      Case: 14-20526             Document: 00513053243   Page: 1   Date Filed: 05/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                   FILED
                                          No. 14-20526                          May 22, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
In the Matter of: DANIEL LEE RITZ, JR., also known as Bo Ritz,

                 Debtor

------------------------------

HUSKY INTERNATIONAL ELECTRONICS, INCORPORATED,

                 Appellant

v.

DANIEL LEE RITZ, JR.,

                 Appellee




                      Appeal from the United States District Court
                           for the Southern District of Texas


Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
KING, Circuit Judge:
        Appellant Husky International Electronics, Inc., brought this adversary
proceeding against Appellee and debtor Daniel Lee Ritz, Jr., objecting to the
discharge of a $163,999.38 contractual debt owed to Husky by Chrysalis
Manufacturing Corp.—of which Ritz was a shareholder. Husky sought to
except the debt from discharge under either 11 U.S.C. § 523(a)(2)(A) or 11
U.S.C. § 523(a)(6). The bankruptcy court denied all relief sought by Husky,
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                                    No. 14-20526
determining that the debt was dischargeable. The district court affirmed on
appeal. For the following reasons, we AFFIRM.
                 I.        Factual and Procedural Background
      The facts underlying this adversary proceeding are straightforward.
Appellant Husky International Electronics, Inc. (“Husky”), is a Colorado-based
seller of electronic device components. From 2003 to 2007, Husky sold and
delivered goods to Chrysalis Manufacturing Corp. (“Chrysalis”) pursuant to a
written contract. It is undisputed that Chrysalis failed to pay for all of the
goods it purchased from Husky, and that Chrysalis owed a debt to Husky in
the amount of $163,999.38. At all relevant times, Appellee Daniel Lee Ritz,
Jr., the debtor, was in financial control of Chrysalis. Moreover, Ritz was a
director of Chrysalis and owned at least 30% of Chrysalis’s common stock.
      Between November 2006 and May 2007, Ritz transferred a substantial
amount of Chrysalis’s funds to various entities controlled by Ritz. Specifically,
Ritz transferred: (1) $677,622 to ComCon Manufacturing Services, Inc.; (2)
$121,831 to CapNet Securities Corp. (of which Ritz held an 85% ownership
interest); (3) $52,600 to CapNet Risk Management, Inc. (of which Ritz held a
100% ownership interest); (4) $172,100 to Institutional Capital Management,
Inc., and Institutional Insurance Management, Inc. (of which Ritz held 40%
and 100% ownership interests, respectively); (5) $99,386.90 to Dynalyst
Manufacturing Corp. (of which Ritz held a 25% ownership interest); (6) $26,500
to Clean Fuel International Corp. (of which Ritz held a 20% ownership
interest); and (7) $11,240 to CapNet Advisors, Inc. With respect to each of
these transfers, the bankruptcy court concluded that Chrysalis did not receive
reasonably equivalent value in exchange. 1           The bankruptcy court further


      1   Ritz does not dispute that these transfers were made, but he challenges the
bankruptcy court’s conclusion regarding reasonably equivalent value—contending that these
entities transferred more money into Chrysalis then was transferred out. We need not
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                                      No. 14-20526
determined that during this time, Chrysalis was operational, but was not
paying its debts as they became due. The bankruptcy court found that at all
relevant times, the sum of Chrysalis’s debts was greater than that of
Chrysalis’s assets at a fair valuation.
       In May 2009, Husky sued Ritz in federal district court, seeking to hold
Ritz personally liable for Chrysalis’s $163,999.38 debt. In December 2009, Ritz
filed a voluntary Chapter 7 petition for bankruptcy in the United States
Bankruptcy Court for the Southern District of Texas. In March 2010, Husky
filed a complaint in the bankruptcy court initiating the adversary proceeding
underlying this appeal. In the complaint, Husky objected to the discharge of
Ritz’s alleged debt, relying on 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4), and
523(a)(6). 2
       The bankruptcy court held a trial in February 2011. The court issued its
Memorandum Opinion, including findings of fact and conclusions of law, in
August 2011.       As noted above, the court found that the transfers Ritz
orchestrated were not made for reasonably equivalent value. The court also
found that Husky suffered damages due to these transfers—specifically, “in
the amount of $163,999.38—which represents the amount owed to Husky by
Chrysalis for the goods which Husky delivered to Chrysalis.” In addition, the
court determined that Ritz was “not a credible witness” due to his contradictory
and evasive testimony, and due to his “selective” inability to recall certain
information. In its conclusions of law, the bankruptcy court first addressed
whether Ritz could be held liable for Chrysalis’s debt under Texas veil-piercing



determine whether the bankruptcy court’s findings as to this issue were clearly erroneous.
Whether or not Chrysalis received reasonably equivalent value for the transfers, we conclude,
for the reasons discussed below, that the exceptions to discharge raised by Husky are
inapplicable.
       2 The bankruptcy court determined that Husky could not prevail under Section

