                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0167p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                 X
                                                  -
 In re: SAMEER B. PATEL,
                                                  -
                                Debtor.
 ____________________________________             -
                                                  -
                                                      No. 08-1265

                                                  ,
                                                   >
                        Defendant-Appellant, -
 SAMEER B. PATEL,

                                                  -
                                                  -
                                                  -
          v.
                                                  -
 SHAMROCK FLOORCOVERING SERVICES, INC., -
                           Plaintiff-Appellee. -
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Eastern District of Michigan at Detroit.
               No. 07-13712—Nancy G. Edmunds, District Judge.
                                  Argued: April 29, 2009
                            Decided and Filed: May 12, 2009
         Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Dean R. Nelson, Jr., CHARLES J. TAUNT & ASSOCIATES, Birmingham,
Michigan, for Appellant. Nik Lulgjuraj, DARNELL & LUGJURAJ, Chelsea, Michigan, for
Appellee. ON BRIEF: Dean R. Nelson, Jr., Erika D. Hart, CHARLES J. TAUNT &
ASSOCIATES, Birmingham, Michigan, for Appellant. Nik Lulgjuraj, DARNELL &
LUGJURAJ, Chelsea, Michigan, for Appellee.
                                   _________________

                                         OPINION
                                   _________________

        BOYCE F. MARTIN, JR., Circuit Judge. Bankruptcy is designed to give debtors a
“fresh start.” Ordinarily, whatever assets a debtor has are allocated among his creditors and,
even though they rarely cover all liabilities, he emerges with no outstanding debts. But there


                                              1
No. 08-1265         In re Patel                                                       Page 2


are exceptions: some debts are not dischargeable, and among these are debts arising from a
“defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). This appeal
presents the question whether the defendant, Sameer Patel—corporate officer, 50%
shareholder, and day-to-day administrator of a “contractor” under the Michigan Builders
Trust Fund Act, MICH. COMP. LAWS § 570.151—is a fiduciary such that § 523(a)(4) prevents
him from discharging his debt because he breached his fiduciary duty to plaintiff Shamrock
Floorcovering. Because Patel was a fiduciary and breached his duties by “defalcation,” we
affirm the district court’s ruling that his debt to Shamrock is not dischargeable.

                                             I.

        Empire Limited Partnership, owned and operated by Patel’s father, decided to build
homes on some of its land plots in Pittsfield Township, Michigan. Sameer Patel was
president and 50% shareholder of Empire Builders of Michigan, Inc., the home construction
project’s general contractor. In this role he handled day-to-day operations: Empire Builders
contracted, worked with, and paid subcontractors. And payment was organized as follows:
subcontractors sent invoices to Empire Builders, which were then submitted to Empire
Limited Partnership. To cover payments, the partnership requested funds under its line of
credit from Huntington National Bank. Empire Limited Partnership would then turn over
funds to Empire Builders, which paid the subcontractors and covered other expenses.

        Yet this arrangement began falling apart after Huntington Bank imposed additional
borrowing restrictions on the partnership. In 1998 Huntington required Empire Limited to
refinance the Pittsfield construction project’s funding by selling unrelated lots to a third-
party, but that transaction’s closing was delayed, so payments owed piled up. And, in
November, Empire Builders, Patel’s company, sent plaintiff Shamrock a letter stating that
it would pay the $47,058 Empire Builders owed it. When the sale of the unrelated properties
was finally complete, the proceeds were placed in escrow and Shamrock received $11,000
in payment. The remainder was scheduled for future payment.

        Over the next year Shamrock continued work, and, in August 1999, Patel wrote to
Shamrock stating that money Empire Builders owed it was held in escrow and would soon
be released, so that Shamrock could expect its money “ASAP.” And, two months later,
Shamrock agreed to waive the $8,400.00 owed to it in exchange for a promise that $7,048.00
No. 08-1265            In re Patel                                                              Page 3


would remain a continuing obligation of Empire Builders and Sameer Patel personally. Soon
thereafter, however, Huntington Bank pulled its line of credit. As a result, the home
construction project—and both Empire Builders and Empire Limited Partnership
themselves—collapsed. The partnership sold the rest of its undeveloped lots and abandoned
the remaining phases of the construction project. Shamrock was never paid what it was
owed, including the $7,048.00 Patel had personally agreed to pay.

         So in 2000 Shamrock sued Empire Builders and Sameer Patel in Michigan state court
alleging: (1) breach of contract; (2) fraud/innocent misrepresentation; (3) account stated; (4)
action on personal guarantee; and (5) fraudulent conveyance. Shamrock obtained a default
judgment         in   2003   against    Empire      Builders     and     Patel    individually      for
$81,171.79—$73,529.00 in damages and $7,642.79 in interest.

