IN RE: JOHN RAY THOMPSON CASE NO. 88-00863

UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF KENTUCKY

COVINGTON DIVISION

IN RE:

JOHN RAY THOMPSON CASE NO. 88-00863

DEBTOR

STAR BANK, N.A., CINCINNATI PLAINTIFF

V. ADV. NO. 88-0250

JOHN RAY THOMPSON DEFENDANT

MEMORANDUM OPINION

This matter is before the court on the motion of plaintiff, Star Bank, N.A., Cincinnati, for summary judgment.

The debtor filed a petition for relief under chapter 7 of title 11 United States Code on September 15, 1988.

On December 27, 1988, plaintiff filed a complaint to determine the dischargeability of a debt owed by the debtor to plaintiff as a result of the debtor's use of a VISA credit card issued by the plaintiff to the debtor. The complaint alleges that between May 11, 1988 and September 15, 1988, the debtor used his VISA credit card to charge merchandise and services in the amount of $3,289.74, including a cash advance in the amount of $2,000 obtained immediately preceding the date on which the petition was filed, without the intention or ability to pay the indebtedness, and that the debt is excepted from discharge pursuant to 11 U.S.C. 523(a)(2)(A) as a debt obtained by false pretenses or acutal fraud.

The debtor timely filed an answer on January 27, 1989 denying the allegations of the complaint.

On June 7, 1989, plaintiff filed a motion for summary judgment and memorandum in support thereof, attaching and incorporating by reference the transcript of a Rule 2004 examination of the debtor conducted by the plaintiff on November 22, 1988. A hearing on the motion was held on April 11, 1990. The debtor filed a response to the motion on April 12, 1990.

The function of the court when considering a motion for summary judgment is not to resolve issues of fact but rather is to determine, based on the record before the court, whether the moving party has established an absence of any genuine issue regarding all material facts which would entitle the movant to judgment as a matter of law.

The court is of the opinion that there are genuine issues of material fact to be resolved, including issues of the debtor's intent and the reasonableness of the plaintiff bank's reliance on any representations made by the debtor. The resolution of an issue of intent depends on the credibility of witnesses, which can best be determined by observing the demeanor of the witnesses at trial.

 

Summary judgment is inappropriate in this proceeding, and the plaintiff's motion should be overruled.

Dated:

 

By the court -

 

 

 

Judge

 

Copies to:

Dennis R. Williams

Michael L. Baker