IN RE: JAMES EARL WILCHER CASE NO. 95-50842

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

IN RE:

JAMES EARL WILCHER CASE NO. 95-50842

MARGARET F WILCHER

DEBTORS

BANK ONE, COLUMBUS, N.A. PLAINTIFF

VS. ADVERSARY NO. 95-5062

JAMES EARL WILCHER DEFENDANT

MEMORANDUM OPINION

This case came on for trial before the court on June 7, 1996, on the complaint of Bank One, Columbus, N.A., seeking a judgment excepting from discharge under 11 U.S.C. 523(a)(2)(A) $6,541.46 of a credit card debt in the amount of $9,507.28 owed to Bank One by the debtor on the date of bankruptcy.

Bank One relies on 11 U.S.C. 523(a)(2)(C) which provides that "cash advances aggregating more than $1,000 that are extensions of credit under an open end credit plan obtained by an individual on or within 60 days before the order for relief ... are presumed to be nondischargeable."

The debtor filed a petition and was granted an order for relief under chapter 7 of the Bankruptcy Code on May 26, 1995.

The record indicates that within 60 days of bankruptcy the debtor obtained the following cash advances on a Visa credit card issued to him by Bank One.

 

3-27-95 $500.00

3-29-95 500.00

3-30-95 800.00

4-03-95 300.00

4-03-95 100.00

4-04-95 300.00

4-04-95 100.00

4-05-95 300.00

4-06-95 300.00

4-06-95 100.00

4-07-95 400.00

4-08-95 400.00

4-11-95 300.00

4-11-95 100.00

4-12-95 400.00

4-13-95 400.00

4-14-95 200.00

5-13-95 400.00

5-17-95 400.00

 

Total $6,300.00

 

Other miscellaneous charges in the amount of $241.46 were made during the 60-day period preceding bankruptcy, but there was no evidence that these charges were for purchases of luxury goods or services.

The debtor obtained the first three cash advances on March 27, 28, and 30, 1995 with the assistance of a bank teller and signed receipts in connection with these transactions. These cash advances total $1,800.00.

The debtor denies obtaining the other cash advances. His denial is based on his assertion that he had no knowledge of the PIN number (Personal Identification Number) assigned to him when he was issued the Bank One Visa card and does not know how to operate an Automatic Teller Machine (ATM) unit.

At the conclusion of the trial the court announced from the bench that it had determined that $1,800.00 of the indebtedness should be held to be nondischargeable in bankruptcy.

On reflection the court is of the opinion that $6,300.00 of the indebtedness should be held to be nondischargeable in bankruptcy.

The debtor's insistence that he does not know how to use an ATM device is not sufficient to overcome the presumption of fraud that operates in favor of the plaintiff bank. The debtor denied that anyone else had access to his credit card or knowledge of his PIN number. Yet the ATM device will not disgorge cash unless the card is inserted and the PIN number is punched into the machine. The debtor's explanation or, in this instance, lack of explanation, for how these monies came to be obtained on his Visa card is simply not believable and is not sufficient to overcome the presumption that he obtained the $6,300.00 by fraud.

A judgment may be submitted finding the debt in the amount of $6,300.00 nondischargeable in bankruptcy, with interest accruing thereon at the rate of 5.62 percent until paid.

Dated:

By the court -

 

____________________________

JOE LEE, CHIEF JUDGE

 

Copies to:

 

Scott Rickman, Esq.

David Patrick, Esq.

f:\opinions\1996\wilcher