In re Acker

15 Citing cases

  1. In re Staples

    Bankruptcy Number 01-22461 and Adversary Proceeding Number 01P-2084 (Bankr. D. Utah Sep. 3, 2002)

    Id. Once the creditor has met the burden of proving the elements of § 523(a)(2)(C), ten the presumption is that the debtor incurred the debt without the intention to repay the obligation. AT T Universal Card Service Corp., v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr.M.D.Fla. 1997). The presumption of fraud under § 523(a)(2)(C) is rebuttable. Cron, 241 B.R. at 7. Courts are split on exactly what burden is shifted to the debtor to rebut the § 523(a)(2)(C) presumption.

  2. In re Menendez

    Case No. 09-1832-PMG, Adversary No. 09-607-PMG (Bankr. M.D. Fla. Mar. 30, 2011)

    Although, Roddenberry was decided under § 17(a)(2) of the Bankruptcy Act of 1898, which did not reference actual fraud, the decision is still recognized with respect to allegations of false pretenses or false representations. See AT T Universal Card Services Corp., v. Acker, 207 B.R. 12 (Bankr. M.D. Fla. 1997) (recognizing that a creditor cannot prevail under § 523(a)(2)(A) on allegations of false pretense or false representations with respect to credit card debt if the creditor did not revoke the credit privileges of the debtor). Section 17a [Bankruptcy Act of 1898] provides that "[a] discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . (2) are liabilities for obtaining money or property by false pretenses or false representations, . . . ."

  3. In re Ellingsworth

    212 B.R. 326 (Bankr. W.D. Mo. 1997)   Cited 71 times
    Suggesting that the three torts listed in § 523 "are all subject to the single action test of actual fraud"

    Sears Roebuck and Co. v. Hernandez (In re Hernandez), 208 B.R. 872, 881 n. 17 (Bankr. W.D.Tex. 1997). See also ATT Universal Card Serv. v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr.M.D.Fla. 1997) (holding that a presumption of fraud eliminates the need to prove reliance); First Card Serv., Inc. v. Kitzmiller (In re Kitzmiller), 206 B.R. 424, 428 (Bankr.N.D.W.Va. 1997) (stating that the presumption of nondischargeability satisfies the 5 elements of fraud the creditor must prove). But see MBNA America v. Simos (In re Simos), 209 B.R. 188, 195 (Bankr. M.D.N.C. 1997) (holding that section 523(a)(2)(C) shifts the initial burden of going forward); Bank One Columbus, N.A. v. Fulginiti (In re Fulginiti), 201 B.R. 730, 734 (Bankr.E.D.Pa. 1996) (holding that section 523(a)(2)(C) shifts the burden of production, and not the burden of proof, on the issue of intent only).

  4. Acceptance Loan Co. v. Christopher (In re Christopher)

    578 B.R. 842 (Bankr. S.D. Ala. 2017)   Cited 7 times

    Judgment in favor of the Debtor.In re Fabie , 1997 WL 34854082 (Bankr. S.D. Ga. Dec. 19, 1997) ; In re Valdes , 1995 WL 618998 (Bankr. S.D. Fla. Sept. 1, 1995) ; In re Shurbier , 134 B.R. 922 (Bankr. W.D. Mo. 1991) ; In re Merritt , 1997 WL 375693 (Bankr. M.D. Fla. May 12, 1997) ; In re Acker , 207 B.R. 12 (Bankr. M.D. Fla. 1997).

  5. In re Manning

    Case No. 00-35809, Adv. Pro. No. 01-3025 (Bankr. S.D. Ohio Mar. 28, 2002)

    Courts have diverged on the issue of whether § 523(a)(2)(C)'s presumption shifts only the initial burden of going forward with the evidence or the ultimate burden of proof. Compare Novus Servs., Inc. v. Cron (In re Cron), 241 B.R. 1, 8 (Bankr.S.D.Iowa 1999) ("[T]he presumption transforms the burden into one of proving the debt is dischargeable and places that burden squarely on the shoulders of the debtor.") and ATT Universal Card Servs., Corp. v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr.M.D.Fla. 1997) ("Once a creditor has established the applicability of the presumption, . . . the [debtor] must now show that the debt was not incurred in contemplation of bankruptcy, without the intent to repay.") with Carroll Sain v. Vernon (In re Vernon), 192 B.R. 165, 171 (Bankr.N.D.Ill. 1996) ("The burden of proof is not shifted by the presumption, the ultimate risk of non-persuasion remains throughout the proceedings upon the [creditor].") and Norwest Fin. Consumer Disc. Co. v. Koch (In re Koch), 83 B.R. 898, 902 (Bankr.E.D. Pa. 1988) ("Although [§ 523(a)(2)(C)] establishes a presumption in favor of the creditor, the existence of this presumption does not shift the burden of proof from the creditor, it only shifts the initial burden of production to the debtor."). NCB has the burden of proving that the § 523(a)(2)(C) presumption applies.

