11 U.S.C. § 523

Section 523(a)(2)(A) treats a credit card issuer’s reliance on a debtor’s implied representation as implied when the debtor uses the card.

Signet Bank v. Eric Edward Keyes April Elaine Keyes · filed 1992-04-03(a)(2)(A)

Where the misrepresentation at issue is a debtor's implied misrepresentation to a credit card issuer, arising from the debtor's use of the card, reliance is also implied.

Section 523(a)(2)(A) excepts credit card charges from discharge when the debtor incurred them knowing he could not repay them.

Citibank (South Dakota), N.A. v. Gnagey (In Re Gnagey) · filed 1992-04-17(a)(2)(A)

Having concluded that the Debtor made the cash advances and purchases in question with full knowledge that he would be unable to pay for them, the portion of the obligation owed tó the Plaintiff attributable to these charges should be excepted from the overall protection of the general bankruptcy discharge by virtue of § 523(a)(2)(A).

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor used the card knowing or having reason to know he could not repay the charges.

Signet Bank/Virginia v. Hale (In Re Hale) · filed 1992-04-22(a)(2)(A)

To prevail on the Complaint, the Plaintiff must prove that the damages suffered by it are based on the Debtor’s reckless use of the credit card when he knew or should have known that because of his financial condition, he could never live up to his obligation to repay the charges he incurred by using the credit card issued by the Plaintiff.

Section 523(a)(2)(A) requires proof of deceit to except credit card debt from discharge.

Chase Manhattan Bank v. Weiss (In Re Weiss) · filed 1992-05-01(a)(2)(A)

In sum, there is not sufficient evidence to find the element of deceit needed to declare this debt nondischargeable.

Section 523(a)(2)(A) makes credit card charges nondischargeable when the debtor acted with fraudulent intent at the time of the charges.

Manufacturers Hanover Trust Co. v. Marlar (In Re Marlar) · filed 1992-06-17(a)(2)(A)

The focus in the case at bar is the intent of the debtor when she made particular charges on the card, not her intent when she obtained the credit card.

Section 523(a)(2)(A) makes credit card charges nondischargeable when the debtor incurs them intending not to pay.

Idaho First National Bank, N.A. v. LeMaster (In Re LeMaster) · filed 1992-07-10(a)(2)(A)

As expressed later in this opinion, the requisite intent necessary for “actual fraud” did not exist on the part of LeMas-ter in August or September of 1991. ... Thus, all withdrawals and charges made on and after October 3,1991 will be included in the nondischargeability category.

Section 523(a)(2)(A) requires a creditor alleging credit card fraud to prove by a preponderance of the evidence that the debtor used the card knowing he could not or would not repay the debt.

First Card Services, Inc. v. Cronk (In Re Cronk) · filed 1992-08-07(a)(2)(A)

To prove actual fraud under this section, the Plaintiff must prove by a preponderance of the evidence that Mr. Cronk took out the cash advances and used the charge card while knowing that he had no ability or no intention of repaying the debts he incurred.

Section 523(a)(2)(A) requires proof of intent to deceive before credit card debt can be excepted from discharge; an overly optimistic belief in the ability to repay does not establish that intent.

Manufacturers Hanover Trust v. Dougherty (In Re Dougherty) · filed 1992-07-27(a)(2)(A)

In conclusion, the plaintiff has not presented to this Court a preponderance of evidence to support the allegations pursuant to Section 523(a)(2)(A) at the time the charges were incurred. The debtor may have been overly optimistic about his ability to repay but there is no evidence of an intent not to repay his debts, nor is there sufficient evidence to support a finding of such hopeless inability to repay as would rise to the level of intent to defraud.

Section 523(a)(2)(A) makes a debt for cash obtained through fraudulent credit card use nondischargeable.

West-Ark Oil Co. v. Woodall (In re Woodall) · filed 1992-10-07(a)(2)(A)

Woodall’s use of the card sent to him in 1990 was fraudulent within the meaning of section 523(a)(2)(A).

Section 523(a)(2)(A) does not except a credit card cash advance from discharge for false pretenses when credit privileges were not revoked, or for actual fraud when fraudulent intent is not proved.

Manufacturers Hanover Trust Co. v. Abercrombie (In Re Abercrombie) · filed 1992-12-21(a)(2)(A)

Under the circumstances, plaintiff’s claim of obtaining money under false pretenses must fail. ... Given that the overall purpose of bankruptcy is to provide the debtor with a fresh start and that exceptions to the discharged are to be strictly construed in favor of the debtor, this Court concludes that the evidence presented is insufficient to establish that the defendant committed actual fraud. Consequently, the debt of $4,907.21 owed by defendant to plaintiff is covered by defendant’s discharge.

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor incurred it without intending to repay it; hopeless insolvency can support an inference of that intent.

American Express Travel Related Services Co. v. Golchin (In Re Golchin) · filed 1993-01-04(a)(2)(A)

A debtor cannot ignore the reality of his financial state when he incurs debt and still claim to have the requisite good faith intent to repay the debt. ... American Express has established that he incurred the American Express debt without any intent to pay it. Accordingly, the American Express debt of $14,442.47 is not dischargeable.

Section 523(a)(2)(A) excepts credit card charges from discharge when the creditor proves the debtor knowingly used the card to obtain goods she could not realistically pay for.

J.C. Penney Co. v. Shanahan (In Re Shanahan) · filed 1993-01-28(a)(2)(A)

The burden is on the creditor to prove fraud — to prove that the debtor knew full well that any professed intention to repay was false or was known by the debtor not to bé well-grounded, and that he or she nonetheless deliberately used the card to obtain goods he or she knew were beyond his or her ability to pay.

Under § 523(a)(2)(A), intent to repay requires factual grounds for believing repayment is possible; mere hope of gambling winnings is insufficient.

Chemical Bank v. Clagg (In Re Clagg) · filed 1993-02-17(a)(2)(A)

Intent to repay requires some factual underpinnings which lead a person to a degree of certainty that he or she would have the ability to repay. Mere hope, or unrealistic or speculative sources of income, are insufficient. ... For these reasons, this Court holds that the Debtor did not intend to repay the Plaintiff and the debt is nondischargeable under § 523(a)(2)(A).

Section 523(a)(2)(A) does not except credit card debt from discharge when the creditor fails to prove actual fraud.

Household Credit Services v. Rivera (In Re Rivera) · filed 1993-03-09(a)(2)(A)

Although defendants may not have exercised the best business judgment, plaintiff has not established that they committed actual fraud. Consequently, the debt of $4,182.93 owed by defendants to plaintiff is included within the scope of defendants’ discharge.

Under § 523(a)(2)(A), using a credit card with no intention to pay the charges is actual fraud that can make the debt nondischargeable.

Chevy Chase Savings Bank, N.A v. McCubbin (In Re McCubbin) · filed 1993-07-06(a)(2)(A)

A debtor’s use of a credit card with no intention to pay charges is “actual fraud” within the meaning of exception to discharge.

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor used the card knowing they could not repay the debt.

Barnett Bank of Lee County v. Rouse (In Re Rouse) · filed 1993-06-09(a)(2)(A)

To prove actual fraud under this Section, the plaintiff must prove by a preponderance of the evidence that the Debtor used the charge card while knowing that he had no intention to ever repay the debt or knowing that he will not be capable of meeting the obligations incurred through the use of the card. ... Therefore, this Court is satisfied this record warrants the conclusion that the Debtors obtained monies and properties through the use of the credit card through fraud, and the outstanding liability to the Bank shall be excepted from the general bankruptcy discharge.

Section 523(a)(2)(A) does not except a credit card debt from discharge based on an implied promise to repay when the issuer failed to investigate the debtor’s creditworthiness before extending credit.

First Card v. Leonard (In Re Leonard) · filed 1993-08-25(a)(2)(A)

This Court here adopts the reasoning and conclusions set forth in Ward. Visa is not entitled to except its claim from Debtors’ discharge — or any of its several cash advances to these Debtors — on the theory that each separate charge, or cash advance, was an implied promise and false representation of intent and ability to pay. The lack of due diligence and responsible extension of credit is a bar to the creditor’s recovery.

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor knowingly incurs charges without intending or being able to repay them.

FCC National Bank v. Branch (In Re Branch) · filed 1993-09-24(a)(2)(A)

For all of the reasons stated herein and for the reasons advanced by the Court at the conclusion of trial, the Court rules that the debt of this debtor to FCC National Bank is NOT DISCHARGEABLE under 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) excepts credit card charges from discharge when the debtor incurs them with intent to defraud the creditor; continuing to charge while contemplating bankruptcy and making no payments can establish that intent.

American Express Travel Related Services Co. v. Diaz (In Re Diaz) · filed 1994-01-05(a)(2)(A)

At that time, the Diaz’s contemplated bankruptcy protection while continuing to accrue charges to their American Express account and had made no payments since April 28, 1992. Accordingly, the Diaz’s had the requisite intent to defraud American Express on June 1, 1992 and all indebtedness owed by the Diaz’s to American Express after June 1, 1992 shall be nondischargeable.