         Patel then filed for personal Chapter 7 bankruptcy and listed Shamrock’s $81,171.79
state court judgment against Empire Builders and himself as a debt to be discharged.
Shamrock brought an adversary proceeding, filing a complaint to contest dischargeability.
Patel brought a motion for summary judgment, arguing that the debt was dischargeable. The
bankruptcy court ruled that the debt was dischargeable because 11 U.S.C. § 523(a)(4) did
             1
not apply. The district court reversed, holding that Patel breached the fiduciary duties
he owed Shamrock by failing to account for and pay funds—a “defalcation.” Patel
appeals.

                                                  II.

         We directly review a bankruptcy court’s order when appealed from a district
court. Rogan v. Bank One, Nat’l Ass’n (In re Cook), 457 F.3d 561, 565 (6th Cir. 2006).
We review findings of fact under the clearly erroneous standard and conclusions of law
de novo. Id.




         1
          The bankruptcy court also allowed Shamrock to amend its complaint to add a claim alleging that
the debt was non-dischargeable under 11 U.S.C. § 523(a)(2). Shamrock did so, and in response Patel filed
a motion for summary judgment, which the bankruptcy court also granted. The district court affirmed the
bankruptcy court on this point, and Shamrock does not press this § 523(a)(2) ground on appeal.
No. 08-1265             In re Patel                                                                Page 4


                                                    A.

        Bankruptcy is both a creditor’s remedy and a debtor’s right. Discharging a
bankrupt party’s debts is central to bankruptcy’s purpose of providing a “fresh start” to
filers. But discharging debts sometimes harms creditors, so there are statutory
exceptions. Some debts are not dischargeable because of their type, e.g., 11 U.S.C.
§ 523(a)(1) (taxes or customs duties); id. § 523(a)(14) (tax), id. § 523(a)(5) (alimony and
child support), and others are not dischargeable because of public policy, e.g., id.
§ 523(a)(2) (obtaining money, goods, or services by fraud or falsehood); id. § 523(a)(6)
(wilful or malicious injury); id. § 523(a)(9) (death or injury caused by driving under the
influence of alcohol or drugs). The provision construed here excludes from discharge
debts incurred from “fraud or defalcation while acting in a fiduciary capacity,
embezzlement, or larceny.” Id. § 523(a)(4).

        This exception for “defalcation while acting in a fiduciary capacity” follows from
Congress’s desire to protect trust relationships: when the bankrupt is a trustee and the
creditor a trust beneficiary, § 523(a)(4) points the needle away from discharge; it is yet
another example of the law’s imposition of high standards of loyalty and care on
trustees. See Commonwealth Land Title Co. v. Blaszak (In re Blaszak), 397 F.3d 386,
391 (6th Cir. 2005); Davis v. Aetna Acceptance Co., 293 U.S. 328, 331 (1934).2

        A debt is non-dischargeable as the result of defalcation when a preponderance
of the evidence establishes: (1) a pre-existing fiduciary relationship, (2) a breach of that
relationship, and (3) resulting loss. Bd. of Trustees v. Bucci (In re Bucci), 493 F.3d 635,
642 (6th Cir. 2007). In Davis, the Supreme Court instructed that the term “fiduciary
capacity” is narrower here than it is in some other contexts: section 523(a)(4) covers
only “express” or “technical trusts” and not trusts arising out of “the very act of
wrongdoing.” 293 U.S. at 333. These “constructive trusts,” which arise ex maleficio (at
the time the wrong is done), do not satisfy the “fiduciary capacity” requirement because
the debtor was not “a trustee before the wrong.” Id.


        2
            Section 523(a)(4) has remained essentially unchanged by later revisions to the bankruptcy code.
No. 08-1265          In re Patel                                                          Page 5


        Establishing an “express” trust is straightforward. The creditor must demonstrate:
“(1) an intent to create a trust; (2) a trustee; (3) a trust res; and (4) a definite beneficiary.”
In re Blaszak, 397 F.3d at 391-92. But Shamrock does not allege an express trust and
instead claims the existence of a “technical trust” flowing from duties imposed on Patel
by the Michigan Builders Trust Fund Act. See MICH. COMP. LAWS § 570.151. In
Carlisle Cashway, Inc. v. Johnson (In re Johnson), this Court held that the MBTFA
satisfied the necessary “requirement that the trust exist separate from the act of
wrongdoing” as a matter of federal law, and thus MBTFA “contractors” are fiduciaries
to their subcontractors under § 523(a)(4). 691 F.2d 249, 251-52 (6th Cir. 1982). But see
In re Marchiando, 13 F.3d 1111 (7th Cir. 1994) (holding that Illinois lottery law did not
create sufficient “fiduciary relationship” despite professing to create a trust).