  6. In re Manning

    280 B.R. 171 (Bankr. S.D. Ohio 2002)   Cited 22 times

    Courts have diverged on the issue of whether § 523(a)(2)(C)'s presumption shifts only the initial burden of going forward with the evidence or the ultimate burden of proof. Compare Novus Servs., Inc. v. Cron (In re Cron), 241 B.R. 1, 8 (Bankr.S.D.Iowa 1999) ("[T]he presumption transforms the burden into one of proving the debt is dischargeable and places that burden squarely on the shoulders of the debtor.") and AT T Universal Card Servs., Corp. v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr.M.D.Fla. 1997) ("Once a creditor has established the applicability of the presumption, . . . the [debtor] must now show that the debt was not incurred in contemplation of bankruptcy, without the intent to repay.") with Carroll Sain v. Vernon (In re Vernon), 192 B.R. 165, 171 (Bankr.N.D.Ill. 1996) ("The burden of proof is not shifted by the presumption, the ultimate risk of non-persuasion remains throughout the proceedings upon the [creditor].") and Norwest Fin. Consumer Disc. Co. v. Koch (In re Koch), 83 B.R. 898, 902 (Bankr.E.D.Pa. 1988) ("Although [§ 523(a)(2)(C)] establishes a presumption in favor of the creditor, the existence of this presumption does not shift the burden of proof from the creditor, it only shifts the initial burden of production to the debtor."). NCB has the burden of proving that the § 523(a)(2)(C) presumption applies.

  7. In re Short

    No. 98-23192, Adv. Pro. No. 99-2010 (Bankr. E.D. Tenn. Jul. 30, 1999)

    " The extension of credit by virtue of a credit card is an "open end credit plan" under the Consumer Credit Protection Act. Bank One Columbus, N.A. v. Schad (In re Kountry Korner Store), 221 B.R. 265, 269 (Bankr. N.D. Okla. 1998) (citing 15 U.S.C. § 1601, et seq.). "Once a creditor has established the applicability of the presumption, `the burden of proof in applying § 523(a)(2)(A) shifts to the debtor, and the debtor must then overcome the presumption that the money was obtained by false pretenses, a false representation, or actual fraud.'" ATT Universal Card Serv. Corp. v. Acker (In re Acker), 207 B.R. 12, 16 (Bankr. M.D. Fla. 1997) (quoting ITT Financial Serv., Inc. v. Claar (In re Claar), 72 B.R. 319, 322 (Bankr. M.D. Fla. 1987)). First Card having established its prima facie case by virtue of § 523(a)(2)(C)'s presumption, the debtor cannot simply rest on his answer.

  8. Novus Services, Inc. v. Cron (In re Cron)

    241 B.R. 1 (Bankr. S.D. Iowa 1999)   Cited 14 times
    Holding the presumption transforms the burden into one proving die debt is dischargeable and places that burden squarely on the shoulders of the debtor

    Ellingsworth, 212 B.R. at 339-40 (debtor's intent, not creditor's conduct, determines dischargeability). See also In re Hernandez, 208 B.R. 872, 881 n. 17 (Bankr. W.D.Tex. 1997) (presumption section operates independently, meaning the element of reliance does not arise "except perhaps as a defensive issue on the part of the debtor to rebut the presumption") and In re Acker, 207 B.R. 12, 16-17 (Bankr. M.D.Fla. 1997) (burden of proof shifts to debtor to prove intent to repay existed at time debt was incurred). Compare In re Kitzmiller, 206 B.R. 424, 428 (Bankr. N.D.W.Va. 1997) (since the "sole evidence of the charges satisfies the 5 elements of fraud," the debtor bears the burden of rebutting the presumption of nondischargeability by rebutting any one of the five elements — "the debtor could adduce evidence that negates the presumption that the creditor relied on a representation of the debtor.").

  9. IN RE CRON

    Adversary Proceeding No. 97-97213; Case No. 97-02831-C J Chapter 7 (Bankr. S.D. Iowa Apr. 28, 1999)

    Ellingsworth, 212 B.R. at 339-40 (debtor's intent, not creditor's conduct, determines dischargeability). See also In re Hernandez, 208 B.R. 872, 881 n. 17 (Bankr.W.D.Tex 1997) (presumption section operates independently, meaning the element of reliance does not arise "except perhaps as a defensive issue on the part of the debtor to rebut the presumption") and In re Acker, 207 B.R. 12, 16-17 (Bankr.M.D.Fla. 1997) (burden of proof shifts to debtor to prove intent to repay existed at time debt was incurred). Compare In re Kitzmiller, 206 B.R. 424, 428 (Bankr.N.D.W. Va. 1997) (since the "sole evidence of the charges satisfies the 5 elements of fraud," the debtor bears the burden of rebutting the presumption of nondischargeability by rebutting any one of the five elements — "the debtor could adduce evidence that negates the presumption that the creditor relied on a representation of the debtor.").

  10. In re Melancon

    223 B.R. 300 (Bankr. M.D. La. 1998)   Cited 61 times
    Adopting Ninth Circuit's justifiable reliance standard

    See, e.g., In re Acker, 207 B.R. 12 (Bankr. M.D.Fla. 1997); In re Kitzmiller, 206 B.R. 424 (Bankr.N.D.W.Va. 1997); In re Fulginiti, 201 B.R. 730 (Bankr.E.D.Pa. 1996). There are two ways these "subjective" courts go astray.