Section 523(a)(2)(A) excepts credit card debt from discharge when the creditor proves the debtor did not intend to repay the charges when making them.

Mercantile Bank of Illinois v. Troutman (In Re Troutman) · filed 1994-03-16(a)(2)(A)

Thus, in order to except the debts in question from discharge under § 523(a)(2)(A), Mercantile Bank must prove that at the time the charges were made, the debtors, Mr. and Mrs. Troutman, had no intention of repaying the amounts charged.

Section 523(a)(2)(A) excepts a debt from discharge when the debtor issues a check knowing funds are insufficient and the surrounding circumstances show an intent to deceive.

Meramec Valley Bank v. Newell (In Re Newell) · filed 1994-03-14(a)(2)(A)

However, when surrounding circumstances indicate that a debtor intended to deceive a creditor when issuing an insufficient funds check, and when a debtor knew that sufficient funds did not exist, a debtor is not entitled to a discharge of the debt.

Section 523(a)(2)(A) permits a court to infer fraudulent intent from credit card use when the debtor had no reasonable prospect of repaying the debt.

Eashai v. Citibank, South Dakota, N.A. (In Re Eashai) · filed 1994-05-11(a)(2)(A)

Use of a credit card without a reasonable prospect of ability to repay or to meet its contract terms is circumstantial evidence from which a court may infer a fraudulent intent.

Section 523(a)(2)(A) requires proof of fraudulent intent to except credit card debt from discharge; financial distress alone does not establish that intent when the debtor’s conduct is equally consistent with an innocent intent.

Citibank v. Davis (In Re Davis) · filed 1994-12-30(a)(2)(A)

In the absence of direct evidence of fraudulent intent, this court cannot infer fraud from conduct that is as likely to indicate a benign intent as to indicate a wrongful intent.

Section 523(a)(2)(A) excepts credit card cash advances from discharge when the debtor obtains them through a false implied representation of an intent and ability to repay.

Mercantile Bank v. Hoyle (In Re Hoyle) · filed 1995-04-11(a)(2)(A)

However, at the time he took cash advances, Hoyle impliedly represented that he had the intent and ability to repay. ... IT IS THEREFORE ORDERED BY THE COURT that judgment shall be entered for Mercantile Bank on the Complaint to Determine Dischargeability of Debt, and the debt in the amount of $1,786.87 shall be nondisehargeable pursuant to 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) does not except credit card debt from discharge when the creditor fails to prove the debtor incurred the charges without intending to repay them.

Wells Fargo Bank v. Beltran (In Re Beltran) · filed 1995-05-16(a)(2)(A)

Based upon the evidence before it, the bankruptcy court correctly found that the Bank failed to present sufficient evidence against Mrs. Beltran, or any evidence whatsoever against Mr. Beltran, to prove a case against either of them under § 523(a)(2)(A).

Section 523(a)(2)(C)'s presumption for qualifying cash advances can be rebutted by evidence raising substantial doubt about the debtor's presumed intent.

Bank One Lafayette, N.A. v. Larisey (In Re Larisey) · filed 1995-04-25(a)(2)(C)

The rebuttal evidence must raise substantial doubt as to the existence of presumed intent. ... The Lariseys successfully rebutted any presumption of non-dischargeability by raising substantial doubt as to the existence of presumed intent.

Section 523(a)(2)(A) covers implied false representations, including those made through credit card use; its exclusion for statements about financial condition does not bar a claim based on such a representation.

Household Credit Services, Inc. v. Peterson (In Re Peterson) · filed 1995-05-26(a)(2)(A)

By using these different terms, § 523(a)(2)(A) literally says, and appears to mean, as follows: that it does except from discharge the broad category of fraudulent representations, but excepts from the exception only a relatively narrow category of those fraudulent representations which make a particularly formal, detailed and explicit written statement of the debtor’s financial condition.

Section 523(a)(2)(A) requires proof that a debtor lacked intent to repay credit card charges when made; inability to repay alone does not establish actual fraud.

General Electric Capitol Consumer Card Co. v. Janecek (In Re Janecek) · filed 1995-05-30(a)(2)(A)

I reject General Electric’s assertion that a debtor’s objective inability to repay credit card debt at the time a charge is made should result, as a matter of law, in excepting the charges in question from discharge. I conclude the credit card debts at issue in this case are not excepted from discharge under § 523(a)(2)(A).

Section 523(a)(2)(A) does not except credit card debt from discharge when both a representation of intent to pay and the absence of that intent must be inferred from the circumstances.

GM Card v. Cox (In Re Cox) · filed 1995-06-09(a)(2)(A)

For all these reasons, I conclude subpara-graph (A) encompasses neither “loading up” charges nor implied misrepresentation of intent to pay when both the representation and the absence of intent to pay must be based upon inference.

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor used the credit intending not to repay it; financial difficulty alone does not suffice.

Barnett Bank v. Tinney (In Re Tinney) · filed 1995-06-29(a)(2)(A)

The test for nondischargeability is not whether the credit was used in difficult times; the test for nondischargeability is whether the credit was used with the intent not to repay.

Section 523(a)(2)(A) treats credit card use as a representation that the cardholder can and intends to repay; intent to deceive may be inferred from the circumstances.

First Card Services, Inc. v. Flynn (In Re Flynn) · filed 1995-06-30(a)(2)(A)

Each time a credit card is used for payment, the cardholder represents that he has the ability and the intent to repay the debt. ... Intent to deceive may be inferred from the circumstances of each case. Here debtor continued to accumulate debt for items not considered to be necessities even though she was unable to repay it and was hopelessly insolvent.

Section 523(a)(2)(A) excepts credit card debt from discharge when the creditor establishes actual fraud; the creditor need not show that it conducted a credit check.

Citibank (South Dakota) N.A. v. Seong Koo Lee (In Re Seong Koo Lee) · filed 1995-08-17(a)(2)(A)

The record indicates that Citibank provided ample evidence of actual fraud to support entry of a default judgment under § 523(a)(2)(A). The bankruptcy court’s decision is hereby REVERSED, and the case is remanded to the bankruptcy court with instructions to enter default judgment in favor of Citibank, holding the debt of $19,656.55 nondischargeable under § 523(a)(2)(A).

Section 523(a)(2)(A) does not make credit card debt nondischargeable solely because the debtor could not repay the charges when made.

Matter of Hiemer · filed 1995-07-03(a)(2)(A)

Where a lender finds itself in bankruptcy, its debt should not be excepted from discharge on the simple theory that the debtor had an inability to repay the debt at the time the debt was incurred.

Section 523(a)(2)(A) requires a credit card creditor to prove by a preponderance of the evidence that the debtor obtained credit through false pretenses, a false representation, or actual fraud.

At & T Universal Card Services Corp. v. Ramirez (In Re Ramirez) · filed 1995-07-06(a)(2)(A)

In order to obtain an exception to discharge, AT & T UNIVERSAL CARD SERVICES must prove by a preponderance of the evidence that the Defendant used the AT & T VISA account to obtain money, property, services, or an extension, renewal, or refinancing of credit by false pretenses, a false representation, or actual fraud.

For credit card debt, actual fraud under § 523(a)(2)(A) requires a debtor to misrepresent an intent to repay.

Chase Manhattan Bank, N.A. v. Ford (In Re Ford) · filed 1995-08-29(a)(2)(A)

Having considered these guidelines, this Court believes that the appropriate definition for “actual fraud” lies within the Carpenter decision. As Judge Kahn therein concluded, a debtor commits “actual fraud” when she misrepresents her intent to pay the debt.

Section 523(a)(2)(C)'s presumption of nondischargeability for cash advances applies only if the creditor first proves the advances were consumer debts.

American Express Centurion Bank v. Hinshaw (In Re Hinshaw) · filed 1995-08-28(a)(2)(C)

After considering the record of this matter, and the Findings of Fact, Conclusions of Law and Memorandum Opinion entered by this Court on April 27, 1995, this Court is satisfied that the Plaintiffs failed to establish that the presumption contained in § 523(a)(2)(C) applied to the debts incurred by the Debtor by failing to establish that the cash advances made by the Debtor were consumer in nature.

Section 523(a)(2)(A) requires a creditor seeking to except a debt from discharge for fraud to prove a knowing false representation, intent to deceive, reliance, and resulting loss.

First Deposit National Bank v. Gonzales (In Re Gonzales) · filed 1995-09-13(a)(2)(A)

In the case at bar, First Deposit, the moving party, must prove five elements under 11 U.S.C. § 523(a)(2)(A) to succeed on its claim, in addition to proving there is no genuine issue of a material fact. The elements required are: (1) the debtor made false representations, (2) the debtor knew such representations to be false at the time they were made, (3) the representations were made with the intent to deceive the creditor, (4) the creditor relied on the representations, and (5) the creditor’s loss was the proximate result of the misrepresentation having been made.

