Northern Trust Co. v. Garman (In re Garman), 625 F.2d 755, 763-64 (7th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981); Carini v. Matera (In re Matera), 592 F.2d 378, 380 (7th Cir. 1979); California State Employees' Credit Union No. 6 v. Nelson (In re Nelson), 561 F.2d 1342, 1347 (9th Cir. 1977). The debtor's reliance upon Heinold Commodities, Inc. v. Paulk (In re Paulk), 25 B.R. 919 (Bkrtcy.M.D.Ga. 1982), is misplaced. The debt at issue in Paulk arose in the course of commodity futures trading engaged in by the debtor on a margin account with the creditor, Heinold. The debtor submitted a customer application for the margin account which consisted of checking blocks designating broad ranges of annual income ($25,000 — $75,000) and net worth ($50,000-$100,000) and stating his "risk capital" as $20,000. Ten months after this application was signed, the debtor suffered a substantial loss over a two day trading period.
At least two other Bankruptcy Courts have reached the same conclusion, see In Re Younesi, 34 B.R. 828 (Bkrtcy.C.D.Calif. 1983), In re Paulk, 25 B.R. 919 (Bkrtcy.M.D.Ga. 1982). The Younesi court, applying Williams concluded that, ". . . a personal check must be regarded as a promise to pay a certain sum of money, not a representation as to the state of the drawer's bank account. . . . To find that a nondischargeable debts results from the receiving of goods or services in exchange for an NSF check, it must be shown not only that the drawer knew the check to be backed by insufficient funds but that he knew or intended that he would not honor it himself."
Neal v. Clarke, 95 U.S. 704, 24 L.Ed. 704 (1878); Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915); In re Posick, 26 B.R. 499 (Bkrtcy.S.D.Fla.1983); In re Paulk, 25 B.R. 919 (Bkrtcy.M.D.Ga.1982); In re Paulk, 25 B.R. 913 (Bkrtcy.M.D.Ga.1983); In re Carothers, 22 B.R. 114 (Bkrtcy.D.Minn.
(1) a false representation or representations by debtor; (2) debtor's knowledge of the falsity of the representation; (3) debtor's intention and purpose to deceive the creditor; (4) creditor's reliance on such representations; (5) creditor's losses, proximately caused by debtor's false representations. In re Paulk, 25 B.R. 919 (Bkrtcy.M.D.Ga.1982), see also, In re Lo Bosco, 14 B.R. 739 (Bkrtcy.E.D.N.Y.1981), COLLIER ON BANKRUPTCY ¶ 523.08[4] (15th Ed.1982).
(1) a false representation or representations by debtor; (2) debtor's knowledge of the falsity of the representation; (3) debtor's intention and purpose to deceive the creditor; (4) creditor's reliance on such representations; (5) creditor's losses, proximately caused by debtor's false representations.In re Paulk, 25 B.R. 919 (Bkrtcy.M.D.Ga. 1982), see also, In re Lo Bosco, 14 B.R. 739 (Bkrtcy.E.D.N.Y. 1981), COLLIER ON BANKRUPTCY ¶ 523.08[4] (15th Ed. 1982).