AT&T Universal Card Service v. Mercer

246 F.3d 391, 2001 WL 290049

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2000
• Docket: 98-60693
• Status: Published

Opinion

Revised May 15, 2000

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 98-60693

In the matter of: CONSTANCE P. MERCER,

Debtor.

AT&T UNIVERSAL CARD SERVICES,

Appellant,

VERSUS

CONSTANCE P. MERCER,

Appellee.

Appeal from the United States District Court For the Southern District of Mississippi April 26, 2000

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

AT&T Universal Card Services (“AT&T”) appeals the bankruptcy

court’s determination that Constance P. Mercer’s (“Mercer”) credit

card debt was dischargeable under 11 U.S.C. § 523(a)(2)(A). We

affirm.

I. FACTS AND PROCEEDINGS

We summarize only the facts relevant to our decision which

include AT&T’s pre-approval process, and Mercer’s response to AT&T’s pre-approved credit card application. We do not discuss the

events after Mercer received the card or her general financial

standing. On November 10, 1995, AT&T opened Mercer’s credit card

account pursuant to a pre-approved credit application mailed to

Mercer and signed by her. Although Mercer’s credit limit on this

AT&T account was $3,000, within a month she had exceeded this limit

by $186.82 through charges and cash advances at automated teller

machines (“ATM”).

AT&T relies on third party credit agencies to screen potential

applicants. A credit bureau makes an initial screening. These

names are then matched against AT&T’s own internal risk and scoring

models to determine creditworthiness. The names that make this cut

are then returned to the credit bureau for a second screening to

review any change in credit standing or credit history. These

credit bureaus place a risk or FICO score on each name to determine

the probability of an account becoming delinquent. AT&T requires

a minimum FICO score of 680 before sending out a solicitation offer

to a prospective customer. The credit bureau assigned Mercer a

FICO score of 735. Under the Fair Credit Reporting Act, AT&T must

make a bonafide offer of credit to anyone who passed the screening

process.

In September 1995, AT&T mailed Mercer and offer to open a

credit card account. Mercer completed, signed, and returned her

acceptance. Mercer provided AT&T an income figure of $24,500, a

social security number, a date of birth, a home and business phone

2 number, and a maiden name. AT&T then conducted a further review of

Mercer’s ability to service a credit line of $3,000. AT&T then

sent Mercer on November 10, 1995 a card and a cardmember

agreement.1 Mercer then used the account to obtain fourteen cash

advances from ATMs, some in casinos. By early December, she had

exceeded her credit limit, and AT&T barred her from further use of

the account. In all, Mercer carried seven credit cards between

March and December 1995.

Mercer filed a petition for bankruptcy relief under Chapter

Seven of the Bankruptcy Code. AT&T challenged the dischargeability

of the debt under Section 523(a)(2)(A). The bankruptcy court

concluded that the debt was dischargeable. The court determined

that Mercer did not make any representations to AT&T regarding her

creditworthiness. Because she had made no representations, AT&T

could not meet the reliance requirement to challenge

dischargeability under Section 523(a)(2)(A). The district court

affirmed the bankruptcy court’s decision. We affirm.

II. STANDARD OF REVIEW

1 The agreement became effective when Mercer used the card or the account. The agreement states that a card holder is “responsible for all amounts owned on [the card holder’s] [a]ccount . . . and [the card holder] agree[s] to pay such amounts according to the terms of the [a]greement.” Regarding purchases and cash advances, the agreement says a card holder may use the card to “obtain a loan from [the card holder’s] [a]ccount, by presenting it to any institution that accepts the [c]ard for that purpose, or to make a withdrawal of cash at an automated teller machine (ATM). Both of these transactions are treated as 'Cash Advance' on [the card holder’s] [a]ccount.” AT&T also may limit these cash advances.

3 We review the bankruptcy court’s factual findings for clear

error and its conclusions of law de novo. Foster Mortgage Corp. v.

United Companies Financial Corp., 68 F.3d 914, 917 (5th Cir. 1995).

III. DISCUSSION

Section 523(a)(2)(A) of the Bankruptcy Code provides:

A discharge under section 727 . . . of this title does not discharge an individual from any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretense, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. . . .

A creditor must prove its claim of nondischargeability by a

preponderance of the evidence. In order for a debtor’s

representation to be a false representation or pretense, a creditor

must show that the debtor (1) made a knowing and fraudulent

falsehood; (2) describing past or current facts; (3) that was

relied upon by the creditor; (4) who thereby suffered a loss.

RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1292-93 (5th Cir.

1995). The creditor must show that it actually and justifiably

relied on the debtor’s representations. Field v. Mans, 516 U.S.

59, 69-70, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995).

The bankruptcy court concluded that AT&T did not actually rely

on representations by Mercer because Mercer made no

representations. AT&T pre-approved the card based solely on its

own screening process. The court said, “Mercer never solicited the

credit card from AT&T; never knew of nor gave her permission for

the investigations; and was never asked about her debts, gambling

4 losses, financial condition, or other credit cards being used by

her or the balances thereon. . . . AT&T solely relied on its own

agents and investigative processes to makes its decision.”

The bankruptcy court’s determination is correct. 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. Sears, Roebuck and Co. v. Hernandez, 208 B.R. 872,

877 (Bankr. N.D. Tex. 1997) (“Passively extending credit in itself

is not reliance.”); Household Credit Services, Inc. v. Walters, 208

B.R. 651, 654 (Bankr. W.D. La. 1997) (finding no evidence of

reliance where creditor issued pre-approved credit card).2 The

information Mercer returned to AT&T with her acceptance does not

amount to any sort of false representation regarding her intent to

pay. AT&T correctly points out that it has no duty to investigate

2 Several other courts have determined that a creditor cannot show actual and justifiable reliance when it issued a pre-approved credit card. AT&T Universal Card Services v. Ellingsworth, 212 B.R. 326, 338 (Bankr. W.D. Mo. 1997) (“[A] creditor cannot justifiably rely on any representation, or the absence thereof, made by a card holder if the card was pre-approved, and no direct financial information was obtained by the issuer.”); AT&T Universal Card Services Corp. v. Arroyo, 205 B.R. 984, 986 (Bankr. S.D. Fla. 1997) (concluding that creditor failed to meet burden of proof under Section 523(a)(2)(A) because of failure to investigate creditworthiness of debtor prior to pre-approval); AT&T Universal Card Services Corp. v. Akdogan, 204 B.R. 90, 97 (Bankr. E.D.N.Y. 1997) (determining that creditor must at least conduct a credit check in order to show justifiable reliance); AT&T Credit Card Services and FCC National Bank v. Alvi, 191 B.R. 724, 731 (Bankr. N.D. Ill. 1996) (“A creditor cannot sit back and do nothing and still meet the standard for actual and justifiable reliance when it had an opportunity to make an adequate examination or investigation.”)

5 the debtor to show justifiable reliance. See La. Capital Fed.

Credit Union v. Melancon, 223 B.R. 300, 331 (Bankr. M. D. La. 1998)

citing American Express Travel Related Services Co. Inc. v.

Hashimi, 104 F.3d 1122 (9th Cir. 1996). However, justifiable

reliance pre-supposes that the debtor has made a representation.

Here Mercer made no representation. Therefore, AT&T neither could

have actually nor justifiably relied.

AT&T also contends that the bankruptcy court erroneously

concluded that because AT&T did not rely on the debtor’s

representations when the card was issued AT&T could not

subsequently rely on implied representations made by the debtor

with her use of the card. AT&T argues that we should adopt the

implied representation theory. Under this theory, the card holder

makes a representation that he or she intends to pay each time he

or she receives money at an ATM. The money received amounts to a

loan from the bank. Melancon, 223 B.R. at 311 (“When the card

holder inserts the card into the ATM, he is, in one step, asking

for a loan and promising to repay it if it is obtained.”)

