52-123 Failure to apply payments received on lawful claims; unlawful; failure to discharge lien; prima facie evidence of intent to deprive or defraud. - Nebraska Statutes

52-123. Failure to apply payments received on lawful claims; unlawful; failure to discharge lien; prima facie evidence of intent to deprive or defraud.It shall be unlawful for any person, firm, or corporation who has taken a contract for the erection, improvement, repair, or removal of any house, mill, manufactory, or building of any kind for another, and has received payment in whole or in part upon such contract, to fail to apply the money so received, or so much thereof as may be necessary for that purpose, in payment of the lawful claims of such laborers or materialmen as could otherwise have a right to file a laborers' or materialmen's lien against such house or other structure, with the intent thereby to deprive or defraud the owner or person so paying the person, firm or corporation receiving payment, of his funds without discharging the liens, unless such person, firm, or corporation, taking such contract, shall have received and delivered to the owner of the property the written waiver of lien from all persons who otherwise would have a right to file a lien thereon. In any prosecution under sections 52-123 and 52-124 of the person, firm, or corporation so receiving payment, when it shall be shown in evidence that any lien for labor or materials existed in favor of any laborer or materialman and that such lien has been filed within the time and at the place as provided by law for the filing of such liens and that such person, firm, or corporation charged has received payment without discharging the lien to the extent of the funds received by him, the fact of acceptance of such payment without having discharged the lien within ten days after receipt of such payment shall be prima facie evidence of intent to deprive or defraud on the part of the person, firm, or corporation so receiving payment. SourceLaws 1969, c. 432, § 1, p. 1455. AnnotationsIn this section the words "with the intent thereby to deprive or defraud," should be read as though it read "with the fraudulent intent thereby to deprive". State v. McConnell, 201 Neb. 84, 266 N.W.2d 219 (1978).This section does not make the general contractor an agent or trustee for laborers or materialmen in receiving payments from the property owners, nor does it make the amounts so received a trust fund. State v. McConnell, 201 Neb. 84, 266 N.W.2d 219 (1978).No express trust arises by operation of this statute and, therefore, 11 U.S.C. 35(a)(14), which prescribes release of debt created by fraud of bankrupt when acting in a fiduciary capacity, does not apply to bankrupt contractor who failed to meet requirements of § 52-123. Matter of Dloogoff, 600 F.2d 166 (8th Cir. 1979).