Section 523(a)(2)(A) makes credit card cash advances nondischargeable when the debtor obtains them fraudulently without the intent or ability to repay.

First USA Bank v. McCall · filed 1995-10-26(a)(2)(A)

Based upon the facts of this case, the Court finds that the charges on the First USA Bank credit card were fraudulent under section 523(a)(2) because Nathan McCall had neither the ability nor the intent to repay the charges.

Section 523(a)(2)(A) makes credit card charges nondischargeable as actual fraud when the debtor incurs them while misrepresenting an intention to pay.

American Express Travel Related Services Co. v. Rusu (In Re Rusu) · filed 1995-10-27(a)(2)(A)

Similarly, an act of “actual fraud” takes place when a debtor misrepresents his intention to pay the debt in question. ... Due to a series of admissions by default on the part of the Debtor, the Court finds no material question of fact to remain regarding the applicability of 11 U.S.C. § 523(a)(2)(A) to this controversy.

Section 523(a)(2)(A) requires courts to consider the totality of the circumstances when deciding whether credit card debt was incurred with fraudulent intent.

Hecht's v. Valdes (In Re Valdes) · filed 1995-11-13(a)(2)(A)

This court adopts the “totality of the circumstances” theory.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove justifiable reliance and intent to deceive; use of a credit card alone is not a representation.

At & T Universal Card Services v. Alvi (In Re Alvi) · filed 1996-01-10(a)(2)(A)

After considering the legal standards now applicable to the determination of the dischargeability of credit card debt, the Court now finds: 1) Creditors who bring section 523(a)(2)(A) actions in consumer bankruptcy cases must prove that they “justifiably relied” on representations of a debtor when they extended credit; 2) the use of a credit card, in itself, does not constitute a representation or statement which is capable of being true or false; 3) Creditors must prove that a debtor had the requisite scien-ter.

Section 523(a)(2)(A) requires proof that a debtor intended to deceive the creditor when incurring credit card debt; debt incurred without that intent is dischargeable.

National Bank of Commerce v. Lazar · filed 1995-12-11(a)(2)(A)

This court holds that in light of Dr. Lazar’s long history of incurring and repaying credit card and other debt, including the debt on the cards at issue here, his and his wife’s fluctuating income, and his “impress[ive]” testimony, the bankruptcy court did not commit clear error in finding that Dr. Lazar did not possess the intent to deceive NBC when he made credit card purchases prior to March 25, 1994.

Section 523(a)(2)(A) requires proof that a debtor subjectively intended to deceive the card issuer when incurring credit card charges.

American Express Travel Related Services Co. v. McKinnon (In Re McKinnon) · filed 1996-02-29(a)(2)(A)

Although this Court believes that the totality of the circumstances theory provides a better approach to solving the dilemma presented by credit card discharge cases than the assumption of the risk and implied representation theories, the Court is inclined to reject each of these theories, and, instead, adopts the subjective common law test. ... With regard to the facts of the present case, the Court finds that American Express has failed to prove that McKinnon had a subjective intent to deceive at the time that she incurred the obligations to American Express.

Section 523(a)(2)(A) makes credit card debt nondischargeable when the creditor proves actual fraud, including intent not to repay and justified reliance.

At & T Universal Card Services v. Samani (In Re Samani) · filed 1996-03-04(a)(2)(A)

The Court finds that by using their credit cards in the transactions at issue, the Samanis defrauded plaintiff. The Court finds this intent not to repay from the totality of the circumstances, including the debtors’ incomes, the luxury nature of the items purchased, and the timing of the purchases in relation to the filing of bankruptcy. As noted, there was no change in debtor’s employment or income at the time of the purchases which would indicate ability or intent to repay. Moreover, the Court finds that reliance by the creditor was justified based on debtors’ prior sporadic payment of at least the minimum monthly amount due.

Section 523(a)(2)(A) permits a court to consider a debtor’s ability to repay as evidence of fraudulent intent, but credit card use does not imply a representation of ability to repay.

Colonial National Bank USA v. Leventhal (In Re Leventhal) · filed 1996-03-25(a)(2)(A)

This Court agrees with the decisions which conclude that it is neither factually nor legally appropriate to imply or infer a representation of ability to repay. But the debtor’s ability or perceived ability to repay at the time he or she incurs indebtedness certainly may be circumstantial evidence bearing on the debtor’s intent.

Section 523(a)(2)(A) allows an inference of credit card fraud unless the record clearly shows that the issuer did not care about the debtor’s creditworthiness when it issued the card.

At & T Universal Card Services Corp. v. Burns (In Re Burns) · filed 1996-04-30(a)(2)(A)

The creditor loses the availability of the inference only when the record is clear that the creditor did not care about the debt- or’s creditworthiness at the time it issued the card.

Section 523(a)(2)(A) excepts credit card debt from discharge for fraud only if the creditor proves the debtor intended to deceive when incurring the charges.

Chevy Chase Bank, FSB v. Briese (In Re Briese) · filed 1996-05-06(a)(2)(A)

That promise is not actionable as fraud — or excepted from discharge under § 523(a)(2)(A) — unless the plaintiff can prove that they acted with an intent to deceive when they incurred the charges and made the representation.

Section 523(a)(2)(A) requires actual fraud to except credit card debt from discharge; using a card alone does not establish fraudulent intent, though ability to repay may be evidence of intent.

Household Credit Services, Inc. v. Jacobs (In Re Jacobs) · filed 1996-05-20(a)(2)(A)

However, implied fraud alone is not a basis for nondischargeability because actual fraud is required for a determination of nondischargeability. This court agrees with the decisions which conclude that it is neither factually nor legally appropriate to imply or infer a representation of ability to repay, although the debtor’s ability or perceived ability to repay at the time the debt is incurred may be circumstantial evidence bearing on the debtor’s intent.

Section 523(a)(2)(A) does not make credit card debt nondischargeable merely because the debtor was insolvent when using the card.

A.T. & T. Universal Card Services Corp. v. Berry (In Re Berry) · filed 1996-06-21(a)(2)(A)

However, the Court finds that it is not appropriate to grant summary judgment on this ground. The Court is bound by the decision in First Nat’l Bank of Mobile v. Roddenberry, 701 F.2d 927 (11th Cir.1983) in which the court rejected the “implied misrepresentation” doctrine of credit card fraud, following instead the “voluntary assumption of risk” doctrine.

Section 523(a)(2)(A) excepts credit card kiting debt from discharge when the creditor proves intent to deceive, a false representation, justifiable reliance, and damages.

In Re Amjad I. Eashai, Debtor. Citibank (South Dakota), N.A. v. Eashai · filed 1996-07-02(a)(2)(A)

We incorporate the twelve factors of Dougherty into an approach which gives consideration to all of the elements of common law fraud. We adopt the twelve factors of Dougherty to establish the element of intent to deceive. However, a creditor in a credit card kiting case must also prove the other elements of common law fraud, including a false representation, justifiable reliance, and damages.

Section 523(a)(2)(A) requires a credit card issuer to investigate before increasing a credit limit only when known facts would alert it that the debtor may not intend or be able to pay.

At & T Universal Card Services v. Burdge ( in Re Burdge) · filed 1996-06-25(a)(2)(A)

A creditor is not required to investigate prior to increasing the credit limit. However, if a creditor is aware of facts which, at a cursory glance, should alert that creditor to a possibility that the debtor either does not intend to pay for its debt or lacks the ability to pay its debt, the creditor must make reasonable inquiry before issuing the card or increasing the credit limit.

Section 523(a)(2)(A) uses a subjective test to determine whether a debtor intended to repay credit card advances.

At & T Universal Card Services Corp. v. Totina (In Re Totina) · filed 1996-07-09(a)(2)(A)

On the basis of the eases discussed above, this court concludes that it will apply the subjective test to determine whether the debtor intended to pay the credit card advances he made on his two credit cards.

Section 523(a)(2)(A) requires proof of actual intent not to repay credit card debt; inability to repay alone does not establish fraud.

In Re Bashir Y. Anastas, Debtor. Bashir Y. Anastas v. American Savings Bank · filed 1996-09-03(a)(2)(A)

There is no basis in the record for a finding of the type of malicious and bad faith intent not to repay that is necessary for a finding of actual fraud under section 523(a)(2)(A).

Section 523(a)(2)(A) permits a court to infer fraudulent intent from a debtor’s awareness of a hopeless inability to repay credit card charges, even when the debtor testifies that they intended to pay.

American Express Centurion Bank Optima v. Choi (In Re Choi) · filed 1996-10-29(a)(2)(A)

In my view, the debtor’s testimony of having a subjective intent to repay is entitled to substantial weight, but it still must be considered in light of all other evidence in the case. If a debtor’s financial condition, viewed in its entirety at the time of a credit card charge, presents a hopeless inability to pay, of which the debtor was aware, this is evidence of a fraudulent intent.

