ORDER DENYING SUMMARY JUDGMENT
ROBERT E. NUGENT, Bankruptcy Judge.
If a debtor incurs a debt by actual fraud, misrepresentation, or false pretenses, that debt is excepted from the debtor's discharge, provided that the creditor files and successfully prosecutes a complaint under 11 U.S.C. § 523(c).
Here, Susan Kay Swafford applied for and received unemployment compensation after leaving her employment in late August, 2008. The State of Kansas, acting through its Department of Labor ("KDL") claims that she misrepresented both her employment status and income received during that time period in order to receive benefit overpayments. In its complaint, the State also claims she did so with intent to defraud the State and seeks summary judgment on its complaint. That request is based on two default administrative determinations made by an examiner of the KDL. One Notice of Determination was issued December 9, 2008 determining a $1,799 overpayment had been paid to Swafford
Nowhere in the KDL's lengthy brief or supporting affidavit is there a reference to any previous finding that Ms. Swafford acted with intent to defraud or deceive. The December Notice of Determination found that the debtor was "ineligible for . . . benefits under . . . K.S.A. 44-705."
After reviewing KDL's motion and supporting affidavit (and exhibits), the debtor's response, and KDL's reply, I conclude that material issues of fact remain and preclude summary judgment. The truth of Ms. Swafford's statements or representations to the KDL concerning her employment status and what she knew and intended at the time she made them are critical to determining whether her debt to the State should be excepted from her discharge for fraud. They remain issues for trial.
This matter is currently set for trial on June 13, 2017 at 9:00 a.m. and counsel are reminded that the final pretrial order is due on May 12, 2017.