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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

www.flsb.uscourts.gov

In re: GEORGETTE DOUGLASS,

 Debtor.

CASE NO. 20-23389-PDR

CHAPTER 13

WILLIAM RICHARDSON, 

 Plaintiff,

v.

GEORGETTE DOUGLASS,

 Defendant.

ADV. PROC. NO. 21-01097-PDR

DEBTOR’S MOTION TO DISMISS COMPLAINT

Georgette Douglass (“Debtor”) and the Defendant named herein, by and through 

undersigned counsel, files Debtor’s Motion to Dismiss Complaint, and as grounds therefore, 

Debtor states as follows:

Introduction

Debtor is a family law attorney duly licensed to practice in the State of Florida. This 

adversary proceeding was brought by one of Debtor’s former clients, William Richardson 

(“Richardson” or “Plaintiff”), who filed a two-count adversary complaint [ECF No. 1] seeking the 

denial of the dischargeability of debts owed as result of Debtor’s negligent representation of

Plaintiff in his divorce proceeding. The claims made by Plaintiff herein are allegedly claims arising 

under § 523(a)(4) and (a)(6) of the United States Bankruptcy Code, which provide for the denial 

of the dischargeability of debt for fraud or defalcation while acting in a fiduciary capacity (§ 

523(a)(4)), or for willful and malicious injury by a debtor to another entity or their property (§ 

523(a)(6)). For the reasons set forth below, Plaintiff’s claims are factually and legally without merit 

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and, therefore, Debtor asserts that this adversary proceeding should be dismissed in its entirety,

and with respect to the claim asserted under 523(a)(4), with prejudice.

Factual Background

1. Debtor is an attorney duly licensed to practice law in the State of Florida, who 

focused her practice primarily in the area of family law.

2. In March of 2014, Plaintiff retained Debtor to take over representation of Plaintiff 

in his divorce case that Richardson filed in January of 2012. 

3. On April 30, 2015, the family court presiding over the Richardsons’ divorce held a 

final hearing, at which Plaintiff alleged that Debtor committed malpractice by failing to advise the 

family court of certain facts that would have prevented Plaintiff from having to make to his former 

spouse what is referred to as an “equalization payment”.

4. Specifically, Plaintiff alleges that:

15. Prior to the Final Hearing, Mr. Richardson told Ms. Douglass that he did not agree with 

the calculation of the equalization payment, that Ms. Douglass was calculating the 

FRS benefits incorrectly, that the equalization payment was incorrect, and instructed 

Ms. Douglass to advise the court that the parties were not in agreement regarding the 

terms of the proposed oral marital settlement agreement.

16. Despite Mr. Richardson’s clear instructions, Ms. Douglass ignored Mr. Richardson 

and announced the agreement on the court record at the Final Hearing, including the 

equalization payment of the $138,614.00 from Mr. Richardson to Ms. Knight.

17. After the Final Hearing took place, Mr. Richardson contacted Ms. Douglass multiple 

times regarding the mistake in the calculation of the equitable distribution, and 

requested that she take action to prevent the court from entering a final judgment 

predicated upon the erroneous financial calculations.

18. Ms. Douglass ignored Mr. Richardson and failed to take any action to advise the court.

19. Prior to the Final Hearing, Ms. Douglass had in her possession documents from the 

Florida Retirement System containing a set formula that it uses to determine the 

portion of the retirement benefits constituting a marital asset subject to equitable 

distribution (the “FRS Formula”).

20. Despite conceding that the FRS Formula would be the method by which the marital 

portion of each spouse’s entitlement to the other spouses’ pension would be 

determined, Ms. Douglass departed from the proper prescribed FRS Formula in 

calculating the equitable distribution in the Dissolution of Marriage Case.

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21. Had Ms. Douglass utilized the proper prescribed FRS Formula, she would have 

determined that no equalization payment was owed, and that Mr. Richardson would 

owe Ms. Knight nothing.

22. On May 18, 2015, the Trial Court entered its Final Judgment of Dissolution of Marriage 

(the “Final Judgment of Dissolution”), which awarded the sum of $138,614.00 to Knight 

as an equalization payment.

23. Distressed over the Final Judgment of Dissolution and Ms. Douglass’s failure to make 

any effort to correct her error, Mr. Richardson retained counsel to represent him to 

pursue an appeal in order to vacate the court’s Final Judgment of Dissolution.