Section 523(a)(2)(A) does not make a debt nondischargeable merely because the debtor incurred it while hopelessly insolvent; fraud requires an actual finding of bad faith.

New Jersey Lawyers' Fund for Client Protection v. Trombadore (In Re Trombadore) · filed 1996-10-22(a)(2)(A)

Although incurring debt while insolvent may be indicative of an intent not to repay, this Court adopts the Ninth Circuit’s holding that “the hopeless state of a debtor’s financial condition should never become a substitute for an actual finding of bad faith.”

Section 523(a)(2)(C) creates a rebuttable presumption that a qualifying recent cash advance is nondischargeable; credible evidence of the debtor’s intent to repay can overcome it.

Bank One Columbus, N.A. v. Fulginiti (In Re Fulginiti) · filed 1996-10-25(a)(2)(C)

Thus, in applying § 523(a)(2)(C) to the instant facts, the only practical effect of the presumption was to require the Debtor to take the stand to attempt to rebut the presumption that this conduct was fraudulent. Once he did so, and he was credible and successful in so doing, the presumption failed to assist the Plaintiff any longer.

Section 523(a)(2)(A) does not except credit card debt from discharge when the creditor fails to prove false pretenses, false representation, or actual fraud.

At & T Universal Card Services Corp. v. Stansel (In Re Stansel) · filed 1996-12-11(a)(2)(A)

Plaintiff has not established by preponderance of the evidence that the Defendant’s credit card debt should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A) because it cannot prove Defendant committed false pretenses, false representation or actual fraud in using her credit card.

Section 523(a)(2)(A) requires a credit card issuer alleging fraud to prove actual, justifiable reliance on the debtor’s continuing representation of intent to repay.

At & T Universal Card Services Corp. v. Feld (In Re Feld) · filed 1996-12-18(a)(2)(A)

In short, we conclude that a creditor must establish actual reliance on the debtor’s continuing representation of an intent to repay and that reliance will be justifiable if the creditor utilized its opportunity to make a cursory investigation prior to the extension of the open ended credit account which supports the credit line granted and no “red flags” subsequently are raised.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove a misrepresentation and actual, justifiable reliance on it.

At & T Universal Card Services Corp. v. Akdogan (In Re Akdogan) · filed 1997-01-15(a)(2)(A)

However, we will not eviscerate from § 523(a)(2)(A) the elements of misrepresentation and reliance simply because their presence is inconvenient.

Section 523(a)(2)(A) treats a credit card charge made without an intent to repay as a fraudulent representation.

In Re Hassan Hamidi Hashemi, Debtor. American Express Travel Related Services Company Inc. v. Hashemi · filed 1997-01-24(a)(2)(A)

Because the bankruptcy court found that appellant had no intention of repaying his debt, each time he used his cards he-made a fraudulent representation to American Express.

Section 523(a)(2)(A) makes credit card debts nondischargeable when the debtor incurs them knowing he cannot repay and intending to deceive the creditor.

At & T Universal Card Services v. Van Dyke (In Re Van Dyke) · filed 1997-02-24(a)(2)(A)

As such, the Court concludes the debts incurred on and after March 1, 1996 are NONDIS-CHARGEABLE under § 523(a)(2)(A).

Section 523(a)(2)(A) permits a creditor to prove that a credit card cash advance was obtained by fraud even when the advance falls outside subsection (C)'s presumption period.

A.T.&T. Universal Card Service Corp. v. Van Nguyen · filed 1997-02-26(a)(2)(A)

AT&T was entitled to discovery and a fair opportunity to prove that Nguyen was not entitled to a discharge under § 523(a)(2)(A).

Section 523(a)(2)(C)’s presumption for qualifying cash advances can be overcome by credible evidence that the debtor intended to repay.

At & T Universal Card Services Corp. v. Acker (In Re Acker) · filed 1997-02-24(a)(2)(C)

The evidence shows that the Defendant intended to repay the cash advance with funds generated by a jet ski rental business. The Court finds that the Defendant has overcome the presumption of fraud provided by § 523(a)(2)(C), and the cash advance is dis-chargeable.

Section 523(a)(2)(C)’s presumption for recent cash advances can be rebutted by showing that the debtor lacked intent to deceive.

First Card Services, Inc. v. Kitzmiller (In Re Kitzmiller) · filed 1997-02-25(a)(2)(C)

It then becomes the burden of the debtor to rebut the presumption of nondischargeability. However, the elements of fraud are conjunctive — the debtor need only rebut any one of the elements.

Section 523(a)(2)(A) does not except credit card debt from discharge when the creditor fails to prove that the debtor intended to deceive it.

FCC National Bank v. Etto (In Re Etto) · filed 1997-04-09(a)(2)(A)

As the Court is not convinced under these facts that Defendant’s mere use of Plaintiffs credit card alone carries with it an implication of a promise to repay Plaintiff, the Court is similarly not convinced that Defendant harbored an intent to deceive Plaintiff.

Section 523(a)(2)(A) does not make credit card debt nondischargeable for fraud merely because the debtor used the card to support a struggling business; the creditor must show a lack of intent to repay.

American Express Travel Related Services, Inc. v. Hearn (In Re Hearn) · filed 1997-04-11(a)(2)(A)

Debtor’s attempt to prop up his business temporarily by using his credit card for business purchases does not establish a lack of intent to repay.

Section 523(a)(2)(A) requires a credit card issuer to establish justifiable reliance; without proof of reliance beyond the credit limit, the debt is nondischargeable only up to that limit plus applicable charges.

At & T Universal Card Services Corp. v. Cheuk Hon Wong (In Re Cheuk Hon Wong) · filed 1997-04-14(a)(2)(A)

The court holds, therefore, that AT & T established the reliance element of its cause of action against the Debtor only to the extent of the $10,500 credit limit assigned to the account, plus applicable late fees and finance charges.

Section 523(a)(2)(A) does not except credit card debt from discharge merely because the debtor exceeded a credit limit; the creditor must prove fraudulent intent.

At&T Universal Card Services, Corp. v. Reneer (In Re Reneer) · filed 1997-05-09(a)(2)(A)

Nonetheless, in the typical credit card dischargeability case under § 523(a)(2)(A), extension over the card holder’s credit limit may evidence fraudulent intent, but it does not when applied to the specific facts of this Proceeding.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove justifiable reliance and actual fraudulent intent.

First USA Bank v. Hunter (In Re Hunter) · filed 1997-06-27(a)(2)(A)

First, the Plaintiff has failed to prove justifiable reliance. ... Further, the Plaintiff has utterly failed to prove any fraudulent intent. In order to determine whether a credit card debt is nondischargeable, the Plaintiff must show the totality of the circumstances surrounding the charges and prove that the Defendant incurred the charges with actual fraudulent intent.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove that the debtor did not intend to pay the charges when incurred.

FCC National Bank v. Laursen (In Re Laursen) · filed 1997-07-15(a)(2)(A)

Before a credit card debt can be found nondischargeable under section 523(a)(2)(A), a creditor must show actual fraud on the part of the debtor-namely that at the time the credit card charges were incurred, the debtor did not intend to pay them.

Section 523(a)(2)(A) makes credit card debt nondischargeable for actual fraud only if the debtor intended to breach the credit agreement when the charges or cash advances were incurred.

At & T Universal Card Services Corp. v. Reach (In Re Reach) · filed 1997-07-16(a)(2)(A)

Therefore, a credit card debt is not nondischargeable for “actual fraud” unless the debtor did not intend to honor the terms of the credit agreement at the time the charges were made or the cash advances were taken.

Section 523(a)(2)(C)'s presumption does not apply to cash advances obtained more than sixty days before the bankruptcy petition; the creditor must then prove actual fraud.

At & T Universal Card Services Corp. v. Harris (In Re Harris) · filed 1997-07-14(a)(2)(C)

In this case, Plaintiff is not entitled to the presumption of fraud regarding the cash advances. The advances in question were made in December 1995 through March 1996. These charges were made more than sixty days prior to the petition date. Thus, Plaintiff must prove actual fraud.

Section 523(a)(2)(A) allows a credit card issuer to seek an exception to discharge for fraud and obtain discovery to prove its claim.

At & T Universal Card Services Corp. v. Pakdaman · filed 1997-07-17(a)(2)(A)

As in Nguyen, this court must conclude that, at a minimum, AT & T was entitled to discovery and a fair opportunity to prove that the debtor here was not entitled to a discharge under § 523(a)(2)(A).

Section 523(a)(2)(A) requires a subjective assessment of fraudulent intent when an addicted gambler incurs credit card debt, taking the addiction and surrounding circumstances into account.

At & T Universal Card Services v. Crutcher (In Re Crutcher) · filed 1997-08-11(a)(2)(A)

Although this Court agrees that the list of factors used in the “Totality of the Circumstances” approach are helpful to a determination of a § 523(a)(2)(A) action, in the ease of addicted gamblers, the factors are not enough by themselves. They must be addressed from a subjective approach, taking all of the surrounding facts and circumstances into consideration, including the reality of the debtor’s addiction.

