Subject:  GROGAN v. GARNER, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



GROGAN et al. v. GARNER


certiorari to the united states court of appeals for the eighth circuit

No. 89-1149.  Argued October 29, 1990 -- Decided January 15, 1991

Respondent Garner filed a petition for relief under Chapter 11 of the
Bankruptcy Code, listing a fraud judgment in petitioners' favor as a
dischargeable debt.  Petitioners then filed a complaint in the proceeding
requesting a determination that their claim should be exempted from
discharge pursuant to MDRV 523(a), which provides that a debtor may not be
discharged from, inter alia, obligations for money obtained by "actual
fraud."  Presented with portions of the fraud case record, the Bankruptcy
Court found that the elements of actual fraud under MDRV 523 were proved
and that the doctrine of collateral estoppel required a holding that the
debt was not dischargeable.  It and the District Court rejected Garner's
argument that collateral estoppel does not apply because the fraud trial's
jury instructions required that fraud be proved by a preponderance of the
evidence, whereas MDRV 523 requires proof by clear and convincing evidence.
The Court of Appeals reversed, concluding that the clear-and-convincing
evidence standard applies in fraud cases, since Congress would not have
silently changed pre-MDRV 523(a) law, which generally applied the higher
standard in common-law fraud litigation and in resolving dischargeability
issues, and since the Code's general "fresh start" policy militated in
favor of a broad construction favorable to the debtor.

Held: Preponderance of the evidence is the standard of proof for MDRV
523(a)'s dischargeability exceptions.  Neither MDRV 523 and its legislative
history nor the legislative history of MDRV 523's predecessor prescribes a
standard of proof, a silence that is inconsistent with the view that
Congress intended to require a clear-and-convincing evidence standard.  The
preponderance standard is presumed to be applicable in civil actions
between private parties unless particularly important individual interests
or rights are at stake, and, in the context of the discharge exemption
provisions, a debtor's interest in discharge is insufficient to require a
heightened standard.  Such a standard is not required to effectuate the
Code's "fresh start" policy.  Since the Code limits the opportunity for a
completely unencumbered new beginning to the honest but unfortunate debtor
by exempting certain debts from discharge, it is unlikely that Congress
would have fashioned a proof standard that favored an interest in giving
the perpetrators of fraud a fresh start over an interest in protecting the
victims of fraud.  It is also fair to infer from MDRV 523(a)'s structure
that Congress intended the preponderance standard to apply to all of the
discharge exceptions.  That they are grouped together in the same
subsection with no suggestion that any particular exception is subject to a
special standard implies that the same standard should govern all of them,
and it seems clear that a preponderance standard is sufficient to establish
nondischargeability of some claims.  The fact that many States required
proof of fraud by clear and convincing evidence at the time the current
Code was enacted does not mean that Congress silently endorsed such a rule
for the fraud discharge exception.  Unlike many States, Congress has chosen
a preponderance standard when it has created substantive causes of action
for fraud.  In addition, it amended the Bankruptcy Act in 1970 to make
nondischargeability a question of federal law independent of the issue of
the underlying claim's validity, which is determined by state law.
Moreover, both before and after 1970, courts were split over the
appropriate proof standard for the fraud discharge exception.  Application
of the preponderance standard will also permit exception from discharge of
all fraud claims creditors have reduced to judgment, a result that accords
with the historical development of the discharge exceptions, which have
been altered to broaden the coverage of the fraud exceptions.  Pp. 4-11.

881 F. 2d 579, reversed.

Stevens, J., delivered the opinion for a unanimous Court.

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




Subject: 89-1149 -- OPINION, GROGAN v. GARNER

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1149



COY R. GROGAN, et al., PETITIONERS v. FRANK J. GARNER, JR.

on writ of certiorari to the united states court of appeals for the eighth
circuit

[January 15, 1991]



    Justice Stevens delivered the opinion of the Court.

