First National Bank of Toms River, N.J. v. Wellen (In re Wellen)
First National Bank of Toms River, N.J. v. Wellen (In re Wellen)
Opinion of the Court
This cause came before the Court on the adversary complaint, filed by THE FIRST NATIONAL BANK OF TOMS RIVER, N.J. (“FNB”), which asks the Court to find an obligation owing to it by Debtors to be nondischargeable pursuant to 11 U.S.C. Sec. 523(a)(2)(A). This is a core proceeding pursuant to 28 U.S.C. Sec. 157.
In or about October 1985, the Debtors applied for the reissue of a VISA credit card from FIRST NATIONAL. Mrs. Wel-len had been issued the card prior to their marriage. At the time of the application, Mr. Wellen was employed by the United
MONTH NUMBER OP TRANSACTIONS CASH ADVANCES BALANCE
March 0 0 $1,832.39
April 0 0 1,794.17
May 0 0 1,760.50
June 1 $100.00 1,827.03
July 1 50.00 1,847.01
August 20 5,100.00 6,918.93
September 8 2,400.00 9,430.64
October 0 0 9,552.36
November 0 0 9,674.08.
In May 1987, while the Wellens were residing in Ohio, Mr. Wellen contacted an Ohio attorney regarding filing a petition in bankruptcy. On or about July 4, 1987, Mrs. Wellen returned to New Jersey and returned to Ohio in August 1987. On August 21, 1987, BANK ONE OF EASTERN OHIO, N.A. (“BANK ONE”), confiscated the VISA card of Mrs. Wellen when a woman attempted to use it in Warren, Ohio.
In order to except an obligation from discharge pursuant to 11 U.S.C. Sec. 523(a)(2)(A), a creditor must prove:
(1) the debtor made certain representations in the process of obtaining property or refinancing;
(2) the debtor either knew the representations were false or the representations were made with gross recklessness as to their truth;
(3) debtor intended to deceive the creditor;
(4) creditor reasonably relied on the false representations;
(5) creditor’s loss was the result of the misrepresentation.
See In re Phillips, 804 F.2d 930, 932 (6th Cir. 1986).
In a previous decision, this Court adopted the “implied representation” theory relating to credit card purchases. In re Chech, 96 B.R. 781, 783 (Bankr.N.D.Ohio 1988). That theory holds that “credit card purchases include an implied representation that the cardholder has the ability and intention to pay for the charge incurred.” Id. Thus, the only question remaining regarding the first element is whether the Debtors received the cash advances attributed to them. Bank records indicate that between July 1, 1987, and August 4,1987, more than Seven Thousand, Five Hundred & 00/100 Dollars ($7,500.00) was withdrawn in the form of cash advances from ATM machines on the Debtors’ account. Mrs. Wellen testified that she did not make any withdrawals from the account when she returned to New Jersey in July, 1987. Based upon our observation of her as a witness and consideration of other evidence, the Court does not credit Mrs. Wellen’s testimony.
The second and third elements require that the Debtors either knew the representations were false or acted with gross recklessness as to their truth in an attempt to deceive the creditor. Over the course of two months, it appears that Mrs. Wellen effected twenty-eight (28) withdrawals amounting to over Seven Thousand, Five Hundred & 00/100 Dollars ($7,500.00). There is nothing to suggest that Mrs. Wel-len could have reasonably believed that either she or her husband would be able to repay these advances. Indeed, the withdrawals may have been effectuated in contemplation of bankruptcy, given Mr. Wel-len’s consultation with an attorney concerning bankruptcy in May, 1987. The Court concludes that Mrs. Wellen falsely implied an ability to repay the withdrawals. The magnitude of her withdrawals suggests a conscious intent to deceive FNB. We find the second and third elements are also met.
The fourth element questions whether FNB reasonably relied on the Debtors’ false representations. Normally, FNB would have difficulty satisfying this requirement as it failed to take reasonable steps to stop further cash withdrawals after the approved credit limit had been exceeded. However, Ms. Sanchez adequately explained problems in the transmittal of data between the credit card processor and the ATM processor which were responsible for FNB’s inability to terminate the Debtors’ cash withdrawal privileges. In addition, there is nothing in the prior history of the account to suggest that FNB was unreasonable in relying on the Debtors’ misrepresentations. Therefore, we find the fourth element to be met.
The last element requires that the creditor’s loss be caused by the Debtors’ misrepresentations. There is little question that FNB would not have sustained a loss if the Debtors had not continuously implied their intent and ability to repay the charges incurred on their credit card.
The Plaintiff’s Objection will be sustained, and the Debtors’ obligation to the Plaintiff is found to be nondischargeable.
This shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
An appropriate Order shall issue.
.All activity on the account was in the form of cash advances. It is also helpful to note that there is approximately a one-month lag between the time the cash advance is received and the time it is reported on a monthly statement. Thus, for example, cash advances appearing on the August statement were received primarily during the month of July.
. The evidence in this proceeding supports the Court's conclusion that this person was either Mrs. Wellen or someone known to her.
. While there is a strong suspicion that Mrs. Wellen may have committed perjury, there is not sufficient evidence to recommend her prosecution to the United States Attorney's office.
. Although Mrs. Wellen made some vague references to a friend who could have used her card, no specific facts were revealed which would lend credence to her theory. Mrs. Wellen did not provide the friend’s name, how the friend obtained her PIN, nor specific times to support such a vague claim.
Reference
- Full Case Name
- In re Charles Guy WELLEN, Jr., Randi Sue Wellen, Debtors. The FIRST NATIONAL BANK OF TOMS RIVER, N.J., A National Banking Institution v. Charles Guy WELLEN and Randi Sue Wellen
- Status
- Published