Section 523(a)(2)(A) assesses fraud in credit card debt by the debtor’s intent to repay, rather than the debtor’s ability to repay.

First Card Services, Inc. v. Koop (In Re Koop) · filed 1997-08-26(a)(2)(A)

The test therefore is not the objective standard of whether a reasonable person should have known there was an inability to repay, but the subjective standard of the debtor’s intention to repay.

Section 523(a)(2)(C) presumes qualifying recent cash advances nondischargeable, but a debtor can rebut that presumption by showing substantial doubt about an intent to defraud.

Central Fidelity National Bank v. Powell (In Re Powell) · filed 1997-08-12(a)(2)(C)

The testimony shows that Debtor" fully intended to repay the credit card, and thus has met the burden necessary to rebut the presumption of nondischarge-ability under § 523(a)(2)(C).

Section 523(a)(2)(C) presumes qualifying recent cash advances nondischargeable; the debtor’s failure to trace the cash to reasonable living expenses did not rebut that presumption.

At & T Universal Card Services v. Ellingsworth (In Re Ellingsworth) · filed 1997-08-26(a)(2)(C)

I need not decide here whether the cash advance presumption can ever be rebutted, since Ms. Ellingsworth did not offer sufficient evidence tracing the funds acquired by cash advance to reasonable living expenses.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove fraudulent intent and justifiable reliance by a preponderance of the evidence.

Keybank v. McCreery (In Re McCreery) · filed 1997-09-30(a)(2)(A)

The plaintiff has failed to prove by a preponderance of the evidence the elements necessary to a determination that the debtor’s course of conduct during the 25 day period in question was a “false pretense, a false representation, or actual fraud.” Plaintiffs claim seeking to except this credit card debt from discharge under 11 U.S.C. § 523(a)(2)(A) is denied.

Section 523(a)(2)(A) does not except credit-card debt from discharge for actual fraud when the debtor credibly intended to repay it and the creditor fails to prove fraud.

At & T UNIVERSAL CardSERVICES CORP. v. Santos · filed 1997-09-22(a)(2)(A)

Under 11 U.S.C. § 523(a)(2)(A) are found exceptions to discharge of debt in bankruptcy. ... This Court must defer to the bankruptcy judge in determining credibility of any witness. The Bankruptcy Court has determined: (1) Appellee, Ms. Santos testified credibly; (2) given the circumstances, stating $56,000.00 as income for 1994 was credible; (3) Appellee, Ms. Santos, used the credit card fully intending to pay for the charges; and (4) Appellee, Ms. Santos, fully believed that she would have the ability to repay the credit card company. ... ORDERED that the orders of the Bankruptcy Court be AFFIRMED and the Clerk of Court SHALL enter judgment pursuant this order.

Section 523(a)(2)(A) makes credit card charges nondischargeable when a debtor who cannot repay them relies on a third party with no legal obligation to pay.

At & T Universal Card Services Corp. v. Wood (In Re Wood) · filed 1997-10-10(a)(2)(A)

Though this appears to be an issue of first impression, this Court holds that it is reckless representation of ability to répay, as a matter of law, for a Debtor who lacks ability to himself/herselfiitself repay charges, to count on a third person to repay those credit card charges, where the third person would only be acting as a “volunteer” in repaying the charges, without having any legal obligation to repay the charges in issue.

Section 523(a)(2)(A) requires proof of fraudulent intent and justifiable reliance to except credit card debt from discharge.

In Re MacK · filed 1997-11-05(a)(2)(A)

Based on the foregoing analysis, I find that plaintiff has not demonstrated by the preponderance of the evidence that the defendant did not intend to repay the debt when the charges were incurred. Further, regardless of the debtor's intent, plaintiff failed to present any evidence that it justifiably relied on any representations, implied or otherwise, that defendant had the intent or the ability to make payments.

Section 523(a)(2)(A) does not except credit card debt from discharge when the creditor fails to prove the debtor intended to incur it in bad faith and avoid repayment through bankruptcy.

Providian Bancorp v. Bixel (In Re Bixel) · filed 1997-12-12(a)(2)(A)

After carefully considering the Dougherty factors and hence, the “totality of the circumstances,” the Court finds that Providian has not established, by a preponderance of the evidence, that Bixel intended to maliciously and in bad faith incur credit card debt with the intention of petitioning for bankruptcy and avoiding the debt.

Section 523(a)(2)(A) treats a debtor’s use of a credit card as an implied representation of intent to pay.

Sears, Roebuck & Co. v. Homschek (In Re Homschek) · filed 1998-02-03(a)(2)(A)

I conclude that the use of the credit card by a debtor is an implied representation of the debtor’s intent to pay an obligation.

Section 523(a)(2)(A) makes credit card cash advances nondischargeable when the debtor falsely represents an intent to repay and the creditor justifiably relies on that representation.

At & T v. Herrig (In Re Herrig) · filed 1998-03-03(a)(2)(A)

The debt owed to AT & T by Herrig for cash advances in the amount of $3,900.00 is nondischargeable under § 523(a)(2)(A) of the Bankruptcy Code.

Section 523(a)(2)(C)’s cash advance presumption does not apply to transfers of existing credit card balances.

First Deposit National Bank v. Cameron (In Re Cameron) · filed 1998-03-17(a)(2)(C)

The court concludes the balance transfers are not cash advances so the fraud presumption of § 523(a)(2)(C) does not apply.

Section 523(a)(2)(C)'s presumption for recent cash advances requires the creditor to prove that the advances were consumer credit used primarily for personal, family, or household purposes.

Bank One Columbus, N.A. v. Schad (In Re Kountry Korner Store) · filed 1998-05-21(a)(2)(C)

The Court finds that the $3,000 advance was not a consumer transaction, as it was not used primarily for personal, family, or household purposes, but for a commercial purpose. As to the $850 advance, the Bank failed to meet its burden of proving that it was used primarily for personal, family, or household purposes. Therefore, the Bank is not entitled to the benefit of the presumption of fraud provided by Section 523(a)(2)(C) and has the burden to prove fraud under Section 523(a)(2)(A) to succéed in rendering the Schads’ debt non-discharge-able.

Section 523(a)(2)(A) requires a subjective intent not to repay credit card debt; inability to repay alone does not establish fraudulent intent.

In Re Benethel Rembert, Debtor. Benethel Rembert v. At & T Universal Card Services, Inc. Citibank South Dakota, N.A. · filed 1998-05-29(a)(2)(A)

Thus, we hold that the proper inquiry to determine a debtor's fraudulent intent is whether the debtor subjectively intended to repay the debt.

Section 523(a)(2)(A) requires proof that a debtor lacked a subjective intent to repay credit card debt; inability to repay alone does not establish fraudulent intent.

Providian Bancorp v. Shartz (In Re Shartz) · filed 1998-06-11(a)(2)(A)

The totality of the circumstances indicates that Shartz was attempting to tide herself over during difficult times, rather than to have “one last hurrah” at the expense of her creditors. The bankruptcy court found that Providian failed to prove by a preponderance of the evidence that Shartz did not intend to repay the debt. Based upon the entire record, the Panel is not left with a definite and firm conviction that a mistake has been committed.

Section 523(a)(2)(C) presumes qualifying cash advances obtained shortly before bankruptcy are nondischargeable unless the debtor rebuts the presumption.

Union Planters Bank v. Reynaert (In re Reynaert) · filed 1998-06-03(a)(2)(C)

Hence, the burden is initially upon the Debtor to prove that he did not fraudulently obtain the cash advance. 11 U.S.C. § 523(a)(2)(C). ... For the foregoing reasons, the Debtor has failed to present sufficient evidence to overcome the presumption that the cash advance is nondischargeable.

Section 523(a)(2)(A) permits discharge of credit card charges made before the issuer communicates revocation of charging privileges, regardless of the debtor’s intent to repay.

FCC National Bank v. Gilmore (In Re Gilmore) · filed 1998-06-17(a)(2)(A)

In First National Bank of Mobile v. Roddenberry (In re Roddenberry), 701 F.2d 927 (11th Cir.1983), the Court of Appeals for the Eleventh Circuit held that regardless of a debtor’s intent to repay, or lack thereof, debts incurred by a debtor’s use of credit cards prior to revocation of the debtor’s charging privileges are dischargeable. Since all of the charge’s made by Ms. Gilmore on the card issued to her by the plaintiff were made prior to June 6, 1997, the date the plaintiff revoked Ms. Gilmore’s charging privileges and communicated that revocation to her, the debt owed by Ms. Gilmore for those charges is dischargeable.

Section 523(a)(2)(A) requires proof that the debtor lacked an intent to repay, but does not require proof of a scheme to avoid repayment.