This Circuit has not adopted the implied representation

theory, and we decline to do so in the pre-approved credit card

context. First, although the debtor has borrowed money, the

primary decision to extend credit was made before the implied

representation. AT&T assumes the risk of any future lending by the

debtor. Second, adoption of this theory would improperly shift the

burden of proof in Section 523(a)(2)(A) actions. See Hernandez,

6 208 B.R. at 880. The debtor would essentially become the guarantor

of his or her financial condition, and the theory would offend “the

balance of bankruptcy policy struck by Section 523.” Chevy Chase

Bank v. Briese, 196 B.R. 440, 448 (Bankr. W.D. Wis. 1996) citing

Matter of Ford, 186 B.R. 312, 317 (Bankr. N.D. Ga. 1995). We

conclude that we should apply a rule that favors the debtor instead

of the creditor at least in the pre-approved credit card context,

and we decline to apply the implied representation theory.3

Finally, the dissent argues that this holding will only

encourage “irresponsible and dishonest debtors to go on

unrestrained spending sprees” leading to more consumer bankruptcies

and greater costs passed on to all credit card users through higher

interest rates. The credit card issuers' irresponsible lending

practices are another part of this problem. In this case, AT&T

issued Mercer a pre-approved credit card based on a minimal third-

party credit check. If AT&T had merely asked Mercer for

information regarding her credit card usage, AT&T may have been

more prudent in its lending practices, but AT&T did not.

This holding properly places a greater responsibility on

credit card issuers for their lending practices, which have become

increasingly irresponsible. According to a recent newspaper

article, credit card issuers are “paying more attention to high-

risk groups, such as households with proven debt problems and

3 Melancon dealt with credit card debt that was not the result of pre-approval by the creditor.

7 younger consumers. Some issuers are even targeting high-school

students.” Scott Kilman, Credit-Card Come-Ons Met by Disinterest,

Wall St. J., March 23, 2000, at A2. This holding properly favors

the debtor instead of the creditor, and will hopefully encourage

more responsible lending practices by credit card issuers.

For these reasons, we affirm.

AFFIRMED.

8 DENNIS, Circuit Judge, specially concurring:

I agree with Judge Duhe’s conclusion that AT&T failed to

prove that Mercer’s debt is not dischargeable under section

523(a)(2). I also agree with much of his opinion. I concur

specially because, in my opinion: (1) when a debtor uses a credit

card, he or she impliedly promises to repay the loan; but (2) a

credit card company cannot justifiably rely upon every card

user’s representation simply because the card was used;

therefore, (3) a creditor who issues credit cards without a

reasonably adequate assessment of each debtor’s credit history

and present financial condition cannot claim that mere use of any

such card constitutes a justifiably relied upon representation to

pay; however, (4) such a creditor may, through a period of good

experience with the debtor, acquire a basis for believing that

the debtor’s mere use of the card is such a representation upon

which the creditor may justifiably rely.

To demonstrate that a debt is not dischargeable as

fraudulent under section 523(a)(2), a creditor must prove by a

preponderance of the evidence that (1) the debtor made false

representations; (2) at the time they were made the debtor knew

they were false; (3) the debtor made the representations with the

intention and purpose to deceive the creditor; (4) the creditor

actually and justifiably relied on such representations; and (5)

the representations proximately caused the debtor to obtain money

9 -9- and the creditor to sustain losses. See RecoverEdge L.P. v.

Pentecost, 44 F.3d 1284, 1292 (5th Cir. 1995) (as modified by

Field v. Mans, 516 U.S. 56, 69 (1995)).

I agree with the Ninth Circuit that “[e]ach time a ‘card

holder uses his credit card, he makes a representation that he

intends to repay the debt.’” American Express Travel Related

Services Company, Inc. v. Hashemi (In re Hashemi), 104 F.3d 1122,

1126 (9th Cir. 1997) (quoting Anastas v. American Savings Bank

(In re Anastas), 94 F.3d 1280, 1285 (9th Cir. 1996)). Thus,

Mercer clearly made representations of her intent to repay when

she used the credit card to obtain cash advances. However, to

prevail under section 523(a)(2), a creditor must prove all of the

essential elements of fraud. See RecoverEdge, 44 F.3d at 1292.

Proof of an implied representation of the debtor’s intent to

repay by the use of the card does not satisfy the creditor’s

burden to establish any of the other elements of fraud, including

the debtor’s knowledge of falsity and intent to deceive, the

creditor’s actual and justifiable reliance upon the

representation, and the causal link between the representation

and the debtor’s obtainment of money.

Because the bankruptcy court held that Mercer did not make

any implied representations, it did not address the falsity and

intent elements. Regardless of whether the implied

representations were knowingly false and made with the intent to

10 -10- deceive, however, AT&T failed to prove that Mercer’s debt was

excepted from discharge under section 523(a)(2) because, under

the undisputed facts AT&T did not justifiably rely on the

representations to repay loans implied by Mercer’s use of the

credit card. The Supreme Court has held that, for a debt to

qualify for the exception to discharge under section 523(a)(2),

the creditor must prove that he actually and justifiably relied

on knowingly false representations made by the debtor for the

purpose of deception. See Field, 516 U.S. at 70. The

requirement that reliance be justifiable is to insure that such

reliance is actual. As the Court stated:

As for the reasonableness of reliance, our reading of the Act does not leave reasonableness irrelevant, for the greater the distance between the reliance claimed and the limits of the reasonable, the greater the doubt about reliance in fact. Naifs may recover, at common law and in bankruptcy, but lots of creditors are not at all naive. The subjectiveness of justifiability cuts both ways, and reasonableness goes to the probability of actual reliance.

Field, 516 U.S. at 76. Professors Keeton and Prosser (cited with

approval by the Court in Field) discuss the justifiable reliance

factor similarly, stating:

The other side of the shield is that one who has special knowledge, experience and competence may not be permitted to rely on statements for which the ordinary man might recover, and that one who has acquired expert knowledge concerning the matter dealt with may be required to form his own judgment, rather than take the word of the defendant.

W. PAGE KEETON ET. AL., PROSSER AND KEETON ON THE LAW OF TORTS § 108, at

11 -11- 751 (5th ed. 1984). Furthermore, as Justice Ginsburg,

concurring, pointed out, the creditor must prove not only that he

“justifiably relied”, but also that the money was “obtained by”

(i.e., the loan of money was caused by) the alleged

misrepresentation. Field, 516 U.S. at 78 (Ginsburg, J.,

concurring).

Justifiable reliance is something more than actual reliance,

but less than reasonable reliance, depending on the creditor.

With respect to the subjective element of justifiable reliance,

the Court stated that “the matter seems to turn upon a

plaintiff’s own capacity and the knowledge which he has or which

may fairly be charged against him from the facts within his

observation in the light of his individual case.” Field, 516

U.S. at 72 (citing W. PROSSER, LAW OF TORTS § 108, at 717 (4th ed.

1971)). In addition, the Court held that “[j]ustification is a

matter of the qualities and characteristics of the particular

plaintiff, and the circumstances of the particular case, rather

than of the application of a community standard of conduct to all

cases.” Id. at 70 (citing RESTATEMENT (SECOND) OF TORTS § 545A,

comment b (1976)).

It is undisputed that, in the present case, AT&T received no

direct financial information from Mercer. Rather, AT&T based its

decision to issue the pre-approved credit card on a screening

formula based on a report of a history of Mercer’s ability to

12 -12- make at least minimum monthly payments on her other credit cards

in the past. In doing so, AT&T relied “upon its own judgment and

experience as it issue[d] the card and as it determine[d] whether

to honor any specific charge made upon the card, and not upon any

representation made by the cardholder.” In re Herrig, 217 B.R.

891, 899 (Bankr. N.D. Okl. 1998). Thus, in this respect I agree

with Judge Duhe and the Bankruptcy Court in In re Ellingsworth

that credit card companies assume the risk of issuing pre-

approved credit cards on such meager information and thus “cannot

justifiably rely on any representation, or absence thereof, made

by a card-holder if the card was pre-approved, and no direct

financial information was obtained by the issuer.” 212 B.R. 326,

339 (Bankr. W.D. Mo. 1997).

However, I do not think that the creditor’s initial

assumption of risk necessarily prevents the issuer of a pre-

approved credit card from ever justifiably relying on any future

representations made by the holder. Rather, I believe that

justification may develop over time -- for example, as the holder

develops a credit history of payments with the specific issuer.