24. Upon discovering her mistake in the calculation of the equitable distribution, Ms. 

Douglass took no action to advise her client, took no action to advise Mr. Richardson’s

counsel, and took no action to advise the Court. 

25. On July 27, 2016, the Fourth DCA reversed the Trial Court’s Final Judgment of 

Dissolution, finding that no Marital Settlement Agreement was agreed to by the parties, 

and reversed and remanded the matter to the Trial Court.

Complaint to Determine Dischargeability, Object to Discharge and for Other Relief (the 

“Complaint”) [ECF No. 1]

5. Plaintiff thereafter sued Debtor for professional negligence and breach of fiduciary 

duty and ultimately obtained a judgment against Debtor, dated July 15, 2019 (the “Final 

Judgment”), a copy of which is attached as Exhibit “H” to the Complaint. The Final Judgment

awarded Plaintiff compensatory damages in the amount of $85,416.98, plus interest at the 

statutory rate. (Noteworthy, is the fact that the Final Judgment does not indicate on which counts 

the court found in favor of Plaintiff, that is, whether it was for legal malpractice, breach of fiduciary 

duty or both. But as will be discussed below, it need not matter, for both the malpractice and 

breach of fiduciary duty claims are dischargeable under § 523(a)(4) and (a)(6)).

6. Plaintiff also obtained a judgment against Debtor, awarding Plaintiff his attorney’s 

fees and costs incurred in obtaining the Final Judgment. See Exhibit “H” attached to the 

Complaint. (Collectively, the amounts due under the Final Judgment and the attorney’s fees and 

costs judgment shall be referred to as “the Debt”).

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7. On December 8, 2020, Debtor filed a voluntary petition for relief under Chapter 13 

of the United States Bankruptcy Code. [Main Case, ECF No. 1].

8. Plaintiff commenced this adversary proceeding on March 22, 2021, by the filing of 

the Complaint [ECF No. 1]. Despite the title of the Complaint - Complaint to Determine 

Dischargeability, Object to Discharge and for Other Relief [emphasis added] - it contains only two 

counts to deny the dischargeability of the debt under § 523(a)(4) and (6).

9. For the reasons set forth below, both counts fail to state claims upon which relief 

can be granted, therefore, Debtor asserts that the Complaint should be dismissed in its entirety

under Rule 7012 of the Federal Rules of Bankruptcy Procedure, which incorporates Rule 12 of 

the Federal Rules of Civil Procedure. And with respect to the claim asserted under § 523(a)(4), 

Debtor asserts that it should be dismissed with prejudice. 

Memorandum of Law

Although the Bankruptcy Code generally provides for the discharge of all debts that arose 

prepetition, in certain circumstances debts may not be dischargeable whatsoever, such as certain 

tax claims and student loans (§ 523(a)(1) and (a)(8)), whereas, in other cases, certain debts will 

be excepted from a debtor’s bankruptcy charge if a complaint is timely filed with the bankruptcy 

court. These type of debts are what are at issue here, namely debts that fall under the provisions 

of § 523(a)(4) and (a)(6) of the Bankruptcy Code. Because according to Rule 4007(c), a complaint 

to bring a claim under § 523(a)(4) must be filed within 60 days of the first date set for the first 

meeting of creditors conducted pursuant to § 341 of the Bankruptcy Code. Although Plaintiff timely 

filed the Complaint with respect to the claim asserted under § 523(a)(4), it is nevertheless without 

merit as will be discussed in greater detail below. 

Claim Brought Under 11 U.S.C. § 523(a)(6)

With regards to the claim asserted under 523(a)(6), it is treated differently because under 

the provisions of Chapter 13, a claim arising under 523(a)(6) is dischargeable if and when the 

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debtor completes his or plan payments and otherwise obtains his or her discharge under Chapter 

13. Specifically, section 1328(a)(2) of the Bankruptcy Code provides:

Subject to subsection (d) [not applicable here], as soon as practicable after completion by 

the debtor of all payments under the plan... have been paid, unless the court approves a 

written waiver of discharge executed by the debtor after the order for relief under this 

chapter, the court shall grant the debtor a discharge of all debts provided for by the plan 

or disallowed under section 502 of this title, except any debt— of the kind specified in 

section 507(a)(8)(C) or in paragraph (1)(B), (1)(C), (2), (3), (4), (5), (8), or (9) of section 

523(a).