La Capitol Federal Credit Union v. Melancon (In Re Melancon) · filed 1998-07-31(a)(2)(A)

The creditor need not prove the existence of a scheme to avoid repayment. He is required to prove only that the debtor did not have the intent to repay.

Section 523(a)(2)(A) does not except credit card debt from discharge based on the debtor’s inability to repay when the debtor intended to repay it.

At & T Universal Card Services Corp. v. Trivisani (In Re Trivisani) · filed 1998-09-17(a)(2)(A)

The first representation has no significance because fraud claims based on this kind of representation are not relevant under § 523(a)(2)(A) of the Bankruptcy Code. ... The court finds as a fact that, at the time the money was borrowed, the debtor intended to repay it. The court finds no present intention not to perform.

A debtor’s inability to repay credit-card charges, by itself, does not make the debt nondischargeable under § 523(a)(2)(A).

Fifth Third Bank of Northwest Ohio, N.A. v. Spitler (In Re Spitler) · filed 1998-09-22(a)(2)(A)

It is clear that an ability to repay at the time the charges were incurred is not the sole basis for a determination of dischargeability under § 523(a)(2)(A).

Section 523(a)(2)(A) treats credit card use as an implied representation of intent to repay; nondischargeability requires proof that the debtor lacked that intent when the debt was incurred.

Chevy Chase Bank FSB v. Kukuk (In Re Kukuk) · filed 1998-10-20(a)(2)(A)

Thus, we hold that, for purposes of dischargeability under § 523(a)(2)(A), the use of a credit card creates an implied representation that the debtor intends to repay the debt incurred thereby, but does not create any representation regarding the debtor’s ability to repay the debt.

Section 523(a)(2)(A) requires proof of intent to deceive to except credit card debt from discharge; the debtor’s intent is assessed under the totality of the circumstances.

First Card Services, Inc. v. Team Motorsports, Inc. (In Re Team Motorsports, Inc.) · filed 1998-12-07(a)(2)(A)

Based upon the totality of the circumstances, this Court finds that the Debtor intended to repay the credit card charges. ... IT IS FURTHER ORDERED, ADJUDGED AND DECREED that credit card debt to First Card Services, Inc. is discharged as to Greg Godbout, the individual debtor.

Section 523(a)(2)(A) makes credit card charges nondischargeable when a debtor uses the card without intending to repay and the creditor justifiably relies on the implied promise to pay.

Universal Card Services v. Miller (In Re Miller) · filed 1998-12-23(a)(2)(A)

Thus, each time Miller used his credit card, whether to obtain a cash advance or make a purchase, he represented to Universal that he had both the intent to repay the charges and the ability to make at least the minimum monthly payments under the credit card agreement. ... As a result, the Court finds that the portion of the debt to Universal which was incurred after March 17, 1998, or $2,573.21, is nondischargeable under § 523(a)(2)(A).

Section 523(a)(2)(A) makes credit card debt nondischargeable when the debtor incurs it without intending to repay; ability to repay alone does not determine dischargeability.

Chase Manhattan Bank USA, NA v. Robinson (In Re Robinson) · filed 1999-01-25(a)(2)(A)

It is clear that an ability to repay at the time the charges were incurred is not the sole basis for a determination of dischargeability under § 523(a)(2)(A). ... In the case at bar, this Court finds Defendant to have willfully incurred debts he had no intention to repay, so as to have a prolonged holiday which he termed “an interesting lifestyle.” Upon a review of Defendant’s testimony at trial, and the evidence in this case, this Court concludes that the debt to Plaintiff is nondischargeable.

Section 523(a)(2)(A) does not except a credit card debt from discharge when the debtor made no false representation, intended to repay, and the creditor did not rely on a false statement.

Universal Card Services Corp. v. Akins (In Re Akins) · filed 1999-05-17(a)(2)(A)

Plaintiff instituted this adversary proceeding seeking a determination that the debt of the Defendant to it is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). ... Defendant made a factually accurate express representation to the Plaintiff prior to using the credit in question. She used the money as represented. And, she intended to pay the money back. There is no intent to defraud here, at least on the part of the Defendant.

Section 523(a)(2)(A) requires proof that the debtor intended to deceive the creditor when incurring credit card charges to except the debt from discharge as fraud.

At & T Universal Card Services v. McLeroy (In Re McLeroy) · filed 1999-05-13(a)(2)(A)

Considering all of the pertinent facts, the court concludes that the defendants did not have the requisite intent to deceive AT & T when they incurred charges on their credit card from December, 1997, through April, 1998.

Section 523(a)(2)(A) requires findings on every element of fraud before credit card debt can be excepted from discharge.

American Express Travel Related Services Co. v. Fraschilla (In Re Fraschilla) · filed 1999-06-16(a)(2)(A)

In such matters, the trial courts need to focus upon the precise facts and, in a craftsmanlike manner, make findings as to all elements of fraud.

Section 523(a)(2)(A) treats a debtor’s reckless disregard for whether they intend to repay a credit card debt as an intentionally false representation.

Universal Card Services v. Pickett (In Re Pickett) · filed 1999-06-15(a)(2)(A)

Furthermore, it is this Court’s view that the debtor’s reckless disregard for the truth as to whether he or she has the intent to repay a credit card debt satisfies the element of misrepresentation that the debtor has made an intentionally false representation in obtaining the credit or, in this case, the cash advance.

Section 523(a)(2)(A) excepts credit card debt from discharge when a debtor uses the card without intending to repay and the creditor justifiably relies on that implied promise.

Sears, Roebuck & Co. v. McVicker (In Re McVicker) · filed 1999-06-15(a)(2)(A)

When the Debtor used her charge accounts during the relevant period, she represented an intention to repay Sears. The Debtor knew the representation was false when she made it. Her purpose in making the representation was to induce Sears to extend credit when the Debtor had no intention to pay for her purchases. ... Therefore, a total of $6296.97 owed by the Debtor to Sears is excepted from discharge.

Section 523(a)(2)(A) can except credit card debt from discharge when the debtor incurs charges without intending to repay them; ability to repay is not the sole test.

At & T Universal Bank v. Pennell (In Re Pennell) · filed 1999-06-28(a)(2)(A)

It is clear that an ability to repay at the time the charges were incurred is not the sole basis for a determination of dischargeability under § 523(a)(2)(A). ... Accordingly, this Court concludes that the Defendant did not intend to repay her debt to the Plaintiff as it was incurred.

Section 523(a)(2)(A) treats an account holder’s unrestricted transfer of a credit card, PIN, and blank convenience checks to another person, with utter disregard for the debt incurred, as a false pretense.

F.C.C. National Bank v. Reid (In Re Reid) · filed 1999-08-05(a)(2)(A)

The Court today finds that unless a “pre-approved” credit card commands a different result (as described in footnote 1), turning one’s credit card and line of credit and PIN over to another (even to one’s own spouse) to be freely used at the other’s discretion and judgment without limitation, and handing over to the other person “convenience checks” endorsed in blank, all in utter disregard of the amount of debt incurred, constitutes a “false pretense” for purposes of 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) does not treat a debtor’s reliance on gambling winnings to repay a credit card advance as proof, by itself, of a reckless misrepresentation of intent to repay.

Advanta National Bank v. Kong (In Re Kong) · filed 1999-09-09(a)(2)(A)

Advanta would have us hold that as a matter of law, a debtor who takes an advance on a credit card to gamble knowing that his only source of payment is from winnings has recklessly formed his intent to pay the debt. We do not believe that this is the law in the Ninth Circuit for the reasons previously discussed.

Section 523(a)(2)(A) treats credit card use as a representation of intent to repay; a debtor who sincerely intends to repay does not make a false representation merely because repayment is unlikely.

Star Bank, N.A. v. Stearns (In Re Stearns) · filed 1999-11-26(a)(2)(A)

Under it, the Defendant is deemed to have represented, or at least to have created the reasonable impression, that she intended to pay the Plaintiff for all of the charges and cash advances she was taking against her VISA account, in accordance with the changeable terms of repayment under the cardholder agreement, and to have made that representation each time that she was making an individual charge or cash draw. ... Simply stated, the Plaintiffs case fails on its very first element: a false representation of a past or present fact.

Section 523(a)(2)(C)’s presumption for recent cash advances can be rebutted with substantial evidence that the debtor lacked fraudulent intent; an unsupported assertion is insufficient.

AT&T Universal Card v. Deison · filed 2000-01-19(a)(2)(C)

Taken together, these cases suggest that the bankruptcy court should have looked for “substantial evidence” that the debtor did not intend to defraud by her cash-advance withdrawals in the sixty days before filing bankruptcy and that a completely unsupported assertion of lack of intent will not suffice.

Section 523(a)(2)(A) does not bar discharge of credit card debt from an authorized user’s charges when the debtor made no misrepresentation and did not act fraudulently or recklessly.