This view is based upon section 523(a)(2) as it has been

interpreted by the Supreme Court in Field and applied by numerous

other courts that have addressed this issue. See, e.g., In re

Herrig, 217 B.R. at 900; In re Carrier, 181 B.R. 742, 749 (Bankr.

S.D.N.Y. 1995); see also In re Foley, 156 B.R. 645 (Bankr. D.N.D.

13 -13- 1993) (holding that a series of payments established reasonable

reliance); cf. In re Hashemi, 104 F.3d at 1126 (holding that a

pre-approved credit card holder made implied representations with

each use of the card and that because “appellant himself

testified that he had repaid American Express balances of up to

$60,000 ‘numerous times’ before . . . American Express therefore

had no reason to question the good faith of appellant’s promise

to repay.”).4

Applying the elements of section 523(a)(2) to the undisputed

facts in the present case, I conclude that prior to the uninvited

issuance of the credit card to Mercer, AT&T did not make a

reasonably adequate assessment of her present financial condition

so as to warrant considering her mere use of the card as a

4 The partial quotation from In re Anastas, 94 F.3d at 1286, that Judge Barksdale borrows as his standard is not a complete or comprehensive statement of the Ninth Circuit’s jurisprudence on justifiable reliance. The quote in In re Anastas was dicta as that court ruled solely on fraudulent intent and not on justifiable reliance. See id. at 1287. Further, the court in In re Anastas cited In re Eashai for this test, a case in which the cardholder had established a history of payments with the specific creditor at issue. See Citibank (South Dakota) N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1090-92 (9th Cir. 1996)). If Mercer had, as in In re Eashai, developed a credit history with AT&T without any red-flags, AT&T’s reliance may arguably have been justifiable. See also In re Hashemi, 104 F.3d at 1126; AT&T Universal Card Services Corp. v. Burdge (In re Burdge), 198 B.R. 773, 778 (B.A.P. 9th Cir. 1996) (“In the past, Burdge had a good payment record [with AT&T], which demonstrated a responsible use of the charge card.”); F.C.C. National Bank v. Cacciatore (In re Cacciatore), 209 B.R. 609 (Bankr. E.D.N.Y. 1997); AT&T Universal Card Services Corp. v. Feld (In re Feld), 203 B.R. 360 (Bankr. E.D. Pa. 1996).

14 -14- representation upon which AT&T could justifiably rely.5 AT&T was

not primarily caused to authorize loans by Mercer’s use of the

card; on the contrary, AT&T relied primarily on a prediction of a

“risk score” based on impersonal credit bureau credit history

information–-Mercer’s “risk score” was 735 on a scale of 900, not

far above AT&T’s minimum score of 680. There was nothing in

AT&T’s brief experience with Mercer as a cardholder that would

justify its belief that it had acquired a more substantial basis

for its reliance upon her representations than it started out

with, to wit: (1) fourteen of Mercer’s transactions were cash

loans, several of which were made within a casino;6 (2) Mercer

borrowed the maximum cash advance amount within thirty one days

after receipt of the card; (3) Mercer had developed no history of

payment or good standing with the issuer (Mercer had only made

one payment of $25); (4) nineteen days after issuance, the

issuer’s own computer had red-flagged the use of Mercer’s credit

5 Judge Barksdale correctly points out that AT&T did have a credit bureau screening process designed to assess her “risk score” according to indices of her credit history, but it is undisputed that AT&T did not have any information as to Mercer’s financial condition or ability to pay at the time it issued the card, i.e., to what extent her current debt levels exceeded her net worth and future income. 6 At trial, AT&T’s representative conceded that AT&T considers the location of charges and cash withdrawals in determining whether such charges should be a source of concern. For example, he conceded that charges made at casinos (presumably for gambling) would raise more of a concern than charges for food, shelter, or clothing and that charges made in a high-crime area could possibly be a cause for concern.

15 -15- card for excessive transactions. “[T]aking [the] qualities and

characteristics of the particular plaintiff, and the

circumstances of the particular case” as a whole, AT&T as a

sophisticated financial actor did not satisfy its burden to prove

that it had developed justifiable reliance upon any

representation by her before or after the issuance of the pre-

approved credit card, thus reducing the probability of any actual

reliance by AT&T on any such representations. Field, 516 U.S. at

71-76.7

The undisputed evidence shows that (1) AT&T approved

Mercer’s loans and made the cash accessible to her prior to any

implied representations made by her to repay the loans through

the use of the credit card; (2) AT&T most likely did not actually

rely on Mercer’s card-use representations before it authorized

her ATM loans; (3) any actual reliance by AT&T, as a

sophisticated financial actor, on the mere use of the card was

not justifiable because AT&T issued the card based on impersonal

credit bureau credit history and credit “risk score” predictors,

which included no information as to Mercer’s current financial

condition, solvency or ability to repay the loans contemplated;

7 By listing the specific factors present in this particular case, I am not indicating (as Judge Barksdale suggests) that, inter alia, credit card companies must cancel cards used frequently within the first billing cycle or that credit card companies may never approve cash withdrawals from a casino. I find not that these factors caused AT&T’s reliance to be unjustified, but rather that they do not make AT&T’s otherwise unjustified reliance justifiable.

16 -16- (4) nothing in Mercer’s use of the card after issuance did

anything to justify AT&T’s reliance on Mercer’s implied by card

use representations.

There is no doubt that AT&T made credit card loans to Mercer

that she was legally obligated to pay but did not. This is not a

suit on that contract or debt, however. Under section 523 of the

Bankruptcy Code, to deny Mercer a discharge AT&T was required to

prove that Mercer knowingly made false representations, which

AT&T actually and justifiably relied upon, and which caused AT&T

to lend her the money. The evidence is clear and undisputed that

AT&T failed to prove that it actually relied upon, much less

justifiably relied upon, any representation by Mercer that caused

AT&T to make the credit card loans available to Mercer.

Accordingly, because AT&T manifestly failed to prove all of the

elements of fraud required by law, I join in affirming the

judgment of the bankruptcy court.

17 -17- RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

I am not able to agree with the approach by either of my

colleagues for resolving the issue presented by this appeal.

Although the amount at stake is relatively small, the issue is

exceptionally important. The analysis for determining whether

credit card debt is dischargeable in bankruptcy has enormous

implications, not only for credit card issuers, but also for

millions of credit card users. Moreover, neither the card’s

being pre-approved, nor its use in large part for gambling,

should alter the standards for representations and justifiable

reliance vel non.

According to a recent newspaper article, “bank, retail and

credit-card industry advocates estimate consumer bankruptcies

cost their businesses about $40 billion a year”. Dawn Kopecki &

Jeffrey Taylor, House, Senate Diverge on Bills for Bankruptcy,

WALL ST. J., 4 Feb. 2000, at A20. As expected, that cost is

passed along to users of those services. Bankruptcies are said

to cost each United States household $400 annually, in part

because, in order to recoup their losses from bankrupt

cardholders, credit card companies increase interest rates for

all of their customers. Julie Hyman, Senate Set to Pass

Legislation to Curb Bankruptcy Abuse, WASH. TIMES, 2 Feb. 2000, at

-18- B8.