        But Johnson dealt with an individual. The general contractor here, Empire
Builders of Michigan, was, by contrast, a corporation of which Patel was president, 50%
shareholder, and day-to-day administrator. To the bankruptcy court, this distinction
made all the difference—it held that, unless Shamrock provided evidence supporting a
“piercing the corporate veil” or “alter ego” theory, then Patel personally did not owe
Shamrock any fiduciary duty that could be breached and therefore the debt was
dischargeable. It went on to find that Shamrock could prove neither theory. The district
court disagreed, however, and held that such an analysis was unnecessary because Patel
directly owed Shamrock a fiduciary duty as a “contractor” under the MBTFA.

        The district court got it right. Although federal law generally governs, Johnson
held that “contractors” under the MBTFA are fiduciaries under § 523(a)(4), id. at 255-
57, so the issue is whether Patel was a “contractor” under the MBTFA, a state-law
question. “Contractor” is not expressly defined in the Act, which states:

        In the building construction industry, the building contract fund paid by
        any person to a contractor, or by such person or contractor to a
        subcontractor shall be considered by this act to be a trust fund, for the
        benefit of the person making the payment, contractors, laborers,
        subcontractors, or materialmen, and the contractor or subcontractor shall
        be considered the trustee of all funds so paid to him for building
        construction purposes.
No. 08-1265        In re Patel                                                    Page 6


MICH. COMP. LAWS § 570.151 (emphasis added). The Act requires the “contractor” “to
first pay laborers, subcontractors and materialmen,” id. § 570.152, and states that
“appropriation by contractors,” of money “paid to him for building operations before the
payment by him of all moneys due or so to become due laborers, subcontractors,
materialmen or others entitled to payment, shall be evidence of intent to defraud,” id.
§ 570.153. In other words, the MBTFA makes the general contractor a trustee of project
funds and imposes on him the duty to pay the beneficiaries—the subcontractors—before
himself and his employees and before paying any other expenses. Johnson, 691 F.2d at
251.

       And, in People v. Brown, the Michigan Court of Appeals, construing Michigan
law, held that a corporate officer was a “contractor” under the MBTFA—and thus
criminally liable—“because she was a corporate officer . . . and because she allegedly
participated in violating the MBTFA by allegedly misappropriating [the beneficiary’s]
funds.” 610 N.W.2d 234, 238 (2000) (citing Au Bon Pain Corp v Artect, Inc, 653 F.2d
61, 65 (2d Cir. 1981)). It is undisputed here that both of Brown’s requirements are met:
Patel was an officer and, if a defalcation did occur, Patel must have “participated”
because he was the home construction project’s day-to-day administrator. Thus, under
Michigan law, we are confident that Patel would be an MBTFA “contractor.” Yet Patel
argues that Brown’s holding that corporate officers of general contractors might be
criminally liable as MBTFA “contractors” is not enough under § 523(a)(4) because any
trust relationship arising under Brown’s reasoning would not be in effect until Patel
allegedly committed the defalcation; he argues that this is an ex-maleficio or after-the-
fact constructive trust and thus not sufficient under § 523(a)(4). This is creative, yet
unpersuasive. Brown’s finding of liability by a corporate officer rested on the officer’s
failure to perform a duty—not paying her subcontractors first—that was imposed
because she was a “contractor” under the MBTFA and this duty must have pre-existed
the wrongdoing; as a statutory “contractor,” the corporate officer’s duty to gather and
disburse project funds had been in place all along—long before the defalcation. The trust
relationship created under the MBTFA and Brown between subcontractor and corporate
officer was thus “technical” (and not constructive) and therefore sufficient under
No. 08-1265         In re Patel                                                      Page 7


§ 523(a)(4). Thus, Brown places Patel in exactly the same shoes as the debtor in
Johnson.

        Indeed: “The fiduciary relationship established by the [MBTFA] arises at the
time any monies are paid to the contractor or subcontractor whether or not there are any
beneficiaries of the trust at that time and continues until all the trust beneficiaries have
been paid.” Johnson, 691 F.2d at 253. Insofar as Patel argues that his duty to pay
subcontractors first under the MBTFA was insufficient to create a technical trust as
opposed to a constructive one, he argues that Johnson was wrongly decided, which is not
something this panel has authority to consider. See Dingle v. Bioport Corp., 388 F.3d
209, 215 (6th Cir. 2004). So Patel owed Shamrock a fiduciary duty under § 523(a)(4).
Moreover, the federal district and appellate courts that have addressed this question
unanimously agree. See, e.g., Au Bon Pain, 653 F.2d at 65 (holding that corporate officer
could be held liable under MBTFA as a “contractor”); Trs. of the Mich. Reg’l Council
of Carpenters Emple. Benefits Fund v. Accura Concrete Walls, Inc., 408 F. Supp. 2d
370, 373 (E.D. Mich. 2005); Lipan v. Kriegish (In re Kriegish), 275 B.R. 838 (E.D.
Mich. 2002), aff’d 97 Fed. App’x. 4 (6th Cir. 2004). So Patel was a fiduciary to
Shamrock under § 523(a)(4).