    Section 523(a) of the Bankruptcy Code provides that a discharge in
bankruptcy shall not discharge an individual debtor from certain kinds of
obligations, including those for money obtained by "actual fraud."  {1}
The question in this case is whether the statute requires a defrauded
creditor to prove his claim by clear and convincing evidence in order to
preserve it from discharge.
    Petitioners brought an action against respondent alleging that he had
defrauded them in connection with the sale of certain corporate securities.
App. 16-25.  Following the trial court's instructions that authorized a
recovery based on the preponderance of the evidence, a jury returned a
verdict in favor of petitioners and awarded them actual and punitive
damages.  Id., at 28-29.  Respondent appealed from the judgment on the
verdict, and, while his appeal was pending, he filed a petition for relief
under Chapter 11 of the Bankruptcy Code, listing the fraud judgment as a
dischargeable debt.
    The Court of Appeals for the Eighth Circuit reduced the damages award
but affirmed the fraud judgment as modified.  Grogan v. Garner, 806 F. 2d
829 (1986).  Petitioners then filed a complaint in the bankruptcy
proceeding requesting a determination that their claim based on the fraud
judgment should be exempted from discharge pursuant to MDRV 523.  App. 3-4.
In support of their complaint, they introduced portions of the record in
the fraud case.  The Bankruptcy Court found that all of the elements
required to establish actual fraud under MDRV 523 had been proved and that
the doctrine of col lateral estoppel required a holding that the debt was
therefore not dischargeable.  In re Garner, 73 B. R. 26 (WD Mo. 1987).
    Respondent does not challenge the conclusion that the elements of the
fraud claim proved in the first trial are sufficient to establish "fraud"
within the meaning of MDRV 523. {2}  Instead, he has consistently argued
that collateral estoppel does not apply because the jury instructions in
the first trial merely required that fraud be proved by a preponderance of
the evidence, whereas MDRV 523 requires proof by clear and convincing
evidence.  Both the Bankruptcy Court  {3} and the District Court  {4}
rejected this argument.
    The Court of Appeals, however, reversed.  In re Garner, 881 F. 2d 579
(CA8 1989).  It recognized that the "Bankruptcy Code is silent as to the
burden of proof necessary to establish an exception to discharge under
section 523(a), including the exception for fraud," id., at 581, but
concluded that two factors supported the imposition of a "clear and
convincing" standard, at least in fraud cases.  First, the court stated
that the higher standard had generally been applied in both common-law
fraud litigation and in resolving discharge ability issues before MDRV
523(a) was enacted, and reasoned that it was unlikely that Congress had
intended silently to change settled law. {5}  Second, the court opined that
the general "fresh start" policy that undergirds the Bankruptcy Code
militated in favor of a broad construction favorable to the debtor. {6}
    The Eighth Circuit holding is consistent with rulings in most other
Circuits, {7} but conflicts with recent decisions by the Third and Fourth
Circuits. {8}  The conflict, together with the importance of the issue,
prompted us to grant certiorari, 495 U. S. ---.  We now reverse.
I
    At the outset, we distinguish between the standard of proof that a
creditor must satisfy in order to establish a valid claim against a
bankrupt estate and the standard that a creditor who has established a
valid claim must still satisfy in order to avoid dischargeability.  The
validity of a creditor's claim is determined by rules of state law.  See
Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161 (1946).
{9}  Since 1970, however, the issue of nondischarge ability has been a
matter of federal law governed by the terms of the Bankruptcy Code.  See
Brown v. Felsen, 442 U. S. 127, 129-130, 136 (1979). {10}
    This distinction is the wellspring from which cases of this kind flow.
In this case, a creditor who reduced his fraud claim to a valid and final
judgment in a jurisdiction that requires proof of fraud by a preponderance
of the evidence seeks to minimize additional litigation by invoking
collateral estoppel.  If the preponderance standard also governs the
question of nondischargeability, a bankruptcy court could properly give
collateral estoppel effect to those elements of the claim that are
identical to the elements required for discharge and which were actually
litigated and determined in the prior action.  See Restatement (Second) of
Judgments MDRV 27 (1982). {11}  If, however, the clear-and-convincing
standard applies to nondischargeability, the prior judgment could not be
given collateral estoppel effect.  MDRV 28(4).  A creditor who successfully
