UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
IN RE: GALBRAITH
CASE NO. 93-5114
V. ADV. NO.
The complaint seeks to have the indebtedness owed by the debtor to Graviss excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A) as a debt for obtaining money by false pretenses or false representations or by fraud.
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A debtors promise related to future action which does not purport to depict current or past fact does not rise to the level of a false pretense or false representation warranting exception of a debt from discharge under 11 U.S.C. § 523(a)(2)(A). In re Bercier, 934 F.2d 689, 692 (5th Cir. 1991); In re Allison, 960 F.2d 481, 484 (5th Cir. 1992); In re Roeder, 61 B.R. 179 (W.D. Ky. 1986). Thus, a debtors default on a promise made at the time a debt is created to repay the debt out of future income is not grounds for excepting the debt from discharge. If such were the case very few debts would be dischargeable in bankruptcy.
It is alleged that at the time the debtor promised to repay the debts in question the debtor had no intention of fulfilling the promise and knew he was incapable of repaying the debts.
However, the evidence shows the debtor had in fact been able to repay and had repaid prior loans to the plaintiff.
The debtor willingly signed a series of notes acknowledging the indebtedness, entered into an agreed judgment for the amount of the indebtedness, and executed an assignment of accounts receivable to secure payment or partial payment of the judgment.
This is hardly the conduct of a debtor who did not intend to repay the indebtedness in question.
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By the court -
Joe Lee, Chief Judge
W. Thomas Bunch, II