Our panel’s divergent views as to the proper analysis for

dischargeability of credit card debt mirror the inconsistencies

reflected in the opinions of other courts that have addressed

this issue.8 Among those courts are some of the bankruptcy and

8 See, e.g., Rembert v. AT&T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 281 (6th Cir.) (use of credit card is implied representation of intent, but not ability, to repay), cert. denied, 525 U.S. 978 (1998); Anastas v. American Sav. Bank (In re Anastas), 94 F.3d 1280, 1285 (9th Cir. 1996) (credit card transaction is unilateral contract between cardholder and issuer consisting of cardholder’s promise to repay and issuer’s performance by reimbursing merchant who accepted credit card in payment; use of card is representation of intent, but not ability, to repay); Citibank (S.D.), N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1088 (9th Cir. 1996) (adopting 12 non-exclusive factors for determining whether debtor had subjective intent to deceive); Manufacturer’s Hanover Trust Co. v. Ward (In re Ward), 857 F.2d 1082, 1085 (6th Cir. 1988) (unless credit card issuer conducts credit check before issuing card, it assumes risk debtor will fail to pay for subsequent charges); First Nat’l Bank of Mobile v. Roddenberry, 701 F.2d 927, 932-33 (11th Cir. 1983) (concealment of inability to pay not actionable under Bankruptcy Act predecessor to § 523(a)(2)(A); credit card issuer assumes risk of non-payment until issuer unconditionally revokes cardholder’s right to further possession and use of card); Universal Card Servs. v. Pickett (In re Pickett), 234 B.R. 748, 755 (Bankr. W.D. Mo. 1999) (use of credit card is express representation of both intent and ability to repay charge); AT&T Universal Card Servs. Corp. v. Reynolds (In re Reynolds), 221 B.R. 828, 837 (Bankr. N.D. Ala. 1998) (use of credit card is promise to pay in future, not implied representation of present intent and actual ability to pay); AT&T Universal Card Servs. v. Alvi (In re Alvi), 191 B.R. 724, 726 (Bankr. N.D. Ill. 1996) (“use of a credit card, in itself, does not constitute representation or statement which is capable of being true or false” (emphasis added)); GM Card v. Cox (In re Cox), 182 B.R. 626, 636 (Bankr. D. Mass. 1995) (§ 523(a)(2)(A) does not encompass “implied misrepresentation of intent to pay when both the representation and the absence of intent to pay must be based upon inference”).

19 -19- district courts in our circuit.9

9 See, e.g., East v. AT&T Universal Card Servs. Corp., 1999 WL 425886, at *5 (N.D. Tex. 1999) (debtor’s subjective fraudulent intent may “be inferred from objective facts suggesting ... debtor knew, or should have known, at the time the credit card was used, that the debtor was insolvent and lacked the ability to repay the charge”); AT&T Universal Card Servs. v. McLeroy (In re McLeroy), 237 B.R. 901, 903-05 (Bankr. N.D. Miss. 1999) (use of credit card was representation that debtor would honor cardmember agreement; totality of circumstances, including 12 objective factors, used to determine whether debtor had fraudulent intent); Universal Card Servs. Corp. v. Akins (In re Akins), 235 B.R. 866, 872-74 (Bankr. W.D. Tex. 1999) (applying “commercial entrapment” theory, credit card debt dischargeable because issuer’s extension of credit was result of its own negligent lending practices and industry’s negligent use of faulty FICO (risk) score system); LA Capitol Fed. Credit Union v. Melancon (In re Melancon), 223 B.R. 300, 311, 324, 329-32 (Bankr. M.D. La. 1998) (“[w]hen the card holder inserts the card into an ATM, he is, in one step, asking for a loan and promising to repay it if it is obtained”; “inability to pay coupled with proof of the debtor’s knowledge of inability to pay is sufficient to establish fraud”; although creditor has no duty to investigate, creditor who lends money in a casino cannot justifiably rely on debtor’s promise to repay); Sears, Roebuck & Co. v. Hernandez (In re Hernandez), 208 B.R. 872, 877 (Bankr. W.D. Tex. 1997) (“[p]assively extending credit in itself is not reliance ... nor can the court assume that a creditor relied on any alleged representation”); Household Credit Servs., Inc. v. Walters, 208 B.R. 651, 654 (Bankr. W.D. La. 1997) (use of credit card is implied representation regarding repayment; if issuer justified in relying on debtor’s creditworthiness when card issued, reliance thereafter is presumptively justifiable unless some event occurs to rebut that presumption); Bank One Columbus, N.A. v. McDaniel (In re McDaniel), 202 B.R. 74, 78 (Bankr. N.D. Tex. 1996) (“use of a credit card to incur debt in a typical credit card transaction involves no representation, express or implied”, and “creditor cannot sit back and do nothing and still meet the standard for actual and justifiable reliance when it had an opportunity to make an adequate examination or investigation”); AT&T Universal Card Servs. v. Samani (In re Samani), 192 B.R. 877, 879-80 (Bankr. S.D. Tex. 1996) (creditor cannot establish fraud based on implied representation of intent and ability to pay based on mere use of credit card; instead, court considers objective totality of circumstances; reliance by creditor justified based on debtors’ prior sporadic payment of at least minimum payment due); First Deposit Credit Servs. Corp. v. Preece (In re Preece), 125 B.R. 474, 477 (Bankr.

20 -20- Although Congress is considering bankruptcy reform

legislation, it does not address the standard for determining

credit card debt dischargeability. See H.R. 833, 106th Cong.,

1st Sess. (1999); S. 625, 106th Cong., 2d Sess. (2000).

Accordingly, rehearing en banc is necessary and appropriate for

this exceptionally important issue.

A.

Section 523(a)(2)(A) excepts from discharge “any debt ...

for money ... to the extent obtained by ... false pretenses, a

false representation, or actual fraud”. 11 U.S.C. §

523(a)(2)(A). Our court has applied different, but somewhat

overlapping, elements of proof for actual fraud, as opposed to

false pretenses/representation. See RecoverEdge L.P. v.

Pentecost, 44 F.3d 1284, 1292-93 (5th Cir. 1995).10

W.D. Tex. 1991) (use of credit card is implied representation of present intention and ability to repay); City Nat’l Bank of Baton Rouge v. Holston (In re Holston), 47 B.R. 103, 109 (Bankr. M.D. La. 1985) (credit card debt incurred prior to notification that account was closed is dischargeable, but portion occurred thereafter non- dischargeable); Central Bank v. Kramer (In re Kramer), 38 B.R. 80, 82 (Bankr. W.D. La. 1984) (creditor proves false misrepresentation “if it can show that the defendant purchased goods by means of the credit card and that the purchases were made at a time when the debtor either did not have the means to or did not have the intent to pay for the goods”); Ranier Bank v. Poteet (In re Poteet), 12 B.R. 565, 567 (Bankr. N.D. Tex. 1981) (purchase of merchandise by credit card is implied representation to issuer of card that buyer has means and intention to pay for purchase). 10 The predecessor to § 523(a)(2)(A) did not include actual fraud as a basis for nondischargeability. Davison-Paxon Co. v. Caldwell, 115 F.2d 189, 191-92 (5th Cir. 1940), cert. denied, 313 U.S. 564 (1941), held that a debt created by fraud (obtaining credit through

21 -21- The false pretenses/representation prongs require the

creditor to prove the debtor made “(1) a knowing and fraudulent

falsehood, (2) describing past or current facts, (3) that was

relied upon by the other party”. Id. at 1293 (brackets, internal

quotation marks, and citation omitted).

The actual fraud prong requires showing: (1) the debtor

made representations; (2) she knew they were false when made; (3)

she made them with the intent to deceive the creditor; (4) the

concealment of insolvency and present inability to pay) was dischargeable because nondischargeability for false pretenses or representations under the Bankruptcy Act required proof of an overt false pretense or misrepresentation; concealment was insufficient. As noted in Sears, Roebuck & Co. v. Boydston (Matter of Boydston), 520 F.2d 1098, 1101 (5th Cir. 1975), “[t]he rationale underlying Davison-Paxon has been severely eroded in the modern world of credit transactions and the decision has been the subject of much criticism”. Nevertheless, it has not been overruled, and has caused considerable confusion among the bankruptcy courts in our circuit. Our en banc court should resolve that confusion. See, e.g., In re Melancon, 223 B.R. at 312-15 (discussing Davison-Paxon at length and concluding that it is obsolete due to Bankruptcy Code’s addition of actual fraud and Supreme Court’s adoption of common-law interpretation); In re Samani, 192 B.R. at 879 (allowing creditor to establish fraud based on implied representation of intent and ability to repay based on credit card use would directly contravene Davison-Paxon); ITT Fin. Servs. v. Hulbert (In re Hulbert), 150 B.R. 169, 175 (Bankr. S.D. Tex. 1993) (concluding that Code’s addition of actual fraud has no effect on validity of Davison-Paxon); In re Holston, 47 B.R. at 107 (unnecessary to decide whether Davison-Paxon is still good law, because Code’s addition of actual fraud as nondischargeability ground expands scope of nondischargeable debts to include those arising from intentional concealment or omission); Louisiana Nat’l Bank of Baton Rouge v. Talbot (In re Talbot), 16 B.R. 50, 54 (Bankr. M.D. La. 1981) (bound by Davison-Paxon); In re Poteet, 12 B.R. at 568 (rejecting Davison-Paxon requirements as not relevant to credit card transactions).