523(a)(4), a determination Husky does not challenge on appeal.
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laws. The court determined that, under Texas law, Husky had not established
that Ritz perpetuated an “actual fraud” on Husky—a prerequisite for piercing
the veil under Texas Business Organizations Code Section 21.223(b)—because
Husky failed to show that Ritz made a false representation to Husky. The
bankruptcy court found that the record was “wholly devoid of any such
representation made by [Ritz].” For this same reason, the court determined
that the “actual fraud” exception to discharge contained in 11 U.S.C.
§ 523(a)(2)(A) did not apply.     Finally, the bankruptcy court rejected the
applicability of the “willful and malicious injury” exception to discharge under
11 U.S.C. § 523(a)(6), concluding that Husky failed to sufficiently brief and
adduce evidence on this provision, and stating that “[t]he record is wholly
devoid of any proof that [Ritz] willfully and maliciously injured Husky or
Husky’s property.” Accordingly, the bankruptcy court denied all of Husky’s
requested relief.
      On appeal, the district court relied on a Fifth Circuit case issued after
the bankruptcy court’s decision, Spring Street Partners-IV, L.P. v. Lam, 730
F.3d 427 (5th Cir. 2013), in determining that Husky could pierce the corporate
veil because there was sufficient circumstantial evidence suggesting that Ritz
acted with the intent to hinder, delay, or defraud Husky. Nonetheless, the
court held that Husky had not established actual fraud under 11 U.S.C.
§ 523(a)(2)(A), which requires a misrepresentation. Finally, the district court
rejected the applicability of 11 U.S.C. § 523(a)(6), as Husky “fail[ed] to show by
a preponderance of the evidence that Ritz acted willfully and maliciously.”
Accordingly, the district court affirmed. Husky timely appealed.
                           II.    Standard of Review
      “When a court of appeals reviews the decision of a district court, sitting
as an appellate court, it applies the same standards of review to the bankruptcy
court’s findings of fact and conclusions of law as applied by the district court.”
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                                   No. 14-20526
Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647, 652 (5th Cir. 2010) (internal
quotation marks omitted). Accordingly, we review conclusions of law de novo
and findings of fact for clear error. Bank of La. v. Bercier (In re Bercier), 934
F.2d 689, 691 (5th Cir. 1991). “[W]e will affirm the bankruptcy court’s findings
unless on the entire evidence, this court is left with the definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks
and brackets omitted).       Moreover, where, as here, “the district court has
affirmed the bankruptcy court’s findings, the clear error standard is strictly
applied.” Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313, 317
(5th Cir. 2013) (internal quotation marks and brackets omitted).
                                III.     Discussion
      On appeal, Husky contends as a threshold matter that Ritz committed
“actual fraud” under Texas Business Organizations Code Section 21.223(b) and
thus can be held liable for Chrysalis’s debt. Husky further argues that the debt
is excepted from discharge in bankruptcy under either the “actual fraud” clause
in 11 U.S.C. § 523(a)(2)(A), or as debt due to “willful and malicious injury”
under 11 U.S.C. § 523(a)(6). Because we conclude—as did the bankruptcy and
district courts—that neither of these exceptions to discharge applies, we need
not reach the first issue.
   A. “Actual Fraud” Under 11 U.S.C § 523(a)(2)(A)
      “The Bankruptcy Code has long prohibited debtors from discharging
liabilities incurred on account of their fraud, embodying a basic policy
animating the Code of affording relief only to an honest but unfortunate
debtor.” Cohen v. de la Cruz, 523 U.S. 213, 217 (1998) (internal quotation
marks omitted). In accordance with that policy, Section 523(a)(2)(A) excepts
from discharge “any debt . . . for money, property, services, or an extension,
renewal, or refinancing of credit, to the extent obtained by . . . false pretenses,
a false representation, or actual fraud.” Husky asserts that the debt at issue
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                                     No. 14-20526
is one for money obtained by “actual fraud.” The parties vigorously dispute the
meaning of this term—particularly, whether “actual fraud” can be established
where, as here, the debtor made no false representation to the creditor. 3
Guided by Supreme Court and Fifth Circuit precedent, we conclude that it
cannot. 4
      Husky’s argument that a false representation is unnecessary to trigger
the “actual fraud” clause of Section 523(a)(2)(A) rests almost exclusively on
McClellan v. Cantrell, 217 F.3d 890 (7th Cir. 2000). In McClellan, a divided
panel of the Seventh Circuit held that “actual fraud” under that provision “is
not limited to misrepresentations and misleading omissions.” 217 F.3d at 893.
The court faced a situation in which the creditor sold machinery to the debtor’s
brother for $200,000, payable in installments.              Id. at 892.     The brother
defaulted, owing the creditor more than $100,000. Id. The creditor sued the
brother and, with the suit pending, the brother sold the machinery to his sister,
the debtor, for $10; she later resold the machinery for $160,000. Id. The debtor
was aware of the lawsuit and “was colluding with her brother to thwart [the
creditor]’s collection of the debt that her brother owed him.” Id. The debtor
ultimately filed for bankruptcy, and the creditor brought an adversary
proceeding to recover the debt. Id. At issue in McClellan was whether that
debt was barred from discharge under the “actual fraud” clause of Section
523(a)(2)(A)—despite the fact that the debtor made no false representation to
the creditor.     Judge Posner, writing for the majority, distinguished the
“[p]lenty of cases [that] . . . assume that fraud equals misrepresentation,” as



