In Re Dougherty
Citibank (South Dakota), N.A. v. Dougherty (In Re Dougherty)
Opinion
Opinion
Hedrick, J.
MEMORANDUM OF DECISION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY ON REMAND FROM BANKRUPTCY APPELLATE PANEL
The complaint to determine discharge-ability came on for trial on June 26, 1986. The Court issued its written memorandum of decision on September 30, 1986; an order finding the debt to be nondischargeable was filed on October 17,1986. Debtor filed his notice of appeal on October 14, 1986.
On appeal, the Bankruptcy Appellate Panel was presented with two issues. The first dealt with the admissibility of credit card statements. In its opinion filed February 5, 1988, the BAP affirmed the trial court decision that the monthly credit card statements had been properly authenticated and thus there was no error in admitting them.
The second issue before the BAP was whether the trial court had erred in determining that the credit card debts were non-dischargeable. The BAP acknowledged the split in authority that has developed in this area. Declining to adopt either the majority view of “implied representation” or the minority “assumption of the risk” theory, the BAP instead chose to adopt a middle position articulated by Judge Lindquist in In re Faulk, 69 B.R. 743…