obtained a fraud judgment in a jurisdiction that requires proof of fraud by
clear and convincing evidence would, however, be indifferent to the burden
of proof regarding nondischargeability, because he could invoke collateral
estoppel in any event. {12}
    In sum, if nondischargeability must be proved only by a preponderance
of the evidence, all creditors who have secured fraud judgments, the
elements of which are the same as those of the fraud discharge exception,
will be exempt from discharge under collateral estoppel principles.  If,
however, nondischargeability must be proved by clear and convincing
evidence, creditors who secured fraud judgments based only on the
preponderance standard would not be assured of qualifying for the fraud
discharge exception.
II
    With these considerations in mind, we begin our inquiry into the
appropriate burden of proof under MDRV 523 by examining the language of the
statute and its legislative history.  The language of MDRV 523 does not
prescribe the standard of proof for the discharge exceptions.  The
legislative history of MDRV 523 and its predecessor, 11 U. S. C. MDRV 35
(1976 ed.), is also silent.  This silence is inconsistent with the view
that Congress intended to require a special, heightened standard of proof.
    Because the preponderance-of-the-evidence standard results in a roughly
equal allocation of the risk of error between litigants, we presume that
this standard is applicable in civil actions between private litigants
unless "particularly important individual interests or rights are at
stake."  Herman & MacLean v. Huddleston, 459 U. S. 375, 389-390 (1983); see
also Addington v. Texas, 441 U. S. 418, 423 (1979).  We have previously
held that a debtor has no constitutional or "fundamental" right to a
discharge in bankruptcy.  See United States v. Kras, 409 U. S. 434, 445-446
(1973).  We also do not believe that, in the context of provisions designed
to exempt certain claims from discharge, a debtor has an interest in
discharge sufficient to require a heightened standard of proof.
    We are unpersuaded by the argument that the clear-andconvincing
standard is required to effectuate the "fresh start" policy of the
Bankruptcy Code.  This Court has certainly acknowledged that a central
purpose of the Code is to provide a procedure by which certain insolvent
debtors can reorder their affairs, make peace with their creditors, and
enjoy "a new opportunity in life with a clear field for future effort,
unhampered by the pressure and discouragement of preexisting debt."  Local
Loan Co. v. Hunt, 292 U. S. 234, 244 (1934).  But in the same breath that
we have invoked this "fresh start" policy, we have been careful to explain
that the Act limits the opportunity for a completely unencumbered new
beginning to the "honest but unfortunate debtor."  Ibid.
    The statutory provisions governing nondischargeability reflect a
congressional decision to exclude from the general policy of discharge
certain categories of debts -- such as child support, alimony, and certain
unpaid educational loans and taxes, as well as liabilities for fraud.
Congress evidently concluded that the creditors' interest in recovering
full payment of debts in these categories outweighed the debtors' interest
in a complete fresh start.  We think it unlikely that Congress, in
fashioning the standard of proof that governs the applicability of these
provisions, would have favored the interest in giving perpetrators of fraud
a fresh start over the interest in protecting victims of fraud.  Requiring
the creditor to establish by a preponderance of the evidence that his claim
is not dischargeable reflects a fair balance between these conflicting
interests.
III
    Our conviction that Congress intended the preponderance standard to
apply to the discharge exceptions is reinforced by the structure of MDRV
523(a), {13} which groups together in the same subsection a variety of
exceptions without any indication that any particular exception is subject
to a special standard of proof.  The omission of any suggestion that
different exemptions have different burdens of proof implies that the
legislators intended the same standard to govern the nondischarge ability
under MDRV 523(a)(2) of fraud claims and, for example, the
nondischargeability under MDRV 523(a)(5) of claims for child support and
alimony.  Because it seems clear that a preponderance of the evidence is
sufficient to establish the nondis chargeability of some of the types of
claims covered by MDRV 523(a), {14} it is fair to infer that Congress
intended the ordinary preponderance standard to govern the applicability of
all the discharge exceptions.
    We are therefore not inclined to accept respondent's contention that
application of the ordinary preponderance standard to the fraud exception
is inappropriate because, at the time Congress enacted the current
