Anastas, In re

• Decision Date: 03 September 1996
• Docket Number: No. 95-15167,95-15167
• Citation: 94 F.3d 1280
• Parties: , 36 Collier Bankr.Cas.2d 814, 29 Bankr.Ct.Dec. 884, Bankr. L. Rep. P 77,118, 96 Cal. Daily Op. Serv. 6559, 96 Daily Journal D.A.R. 10,774 In re Bashir Y. ANASTAS, Debtor. Bashir Y. ANASTAS, Appellant, v. AMERICAN SAVINGS BANK, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1280

94 F.3d 1280

65 USLW 2162, 36 Collier Bankr.Cas.2d 814,

29 Bankr.Ct.Dec. 884,

Bankr. L. Rep. P 77,118,

96 Cal. Daily Op. Serv. 6559,

96 Daily Journal D.A.R. 10,774

In re Bashir Y. ANASTAS, Debtor.

Bashir Y. ANASTAS, Appellant, v. AMERICAN SAVINGS BANK, Appellee.

No. 95-15167.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1996.

Decided Sept. 3, 1996.

Bashir Y. Anastas, Fair Oaks, California, Appellant in Pro Per.

Barry W. Ferns, Alice Quinton, Ferns & Ferns, Concord, California, for Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel; Russell, Jones, and Carlson, Judges, Presiding, BAP No. EC-94-1799-RJC.

Before: NORRIS and WIGGINS, Circuit Judges, and JONES, ^* District Judge.

JONES, District Judge:

Bankruptcy debtor Anastas appeals, in pro per, from a decision of the Bankruptcy Appellate Panel (BAP) affirming a judgment of the bankruptcy court for the Eastern District of California. The bankruptcy court ruled that Anastas' credit card debt was obtained through actual fraud and thus non-dischargeable in bankruptcy under 11 U.S.C. § 523(a)(2)(A). We have jurisdiction over this appeal from the BAP pursuant to 28 U.S.C. § 158(d). We reverse and remand.

I. BACKGROUND

Anastas held a VISA credit card from American Savings Bank, which he admittedly extended beyond its limit to make cash advances for gambling at Lake Tahoe casinos between February and July 1993. During the same time period, he extended several of his other credit cards to their credit limit, also to finance gambling activities. Although Anastas never failed to make the minimum monthly payments on his American Saving Bank credit card, Anastas testified that he suddenly found himself unable to make the minimum monthly payments on all of his credit cards and attempted to work out alternative payment schedules with his various creditors. According to Anastas, American Savings Bank was unwilling to work out an alternative payment arrangement, and Anastas felt that his only recourse was to file for bankruptcy protection under Chapter 7. He filed his petition on August 19, 1993. The unpaid charges on the American Savings Bank card total $6624.21 plus interest. Anastas admitted that he did not have sufficient income to cover the monthly payments on all of his credit cards. His monthly take home income was $3465.50, and his estimated monthly expenditures were $3535. His other liquid assets at the time he filed for bankruptcy were stocks and bonds worth only $800, which was not enough to service the massive credit card debt he had acquired, which totalled approximately $40,000.

American Savings Bank moved the bankruptcy court for an order that the credit card debt was non-dischargeable in bankruptcy because the extension of credit was obtained through actual fraud under 11 U.S.C. § 523(a)(2)(A) which states as follows:

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt--

....

(2) for money, property, services, or an extension, renewal, or refinancing of credit to the extent obtained by--(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.

After conducting a short bench trial at which Anastas testified, the bankruptcy court found that Anastas committed actual fraud within the meaning of section 523(a)(2)(A) because he incurred the credit card debt without the intent to repay. The court entered judgment in favor of American Savings Bank. On appeal, the BAP affirmed the bankruptcy court.

II. STANDARD OF REVIEW

We review the decision of the BAP de novo. Steelcase Inc. v. Johnston (In re Johnston), 21 F.3d 323, 326 (9th Cir.1994). Thus we review the bankruptcy court's decision under the same standard applied by the BAP. The bankruptcy court's findings are reviewed for clear error, and its conclusions of law are reviewed de novo. Robertson v. Peters (In re Weisman), 5 F.3d 417, 419 (9th Cir.1993). Whether the correct legal standard was applied is a legal issue reviewed de novo. Dewhirst v. Citibank (Arizona)(In re Contractors Equipment Supply Co.), 861 F.2d 241, 243 (9th Cir.1988). A finding of whether a requisite element of section a 523(a)(2)(A) claim is present is a factual determination reviewed for clear error. See Runnion v. Pedrazzini (In re Pedrazzini), 644 F.2d 756, 757 (9th Cir.1981).