22 -22- creditor actually and justifiably relied on the representations;

and (5) the creditor sustained a loss as a proximate result of

the representations. Id.

Judge Duhé applies the former; Judge Dennis, the latter.

Moreover, AT&T did not specify on which prong it based its

complaint. Under either type, AT&T had the burden of proving the

elements by a preponderance of the evidence. Grogan v. Garner,

498 U.S. 279, 287 (1991).

In the light of Field v. Mans, 516 U.S. 59 (1995), it is

questionable whether there is justification for our applying

different elements for § 523(a)(2)(A)’s false

pretenses/representation and actual fraud prongs. Field, in

defining the justifiable reliance element for actual fraud,

relied on the RESTATEMENT (SECOND) OF TORTS (1976), which did not

differentiate between false pretenses, misrepresentations, and

actual fraud. See Field, 516 U.S. at 70-72. In any event, the

elements for both types of actions being similar,

dischargeability will be analyzed using those for § 523(a)(2)(A)

actual fraud.

B.

Judge Duhé disposes of the case on the first element,

concluding that Mercer made no representations each time she used

the pre-approved credit card; and, that, because she made no

representations upon obtaining the card as the result of a pre-

23 -23- approved solicitation, there were no representations upon which

AT&T could actually or justifiably rely.

Obviously, this theory makes it virtually impossible for any

issuer of a pre-approved credit card to prevail in a §

523(a)(2)(A) action. And, because the theory does not consider

the debtor’s intent in incurring credit card debt, it is likely

to result in the discharge of fraudulently-incurred debts,

contrary to the language and purpose of § 523(a)(2)(A). See

Grogan, 498 U.S. at 286-87 (“fresh start” policy of Bankruptcy

Code is for benefit of “honest but unfortunate” debtors, not

perpetrators of fraud); Chevy Chase Bank, FSB v. Briese (In re

Briese), 196 B.R. 440, 449 (Bankr. W.D. Wis. 1996) (“While the

bankruptcy code is to be construed liberally in favor of the

debtor, it is also to be fair to creditors.”).

Moreover, this theory could also have the unintended

consequence of encouraging irresponsible and dishonest debtors to

go on unrestrained spending sprees, until they have exhausted the

credit limits of their accounts, secure in the knowledge their

debts will be forgiven in bankruptcy court, as long as they wait

at least 60 days before filing the petition. See 11 U.S.C. §

523(a)(2)(C) (consumer debt for luxury goods or services, or cash

advances aggregating more than $1075, within 60 days before

filing petition presumptively nondischargeable). Concomitantly,

adoption of this theory undoubtedly would result in increased

24 -24- credit costs for millions of honest card users.

Finally, because Mercer did not rely on this theory or urge

its application, adoption of this theory is especially troubling.

In closing argument at the trial of the adversary proceeding in

bankruptcy court, Mercer’s counsel stated he was not urging

adoption of the “assumption of risk” theory because “in all

fairness it goes a little bit too far”. And, in her appellate

brief, Mercer implicitly concedes that, each time she used the

card, she made a representation of intent to pay the debt

incurred. Judge Duhé rejects the so-called “implied

representation” theory urged by AT&T. Under it, with each use of

a credit card, the debtor represents she intends to repay the

amount charged. He does so on the grounds that, in deciding to

extend credit to Mercer before she made any representations, AT&T

assumed the risk of non-payment of charges incurred by Mercer

through her subsequent card-use; and the theory would improperly

shift the burden of proof in § 523(a)(2)(A) cases, by making the

debtor a guarantor of her financial condition.

The first ground for rejection of AT&T’s “implied

representation” theory is a variant of the much-criticized

“assumption of the risk” theory adopted by the Eleventh Circuit

in First Nat’l Bank of Mobile v. Roddenberry, 701 F.2d 927, 932-

25 -25- 33 (11th Cir. 1983).11 The Bankruptcy Code should not be

interpreted to require a creditor who investigates a debtor’s

credit history prior to making a pre-approved solicitation, as

AT&T did in this case, to assume the risk of the debtor

committing fraud in subsequently using the card. “Rather, the

credit card transaction (like any other lending relationship) is

premised upon the notion that both parties will act in good

faith. Thus, the debtor is expected to make ‘bona fide’ use of

the card and not engage in fraud.” In re Briese, 196 B.R. at 449

(emphasis added).

Furthermore, the assumption of the risk theory ignores the

nature of credit card transactions. More appropriate is the

position of those courts which have viewed “each individual

credit card transaction as the formation of a unilateral contract

11 For criticism of the assumption of the risk theory, see AT&T Universal Card Servs. Corp. v. Searle, 223 B.R. 384, 389 (D. Mass. 1998) (theory “advantages the dishonest and deceptive debtor”); In re Briese, 196 B.R. at 449 (theory “unsatisfactory, primarily because dishonest debtors may manipulate its mechanical distinction between debts incurred before and after credit privileges are revoked”; “creditor does not ‘assume the risk’ that the debtor is dishonest”); Chase Manhattan Bank, N.A. v. Ford (Matter of Ford), 186 B.R. 312, 318 n.8 (Bankr. N.D. Ga. 1995) (“many courts have criticized the Eleventh Circuit’s approach as going to an extreme, tipping the scales so far in favor of debtors that very few credit card debts will qualify as nondischargeable”); In re Cox, 182 B.R. at 634 (theory “too judgmental to support a court decision purporting to apply a statute”); In re Preece, 125 B.R. at 477 (theory “places credit card issuers in a virtually impossible position with respect to credit card charges made prior to revocation of the card” (internal quotation marks and citation omitted)).

26 -26- between the card holder and card issuer consisting of the

following promise in exchange for performance: the card holder

promises to repay the debt plus to periodically make partial

payments along with accrued interest and the card issuer performs

by reimbursing the merchant who has accepted the credit card in

payment”. Anastas v. American Sav. Bank (In re Anastas), 94 F.3d

1280, 1285 (9th Cir. 1996); see also AT&T Universal Card Servs.

Corp. v. Searle, 223 B.R. 384, 389 (D. Mass. 1998) (adopting

Anastas unilateral contract approach because it “is consistent

with the notion that a representation can be made by words or

conduct and recognizes representation as inherent in the

transaction” (citing RESTATEMENT (SECOND) OF TORTS, § 525, comment b

(1976)).

Moreover, the assumption of the risk theory is inconsistent

with the common law, as expressed in the RESTATEMENT (SECOND) OF

TORTS. See RESTATEMENT (SECOND) OF TORTS, § 530(l) (“representation

of the maker’s own intention to do or not to do a particular

thing is fraudulent if he does not have that intention” (emphasis

added)); id., comment c (“intention to perform the agreement may

be expressed but it is normally merely to be implied from the

making of the agreement”). Accordingly, when Mercer used her

AT&T card to make a purchase or obtain a cash advance, she

represented her intent to perform her obligation under the

cardmember agreement, i.e., to repay the debt by making at least

27 -27- the minimum monthly payment.

The second ground relied on by Judge Duhé for rejecting

AT&T’s “implied representation” theory seems to be based on an

assumption that the theory encompasses not only a representation

of intent to repay, but also a representation of ability to do

so. See Sears, Roebuck & Co. v. Hernandez (In re Hernandez), 208

B.R. 872, 877 (Bankr. W.D. Tex. 1997) (rejecting “implied

representation” theory based on assumption that, under that

theory, card-use represented not only an intent, but also the

ability, to repay); In re Briese, 196 B.R. at 448-50 (rejecting

“implied representation” of intent and ability to pay theory for

reasons similar to those expressed by Judge Duhé, but holding

that, in using card, debtor makes express representation — a

“promise to pay for the credit advanced”); Chase Manhattan Bank,

N.A. v. Ford (Matter of Ford), 186 B.R. 312, 317 (Bankr. N.D. Ga.

1995) (criticizing “ability-implying prong” of “implied

representation” theory).

