FIA Card Services N.A. v. Quinn (In re Quinn)FIA Card Services N.A. v. Quinn (In re Quinn)
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Defendant’s pro se Rеsponse to Plaintiffs Complaint Objecting to Dischargeability of Indebtedness and Further Motion Requesting Summary Judgment in Favor of Defendant (the “Motion”) [Docket No. 5]. Defendant filed her Bankruptcy case on September 18, 2012. Plaintiff commenced this adversary proceeding on December 17, 2012, seeking a monetary judgment in the amount of $6,299 for certain credit card charges as well as a judgment that it is non-dischargeable in Defendant’s Chapter 7 case pursuant to 11 U.S.C. § 523(a)(2)(A). [Docket No. 1]. As this matter arises in connection with a complaint to determine dischargeability, it constitutes a core proceeding over which this Court has subject matter jurisdiction. See 28 U.S.C. § 157(b)(2)(I); § 1334.
Standard for Motion for Summary Judgment:
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue аs to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
In the Eleventh Circuit, “it is never enough simply to state that the nonmoving party cannot meet its burden at trial ... Instead the moving party must point to specific portions of the record in order to demonstrate that the nonmoving party cannot meet its burden of proof at trial.” Four Parcels of Real Prop.,
Dischargeability under Section 523(a)(2)(A) in Credit Card Cases:
Plaintiffs Complaint seeks a determination that Plaintiffs claim is non-dischargeable under Section 523(a)(2)(A) of the Bankruptcy Code. Section 523(a)(2)(A)
a. False Pretenses or False Representations:
Numerous decisions in the Northern District of Georgia lay out the applicability of Section 523(a)(2)(A) to credit card debt, and the analysis will not be fully restated here. It is clear in the Eleventh Circuit that implied representations are not sufficient to establish that the use of a valid credit card constitutes false pretenses or false representations. First National Bank of Mobile v. Roddenberry,
Here, Count I of Plaintiffs Complaint alleges that, by entering into the agreement, Defendant agreed to be bound by the terms of the contract. (Complaint, ¶ 13) This allegation is insufficient to establish a false representation, false pretense, or actual fraud. Carpenter,
Plaintiff, however, also asserts the Defendant committed actual fraud as contemplated by Section 523(a)(2)(A) and Count II of Plaintiffs Complaint sets out several indicia of Defendant’s intent not to repay the debt in question. (Complaint, ¶ 18, 22).
b. Actual Fraud:
As with false pretenses or representations, an implied representation will not establish actual fraud under Section 523(a)(2)(A). Morrow,
To establish actual fraud under Section 523(a)(2)(A), a creditor must prove a debtor used a credit card without the аctual, subjective intent to pay the debt thereby incurred. Alam,
Whether a particular debtor had no intention to repay the charges is a determination made on a case by case basis in light of the totality of the circumstances. See Carpenter,
Plaintiff asserts that Between May 29, 2012 and June 18, 2012, the defendant incurred $2,399 in retail charges on the account and on June 18, 2012, an additional $3,900 in cash advances and/or convenience check charges. (Complaint, ¶¶ 8, 9). Plaintiff asserts that “upon informatiоn and belief’, the charges were for “consumer debt” as defined in 11 U.S.C. § 101(8) and that certain charges were incurred for goods and services not reasonably necessary for the maintenance or support of the Defendant or Defendant’s dependants, including charges to Tarailers [sic] for Less, Wyndham Vacation Resort, and Landmark DCJ. (Complaint, ¶ 10, 12).
Defendant’s answer denies the allegations and provides explanations for some of the charges. The pleadings indicate that the material fact of whether, at the time of the purchases, Defendant lacked the subjective intent to repay the charges incurred is disputed. As with most credit card dischargeability cases, the facts provide support for different inferences. On a motion for summary judgment, the Court must view the evidence in the light most favorable to Plaintiff as the non-moving party. Moreover, the Court notes Defendant’s Motion was filed with her answer. “[I]f it appears that the record presented in thе early stage of litigation is inadequate because the litigants did not have the full benefit of complete and adequate discovery, it is improper to dispose of the issues in a summary fashion.” In re Bicoastal Corp.,
Although Defendant has asserted reasons why Defеndant made the charges at issue, she has not established with undisputed facts her subjective intent was to repay Plaintiff. In light of the parties’ dispute as to this material fact, Defendant is not entitled to judgment as a matter of law on Plaintiffs allegations оf actual fraud.
Accordingly, it is hereby ORDERED, that Debtor’s Motion for Summary Judgment is GRANTED as to the allegations of false representations and false pretenses and DENIED as to the allegations of actual fraud.
The clerk is directed to serve a copy of this order on Plaintiff, Attorney for Plaintiff, Defendant, the United States Trustee, and all other parties in interest.
Notes
. Although Roddenberry was decided under Section 17a(2) of the Bankruptcy Act, the similarities between Section 17a(2) and Section 523(a)(2)(A) give the case law сonstruing Section 17a(2) precedential value in Section 523(a)(2)(A) cases. In re Chowdhury, 05-75 674-MHM,
. Plaintiff's counsel practices in this Circuit regularly and knows these allegations are insufficient in this Circuit. Continued use of such allegations may subject counsel to sanctions.