Bryn Poole v. Barbara Donahue

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 17-60067
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: BRYN FRANKLIN POOLE, No. 17-60067

Debtor. BAP No. 16-1439

------------------------------ MEMORANDUM* BARBARA DONAHUE,

Appellant,

v.

BRYN FRANKLIN POOLE,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty III, Taylor, and Kurtz, Bankruptcy Judges, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Barbara Donahue appeals pro se from the Bankruptcy Appellate Panel’s

* 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). (“BAP”) judgment affirming the bankruptcy court’s judgment following a trial in

Donahue’s adversary proceeding. We have jurisdiction under 28 U.S.C. § 158(d).

We review de novo decisions of the BAP and apply the same standard of review

that the BAP applied to the bankruptcy court’s rulings. Boyajian v. New Falls

Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We review de novo

the bankruptcy court’s conclusions of law and for clear error its findings of fact.

Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010). We

affirm.

The bankruptcy court did not err in concluding that Donahue failed to show

by a preponderance of the evidence that Poole’s debt to Donahue was

nondischargeable under 11 U.S.C. § 523(a)(6) or (a)(9). See Grogan v. Garner,

498 U.S. 279, 286–91 (1991) (discussing standard of proof applicable to creditor’s

nondischargeability claim under § 523); Banks v. Gill Distribution Ctrs., Inc. (In re

Banks), 263 F.3d 862, 869 (9th Cir. 2001) (discussing willful injury requirement of

§ 523(a)(6); whether behavior was willful and malicious is a question of fact); see

also Fed. R. Civ. P. 52(a)(6) (findings of fact “must not be set aside unless clearly

erroneous, and the reviewing court must give due regard to the trial court’s

opportunity to judge the witnesses’ credibility”); Fed. R. Bankr. P. 7052 (making

Fed. R. Civ. P. 52 applicable to adversary proceedings).

The bankruptcy court did not err in concluding that Donahue failed to show

2 17-60067 by a preponderance of the evidence that Poole’s discharge should be denied under

11 U.S.C. § 727(a)(2), (a)(3), (a)(4), (a)(5), or (a)(6). See In re Retz, 606 F.3d

1189, 1196–1205 (9th Cir. 2010) (discussing standard of proof applicable to party

objecting to discharge and setting forth elements of claims under various

subsections of § 727(a)); see also id. (whether a debtor made a false oath with

fraudulent intent, harbors an intent to hinder, delay, or defraud a creditor, or

satisfactorily explained a loss of assets are questions of fact reviewed for clear

error, and “[a] court’s factual determination is clearly erroneous if it is illogical,

implausible, or without support in the record” (citations omitted)).

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

in the opening brief, or arguments and allegations raised for the first time on

appeal, including Donahue’s contentions regarding the Servicemembers Civil

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

AFFIRMED.

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