McClain v. Elliott (In Re Elliott)

MEMORANDUM DECISION

THOMAS C. BRITTON, Chief Judge.

Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(4) for his claim in the amount of $30,719 against the debtor. The debtor has answered and the matter was tried on October 14.

Section 523(a)(4) excepts from discharge debts:

for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. (Emphasis added).

Plaintiff has neither alleged, proved, nor argued any embezzlement or larceny.

The asserted predicate for the required fiduciary capacity is that plaintiff and defendant became partners in the wholesale…