      3   Husky concedes that “Ritz made no oral or written representations to Husky
inducing Husky to enter into a contract with Chrysalis.” Nor does Husky point to any other
false representations made by Ritz to Husky.
        4 Accordingly, we need not reach Ritz’s alternative arguments that: (1) the debt at

issue was not “obtained by” fraud, 11 U.S.C § 523(a)(2)(A), and (2) Ritz did not make the
transfers with the intent to deceive Husky.
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those were “cases in which the only fraud charged was misrepresentation.” Id.
The court concluded that a fraudulent misrepresentation “is not the only form
that fraud can take or the only form that makes a debt nondischargeable,” id.
at 894, relying in part on the fact that the provision covers both “false
representation[s]” and “actual fraud”: “[B]y distinguishing between ‘a false
representation’ and ‘actual fraud,’ the statute makes clear that actual fraud is
broader than misrepresentation,” id. at 893. Accordingly, the court concluded
that actually fraudulent conveyances—i.e., conveyances through which the
debtor intends to hinder the creditor—constitute “actual fraud” under Section
523(a)(2)(A). 5 Id. at 894–95. The court further reasoned that the debt at issue
“arose not when [the debtor’s] brother borrowed money from [the creditor] but
when [the debtor] prevented [the creditor] from collecting from the brother the
money the brother owed him.” Id. at 895. Accordingly, the debt was for
“property . . . obtained by fraud.” Id. In a concurrence, Judge Ripple noted
that the majority’s interpretation was “perhaps strained,” and therefore
concluded that a different exception to discharge—Section 523(a)(6)—
“provides a far more direct avenue for dealing with a situation such as the one”
before the court. Id. at 896 (Ripple, J., concurring).
       No subsequent appellate court has adopted the interpretation of Section
523(a)(2)(A) endorsed by the McClellan majority, 6 and we decline to do so


       5  The court reasoned that constructively fraudulent transfers—those for which no
reasonably equivalent value is received—would not constitute “actual fraud.” Id. at 894–95.
        6 Husky mistakenly asserts that both the Sixth and Tenth Circuits have followed