Bankruptcy Code, the majority of states required proof of fraud by clear
and convincing evidence. {15}  Even if we believed that Congress had
contemplated the application of different burdens of proof for different
exceptions, the fact that most States required fraud claims to be proved by
clear and convincing evidence would not support the conclusion that
Congress intended to adopt the clear-and-convincing standard for the fraud
discharge exception.
    Unlike a large number, and perhaps the majority, of the States,
Congress has chosen the preponderance standard when it has created
substantive causes of action for fraud.  See, e. g., 31 U. S. C. MDRV
3731(c) (False Claims Act); 12 U. S. C. A. MDRV 1833a(e) (civil penalties
for fraud involving financial institutions); 42 CFR MDRV 1003.114(a) (1989)
(Medicare and Medicaid fraud under 42 U. S. C. MDRV 1320a-7a); Herman &
MacLean v. Huddleston, 459 U. S., at 388-390 (civil enforcement of the
antifraud provisions of the securities laws); Steadman v. SEC, 450 U. S.
91, 96 (1981) (administrative proceedings concerning violation of antifraud
provisions of the securities laws); SEC v. C. M. Joiner Leasing Corp., 320
U. S. 344, 355 (1943) (MDRV 17(a) of the Securities Act of 1933); First
National Monetary Corp. v. Weinberger, 819 F. 2d 1334, 1341-1342 (CA6 1987)
(civil fraud provisions of the Commodity Exchange Act).  Cf. Sedima, S. P.
R. L. v. Imrex Co., 473 U. S. 479, 491 (1985) (suggesting that the
preponderance standard applies to civil actions under the Racketeer
Influenced and Corrupt Organizations Act).  Most notably, Congress chose
the preponderance standard to govern determinations under 11 U. S. C. MDRV
727(a)(4), which denies a debtor the right to discharge altogether if the
debtor has committed a fraud on the bankruptcy court.  See H. R. Rep. No.
95-595, p. 384 (1977) ("The fourth ground for denial of discharge is
commission of a bankruptcy crime, though the standard of proof is
preponderance of the evidence"); S. Rep. No. 95-989, p. 98 (1978) (same).
{16}
    Moreover, as we explained in Part I, supra, Congress amended the
Bankruptcy Act in 1970 to make nondischarge ability a question of federal
law independent of the issue of the validity of the underlying claim.  Even
before 1970, many courts imposed the preponderance burden on creditors
invoking the fraud discharge exception.  See, e. g., Sweet v. Ritter
Finance Co., 263 F. Supp. 540, 543 (WD Va. 1967); Nickel Plate Cloverleaf
Federal Credit Union v. White, 120 Ill. App. 2d 91, 93-94, 256 N. E. 2d
119, 120-121 (1970); Gonzales v. Aetna Finance Co., 86 Nev. 271, 275, 468
P. 2d 15, 18 (1970); Beneficial Finance Co. of Manchester v. Machie, 6
Conn. Cir. 37, 41, 263 A. 2d 707, 710 (1969); Budget Finance Plan v. Haner,
92 Idaho 56, 59, 436 P. 2d 722, 725 (1968); Atlas Credit Corp. v. Miller,
216 So. 2d 100, 101 (La. Ct. App. 1968); Household Finance Corp. v.
Altenberg, 5 Ohio St. 2d 190, 193, 214 N. E. 2d 667, 669 (1966); MAC
Finance Plan of Nashua, Inc. v. Stone, 106 N. H. 517, 521-522, 214 A. 2d
878, 882 (1965).  And, following the 1970 amendments, but prior to the
enactment of MDRV 523 in 1978, the courts continued to be nearly evenly
split over the the appropriate standard of proof.  Compare, e. g., Fierman
v. Lazarus, 361 F. Supp. 477, 480 (ED Pa. 1973); In re Scott, 1 BCD 581,
583 (Bkrtcy. Ct. WD Mich. 1975) with Brown v. Buchanan, 419 F. Supp. 199,
203 (ED Va. 1975); In re Arden, 75 B. R. 707, 710 (Bkrtcy. Ct. R. I. 1975).
Thus, it would not be reasonable to conclude that in enacting MDRV 523
Congress silently endorsed a background rule that clear-and-convincing
evidence is required to establish exemption from discharge.
IV
    A final consideration supporting our conclusion that the preponderance
standard is the proper one is that, as we explained in Part I, supra,
application of that standard will permit exception from discharge of all
fraud claims creditors have successfully reduced to judgment.  This result
accords with the historical development of the discharge exceptions.  As we
explained in Brown v. Felsen, the 1898 Bankruptcy Act provided that
"judgments" sounding in fraud were exempt from discharge.  30 Stat. 550.
In the 1903 revisions, Congress substituted the term "liabilities" for
"judgments."  32 Stat. 798.  This alteration was intended to broaden the
coverage of the fraud exceptions.  See Brown v. Felsen, 442 U. S., at 138.
Absent a clear indication from Congress of a change in policy, it would be
inconsistent with this earlier expression of congressional intent to
construe the exceptions to allow some debtors facing fraud judgments to
have those judgments discharged.
    For these reasons, we hold that the standard of proof for the
dischargeability exceptions in 11 U. S. C. MDRV 523(a) is the ordinary
preponderance-of-the-evidence standard.
    The judgment of the Court of Appeals is reversed.
It is so ordered.
 
