Artem Koshkalda v. Seiko Epson Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2022
• Docket: 20-60027
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: ARTEM KOSHKALDA, No. 20-60027

Debtor, BAP No. 19-1235

------------------------------ MEMORANDUM* ARTEM KOSHKALDA,

Appellant,

v.

SEIKO EPSON CORPORATION; EPSON AMERICA, INC.,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Brand, Taylor, and Faris, Bankruptcy Judges, Presiding

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Chapter 7 debtor Artem Koshkalda appeals pro se from the Bankruptcy

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellate Panel’s (“BAP”) judgment affirming the bankruptcy court’s order in

Seiko Epson Corporation’s (“Epson”) adversary proceeding seeking to prevent

Koshkalda from discharging a judgment Epson received against him. We have

jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions and

apply the same standard of review that the BAP applied to the bankruptcy court’s

ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th

Cir. 2009). We affirm.

In his opening brief, Koshkalda fails to address the BAP’s affirmance of

Epson’s claim under 11 U.S.C. § 727(a)(7), and he has therefore waived his

challenge to the BAP’s order on this claim. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims

that were not actually argued in appellant’s opening brief.”); Acosta-Huerta v.

Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues not supported by argument in pro se

appellant’s opening brief are deemed abandoned).

The bankruptcy court properly granted summary judgment for Epson on its

claim under 11 U.S.C. § 727(a)(2) and (3) seeking to prevent Koshkalda from

discharging a judgment Epson received against him. Koshkalda failed to raise a

genuine dispute of material fact as to whether he did not engage in transfers of

property meant to hinder Epson’s ability to collect its judgment. See Retz v.

Samson (In re Retz), 606 F.3d 1189, 1196-1205 (9th Cir. 2010) (discussing

2 20-60027 standard of proof applicable to party objecting to discharge and setting forth

elements of claim for hindering acquisition of creditor property). Koshkalda also

failed to raise a genuine dispute of material fact as to whether he kept adequate

business records such that Epson could ascertain his financial position. See

Caneva v. Sun Communities Operating Ltd. P’ship (In re Caneva), 550 F.3d 755,

761 (9th Cir. 2008) (setting forth elements of a claim for failing to keep and

preserve business records).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief or allegations raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 20-60027