McClellan. Although bankruptcy appellate panels in those circuits have adopted McClellan’s
reasoning, see Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873, 877 (B.A.P.
6th Cir. 2001); Diamond v. Vickery (In re Vickery), 488 B.R. 680, 691 (B.A.P. 10th Cir. 2013),
no circuit court has done so, cf. McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 n.7 (1st Cir.
2001) (“[W]e do not decide whether we would adopt the Seventh Circuit’s reasoning [in
McClellan].”) Other bankruptcy courts have explicitly rejected the McClellan approach. See,
e.g., Sauer Inc. v. Lawson (In re Lawson), 505 B.R. 117, 123 (Bankr. D.R.I. 2014); Blacksmith
Invs. v. Woodford (In re Woodford), 403 B.R. 177, 188 (Bankr. D. Mass. 2009); McKnew v.
KMK Factoring, L.L.C. (In re McKnew), 270 B.R. 593, 618 n.40 (Bankr. E.D. Va. 2001).
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today. First, McClellan appears to be in tension with the Supreme Court’s
opinion in Field v. Mans, 516 U.S. 59 (1995), which “resolve[d] a conflict among
the Circuits over the level of reliance that § 523(a)(2)(A) requires a creditor to
demonstrate.” Id. at 63. The Court reasoned that the terms “‘false pretenses,
a false representation, or actual fraud,’ carry the acquired meaning of terms of
art” and “imply elements that the common law has defined them to include.”
Id. at 69. Because the district court treated the conduct at issue “as amounting
to fraud,” the Court “look[ed] to the concept of ‘actual fraud’ as it was
understood in 1978 when the language was added to § 523(a)(2)(A).” 7 Id. at
70. The Court relied primarily on the Restatement (Second) of Torts, published
shortly before Congress passed the current version of Section 523(a)(2)(A). Id.
The Court focused on “[t]he section on point dealing with fraudulent
misrepresentation,” which stated that “both actual and ‘justifiable’ reliance are
required.” Id. The Court also noted that the edition of Prosser’s Law of Torts
available in 1978 “states that justifiable reliance is the standard.” Id. at 71.
Accordingly, the Court concluded that the applicable standard is “one of
justifiable reliance.” Id. at 61.
       Although not directly addressing the issue, the Court throughout its
opinion in Field appeared to assume that a false representation is necessary to
establish “actual fraud.” See, e.g., id. at 68 (“If Congress really had wished to
bar discharge to a debtor who made unintentional and wholly immaterial
misrepresentations having no effect on a creditor’s decision, it could have
provided that.”); see also id. at 79 (Breyer, J., dissenting) (“I agree with the
Court’s holding that ‘actual fraud’ under 11 U.S.C. § 523(a)(2)(A) incorporates




       7   Prior to 1978, an earlier version of the provision “provided that debts that were
‘liabilities for obtaining property by false pretenses or false representations’ would not be
affected by any discharge granted to a bankrupt.” Id. at 64.
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the common-law elements of intentional misrepresentation.”). 8 The majority
in McClellan asserted that Field was inapposite because “[t]he fraud there took
the form of a misrepresentation” and “[n]othing in the Supreme Court’s opinion
suggests that misrepresentation is the only type of fraud that can give rise to
a debt that is not dischargeable under section 523(a)(2)(A).” McClellan, 217
F.3d at 892. Although it is true that the facts underlying Field involved a
misrepresentation, we do not believe that the case can be so easily disregarded.
Nowhere in Field did the Court suggest that different definitions of “actual
fraud” apply depending on “the type of fraud . . . alleged.” Id. Rather, the
Court looked to the Restatement (Second) of Torts and Prosser’s Law of Torts
in analyzing “the concept of ‘actual fraud’ as it was understood in 1978.” Field,
516 U.S. at 70 (emphasis added).               Both of those sources indicate that a
representation is a necessary prerequisite. See Restatement (Second) of Torts
§ 537 (1977) (“The recipient of a fraudulent misrepresentation can recover
against its maker for pecuniary loss resulting from it if, but only if . . . he relies