 
 
 
 
 

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1
    Title 11 U. S. C. MDRV 523(a) provides, in pertinent part:
    "Exceptions to discharge.
    "(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b)
of this title does not discharge an individual debtor from any debt --

    . . . . .


    "(2) for money, property, services, or an extension, renewal, or
refinancing of credit, to the extent obtained by --
    "(A) false pretenses, a false representation, or actual fraud, other
than a statement respecting the debtor's or an insider's financial
condition; . . . ."

2
    We therefore do not consider the question whether MDRV 523(a)(2)(A)
excepts from discharge that part of a judgment in excess of the actual
value of money or property received by a debtor by virtue of fraud.  See In
re Rubin, 875 F. 2d 755, 758, n. 1 (CA9 1989).  Arguably, fraud judgments
in cases in which the defendant did not obtain money, property, or services
from the plaintiffs and those judgments that include punitive damages
awards are more appropriately governed by MDRV 523(a)(6).  See 11 U. S. C.
MDRV 523(a)(6) (excepting from discharge debts "for willful and malicious
injury by the debtor to another entity or to the property of another
entity"); In re Rubin, 875 F. 2d, at 758, n. 1.

3
    The Bankruptcy Court concluded that "there is no real distinction
between `preponderance of the evidence' and `clear and convincing' as
regards Section 523 litigation."  In re Garner, 73 B. R. 26, 29 (WD Mo.
1987).

4
    The District Court explained:

"A re-litigation of this case in Bankruptcy Court on the identical fact
issues would be to permit the party who loses at a jury trial to have a
second day in court on the same issue he and his opponent were fully heard
previously.  If permitted, all like cases would result in duplicitous
litigation resulting in an unreasonable burden on the bankruptcy court."
App. to Pet. for Cert. 28a.

5
    "While the legislative history is scant on this issue, we feel that it
is fair to presume that Congress was aware that the prevailing view at the
time of adoption was that fraud, for both section 523 and state common law
purposes, had to be proved by clear and convincing evidence."  In re
Garner, 881 F. 2d, at 582.

6
    "This Circuit concluded that the stricter standard was appropriate
since the general policy of bankruptcy is to provide the debtor with the
opportunity for a fresh start and the courts should, thereby, construe
provisions of the Bankruptcy Code favoring the debtor broadly.  Matter of
Van Horne, 823 F. 2d [1285, 1287 (CA8 1987).]"  Ibid.

7
    See In re Phillips, 804 F. 2d 930, 932 (CA6 1986); In re Kimzey, 761 F.
2d 421, 423-424 (CA7 1985); In re Black, 787 F. 2d 503, 505 (CA10 1986);
Chrysler Credit Corp. v. Rebhan, 842 F. 2d 1257, 1262 (CA11 1988); In re
Hunter, 780 F. 2d 1577, 1579 (CA11 1986); In re Dougherty, 84 B. R. 653
(CA9 BAP 1988).

8
    In re Braen, 900 F. 2d 621 (CA3 1990); Combs v. Richardson, 838 F. 2d
112 (CA4 1988).

9
    We use the term "state law" expansively herein to refer to all non
bankruptcy law that creates substantive claims.  We thus mean to include in
this term claims that have their source in substantive federal law, such as
federal securities law or other federal antifraud laws.  As the amici point
out, many federal antifraud laws that may give rise to nondischarge able
claims require plaintiffs to prove their right to recover only by a
preponderance of the evidence.  See Brief for United States et al. as Amici
Curiae 1-3, and n. 2.