11 U.S.C. § 1328(a)(2). 

In other words, by leaving out (a)(6) of § 523 from the list of exceptions to discharge, a 

discharge under Chapter 13 discharges a debt that falls within § 523(a)(6). This is known as the 

Chapter 13 “super discharge”. McCollum v. McCollum (In re McCollum), 415 B.R. 625, 629 

(Bankr. M.D. Ga. 2009); Gasunas v. Yotis (In re Yotis), 521 B.R. 625, 639 (Bankr. N.D. Ill. 2014).

Conversely, if a debtor does not complete all of the payments required under the confirmed 

plan and is thus not entitled to a discharge, the debt arising under 523(a)(6) will survive and the 

creditor, along with all other creditors, will be allowed to pursue their claims against the debtor as 

if the bankruptcy never occurred. On the other hand, if the debtor obtains a discharge under 

Chapter 13, then a claim arising under § 523(a)(6) is discharged under the super discharge 

provision of 1328(a)(2). Thus,

[w]here a debtor is proceeding toward a full compliance discharge, that would by 

definition discharge a Section 523(a)(6) debt, there is no reason to litigate the issue 

of whether the debt is, in fact, one for a willful and malicious injury. Whether it is or 

isn't doesn't matter, since it will be discharged either way if the debtor receives a 

full compliance discharge.

Fein v. Young (In re Young), 425 B.R. 811, 815 (Bankr. E.D. Tex. 2010).

But the Bankruptcy Code allows a Chapter 13 debtor to obtain a discharge prior to 

completion of all plan payments if certain conditions are met, 11 U.S.C. § 1328(b). This is referred 

to as a “hardship discharge”. Yotis at 639; see also Young at 815. Therefore, in order to protect 

a creditor’s 523(a)(6) claim from being discharged under a hardship discharge, with the chance 

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the debtor does not ultimately complete the plan payments, the law allows for the preservation of 

that claim by providing in Rule 4007(d) that, in the event a debtor seeks a hardship discharge, the 

deadline to file a complaint under 523(a)(6) shall be set by the court. Rule 4007(d), 

Fed.R.Bankr.P.

Because the Debtor is not currently seeking a hardship discharge, the provisions of Rule 

4007(d) are inapplicable. Accordingly, if Debtor completes her plan payments and receives her 

discharge, then Plaintiff’s claim asserted under § 523(a)(6) will be discharged. Therefore, Count 

II of the Complaint seeking a determination of non-dischargeability under 523(a)(6) is premature 

at this juncture. As stated in Yotis:

"Whether a Section 523(a)(6) claim in a Chapter 13 case is ripe for decision is a 

question of constitutional ripeness since resolution of the issue has no meaningful 

effect until and unless the debtor moves for a hardship discharge." In re Liescheidt, 

404 B.R. at 505. Yotis has not moved to have a hardship discharge under section 

1328(b), therefore a determination of whether the debt to Gasunas arose out of 

willful and malicious conduct is premature at this time.

The court in Young came to the same conclusion, also quoting Liescheidt. Young, 425 B.R. at 

815.

In light of the super discharge afforded Chapter 13 debtors with respect to claims arising 

under § 523(a)(6), coupled with the provisions found in Rule 4007(d), and the judicial authority 

cited above, Plaintiff’s claim found in Count II of the Complaint should be dismissed without 

prejudice. In the event Debtor completes her plan payments and receives her discharge, this 

claim will be discharged. Whereas, in the event Debtor seeks a hardship discharge in the future, 

Plaintiff will be afforded an opportunity to assert a cause of action under § 523(a)(6) at such time.

But at this time, Count II is not yet ripe and should therefore be dismissed without prejudice.

Claim Brought Under 11 U.S.C. § 523(a)(4)

Count I, on the other hand, in which Plaintiff requests the denial of the dischargeability of 

the Debt under § 523(a)(4), this claim should also be dismissed but with prejudice. Even though

§ 1328(a) of the Bankruptcy Code includes § 523(a)(4) as one of the statutory causes of action 

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that allows for the denial of the dischargeability of a debt, that is, it is a claim that is not entitled to 

benefits of the “super discharge”, Plaintiff’s claim is nevertheless not one upon which relief can 

be granted. The reason being is that the facts as alleged, even if true, are not those that come 

within the provisions of § 523(a)(4). Only if a debt is result of “fraud or defalcation while acting in 

a fiduciary capacity” may the claim be excepted from discharge. 11 U.S.C. § 523(a)(4). A simple 

breach of fiduciary duty, which is what Plaintiff alleges to have occurred, is dischargeable based 

on the plain reading of § 523(a)(4).