Even if card-use could be understood as a representation of

not only an intent to repay, but also the ability to do so, the

latter is not actionable under § 523(a)(2)(A). It exempts from

discharge “any debt ... for money ... to the extent obtained by

... false pretenses, a false representation, or actual fraud,

other than a statement respecting the debtor’s ... financial

condition”. 11 U.S.C. § 523(a)(2)(A) (emphasis added).

28 -28- Accordingly, the representation element is properly confined

to encompassing only a statement of intent to repay.12 This

makes consideration of the ability to pay but one of many factors

relevant to whether the representation was false and made with

the subjective intent to deceive.13

12 See In re Rembert, 141 F.3d at 281 (“use of a credit card represents either an actual or implied intent to repay the debt incurred”); In re Anastas, 94 F.3d at 1285 (“[w]hen the card holder uses his credit card, he makes a representation that he intends to repay the debt”); Chevy Chase Bank FSB v. Kukuk (In re Kukuk), 225 B.R. 778, 785 (10th Cir. B.A.P. 1998) (“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”); American Express Travel Related Servs. Co. v. Christensen (In re Christensen), 193 B.R. 863, 866 (N.D. Ill. 1996) (“debtor’s use of a credit card is a representation that he or she will pay off the debt at some point in the future”); In re Melancon, 223 B.R. at 311 (“[w]hen the card holder inserts the card into an ATM, he is, in one step, asking for a loan and promising to repay it if it is obtained”); In re Reynolds, 221 B.R. at 837 (debtor’s use of credit card is representation of “promise to pay under terms of the debtor’s contract with the credit card issuer”); In re Briese, 196 B.R. at 450 (“[a]lthough the debtor may not speak directly to the credit card issuer when making a purchase or obtaining a cash advance, there is little doubt that the debtor makes a representation — namely, the promise to pay for the credit advanced”); Chase Manhattan Bank v. Murphy (In re Murphy), 190 B.R. 327, 332 (Bankr. N.D. Ill. 1995) (“the use of a credit card is a representation regarding future action”). 13 See, e.g., In re Eashai, 87 F.3d at 1091 (considering debtor’s financial condition, including fact that monthly expenses exceeded income when credit card charges made, as one factor for inferring intent to defraud); In re Reynolds, 221 B.R. at 839 (debtor’s “reliance upon ... speculative financial arrangements appears to be a reckless disregard of the truth of his ability to make the minimum monthly payments”); AT&T Universal Card Servs. Corp. v. Pakdaman, 210 B.R. 886, 889 (D. Mass. 1997) (“A debtor’s ability to repay at the time he or she incurs indebtedness may of course be circumstantial evidence on the issue of intent, but it is only one

29 -29- In this light, the “implied representation” theory does not

have the undesirable consequence of making the debtor the

guarantor of her financial condition. See Briese, 196 B.R. at

450 & n.16 (“implied representation” is inappropriate, because

debtor’s card-use “constitutes an actual representation of future

performance”, “namely, the promise to pay for the credit

advanced”; when ability to pay is not treated as part of the

representation made with card-use, there is no “risk that the

debtor becomes the guarantor of his or her financial condition”).

C.

Judge Dennis concludes correctly, in my opinion, that, each

time she used her AT&T card, Mercer made a representation of an

intent to repay. We part ways, however, because he would affirm

the discharge on the basis that AT&T failed to prove it actually

and justifiably relied on such representations.

Judge Dennis agrees with Judge Duhé that a credit card

issuer cannot justifiably rely on any representation made by a

cardholder if the card was pre-approved and, prior to card-

factor.”); In re Murphy, 190 B.R. at 332 n.6 (ability to pay “is merely one factor to be considered in determining whether the debtor intended to repay”, but “[a]lone ... does not establish fraudulent intent”); Household Credit Servs., Inc. v. Jacobs (In re Jacobs), 196 B.R. 429, 434 (Bankr. N.D. Ind. 1996) (relying on fact that, when debtor incurred charges, debtor was unable to pay monthly payments on pre-existing debts and monthly income was less than expenses as factor supporting conclusion that debtor subjectively intended to defraud creditor); Matter of Ford, 186 B.R. at 320 (“debtor’s inability to pay the debt at the time that he incurred it may present indicia of an intent to defraud”).

30 -30- issuance, the issuer obtained no direct financial information

from the debtor. But, in his view, the creditor’s initial

assumption of risk does not prevent it from justifiably relying

on future representations if the debtor has established a history

of prompt payment. Nevertheless, he concludes, as a matter

of law, that, because AT&T received no direct financial

information from Mercer prior to card-issuance, but instead based

its decision to issue the card on the credit bureau screening

process, AT&T assumed the risk that Mercer would not repay the

charges, and could not justifiably rely on her implied promises

to repay loans incurred through her card-use. The “justifiable

reliance” standard applied by Judge Dennis is far more stringent

than that by Field, which, as Judge Duhé notes, does not require

an investigation. See LA Capitol Fed. Credit Union v. Melancon

(In re Melancon), 223 B.R. 300, 328-29 (Bankr. M.D. La. 1998)

(requiring credit card issuer to demonstrate that it examined

cardholder’s credit history before issuing card impermissibly

contradicts Restatement rule adopted in Field).

In adopting the justifiable reliance standard, Field

“look[ed] to the concept of ‘actual fraud’ as it was understood

in 1978 when that language was added to § 523(a)(2)(A)”, as

reflected in “the most widely accepted distillation of the common

law of torts”: the RESTATEMENT (SECOND) OF TORTS (1976). 516 U.S. at

70. Under the Restatement, “a person is justified in relying on

31 -31- a representation of fact ‘although he might have ascertained the

falsity of the representation had he made an investigation’”.

Id. quoting RESTATEMENT (SECOND) OF TORTS, § 540). The Court cited

the Restatement’s illustration that “a buyer’s reliance on th[e]

actual representation [of a seller of land who says it is free of

encumbrances] is justifiable, even if he could have ‘walk[ed]

across the street to the office of the register of deeds in the

courthouse’ and easily have learned of an unsatisfied mortgage”.

Id. (quoting RESTATEMENT (SECOND) OF TORTS, § 540).

Furthermore, Field pointed out that “contributory negligence

is no bar to recovery because fraudulent misrepresentation is an

intentional tort”. Id. (emphasis added). Although

“[j]ustification is a matter of the qualities and characteristics

of the particular plaintiff, and the circumstances of the

particular case”, id. at 71, this does not mean that, simply

because AT&T is a large corporation and has the ability to obtain

financial information from the debtor, it cannot justifiably rely

on her representation of an intent to repay the charges she

incurred each time she used her card.

Field’s quotations from other tort treatises indicate

clearly that the justifiable reliance standard Judge Dennis would

impose is not consistent with the Court’s view of the scope of

that standard. For example, 1 F. HARPER & F. JAMES, LAW OF TORTS §

7.12, pp. 581-83 (1956), quoted in Field, states:

32 -32- [T]he plaintiff is entitled to rely upon representations of fact of such a character as to require some kind of investigation or examination on his part to discover their falsity, and a defendant who has been guilty of conscious misrepresentation can not offer as a defense the plaintiff’s failure to make the investigation or examination to verify the same[.]

Id. at 72 (emphasis added).

Thus, even assuming AT&T could have obtained financial

information directly from Mercer prior to issuing her the card,

that does not preclude finding it was justified in relying on the

information it obtained, which raised no “red flag” requiring

further investigation. Moreover, as hereinafter discussed, the

record does not support Judge Dennis’ statement that the credit

bureau information obtained by AT&T prior to card-issuance

“included no information as to Mercer’s current financial

condition, solvency or ability to repay the loans contemplated”.

(Emphasis added.)

At trial, an AT&T bankruptcy specialist testified that the

screening process began six to seven months prior to AT&T’s

solicitation to Mercer. In the first screening, the credit

bureau produced a list of prospects based on criteria specified

by AT&T, including total revolving debt, delinquencies,

bankruptcies, judgments, utilization of existing credit, and

historical delinquency periods over 60-90 days. The credit

bureau determined a risk score (“FICO” score) for each prospect.

