Boyko v. Barizon

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2025
• Docket: 24-2888
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: MARK STEVEN BOYKO No. 24-2888 D.C. No. Debtor 23-1139 ____________________________

MEMORANDUM* MARK STEVEN BOYKO,

Appellant.

v.

AUGUST BARIZON; SARA BOROUMAND,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Scott H. Gan, Robert J. Faris, and Gary A. Spraker, Bankruptcy Judges, Presiding

Submitted March 6, 2025** San Francisco, California

Before: WARDLAW, PAEZ, and LEE, Circuit Judges.

* 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). Mark Steven Boyko (“Boyko”) appeals a decision by the Ninth Circuit

Bankruptcy Appellate Panel (“BAP”) affirming a bankruptcy court’s

nondischargeable judgment in favor of creditors August Barizon and Sara

Boroumand (collectively “Appellees”). We have jurisdiction under 28 U.S.C. §

158(d) and we affirm.

Appellees entered into a construction agreement for a home-remodel with

Boyko and Boyko’s former business partner (Ruben Citores) based on, among

other things, a series of misrepresentations by Boyko, including that he would act

as the general contractor for the project, that he was a licensed contractor, and that

he and Citores were insured. After verifying that Boyko’s license was active,

Appellees agreed to the project. Citores and Boyko abandoned the project mid-

way, and Appellees were forced to hire new contractors to redo the project and to

pay unpaid sub-contractors.

While Appellees’ state court action against Boyko and Citores for damages

arising from their fraudulent representations was pending, Boyko filed a Chapter

13 petition for bankruptcy. After filing a proof of claim in the proceeding,

Appellees initiated an adversary action for their damages. Following trial, the

bankruptcy court held the debt nondischargeable under 11 U.S.C. § 523(a)(2)(A)

due to Boyko’s false representations. Following appeal, the BAP affirmed.

The BAP correctly affirmed the bankruptcy court’s entry of a

2 24-2888 nondischargeable judgment under § 523(a)(2)(A) against Boyko. The bankruptcy

court properly concluded that Appellees substantiated their proof of claim, and that

the resulting debt was nondischargeable. See In re Slyman, 234 F.3d 1081, 1085

(9th Cir. 2000). Boyko fails to identify any clear error in the bankruptcy court’s

factual findings or legal defect in the BAP or bankruptcy court’s application of the

law. Instead, Boyko contends that he is either not liable for the resulting debt or

his liability should be significantly reduced, because: (1) he did not contract with

Appellees; (2) he was not Citores’s partner; (3) he did not obtain any benefit from

Appellees; and (4) at most, his liability should be limited to the $8,000 he received

from Citores. None of these contentions is availing.

The BAP correctly concluded that whether Boyko signed a contract with

Appellees, received payments from Appellees, or had a partnership with Citores is

irrelevant because the bankruptcy court found Boyko liable for his own intentional

fraudulent representations.1 Furthermore, Boyko’s contention that his liability is

limited to amounts received from debtors or received from Citores is plainly

foreclosed by Supreme Court precedent. See Cohen v. de la Cruz, 523 U.S. 213,

215 (1998) (Ҥ 523(a)(2)(A) prevents the discharge of all liability arising from

1 Boyko has waived review of the bankruptcy court’s independently dispositive finding that he made fraudulent omissions concerning his past dealings with Citores. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir, 1999); In re Tallant, 218 B.R. 58, 65 (B.A.P. 9th Cir. 1998).

3 24-2888 fraud. . . .”) (emphasis added).2

Affirmed.3

2 Boyko’s contention that the bankruptcy court should have afforded issue preclusive effect to Citores’s “no contest” plea to performing work as a contractor without a license and stealing Boyko’s identity is irrelevant. Even assuming that issue preclusion applies, Appellees’ claim is based on Boyko’s fraudulent conduct at the July 2017 meeting with Appellees, which Boyko admits he attended. Furthermore, to the extent Boyko raises any additional “issues,” we deem them waived as “[w]e review only issues which are argued specifically and distinctly in a party’s opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). 3 Appellees’ request for attorney’s fees is denied without prejudice for failure to file a separate motion as required by Federal Rule of Appellate Procedure 38. See Gabor v. Frazer, 78 F.3d 459, 459 (9th Cir. 1996).

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