Often the analysis of a § 523(a)(4) begins with the issue of whether or not a debtor was 

acting in a “fiduciary capacity” when the alleged conduct occurred. That is because within the 

context of § 523(a)(4), what constitutes acting in a fiduciary capacity has been interpreted 

narrowly.

“The Supreme Court has consistently held that the term 'fiduciary' is not to be 

construed expansively, but instead is intended to refer to 'technical' trusts." Quaif 

v. Johnson, 4 F.3d 950, 953 (11th Cir. 1993) (citing Davis v. Aetna Acceptance 

Co., 293 U.S. 328, 55 S. Ct. 151, 79 L. Ed. 393 (1934), and other Supreme Court 

cases interpreting previous versions of the § 523(a)(4) exception, but noting that 

all versions have referred to "defalcation" and to "fiduciary capacity" or "fiduciary 

character"); see Commonwealth Land Title Co. v. Blaszak (In re Blaszak), 397 

F.3d 386, 391 (6th Cir. 2005) (noting that the term "fiduciary capacity" is construed 

more narrowly in the context of § 523(a)(4) than in other circumstances)[.]

G.W. Palmer & Co., Inc. v. Forrest (In re Forrest), Nos. 8:20-bk-03819-RCT, 8:20-ap-00448-RCT, 

2021 Bankr. LEXIS 1214, at *4-5 (Bankr. M.D. Fla. Apr. 2, 2021).

Plaintiff does not allege that Debtor was bound by an express or statutory trust that 

satisfies the definition of a technical trust for purposes of § 523(a)(4). But even if Debtor, as 

Plaintiff’s attorney in the divorce proceeding, owed Plaintiff a fiduciary duty that satisfies the 

technical trust requirement of § 523(a)(4), all that occurred was a simple breach of that duty. 

Debtor did not commit fraud or defalcation. Rather, Debtor was apparently mistaken about the 

equalization payment at the time of the final hearing in Plaintiff’s dissolution of marriage action 

and then apparently failed to take steps to correct that error. Nothing fraudulent whatsoever was 

committed by Debtor. And surely, Debtor did not defalcate any of Plaintiff’s property. Therefore, 

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Plaintiff has failed to state a cause of action under § 523(a)(4) and as such, Debtor requests that 

this claim, found in Count I of Plaintiff’s Complaint, be dismissed with prejudice.

Before concluding it is also worth noting that "exceptions to the general rule of discharge 

. . . are to be strictly construed in favor of the debtor.” United States v. Mitchell (In re Mitchell), 

633 F.3d 1319, 1327 (11th Cir. 2011). "[C]ourts generally construe the statutory exceptions to 

discharge in bankruptcy ‘liberally in favor of the debtor’ and recognize that ‘the reasons for denying 

a discharge...must be real and substantial, not merely technical and conjectural.’" Equitable Bank 

v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir. 1994) (quoting In re Tully, 818 F.2d 106, 110 

(1st Cir. 1987) (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir. 1934).

WHEREFORE, for the foregoing reasons, Debtor requests that this Honorable Court grant 

Debtor’s Motion to Dismiss, dismissing Count I with prejudice and dismiss Count II without 

prejudice, with the claim asserted in Count II to be renewed by Plaintiff if and when Debtor seeks 

a hardship discharge pursuant to 11 U.S.C. § 1328(b). In addition, Debtor requests that this 

Honorable Court grant Debtor any further relief this Honorable Court deems just and proper.

Dated this 10th day of June, 2021. LORIUM LAW

Attorneys for the Defendant

101 Northeast Third Avenue, Suite 1800

Fort Lauderdale, Florida 33301

Telephone 954.462.8000

Facsimile: (954) 462-4300

By: /s/ Jason E. Slatkin

 Jason E. Slatkin

 Fla. Bar No. 040370

 jslatkin@loriumlaw.com

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Certificate of Service

I hereby certify that a true copy of the foregoing has been furnished via the Court’s 

CM/ECF electronic noticing system to Richard L. Allen, Esq., rla@khllaw.com and Mason E. 

Portnoy, Esq., map@khllaw.com, and all other persons entitled to receive notice via the Court’s 

CM/ECF noticing system on this 10th day of June, 2021.

 /s/ Jason E. Slatkin

 Jason E. Slatkin

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