Court of Fairfax County (Case No. 2015-8005). A true and accurate copy of the 

Complaint is attached hereto and incorporated herewith as Exhibit 1.

16. In his Complaint, Plaintiff alleged that Debtor acted willfully, maliciously, and in 

conscious disregard for Plaintiff’s rights and reputation in making the aforementioned false and 

defamatory statements about Plaintiff and that Plaintiff suffered severe humiliation, 

embarrassment, and reputational harm as a direct result of Debtor’s statements. Plaintiff also 

sought punitive damages in his Complaint. 

17. Trial was scheduled for June 7, 2016. Debtor filed for bankruptcy on May 9, 

2016, automatically staying the Fairfax Circuit Court proceedings. Accordingly, Plaintiff’s 

claims remain unliquidated. 

NONDISCHARGEABILITY 

18. The allegations contained the preceding paragraphs of this Complaint are 

incorporated herein by reference as if re-alleged in full.

19. The exceptions to discharge provided for in Section 523(a)(2), (4) and (6) of the 

Bankruptcy Code is clear that a discharge under Section 1328 does not discharge an individual 

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debtor for “willful and malicious injury by the debtor to another entity or to the property of 

another entity.”

20. The test for willfulness is whether the Debtor acted with “substantial certainty 

[that] harm [would result] or a subjective motive to cause harm." Ocean Equity Group, Inc. v. 

Wooten, 423 B.R. 108 (Bankr. E.D. Va. 2010). 

21. An act is malicious if it is done “deliberately, intentionally, and with knowing 

disregard for the plaintiff’s rights.” Reed v. Owens, 449 B.R. 239, 253 (Bankr. E.D. Va. 2011).

22. Debtor’s conduct, as described above, caused willful and malicious injury to 

Plaintiff. Besthoff acted deliberately and intentionally in publishing defamatory statements about 

Plaintiff and did so with knowing disregard for Plaintiff’s rights and reputation. Moreover, 

Debtor published the defamatory statements in question with substantial certainty that harm 

would result to Plaintiff or a subjective motive to cause harm to Plaintiff. 

23. As a direct result of Debtor’s willful and malicious conduct, Plaintiff’s reputation 

and good standing in the community have been severely damaged. Additionally, Plaintiff has 

incurred attorneys’ fees in the prosecution of this action. 

24. Therefore, all or part of the debt owed to Plaintiff is non-dischargeable as it is a 

debt for willful and malicious injury caused by the Debtor within the meaning of Bankruptcy 

Code § 523(a)(6).

WHEREFORE, Plaintiff William Menjivar, by counsel, respectfully requests that this 

Honorable Court award him the following relief:

A. An Order declaring that the debt owed to him by Debtor is non-dischargeable 

under 11 U.S.C. §523 (a)(2)(6); 

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B. A judgment in favor of Plaintiff and against Debtor for a sum to be determined by 

the Court in the form of compensatory and punitive damages;

C. All reasonable legal fees and expenses for the prosecution of this action; 

D. Such other and further relief as the Court may deem just and proper. 

DATED: September 29, 2016 WILLIAM MENJIVAR

by Counsel

/s/ Erik W. Fox 

Erik W. Fox, Esq. (VSB No. 65456)

Mariam W. Tadros, Esq. (VSB No. 75502)

REES BROOME, PC

1900 Gallows Rd., Suite 700

Tysons Corner, VA 22182

(703) 790-1911 (telephone)

(703) 847-0463 (facsimile)

efox@reesbroome.com

mtadros@reesbroome.com

Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the foregoing was served via the 

Court’s CM/ECF system and by facsimile and first-class mail this 29th day of September, 2016 

upon:

Richard Owen Bolger, Esq.

Bolger Law Firm, PLLC

10347 Democracy Lane

Fairfax, VA 22030

Tel: 703-383-9595

Fax: 703-383-3116

richard@bolgerlaw.com

Counsel for Debtor

Bradley David Jones

Office of the United States Trustee

115 South Union Street, Suite 210

Alexandria, VA 22314

(703) 557-7228

Email: bradley.d.jones@usdoj.gov

Counsel for U.S. Trustee

Thomas P. Gorman

300 N. Washington St.

Suite 400 

Alexandria, VA 22314 

(703) 836-2226

Trustee

/s/ Erik W. Fox

Erik Fox

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