[¶ 41.] First, the majority’s rationale for not considering Kessler’s “lies,” supra ¶ 17, is at odds with our settled law on intent to defraud in loan transactions. Despite the lies Kessler used to obtain the advances, the majority finds no evidence of intent to defraud because “[t]here is no evidence that at the time defendant obtained the draws from the Hemmers that he deceived them into believing he would repay the loan, when in fact he had no such intent.” Id. This Court, however, when interpreting SDCL 22-30A-3 (including its broader historical origin in the common law of larceny by false pretenses), adopted the law that “intent to repay the loan” is irrelevant when misrepresentations are used to obtain loan advances. State v. Phair, 2004 SD 88, ¶ 7, 684 N.W.2d 660, 662-63 (<HOLDING>). This Court explained that “[t]he gravamen of
holding that case by case employment of the dutyrisk analysis is the appropriate standard in this state for determining legal responsibilities for negligent misrepresentations holding that in a case involving misrepresentations in violation of securities and exchange commission rule 10b5 under the circumstances of this case involving primarily a failure to disclose positive proof of reliance is not a prerequisite to recovery holding evidence of repayment was irrelevant in case involving title misrepresentations to obtain loans holding title vii analysis applies in ada case holding in a case involving a professional services corporation that a court should not treat either the individuals title or the entity form as determinative