        Yet, in holding otherwise, the bankruptcy judge claimed that Shamrock was
required to prove a corporate “piercing the veil” or “alter ego” analysis. Although such
analysis might have been relevant at some previous point in this dispute to determine
whether this debt should have appeared on Patel’s account at all, we are past that: we
know the debt is Patel’s (and not Empire Builders Inc., alone) because Shamrock
obtained a default state court judgment against him and Patel listed the debt in his
Chapter 7 bankruptcy. The corporate law hurdle might have been relevant then, but all
we are concerned with now is whether the debt is dischargeable under the bankruptcy
code. That inquiry follows the statute: was there a fiduciary duty and a breach
(defalcation)? As explained above, the fiduciary duty question turns on whether federal
law recognizes a preexisting trust relationship created under state law—which itself
turns on whether Patel was a “contractor”—and so the bankruptcy court’s corporate law
No. 08-1265               In re Patel                                               Page 8


inquiry was irrelevant. Again, Patel, individually, was a fiduciary. See Johnson, 691 F.2d
at 251.

                                                       B.

          This does not end the case, however, because there remains the question whether
Patel breached his duty via defalcation of money owed to Shamrock. This Court has
defined defalcation “to encompass embezzlement and misappropriation by a fiduciary,
as well as the failure to properly account for such funds.” In re Blaszak, 397 F.3d at 390.
Shamrock latches on to this latter phrase to claim that the debt is non-dischargeable as
“defalcation per se.” Yet no such doctrine exists—this Circuit has never countenanced
“innocent” or merely “negligent” defalcation.

          The most influential early definition of defalcation came from Judge Learned
Hand’s “carefully equivocal opinion”3 in Central Hanover Bank & Trust Co. v. Herbst,
where he stated that because “defalcation” ought not to be redundant with “fraud” and
“embezzlement” (also prohibited by the statute), subjective, deliberate wrongdoing was
not an element required to establish defalcation. 93 F.2d 510, 512 (2d Cir. 1937). Yet
Judge Hand went on to point out that the party in Herbst “had not been entirely
innocent,” id., thus implying that purely innocent mistakes were not sufficient, and in
any event expressly reserving that question. Id. Contra Herbst, however, some circuits
have held that “defalcation” might include “innocent” or merely negligent conduct. See
Republic of Rwanda v. Uwinama (In re Uwinama), 274 F.3d 806, 811 (4th Cir. 2001);
Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir. 1996).

          But not so in the Sixth Circuit. In Johnson, we carefully explained that
defalcation in the MBTFA context occurs when evidence supports “the objective fact
that monies paid into the building contract fund were used for purposes other than to pay
laborers, subcontractors or materialmen first is sufficient to constitute a defalcation
under section [523](a)(4) so long as the use was not the result of mere negligence or a
mistake of fact.” In re Johnson, 691 F.2d at 257. Thus, there is no such thing as


          3
              In re Baylis, 313 F.3d 9, 18 (1st Cir. 2002).
No. 08-1265           In re Patel                                                                Page 9


“defalcation per se” and instead the debtor must have been objectively reckless in failing
to properly account for or allocate funds. Johnson, 691 F.2d at 257.4

         Applying that standard here, we agree with the district court that Patel recklessly
misallocated funds and failed to pay his subcontractors first as required by the MBTFA.
Although that Act lists the failure to pay subcontractors first as “evidence of the intent
to defraud,” MICH. COMP. LAWS § 570.153, the bankruptcy standard is a federal one, so
this state law language is not dispositive. Nevertheless, Patel testified that he paid his
own operating expenses—including payroll, utilities, taxes, and wages to himself for
services rendered as president—before he sent any money to Shamrock. And, as the
district court observed, Patel’s attempts at an accounting were “woefully inadequate”;
providing evidence that he paid either subcontractors or general overhead (which is not
permissible until the contractors are paid) is not enough. Indeed, Patel conceded at his
deposition that his “business operations were sloppy at best,” that he did not know if an
overall accounting was ever done, and that he did not know exactly how much was owed
to Shamrock. We therefore agree with the district court that Patel committed a
defalcation and thus the debt owed to Shamrock is not dischargeable under § 523(a)(4).

                                                  III.

         For the foregoing reasons, we affirm the district court’s determination that the
debt was not dischargeable.




         4
           Subsequent to our holding in Johnson, the First and Second Circuits—drawing upon later
securities fraud cases—have held that a defalcation only occurs when the debtor has acted with “extreme
recklessness.” Denton v. Hyman (In re Hyman), 502 F.3d 61, 68 (2d Cir. N.Y. 2007); In re Baylis, 313
F.3d at 21. We have no occasion today to review our standard in Johnson requiring objective recklessness.