III. ANALYSIS

A. APPLYING SECTION 523(a)(2)(A) TO CREDIT CARD DEBT

In deciding whether Anastas' credit card debt was incurred through actual fraud, the bankruptcy court focused on the question of whether Anastas did not intend to repay his debt at the time he incurred it. Based largely on the fact that Anastas did not have the ability to service or pay back all of the debt that he incurred in his gambling activities, the bankruptcy court found that Anastas either lacked the intent to repay the debts at the time he incurred them, or at the least was grossly reckless in incurring such debt. The bankruptcy court held that this finding satisfied the actual fraud requirement of section 523(a)(2)(A). In conducting this analysis, the bankruptcy court relied on the extensive BAP case law applying section 523(a)(2)(A) in credit card cases. See In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988); In re Karelin, 109 B.R. 943 (9th Cir. BAP 1990); In re Eashai, 167 B.R. 181 (9th Cir. BAP 1994); In re Lee, 186 B.R. 695 (9th Cir. BAP 1995). In particular, the bankruptcy court relied on In re Eashai, 167 B.R. 181, 185 (9th Cir. BAP 1994). We recently affirmed the BAP's decision in Eashai, and in doing so approved of the BAP's general approach to non-dischargeability of credit card debt. Citibank (South Dakota), N.A. v. Eashai (In re Eashai), 87 F.3d 1082 (9th Cir.1996) (Eashai).

In Eashai we explained that our settled approach to claims of fraud under section 523(a)(2)(A) requires an affirmative representation by the debtor and a showing of reliance by the person claiming fraud as well as that the debt sought to be discharged was a proximate result of the representation. Id. at 1086.

The creditor must show that (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations; (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.

Britton v. Price (In re Britton), 950 F.2d 602, 604 (9th Cir.1991). Applying these elements to the situation of credit card debt we held that there are three essential inquiries: (1) did the card holder fraudulently fail to disclose his intent not to repay the credit card debt, (2) did the card issuer justifiably rely on a representation by the debtor and (3) was the debt sought to be discharged proximately caused by the first two elements. Eashai, 87 F.3d at 1088. In Eashai we stated that in determining whether there was a lack of intent to repay, a finder of fact may refer to twelve non-exclusive factors that the BAP has found useful. ¹

Our discussion in Eashai recognized that how we apply the traditional elements of fraud to credit card debt depends much upon how we characterize the relationship between the credit card issuer and the credit card holder. Eashai was a case involving an elaborate credit card kiting scheme in which the card holder made minimum monthly payments on his numerous credit cards by obtaining cash advances on other credit cards. In such a situation the focus of the fraudulent conduct was the creation of an appearance of financial solvency and continuing monthly payment which allowed the card holder to fail to disclose that he had no intent to repay the credit card debt that he was incurring. Id. at 1088-89. We held that in such a case, the debtor had a duty to disclose to the card issuer that he indeed had no intention of repaying the debt even though he had created the appearance of solvency. Id. at 1089.

Our discussion in Eashai identified two separate points in the relationship between the credit card issuer and the card holder. First, there is the point at which the credit card is issued. Our discussion assumed that at this point there is a representation by the card holder, in accepting the credit card, that he has the intention of paying for the charges incurred. Id. Second, in cases of fraud there is the point at which the card holder forms an intent not to repay the debt which he is incurring--for instance, by involving the credit card in an elaborate kiting scheme. In Eashai we explained that the card holder has a duty to disclose his new state of mind if he no longer has the intent to repay the credit card debt which he is incurring. Id.

Our focus on the initial representation of intent to repay upon receiving a credit card, and the duty to disclose the formation of a subsequent intent not to repay was especially useful in Eashai because our inquiry was into whether the entire debt on the credit card was incurred through fraud by inclusion of that credit card in a kiting scheme. However, Eashai was in one aspect not a typical credit card case. See id. at 1085 ("This is not a typical credit card fraud case.") In many credit card cases the inquiry is not whether the card holder lacked an intent to repay all of the charges made on the card because of a fraudulent financial scheme, but rather whether the card holder lacked an intent to repay when making certain individual charges because he planned to shortly discharge them in bankruptcy. This behavior is commonly referred to as "loading up."

In cases where the question is simply whether a card holder defrauds a card issuer by making charges when he plans to discharge them in bankruptcy, we should look to whether the individual charges were made with a fraudulent intent. This inquiry is easily applied if we view...