The creditor has the burden to establish that the debt falls within the exception. The creditor's burden of proof is by a preponderance of the evidence. Absent some additional aggravated circumstances, establishing that a debtor knowingly violated the creditor's legal rights is insufficient to establish malice. Instead, the expected harm to the creditor must be known by the debtor to be certain or substantially certain to occur. The debtor must have acted with the intent of harming the creditor, rather than merely acting intentionally in a way that resulted in harm to the creditor.
Intent is a fact question.
Evidence of the surrounding circumstances may be presented from which intent may be inferred. The debtor may be required to overcome the circumstantial evidence with more than unsupported assertions of honest intent. There must still be a finding that the debtor deliberately took action that necessarily caused harm or was substantially certain to cause the injury. Upon application of Texas law, it is clear that collateral estoppel does not arise from the judgment rendered by the Texas state court. First, the judgment entered was by default.