10
    Before 1970, the bankruptcy courts had concurrent jurisdiction with the
state courts to decide whether debts were excepted from discharge.  In
practice, however, bankruptcy courts generally refrained from deciding
whether particular debts were excepted and instead allowed those questions
to be litigated in the state courts.  See Brown v. Felsen, 442 U. S., at
129; 1A Collier on Bankruptcy MDRV 17.28, pp. 1726-1727 (14th ed. 1978).
The state courts therefore determined the applicable burden of proof, often
applying the same standard of proof that governed the underlying claim.
The 1970 amendments took jurisdiction over certain dischargeability
exceptions, including the exceptions for fraud, away from the state courts
and vested jurisdiction exclusively in the bankruptcy courts.  See Brown v.
Felsen, 442 U. S., at 135-136; S. Rep. No. 91-1173, pp. 2-3 (1970); H. R.
Rep. No. 91-1502, p. 1 (1970).

11
    Our prior cases have suggested, but have not formally held, that the
principles of collateral estoppel apply in bankruptcy proceedings under the
current Bankruptcy Act.  See, e. g., Kelly v. Robinson, 479 U. S. 36, 48,
n. 8 (1986); Brown v. Felsen, 442 U. S., at 139, n. 10.  Cf. Heiser v.
Woodruff, 327 U. S. 726, 736 (1946) (applying collateral estoppel under an
earlier version of the bankruptcy laws).  Virtually every court of appeals
has concluded that collateral estoppel is applicable in discharge exception
proceedings.  See In re Braen, 900 F. 2d 621, 630 (CA3 1990); Combs v.
Richardson, 838 F. 2d 112, 115 (CA4 1988); Klingman v. Levinson, 831 F. 2d
1292, 1295 (CA7 1987); In re Shuler, 722 F. 2d 1253, 1256 (CA5), cert.
denied sub nom. Harold V. Simpson & Co. v. Shuler, 469 U. S. 817 (1984);
Goss v. Goss, 722 F. 2d 599, 604 (CA10 1983); Lovell v. Mixon, 719 F. 2d
1373, 1376 (CA8 1983); Spilman v. Harley, 656 F. 2d 224, 228 (CA6 1981).
Cf. In re Rahm, 641 F. 2d 755, 757 (CA9) (prior judgment establishes only a
prima facie case of nondischargeability), cert. denied sub nom. Gregg v.
Rahm, 454 U. S. 860 (1981).  We now clarify that collateral estoppel
principles do indeed apply in discharge exception proceedings pursuant to
MDRV 523(a).

12
    This indifference would not be shared, however, by a creditor who
either did not try, or tried unsuccessfully, to prove fraud in a
jurisdiction requiring clear and convincing evidence but who nonetheless
established a valid claim by proving, for example, a breach of contract
involving the same transaction.  See, e. g., In re Black, 787 F. 2d 503
(CA10 1986); In re Rubin, 875 F. 2d, at 758, n. 1.

13
    See Crandon v. United States, 494 U. S. ---, --- (1990) ("In
determining the meaning of the statute, we look not only to the particular
statutory language but to the design of the statute as a whole and to its
object and policy"); K Mart Corp. v. Cartier, Inc., 486 U. S. 281, 291
(1988) ("In ascertaining the plain meaning of the statute, the court must
look to the particular statutory language at issue, as well as the language
and design of the statute as a whole").

14
    For example, MDRV 523(a) provides for the nondischargeability of debts
not only for child support and alimony, but also for certain fines and
penalties, educational loans, and tax obligations.  See 11 U. S. C. MDRV
523(a)(1); MDRV 523(a)(5); MDRV 523(a)(7); MDRV 523(a)(8).

15
    Respondent claims that the vast majority of States applied the
heightened standard.  See Brief for Respondent 8-14.  Petitioners and the
amici acknowledge that the clear-and-convincing standard applied in many
jurisdictions but contend that respondent overstates the number of States
that required the heightened standard.  See Brief for Petitioners 17-20,
and n. 1; Brief for United States et al. as Amici Curiae 21-25.  Resolution
of this dispute is not necessary for our decision.

16
    Prior to the enactment of the 1978 Bankruptcy Code, the courts of
appeals had held that the preponderance standard applied in this situation.
See, e. g., In re Robinson, 506 F. 2d 1184, 1187 (CA2 1974); Union Bank v.
Blum, 460 F. 2d 197, 200-201 (CA9 1972).