       8 Indeed, in a separate concurrence, Justice Ginsburg strongly suggested that the debt
at issue would not have been dischargeable absent a representation:
       At oral argument, the following exchange between the Court and the Fields’
       attorney occurred:
               “QUESTION: . . . Suppose the debtor here had simply transferred th[e]
               property without saying one word to the creditor. . . . [W]ould [the debt]
               then be dischargeable? There would be no representation at all, just in
               violation      of    the    agreement    the     debtor      sells     the
               property. . . . Dischargeable, right?
               “MR. SEUFERT: While [those are] not the facts of this case, I would
               agree with you, it would be dischargeable.” [Tr. Of Oral Arg.] at 8–9.
       It bears consideration whether a debt that would have been dischargeable had
       the debtor simply transferred the property, in violation of the due-on-sale
       clause with never a word to the creditor, nonetheless should survive
       bankruptcy because the debtor wrote to the creditor of the prospect, albeit not
       the actuality, of the transfer.
Id. at 79 (Ginsburg, J., concurring) (alterations in original).
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                                       No. 14-20526
on the misrepresentation in acting or refraining from action . . . .”); 9 William J.
Prosser, Law of Torts § 106, p. 694 (4th ed. 1971) (“The representation which
will serve as a basis for an action of deceit, as well as other forms of relief,
usually consists, of course, of oral or written words; but it is not necessarily so
limited.” (footnote omitted)). Moreover, at bottom, the Court in Field made
clear that the meaning of “actual fraud” depends on the 1978 common law
meaning of the term. Field, 516 U.S. at 70. Husky has pointed to no authority,
and we are not aware of any, suggesting that the common law meaning of
“actual fraud” at that time encompassed fraudulent transfers of the type at
issue here. Indeed, Husky’s counsel conceded at oral argument that fraudulent
transfers are statutory constructs, and are “not . . . creature[s] of the common
law.”
        Moreover, the reasoning in McClellan is at best inconsistent with, if not
foreclosed by, our own Fifth Circuit precedent.                In cases both prior and
subsequent to Field and McClellan, we have stated in no uncertain terms:
        In order to prove nondischargeability under an “actual fraud”
        theory, the objecting creditor must prove that: (1) the debtor made
        representations; (2) at the time they were made the debtor knew
        they were false; (3) the debtor made the representations with the
        intention and purpose to deceive the creditor; (4) that the creditor



        9 Although some may quarrel with the Field Court’s focus on the “fraudulent
misrepresentation” provision of the Restatement in interpreting the term “actual fraud,” such
an argument is a challenge to Field itself—a decision to which we are bound. In any event,
Husky has not pointed to any other provision of the Restatement that it contends is applicable
to the conduct at issue here. Another provision does state that one may be liable to another
for nondisclosure where “he is under a duty of care to the other to exercise reasonable care to
disclose the matter in question,”—e.g., where the parties have “a fiduciary or other similar
relation of trust and confidence between them.” Restatement (Second) of Torts § 551.
However, such fraud is addressed in a separate provision of Section 523—11 U.S.C.
§ 523(a)(4)—which excepts debts “for fraud or defalcation while acting in a fiduciary
capacity.” In rejecting the applicability of that provision, the bankruptcy court determined
that “[Ritz] owed no fiduciary duty to [Husky]”—a determination Husky has not challenged
on appeal.
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                                       No. 14-20526
       relied on such representations; and (5) that the creditor sustained
       losses as a proximate result of the representations.
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1293 (5th Cir. 1995) (emphasis
added) (internal quotation marks and footnote omitted); see Gen. Elec. Capital
Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372 (5th Cir. 2005) (“For a debt to
be nondischargeable under section 523(a)(2)(A), the creditor must show (1) that
the debtor made a representation . . . .”). Although these cases did not directly
address whether fraudulent transfers may constitute “actual fraud” under
Section 523(a)(2)(A), we are at the very least hesitant to hold that a creditor
need not fulfill one of the express requirements we have repeatedly delineated
in our test for “actual fraud.” 10
       But even setting aside Field and our precedent, there are other reasons
we choose not to follow McClellan. McClellan and its progeny rely heavily on
the theory that because Section 523(a)(2)(A) includes the phrase “false
representation,” reading “actual fraud” to require such a representation
renders the latter phrase redundant. See McClellan, 217 F.3d at 893; see also
In re Vickery, 488 B.R. at 691. Although as a general rule we aim to “give
effect, if possible, to every word Congress used” in construing statutes,
Pilgrim’s Pride Corp. v. Comm’r of Internal Revenue, 779 F.3d 311, 316 (5th
Cir. 2015) (internal quotation marks omitted), that canon of construction is not
a rigid, inviolable dictate. Such canons “are tools designed to help courts better