33 -33- The FICO score is a credit bureau model, developed by Fair Isaacs

Co., which predicts the probability of an account being

delinquent for 60-90 days or more within a one-year period. The

maximum possible FICO score is 900; the lowest, 0. AT&T requires

a minimum score of 680 as a condition for solicitation. Mercer’s

was 735, which AT&T’s bankruptcy specialist evaluated as “very

good”.

The list of prospects derived from the initial screening was

then referred to an outside vendor. It eliminated prospects who

had requested not to be solicited, duplicates, and prospects

located in high fraud areas. The list was then matched against

internal risk and scoring models used by AT&T; the list of

prospects retained after that process was then returned to the

credit bureau for a second screening to ensure there had been no

changes in a prospect’s credit standing or credit history since

the first screening.

The prospects who survived this second screening (including

Mercer) received an offer for a pre-approved credit card, as AT&T

is required to do, according to AT&T’s representative, under the

Fair Credit Reporting Act. When Mercer accepted the offer, AT&T

checked the information she supplied on the acceptance form to

ensure it matched the information in its database. Then, a third

credit bureau screening was performed to determine whether there

had been any deterioration in credit history, in which case AT&T

34 -34- could either withdraw the offer or offer a lower line of credit.

In the light of that testimony, it is simply inaccurate to

say AT&T had no information about Mercer’s ability to pay when it

issued her a credit card.

Affirmance for the reasons stated by Judge Dennis is also

inappropriate because, although the bankruptcy court correctly

stated the applicable justifiable reliance standard, 220 B.R. at

323, it did not correctly apply it in determining AT&T did not

actually or justifiably rely on any representations by Mercer.

It held that, even assuming AT&T actually relied on any

representations by Mercer, such reliance was not justifiable “in

light of the incomplete nature of the credit information obtained

by AT&T”. Id. at 327. The bankruptcy court suggested that,

“[i]f AT&T does not want its cardholders to use cash advances for

gambling purposes and wants such uses to be non-dischargeable,

why not put a specific restriction on this use in the cardholder

agreement”. Id. at 328. During the trial, the bankruptcy judge

suggested a number of questions AT&T should have asked Mercer

before issuing her a credit card.14 The court’s opinion and

14 The bankruptcy court asked AT&T’s representative why AT&T had not asked Mercer where she worked, how many children she had, and whether she was married; and why it did not prohibit cardholders’ use of ATM machines at casinos. At the conclusion of the adversary proceeding, the court suggested that, in addition to relying on credit bureau information and FICO scores, credit card companies could ask whether, among other things, the debtor: has any problem

35 -35- remarks reflect it imposed a much higher standard than

justifiable reliance.

Instead, whether AT&T actually and justifiably relied on

Mercer’s representations of intent to pay through her card-use is

a question of fact. See Coston v. Bank of Malvern (Matter of

Coston), 991 F.2d 257, 260 (5th Cir. 1993) (en banc) (pre-Field

case holding that reasonable reliance is question of fact). The

bankruptcy court, applying the correct legal standard, should

make that determination on remand.

Judge Dennis further concludes that nothing in AT&T’s

experience with Mercer as a cardholder, subsequent to card-

issuance, could justify a belief it had acquired a more

substantial basis for its reliance upon her representations than

it had when it issued the card. In support, he cites the

following factors:

(1) fourteen of Mercer’s transactions were cash loans, several of which were made within a casino; (2) Mercer borrowed the maximum cash advance amount within thirty one days after receipt of the card; (3) Mercer had developed no history of payment or good standing with [AT&T] (Mercer had only made one payment of $25); [and] (4) nineteen days after issuance, [AT&T]’s own computer had red-flagged the use of Mercer’s credit card

with gambling; owes any gambling debts; has had any gambling losses or winnings over the last several years; has other credit cards and, if so, the balance due; has a savings account and, if so, the balance; has a second job and, if so, why. The court suggested further that credit card companies should be required to exercise due diligence.

36 -36- for excessive transactions.

Judge Dennis states that he does not find that the cited

“factors caused AT&T’s reliance to be unjustified, but rather,

that they do not make AT&T’s otherwise unjustified reliance

justifiable”. AT&T does not, however, rely on any of the factors

cited by Judge Dennis to demonstrate justifiable reliance. In

any event, as hereinafter discussed, none of the cited factors

supports a conclusion that AT&T did not actually or justifiably

rely on Mercer’s representation, each time she used the card,

that she intended to repay the charge incurred.

1. Fourteen transactions were cash loans, several of which

were made within a casino. Although Mercer used the card to

obtain 14 cash advances, only four (three on 23 November and one

on 24 November, totaling approximately $1350) could be identified

as occurring within a casino; nine (one on 28 November, three on

1 December, three on 10 December, and two on 11 December,

totaling approximately $1300) are shown as having been obtained

from an automatic teller machine at Peoples Bank, 676 Bayview,

Biloxi, Mississippi; and one ($81 on 28 November) is shown as

having been obtained from “STB SO. MISSIS”, at 854 Howard,

Biloxi, Mississippi. In any event, the fact that some of the

cash advances were obtained at a casino is irrelevant in

determining whether AT&T justifiably relied on Mercer’s

representation that she intended to repay those loans. In the

37 -37- first place, the billing statement reflects that, although the

advances were obtained by Mercer at the casino on 23 and 24

November, they were not posted until 27 November. As AT&T’s

representative explained at trial, the date a transaction is

posted to a cardholder’s account is the date AT&T receives an

electronic transfer notification from the clearing bank. There

was no evidence that AT&T had the ability to instantaneously

determine, at the time Mercer inserted her card into the ATM,

that she was in a casino.

Moreover, there is no basis for, as a matter of law,

treating cash advances obtained at casinos differently from cash

advances obtained at other locations, such as banks or stores.

Although Mercer testified that she used all of the cash advances

obtained from AT&T for gambling, she obtained many of them at a

bank rather than a casino. Moreover, the trial testimony

established that AT&T has no control over ATM locations and is

not affiliated with the entity which operated the casino ATM from

which Mercer obtained cash advances.

The record contains no empirical or other evidence to

support a rule precluding credit card issuers from justifiably

relying on a cardholder’s promise to repay a cash advance simply

because it was obtained within a casino.15 Common sense suggests

15 Some courts have criticized the credit card industry for allowing debtors to use credit cards at casinos, and have held that credit card issuers cannot justifiably rely on representations of

38 -38- that not everyone who uses a credit card to obtain a cash advance

at a casino does so in order to obtain money for gambling, or

does so because she is losing and has no other source of funds

with which to gamble. For example, if given a choice, some might

consider it safer or more convenient to enter a casino to obtain

cash, rather than do so at an ATM outside a bank, where there is

no security and far greater potential for being robbed. Or,

someone might be in a casino hotel because a convention is being

held there or entertainment provided and, without using it for

gambling, obtain a cash advance at an ATM in the casino to use

for various monetary needs, such as dining. In short, obtaining

cash from such an ATM does not automatically translate into that

cash being used for gambling.

2. Mercer borrowed the maximum cash advance amount within

31 days after receipt of the card. This factor supports, rather

than detracts from, finding justifiable reliance. Mercer used

intent to pay when their cards are used to obtain cash advances at casinos. See, e.g., In re Melancon, 223 B.R. at 329 & nn. 42, 43 (noting “obvious stupidity of an institutional policy that sanctions the decision to lend money in a casino to borrowers who gamble and are willing to do so with somebody else’s money”; “[i]f a lender allows a holder to borrow money inside a casino, then the lender must be charged with two bits of information: the money will be used for gambling, and either the borrower has been losing or he has no money of his own with which to gamble”; “[a] creditor that lends money inside a casino is not justifiably relying on anything”); In re Reynolds, 221 B.R. at 840 (“[c]redit card issuers which allow cash advances on ATMs in gambling casinos are on notice their customers may use the money to gamble, and presumably that some gamblers may be poor credit risks”).

39 -39- her available credit within the first billing cycle, before she

received her first statement, giving AT&T no opportunity to

evaluate her creditworthiness based on a history with it. Up

until 11 December, the last day Mercer used the card, when she

exceeded her $3,000 credit limit by approximately $186, her card-

use was within the terms of the cardmember agreement. By using

the card, she signified her acceptance of the terms of that

agreement, including the term which required her to repay AT&T.