Universal Bank, N.A. v. Weiler (In Re Weiler) · filed 2000-02-03(a)(2)(A)

In the instant transaction, it is difficult to see how the Debtor could be chargeable with any of the five § 523(a)(2)(A) elements, because there were no misrepresentations on his part.

Section 523(a)(2)(A) requires a creditor seeking to except a debt from discharge for fraud to prove the debtor’s intent to deceive and the creditor’s justifiable reliance.

Universal Bank, N.A. v. Grause (In Re Grause) · filed 2000-02-16(a)(2)(A)

In its decision announced from the Bench, the Bankruptcy Court determined that Universal had failed to meet its burden of proving either intent or justifiable reliance. We believe the record contains sufficient evidence supporting both of these findings by the Bankruptcy Court and therefore, we conclude those findings were not clearly erroneous.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge for fraud to prove that the debtor intended to deceive the creditor when using the card.

At & T Universal Card Services Corp. v. Dietzel (In Re Dietzel) · filed 2000-03-07(a)(2)(A)

AT & T was required to establish that the Debtor’s representations with respect to the use of his credit card were false when made and were made with the intention of deceiving it. The Court finds that AT & T failed to sustain its burden that the Debtor actually intended to deceive it when he used his AT & T credit card.

Under § 523(a)(2)(A), use of a pre-approved credit card does not itself supply a false representation on which the issuer can rely to prevent discharge.

In the Matter Of: Constance P. Mercer, Debtor. At&t Universal Card Services v. Mercer · filed 2000-04-26(a)(2)(A)

Because AT&T provided Mercer a pre-approved credit card with a pre-approved credit limit, Mercer could not make any false representations AT&T could rely on.

Section 523(a)(2)(A) does not treat use of a pre-approved credit card as an implied representation of intent to repay.

AT&T Universal Card Service v. Mercer · filed 2000-05-15(a)(2)(A)

This Circuit has not adopted the implied representation theory, and we decline to do so in the pre-approved credit card context.

Section 523(a)(2)(A) can make credit card debt nondischargeable if the debtor misrepresented the purpose for which he would use the card.

Universal Bank, N.A. v. Li (In Re Li) · filed 2000-06-06(a)(2)(A)

Because these issues were not addressed in the opinion of the Bankruptcy Court, this Court concludes that questions of fact remain regarding whether Debtor misrepresented the purpose for which he used his credit card under 11 U.S.C. § 523(a)(2)(A). Accordingly, the Court will remand this matter to the Bankruptcy Court for further findings of fact and conclusions of law on this issue.

Section 523(a)(2)(A) does not treat credit card use alone as necessarily making a representation to the creditor.

Universal Bank, N.A. v. Rich (In Re Rich) · filed 2000-06-23(a)(2)(A)

Instead, this Court concludes that use of a credit card to incur debt does not necessarily involve a representation as a matter of fact or law.

Section 523(a)(2)(A) does not treat use of a credit card alone as necessarily making a representation to the creditor.

Universal Bank, N.A. v. Kuntz (In Re Kuntz) · filed 2000-06-23(a)(2)(A)

Instead, this Court concludes that use of a credit card to incur debt does not necessarily involve a representation as a matter of fact or law.

Section 523(a)(2)(A) does not treat use of a multipurpose bank credit card as an implied representation of intent to repay.

Bank of America v. Jarczyk (In Re Jarczyk) · filed 2000-09-20(a)(2)(A)

This court will therefore follow the line of decisions that have held that the use of a multi-purpose bank credit card entails no representation of an implied intent to repay.

Section 523(a)(2)(A) excepts credit card debt from discharge when the creditor proves the debtor incurred it through actual fraud.

American Express Travel Related Services Co. v. Prieto (In Re Prieto) · filed 2001-01-30(a)(2)(A)

Therefore, the debt is exempted from discharge pursuant to section 523(a)(2)(A) of the Bankruptcy Code.

Section 523(a)(2)(A) excepts credit card debt from discharge when a debtor deceitfully promises to repay charges despite having no realistic means to do so.

American Express v. Kahn (In Re Kahn) · filed 2001-04-20(a)(2)(A)

In credit card dischargeability proceedings, as here, a false representation occurs when a debtor deceitfully signs a credit card receipt which affirms a promise to repay in accordance with the terms of the agreement.

Section 523(a)(2)(A) treats each credit card use as a representation of intent to pay; a creditor must prove that a knowingly false representation caused a loss through actual and justifiable reliance.

At&T Universal Card Services v. Mercer · filed 2001-03-23(a)(2)(A)

For Mercer’s § 523(a)(2)(A) nondis-chargeability vel non, we hold, as a matter of law, for each card-use: she represented her intent to pay the loan; if her representation was knowingly false, she intended to deceive UCS; it actually relied on the representation by authorizing the requested loan; and its loss was proximately caused by such reliance.

Section 523(a)(2)(A) excepts credit card charges from discharge when debtors incur them while aware of a hopeless inability to pay.

Citibank (South Dakota) N.A. v. Hale (In Re Hale) · filed 2001-03-26(a)(2)(A)

Because debtors have offered virtually nothing to refute plaintiffs’ evidence that their financial circumstances presented a situation of hopeless inability to pay, of which they must have been aware, the credit card charges at issue here will be excepted from discharge under 11 U.S.C. § 523(a)(2)(A).

Under § 523(a)(2)(A), a debtor’s intent to repay credit card charges is assessed subjectively, with objective facts bearing on whether that intent is credible.

Chase Manhattan Bank v. Pantelias (In re Pantelias) · filed 2001-08-13(a)(2)(A)

But that does not mean the debtor’s expectations can be ignored; the court must determine the debtor’s subjective intent— whether she in fact intended to pay the charges. Of course, the court must consider the degree to which the debtor’s expectations were supported by the objective facts she knew — the less support, the more difficult it is for the court to believe the debtor had the intent to pay.

Section 523(a)(2)(A) treats credit card use as an implied representation of intent to repay, but not of ability to repay.

Bank of America v. Jarczyk · filed 2001-09-20(a)(2)(A)

Although, as discussed, the Court believes that credit card usage carries with it an implied representation of intent to repay the debt, it does not also carry an implied representation of ability to repay.

Section 523(a)(2)(A) treats use of a credit card as an implied representation that the cardholder intends to repay the debt; a creditor claiming fraud must show that representation was fraudulent.

Citibank (South Dakota) N.A. v. Parker · filed 2001-11-16(a)(2)(A)

In the context of credit cards, a cardholder’s use of a credit card is treated as an implied representation to the credit card company that the cardholder intends to repay the debt. ... We conclude that the finding that Parker intended to pay her bill for the challenged purchases was amply supported.

Section 523(a)(2)(A) requires a creditor seeking to except credit card debt from discharge to prove fraudulent intent under the totality of the circumstances.

Universal Bank, N.A. v. Howard (In re Howard) · filed 2002-03-05(a)(2)(A)

However, unlike the implied representation theory, in which debts are nondisehargeable if the debtor is aware of its inability to pay when debt is incurred, the totality of the circumstances theory requires the creditor prove actual fraud through a pattern of “facts and circumstances ... [that] present a deceptive pattern.” ... This Court adopts the totality of the circumstances theory.

Section 523(a)(2)(C)’s presumption of nondischargeability for cash advances does not apply to a credit card balance transfer.

National City Bank v. Manning (In Re Manning) · filed 2002-03-28(a)(2)(C)

To summarize, the Court concludes that the Final Balance Transfer does not constitute a cash advance within the meaning of § 523(a)(2)(C).

Section 523(a)(2)(A) makes credit card charges nondischargeable when the debtor incurred them intending not to repay or actually knowing they would not be repaid.

First North American National Bank v. Widner (In Re Widner) · filed 2002-11-06(a)(2)(A)

This Court holds that charges incurred with either the intent not to repay or actual knowledge that they would not be repaid are fraudulent under § 523(a)(2)(A) of the Bankruptcy Code.

Section 523(a)(2)(A) makes a credit card debt nondischargeable for actual fraud only if the debtor intended to breach the credit agreement when making the charges or taking cash advances.

Compass Bank v. Meyer (In Re Meyer) · filed 2003-02-25(a)(2)(A)

Therefore, a credit card debt is not nondischargeable for “actual fraud” unless the debtor did not intend to honor the terms of the credit agreement at the time the charges were made or the cash advances were taken.

Section 523(a)(2)(A) treats credit card use as an implied representation of intent to repay, but a creditor must allege facts supporting fraudulent intent.

Chase Manhattan Bank, USA, N.A. v. Giuffrida (In Re Giuffrida) · filed 2003-03-25(a)(2)(A)

The Court agrees with Mercer and the District Court decisions in Jarczyk and Cacciatore, and adopts the theory that an implied representation of a person’s intent to repay the debt arises upon use of a credit card. For these reasons, the Court finds that Chase’s allegation that it relied on the “implied representation” of the Debtor’s intent to repay is not fatal to its Complaint.