       10 We recognize that the Fifth Circuit, sitting en banc, noted that it was “not required
to address” whether the elements of “actual fraud” listed in our prior cases “survived Field.”
AT&T Universal Card Servs. v. Mercer (In re Mercer), 246 F.3d 391, 403 (5th Cir. 2001) (en
banc). However, for the reasons discussed above, Field is entirely consistent with—and may
even compel—the conclusion that a representation is a necessary prerequisite to a finding of
“actual fraud.” Furthermore, were a representation unnecessary, one of the main issues in
In re Mercer—whether the use of a credit card constituted a “representation of intent to pay,”
id. at 404–07—would have been rendered irrelevant, see id. at 426 (Duhé, J., dissenting) (“If
one can ‘infer’ a representation from use of the card, then the creditor is relieved of the
obligation of proving that a false representation was made.”).
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determine what Congress intended, not to lead courts to interpret the law
contrary to that intent.” Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 23
(2006); see also Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001)
(“[T]hese canons do not determine how to read this statute. For one thing,
canons are not mandatory rules. They are guides that need not be conclusive.
They are designed to help judges determine the Legislature’s intent as
embodied in particular statutory language.                   And other circumstances
evidencing congressional intent can overcome their force.” (internal citation
and quotation marks omitted)); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 176 (2012) (“[The canon against
surplusage] cannot always be dispositive because (as with most canons) the
underlying proposition is not invariably true.”). Here, although “actual fraud”
was added to the statute in 1978, some have suggested that Congress did not
intend to create a separate basis for dischargeability—but rather intended only
to codify “the limited scope of the fraud exception” as expressed in case law
“interpret[ing] ‘fraud’ to mean actual or positive fraud rather than fraud
implied by law.” RecoverEdge, 44 F.3d at 1292 n.16 (internal quotation marks
omitted); Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy
¶ 523.08[01][e] (16th ed. 2014) (“Section 523(a)(2)(A) was intended to codify
case law . . . which interpreted ‘fraud’ to mean actual or positive fraud rather
than fraud implied by law.”); Cohen, 523 U.S. at 221 (stating that pre- and
post-1978 versions of Section 523(a)(2)(A) are “substantially similar”). 11



       11  Even assuming Congress intended the phrase “actual fraud” to have a meaning
independent from the other phrases in that provision, this court has noted a theory under
which “actual fraud” would not be redundant of those other phrases. See In re Bercier, 934
F.2d at 692 (reasoning that “false representations and false pretenses . . . encompass
statements that falsely purport to depict current or past facts” while “actual fraud” concerns
“promises of future action which, at the time they were made, [the debtor] had no intention of
fulfilling”). Notably, this distinction would survive even given our conclusion that “actual
fraud” requires a misrepresentation. However, we need not, and do not, expressly adopt any
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                                      No. 14-20526
       We also note that another provision of the Bankruptcy Code, Section
727(a)(2), excepts from discharge certain fraudulent transfers.                 11 U.S.C.
§ 727(a)(2)(A) (“The court shall grant the debtor a discharge, unless . . . the
debtor, with intent to hinder, delay, or defraud a creditor . . . has
transferred . . . property of the debtor . . . .”). It would appear odd, at the very
least, for Congress to have intended that the “actual fraud” provision cover
fraudulent transfers, when there is another provision directly addressing such
transfers. See United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 509–
10 (5th Cir. 2008) (“We are to read a statute as a whole, so as to give effect to
each of its provisions without rendering any language superfluous.” (internal
citation marks omitted)).         Husky did not raise this fraudulent transfer
provision below. Moreover, other exceptions to discharge in the Bankruptcy
Code may be rendered redundant by the McClellan majority’s broad, omnibus
construction of “actual fraud.” See 11 U.S.C. § 523(a)(4) (excepting debts “for
fraud or defalcation while acting in a fiduciary capacity”); id. § 523(a)(6)
(excepting debts “for willful and malicious injury by the debtor to another
entity or to the property of another entity”).
       Finally, to the extent Section 523(a)(2)(A) is ambiguous, “[e]xceptions to
discharge should be construed in favor of debtors in accordance with the
principle that provisions dealing with this subject are remedial in nature and
are designed to give a fresh start to debtors unhampered by pre-existing
financial burdens.” Fezler v. Davis (In re Davis), 194 F.3d 570, 573 (5th Cir.
1999); see also Hickman v. Texas (In re Hickman), 260 F.3d 400, 404 (5th Cir.
2001) (“[E]xceptions to discharge are to be construed narrowly.”).




