78
Ginsburg, J., concurring
Justice Ginsburg, concurring.
I concur in the Court's opinion and write separately to highlight a causation issue still open for determination on remand: Was the debt in question, as the statute expressly requires, "obtained by" the alleged fraud? See 11 U. S. C. § 523(a)(2)(A); ante, at 63, n. 3. Mans ultimately urges that the promissory note to the Fields is, in any event, a dischargeable debt because it was not "obtained by" the allegedly fraudulent letters Mans's attorney wrote to the Fields' attorney months after the debt was incurred. The Fields maintain that they relied on the letters to their detriment, in effect according Mans an extension of credit instead of invoking the due-on-sale clause.
Mans prevailed on the reliance issue before the bankruptcy, district, and appellate courts on the basis of then-governing Circuit precedent. See In re Burgess, 955 F. 2d 134, 140 (CA1 1992) (creditor required to prove that its reliance was reasonable). With the Circuit law on reliance solidly in his favor, Mans understandably did not advance in the lower courts the argument that the debt was not "obtained by" fraud. When the "reliance must be reasonable" rule solid in the Circuit was challenged in this Court, however, Mans raised the causation point as an alternate justification for the judgment in his favor. See Brief for Respondent 32-33 (argument heading V. reads: "Since the credit here was not 'obtained by' the alleged fraud, petitioners have failed to meet the [causation] requirement of 523(a)(2)(A)"); Tr. of Oral Arg. 43 ("[U]nder the clear language of the statute, there
terminology right below and having no real prospect of anything but needless expense even if there is a remand. The first reason takes a bit of kind reading, since the Bankruptcy Judge spoke in terms of an objective standard and expressly found that the Fields had in fact relied, however imprudently. The second may indicate that we would have been justified in denying certiorari, but after taking the case and declaring the correct standard in response to the Fields' argument in this Court, we think they are entitled to decide how Pyrrhic a victory to declare.
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