Section 523(a)(2)(A) makes credit card debt nondischargeable when the creditor proves by a preponderance of the evidence that the debtor falsely represented an intent to repay, intended to deceive the creditor, and caused loss through the creditor’s justifiable reliance.

Capital One Bank v. Ferro (In re Ferro) · filed 2003-04-25(a)(2)(A)

The Court finds that Capital One has proven the elements of 11 U.S.C. § 523(a)(2)(A) by a preponderance of the evidence. Accordingly, discharge of the debt is denied pursuant to § 523(a)(2)(A).

Section 523(a)(2)(A) does not make credit card debt nondischargeable for fraud based solely on the debtor’s inability to repay it.

Citibank (S.D.), N.A. v. Savage (In Re Savage) · filed 2003-09-29(a)(2)(A)

In conclusion, standing alone, the lack of ability to repay credit card debt is not sufficient evidence to support a finding of fraudulent intent or misrepresentation on the part of a debtor so as to render that debt nondischargeable.

Section 523(a)(2)(A) and (a)(6) do not except credit card charges from discharge as fraud or willful and malicious injury when the cardholder expressly or impliedly permitted the charges.

Keena v. Hyun Ah Lee (In Re Hyun Ah Lee) · filed 2004-01-22(a)(2)(A), (a)(6)

Defendant would have defrauded Plaintiff if she had taken his credit card without permission and used it to make personal charges without his permission. But that did not happen. ... However, she did not use it wilfully or maliciously to cause him injury, but rather used it as permitted expressly or impliedly.

Section 523(a)(2)(C)’s cash advance presumption does not apply to a convenience check used to pay an existing credit card balance.

MBNA America Bank, N.A. v. Ashland (In Re Ashland) · filed 2004-03-18(a)(2)(C)

The transfer of the Citi card balance was by means of a check drawn on Plaintiffs account by Defendant. ... I hold that the distinction is one without a difference, and that the § 523(a)(2)(C) presumption does not apply to the first check.

Section 523(a)(2)(A) makes credit card debt nondischargeable as actual fraud when the debtor uses the card without an actual, subjective intent to pay the debt incurred.

Fleet Credit Card Services, L.P. v. Kendrick (In Re Kendrick) · filed 2004-06-24(a)(2)(A)

Under these principles, a debtor commits actual fraud for purposes of § 523(a)(2)(A) if the debtor uses a credit card without the actual, subjective intent to pay the debt thereby incurred.

Section 523(a)(2)(A) does not make credit card debt nondischargeable based solely on implied representations arising from use of the card.

FDS National Bank v. Alam (In Re Alam) · filed 2004-06-24(a)(2)(A)

The Court rejects Plaintiffs reliance on implied representations with regard to its § 523(a)(2)(A) claim, whether advanced to support nondischargeability based on false pretenses, false representation, or actual fraud.

Section 523(a)(2)(A) does not treat a credit card charge or cash advance as an implied representation of the debtor’s present ability to repay.

Citibank (South Dakota), N.A. v. Spradley (In Re Johnson) · filed 2004-08-04(a)(2)(A)

While courts have reached different conclusions, this Court is persuaded that a debtor does not make an implied representation as to his or her present ability, as opposed to intent, to repay a debt when he or she makes a credit card charge or takes a cash advance.

Section 523(a)(2)(A) requires specific facts or evidence of fraudulent intent to except credit card debt from discharge, even when the debtor defaults.

Capital One Bank v. Bungert (In Re Bungert) · filed 2004-09-10(a)(2)(A)

However, even if Capital One had employed the less strenuous test suggested by McClellan, Capital One has not met its burden of proof by presenting evidence of the Debtors’ fraudulent intent not to repay the credit card debt.

Section 523(a)(2)(A) makes credit card charges nondischargeable when a debtor knowingly misrepresents an intent to repay, the creditor justifiably relies, and the misrepresentation causes a loss.

In Re MacIas · filed 2004-12-28(a)(2)(A)

Here, the undisputed allegations of the Complaint, the reasonable inferences that they support, and the record before the Court, make out a prima facie case that the Defendant knowingly made false representations as to his intent to repay, with the intent to deceive Fleet, at the time that he made the charges at issue. They also make out a prima facie case that Fleet justifiably relied on the Defendant's false representations, and suffered a loss that was proximately caused by those false representations. ... For these reasons, the Motion for a Default Judgment will be granted to the extent that the charges at issue, totaling $5,339.53, are declared nondischargeable under 11 U.S.C. § 523(a)(2)(A).

Section 523(a)(2)(A) excepts credit card debt from discharge when the debtor intended, at the time of the charges, to obtain credit without repaying it.

MBNA America Bank, N.A. v. Hostetter (In Re Hostetter) · filed 2005-02-23(a)(2)(A)

What then is the type of conduct evidenced by the delivery of a “bad” check, the failure to pay a credit card statement, or the failure to honor a contractual promise to pay which § 523(a)(2)(A) is intended to cover? It is the most egregious of conduct, an intent from the inception of the transactional relationship to obtain something of value and to never pay for it. The intent to commit theft, if you will, must exist at the inception of each transaction with the creditor.

Section 523(a)(2)(A) permits a credit card debt to be excepted from discharge when circumstantial evidence shows that the debtor incurred the charge intending not to repay it.

Discover Bank v. Crandall (In Re Crandall) · filed 2008-12-03(a)(2)(A)

Affiant asserts, and the Court agrees, that the combination of these facts constitutes adequate circumstantial evidence to support a conclusion that, at the time he incurred the credit card charge, Debtor intended not to pay the charge but to file a bankruptcy petition instead. While this circumstantial evidence might not be sufficient in other situations, in the context of a request for a default judgment it is.

Section 523(a)(2)(A) treats credit card use as an implied representation of the debtor’s subjective intent to repay, not of the debtor’s ability to repay.

Chase Bank USA, N.A. v. Ritter (In Re Ritter) · filed 2009-05-07(a)(2)(A)

After considering the competing lines of authority, I adopt the narrower view — that the use of the credit card constitutes an implied representation of the debtor’s subjective intent to repay the debt and not a representation of the debtor’s ability to repay.

Section 523(a)(2)(A) does not except credit card cash advances from discharge when the creditor fails to prove that the debtor’s representation of an intent to repay was false or deceptive.

FIA Card Services, N.A. v. Schempp (In Re Schempp) · filed 2009-12-17(a)(2)(A)

In light of the foregoing, FIA fails to preponderantly establish, with respect to its action under § 523(a)(2)(A), the requisite elements of the falsity of, as well as any deceptive intent by Mrs. Schempp with respect to, her representation regarding intent to repay.

Section 523(a)(2)(A) does not except credit card charges from discharge when the debtor intended to repay them when incurred.

FIA Card Services, N.A. v. May (In Re May) · filed 2010-05-03(a)(2)(A)

Specifically, the court finds that when he incurred the charges at issue, he actually intended to repay the Plaintiff in accordance with the parties’ agreement.

A creditor seeking to except credit card debt from discharge under § 523(a)(2)(A) must plead facts supporting an inference that the debtor intended to defraud the creditor when the charges were incurred.

Chase Bank, U.S.A., N.A. v. Vanarthos (In Re Vanarthos) · filed 2010-12-02(a)(2)(A)

Thus, the Complaint does not meet the particularity requirements of Rule 9(b) that places the burden on the Plaintiff to specifically plead facts giving rise to the required inference of fraud to sustain the nondischargeability claim under section 523(a)(2)(A).

Section 523(a)(2)(A) permits a creditor to pursue a nondischargeability claim for credit card charges when pleaded facts support an inference that the debtor incurred them without intending to repay.

Chase Bank, U.S.A., N.A. v. Vanarthos (In Re Vanarthos) · filed 2011-03-07(a)(2)(A)

Unlike the Initial Complaint, the allegations in the Amended Complaint are sufficient to state a valid claim under section 523(a)(2)(A).

Section 523(a)(2)(C)(i)(II) presumes qualifying cash advances nondischargeable, but a debtor can rebut that presumption with evidence of a lack of intent to defraud.

In re Anthony · filed 2011-03-24(a)(2)(C)(i)(II)

In this case, there was adequate evidence rebutting the presumption that Anthony had an intent to defraud Discover Bank. The evidence indicates that Anthony was an unsophisticated person who was using the cash advances to pay off debts and not running up frivolous charges. Anthony’s cash advances were small and were made not on the eve of bankruptcy, but well before Anthony learned of the option of declaring bankruptcy.

Section 523(a)(2)(A) allows an actual fraud claim based on credit card charges when the alleged facts support an inference that the debtor did not subjectively intend to repay them.

FIA Card Services, N.A. v. Morrow (In re Morrow) · filed 2012-12-04(a)(2)(A)

Thus, if all of Plaintiffs allegations and reasonable inferences are accepted as true — as they must be on a motion to dismiss — Plaintiff does state a claim for nondischargeability for actual fraud under § 523(a)(2).