of these theories for Congress’s inclusion of “actual fraud” in Section 523(a)(2)(A). We note
these theories only to suggest that, contrary to the McClellan majority’s contention, our
reading of “actual fraud” is unlikely to render the phrase meaningless or redundant.
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                                  No. 14-20526
      For all of these reasons, we conclude that a representation is a necessary
prerequisite for a showing of “actual fraud” under Section 523(a)(2)(A).
Because the parties agree that the record contains no evidence of such a
representation, discharge of the debt at issue is not barred under this
provision.
   B. “Willful and Malicious Injury” Under 11 U.S.C § 523(a)(6)
      Husky also challenges the bankruptcy court’s conclusion that Section
523(a)(6) does not bar discharge of Ritz’s alleged debt. Under that provision, a
debt “for willful and malicious injury by the debtor to another entity or to the
property of another entity” is excepted from discharge. 11 U.S.C. § 523(a)(6).
The Supreme Court has interpreted this provision to require “a deliberate or
intentional injury, not merely a deliberate or intentional act that leads to
injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). In Kawaauhau, the
Court held that “debts arising from recklessly or negligently inflicted injuries
do not fall within the compass of § 523(a)(6).” Id. at 64. Following Kawaauhau,
this court has held “that an injury is ‘willful and malicious’ where there is
either an objective substantial certainty of harm or a subjective motive to cause
harm.” Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598, 606 (5th Cir.
1998); cf. McClendon v. Springfield (In re McClendon), 765 F.3d 501, 505 (5th
Cir. 2014) (“[A]n individual who acts under an honest, but mistaken
belief . . . cannot be said to have intentionally caused injury, because absent
the fact about which there has been a mistake, legally cognizable injury would
not meet the test of substantial certainty.” (internal quotation marks omitted)).
      In rejecting the applicability of Section 523(a)(6), the bankruptcy court
stated that “[t]he record is wholly devoid of any proof that [Ritz] willfully and
maliciously injured Husky or Husky’s property.” The court similarly concluded
that Husky “failed to identify any tortious action by [Ritz] that caused a willful
and malicious injury.” (internal quotation marks omitted). Husky argues that
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                                      No. 14-20526
these conclusions are at odds with the bankruptcy court’s factual findings that
Ritz “drained substantial funds out of Chrysalis[]” through transfers that were
made without Chrysalis receiving reasonably equivalent value in return. But
these findings are not incompatible with the court’s rejection of Section
523(a)(6), as there appears to be scant evidence in the record indicating either
that Ritz made these transfers with the intent to harm Husky, or that harm to
Husky was substantially certain due to Ritz’s actions. We note that it was
Husky’s burden to prove this exception to dischargeability by a preponderance
of the evidence, Grogan v. Garner, 498 U.S. 279, 291 (1991), and as the
bankruptcy court noted, “no exhibits were introduced” and “no testimony was
adduced . . . relating to § 523(a)(6).” Cf. Williams v. Int’l Bhd. of Elec. Workers
Local 520 (In re Williams), 337 F.3d 504, 511 (5th Cir. 2003) (“Although
previous decisions by this circuit hold that injuries resulting from a knowing
breach of contract may be nondischargeable under Section 523(a)(6), those
decisions also require explicit evidence that a debtor’s breach was intended or
substantially certain to cause the injury to the creditor.” (emphasis added)).
Accordingly, the bankruptcy court did not err in concluding that Section
523(a)(6) is inapplicable to the debt at issue. 12
   C. Equitable Considerations
       Finally, Husky argues that, notwithstanding the provisions discussed
above, we should direct the bankruptcy court to exercise its equitable powers
to “prevent the U.S. Bankruptcy Code from becoming an engine of fraud.”
However, such equitable powers “must be exercised in a manner that is



       12 We note that a portion of the bankruptcy court’s analysis with respect to Section
523(a)(6) appeared to focus on Ritz’s intent vis-à-vis the transaction between Husky and
Chrysalis, as opposed to Ritz’s intent at the time of the fraudulent transfers. In any event,
the bankruptcy court’s conclusions—that the record was “wholly devoid” of evidence that Ritz
took “any . . . action . . . that caused a willful and malicious injury”—were not so limited.
(emphasis added).
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                                 No. 14-20526
consistent with the Bankruptcy Code,” and a bankruptcy court is not permitted
“to create substantive rights that are otherwise unavailable under applicable
law, or constitute a roving commission to do equity.” Perkins Coie v. Sadkin
(In re Sadkin), 36 F.3d 473, 478 (5th Cir. 1994) (per curiam) (internal quotation
marks omitted). For the reasons discussed above, the statutory exceptions to
discharge raised by Husky are inapplicable, and Husky cannot rely upon
general principles of equity to expand those exceptions. Indeed, as noted
above, another provision of the Bankruptcy Code, Section 727(a)(2), may have
applied to redress the conduct of which Husky complains—but Husky failed to
raise that provision below.
                              IV.       Conclusion
      For the foregoing reasons, we AFFIRM.




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