The AT&T representative testified that, as long as a cardholder

is using the card in accordance with the terms of the cardmember

agreement, AT&T is obligated to honor it.

3. Mercer had developed no history of payment or good

standing with AT&T. As stated, Mercer exhausted her credit limit

during the first billing cycle. Requiring that a cardholder have

a history of timely payments before the issuer can justifiably

rely on the cardholder’s representation of an intent to pay would

result in the discharge of all credit card debt incurred by

cardholders within at least the first month of use. Such a rule

would encourage irresponsible and dishonest debtors to “max out”

their credit limits within the first billing cycle in order to

preclude nondischargeability. It could also have the unintended

consequence of spurring credit card issuers to establish such low

credit limits that credit cards would serve no useful purpose to

many card users.

40 -40- 4. Nineteen days after issuance, AT&T’s own computer had

red-flagged the use of Mercer’s credit card for excessive

transactions.16

This factor is not particularly relevant. AT&T’s

representative testified that: the account was reviewed by an

AT&T employee, who determined that the transactions were not

egregiously excessive and cleared Mercer’s account for further

use; and, because the charges were within the terms of the

cardmember agreement, AT&T was obligated to honor it. Reliance

on this factor could encourage prudent credit card companies to

cancel cards when cardholders use them frequently within the

first billing cycle, regardless of whether such use did not

exceed the cardholder’s credit limit.

D.

Based on the foregoing reasons, this case should be remanded

to the bankruptcy court. Continuing to use § 523(a)(2)(A) actual

fraud as the template, the following considerations for each of

its five elements should come into play. Again, the five

elements for such actual fraud are: (1) the debtor made

representations; (2) when made, she knew they were false; (3)

16 The bankruptcy court misstated that Mercer’s account was flagged for excessive transactions nine days after issuance. See AT&T Universal Card Servs. v. Mercer (In re Mercer), 220 B.R. 315, 320 (Bankr. S.D. Miss. 1998) (stating AT&T representative testified Mercer’s account was flagged for excessive use on 19 November 1995).

41 -41- they were made with the intent to deceive the creditor; (4) it

actually and justifiably relied on them; and (5) it sustained a

loss as a proximate result of them.

For the first element, I would hold that, on each occasion

Mercer used her AT&T credit card to make a purchase or obtain a

cash advance, she expressly represented to AT&T her intent to

repay the amount charged, in accordance with the terms of the

cardholder agreement, by at least making the required minimum

payment.

For the second and third elements, the bankruptcy court did

not consider whether Mercer’s representations were false when

made, or whether she made them with the subjective intent to

deceive AT&T. For such factual determinations, all of the facts

and circumstances surrounding Mercer’s card-use should, of

course, be considered. Because a debtor rarely will admit credit

card debt is incurred with the intention of not repaying it, the

bankruptcy court should consider objective evidence of her state

of mind.17 I consider especially relevant her testimony that:

17 See, e.g., In re Eashai, 87 F.3d at 1090 (“Since a debtor will rarely admit to his fraudulent intentions, the creditor must rely on [objective factors] to establish the subjective intent of the debtor through circumstantial evidence.”); Citibank (S.D.), N.A. v. Michel, 220 B.R. 603, 606 (N.D. Ill. 1998) (“Obviously the court must consider objective evidence that is probative of the debtor’s intent to repay in addition to considering the debtor’s demeanor, but the ultimate inquiry still seeks to determine the debtor’s subjective intent”); In re Briese, 196 B.R. at 451 (because it is “difficult, if not impossible, for a plaintiff to present direct evidence of a debtor’s intent to deceive[,] ... courts may

42 -42- when she used the AT&T card, she did not have enough income from

her employment to pay all of her living expenses and make the

minimum payments on all of her credit cards; and she intended to

use gambling winnings to meet those expenses.18

For the fourth element, and as stated, the bankruptcy court

applied an incorrect legal standard in finding AT&T did not

actually and justifiably rely on any representations by Mercer.

I would use the standard of justifiable reliance applied in the

Ninth Circuit: “the credit card issuer justifiably relies on a

representation of intent to repay as long as the account is not

in default and any initial investigations into a credit report do

not raise red flags that would make reliance unjustifiable”. In

legitimately utilize circumstantial evidence to ascertain debtor’s intent”). 18 See In re Melancon, 223 B.R. at 336-41 (discussing at length whether gamblers who hope to repay debts with gambling winnings have requisite intent to repay, and concluding that, although debtor “like all other gamblers, may have hoped that she would win a lot of money, ... [she] never intended to repay the cash advances”); In re Jacobs, 196 B.R. at 434 (subjective intent to deceive established by proof that debtors obtained cash advances and purchases when they were unable to pay monthly payments on pre- existing debts and when their monthly income was less than their monthly expenses; they were in default on other debts when they incurred debts at issue, thus putting themselves in position of insolvence; and they had in excess of $45,000 in secured debt when they began to incur debt at issue); In re Preece, 125 B.R. at 478 (debtor’s professed intention to repay cash advances charged to credit card not held in good faith because he knew he did not have ability to repay them; “[a] debtor cannot ignore the reality of his financial situation and still maintain that he has a ‘good faith intent’ to repay”).

43 -43- re Anastas, 94 F.3d at 1286 (emphasis added).19

That standard is appropriate because it “recognizes the

unique nature of credit card transactions, the ability of a

cardholder to mask an actual financial condition by making

minimum payments from whatever sources, and the credit card

issuer’s lack of access to the cardholder’s present financial

condition at the point of each transaction”. See Searle, 223

B.R. at 391 (adopting Ninth Circuit’s justifiable reliance

standard). Facts relevant to that inquiry include: (1) AT&T’s

decision to offer Mercer a pre-approved credit card was based on

an examination of her credit history — twice before she accepted

the offer, and again after she accepted the offer and before it

sent a card to her; (2) the terms of the cardmember agreement,

19 Judge Dennis criticizes my quotation from In re Anastas for the Ninth Circuit’s justifiable reliance standard, stating it is dictum and “not a complete or comprehensive statement of the Ninth Circuit’s jurisprudence on justifiable reliance”. In stating the standard, In re Anastas cited In re Eashai, 87 F.3d at 1091, in which the discussion of justifiable reliance was not dictum. Moreover, in a subsequent decision, the Ninth Circuit quoted that same language from In re Anastas in describing its standard. See American Express Travel Related Servs. Co. v. Hashemi (In re Hashemi), 104 F.3d 1122, 1126 (9th Cir. 1996) (quoting In re Anastas, 94 F.3d at 1286). In stating that I would adopt this standard, is not my intention to provide a complete or comprehensive statement of the Ninth Circuit’s jurisprudence on justifiable reliance. Obviously, if a cardholder has established a history of payments with the creditor, justifiable reliance will be easier to prove. But, I do not interpret the Ninth Circuit’s jurisprudence to require such a history; and, as discussed supra, I would not hold that the absence of such a history precludes finding justifiable reliance.

44 -44- which provided that Mercer’s card-use signified her acceptance of

those terms, including the requirement that she repay the charges

incurred, by at least making the minimum monthly payments; and

(3) Mercer’s exhausting her available credit limit within the

first billing cycle, within the scope of the cardmember agreement

and before AT&T had any reason to suspect that she would not

repay the charges.

Finally, for the fifth element, I would hold that AT&T’s

loss (the unpaid charges) was proximately caused by its reliance

on Mercer’s promise, each time she used the card, to repay the

charge incurred.20

For the foregoing reasons, I respectfully dissent and urge

en banc consideration of this quite important case.

20 See Pakdaman, 210 B.R. at 890 (“issuer’s extension of credit constitutes both actual reliance and damages”); In re Melancon, 223 B.R. at 326 (in using credit card, debtor represents intent to repay; representation is made with intent to cause issuer to provide credit; and representation is cause in fact of issuer’s decision to provide credit); AT&T Universal Card Servs. Corp. v. Wong (In re Wong), 207 B.R. 822, 832 (Bankr. E.D. Pa. 1997) (creditor proved it sustained loss as proximate result of debtor’s representations by establishing that, as direct result of debtor’s use of credit card, debtor incurred debt that has not been paid).

45 -45-