In re: Jun Ho Yang Ho Soon Hwang Yang

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: February 17, 2016
• Docket: CC-15-1057-CTaF
• Status: Unpublished

Opinion

FILED FEB 17 2016 1 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-15-1057-CTaF ) 6 JUN HO YANG and HO SOON HWANG ) Bk. No. 2:04-bk-19539-RN YANG, ) 7 ) Adv. No. 2:13-ap-01936-RN Debtors. ) 8 ______________________________) ) 9 JUN HO YANG; HO SOON HWANG ) YANG, ) 10 ) Appellants, ) 11 ) v. ) MEMORANDUM* 12 ) FUND MANAGEMENT INTERNATIONAL,) 13 LLC, ) ) 14 Appellee. ) ______________________________) 15 Argued and Submitted on January 21, 2016 16 at Pasadena, California 17 Filed – February 17, 2016 18 Appeal from the United States Bankruptcy Court for the Central District of California 19 Honorable Richard M. Neiter, Bankruptcy Judge, Presiding 20 21 Appearances: Mark Edwards of Heller & Edwards argued for appellee Fund Management International, LLC 22 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8024-1. 1 Before: CORBIT**, TAYLOR and FARIS, Bankruptcy Judges. 2 INTRODUCTION 3 Chapter 7 debtors Jun Ho Yang and Ho Soon Hwang Yang appeal 4 the summary judgment of the bankruptcy court determining that a 5 judgment debt owed by the Yangs to appellee Fund Management 6 International, LLC (“FMI”) is excepted from discharge under 7 11 U.S.C. § 523(a)(2)(A).1 While only Jun Ho Yang (“Yang”) 8 actively managed the companies, the nondischargeability complaint 9 also named his wife, Ho Soon Hwang Yang, as a defendant. FMI 10 consistently alleged in both the state court and in the 11 nondischargeability action that Ms. Yang participated in the 12 fraud by knowingly accepting the benefits of the FMI funds 13 diverted by her husband for their personal use. FMI also alleged 14 that she was "fully aware of the facts of the fraud at the time 15 it was occurring." Thus, any reference to Yang is with the 16 understanding that his wife was also found culpable. 17 Yang’s arguments, as presented in his appellate materials, 18 were devoid of merit and generally contravened by the record. 19 Additionally, without notice to this court or to opposing 20 counsel, Yang failed to appear before the Panel as scheduled. 21 For the reasons that follow, we hold that the bankruptcy 22 court did not err in granting FMI’s summary judgment motion. The 23 24 ** Hon. Frederick P. Corbit, Chief Bankruptcy Judge for the 25 Eastern District of Washington, sitting by designation. 26 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 27 all “Rule” references are to the Federal Rules of Bankruptcy 28 Procedure, Rules 1001-9037.

2 1 bankruptcy court properly found Yang’s judgment debt was 2 nondischargeable based on specific facts. The bankruptcy court 3 did not rely on an unenforceable prepetition waiver contained in 4 a settlement agreement. Additionally, the bankruptcy court did 5 not abuse its discretion by declining to conduct an evidentiary 6 hearing as to Yang’s understanding of the effect of the 7 Settlement Agreement and Stipulation for Entry of Judgment 8 because Yang did not properly raise this issue at the trial 9 court. Accordingly, we AFFIRM. 10 FACTUAL BACKGROUND 11 Only a brief recitation of facts is necessary, because the 12 facts giving rise to the judgment at issue are not in dispute.2 13 Yang was the president and principal of With Sam Ma, Inc. 14 (“Samma”). Samma was in the business of loaning money secured by 15 vehicle titles. In 1998, Samma solicited capital from 16 individuals by advertising in the Los Angeles Times. FMI 17 responded to Samma’s advertisement. After meeting with Yang, FMI 18 “made an initial investment of $170,000 in Samma.”3 FMI made 19 2 20 The bankruptcy court found in its Findings of Uncontroverted Facts and Conclusions of Law that “Yang stipulated 21 to the facts alleged in [FMI’s] State Court Complaint.” The bankruptcy court was referring to FMI’s state court complaint 22 filed in the Superior Court of the State of California against 23 the Yangs and other defendants (entitled Fund Management International, LLC v. Jun Ho Yang, et. al. (LASC BC244935) 24 (“State Court Complaint”)). Yang does not dispute this finding. 3 25 Initially, the timing of this appeal may appear confusing given that the state court judgment (found by the bankruptcy 26 court to be nondischargeable) was entered in 2003 and Yang received a bankruptcy discharge in 2004. However, the bankruptcy 27 case was reopened in 2013 to litigate the dischargeability of the 28 (continued...)

3 1 additional subsequent loans of various amounts to Samma based on 2 Yang’s continued representations that all “capital was being used 3 to make loans secured by vehicle titles and that there were no 4 losses.” In total, FMI loaned Samma approximately $3,930,000.00. 5 Each loan was memorialized by a written contract. The terms of 6 each loan contract included, inter alia, that (1) “FMI would 7 receive monthly interest payments,” (2) if FMI requested, Samma 8 would repay FMI’s principal investment amount within one month of 9 the demand, (3) FMI’s “investment funds would be used to make 10 loans to qualified parties who would surrender collateral in the 11 form of clear title to their motor vehicle, and that the maximum 12 loan would be forty percent of the wholesale value of the 13 vehicle,” (4) the vehicle “titles would not be used or pledged as 14 collateral or security for any other transactions,” (5) FMI would 15 be informed of any circumstances that might negatively affect its 16 investment, and (6) Samma “would be run in compliance with all 17 applicable rules, statutes and laws.” 18 Initially, FMI received regular payments on its investments. 19 However, after a couple of years, Samma became delinquent in 20 making its monthly distributions to FMI. Yang assured FMI that 21 Samma was doing fine and that the delay in payments was strictly 22 a function of changes in the vehicle title loan industry. Not 23 convinced, FMI made repeated requests for a “complete accounting 24 of Samma’s portfolio of loans.” Yang did not comply. Rather, he 25 3 26 (...continued) judgment debt after it found that “[FMI] . . . did not receive 27 notice of [Yang’s 2004] bankruptcy filing and discharge until 4/8/2013 when [Yang] faxed [FMI] a letter regarding the discharge 28 of its debt as a result of this 2004 bankruptcy filing.”

4 1 made repeated excuses to delay producing the documents. When 2 Yang finally provided FMI with accounting documents, the 3 documents contained numbers that FMI later learned had been 4 intentionally changed to deliberately overstate assets and 5 receivables. Additionally, FMI learned that Yang had used some 6 of the money FMI invested in Samma to “make business loans to 7 third parties that were outside the scope of Samma’s business” 8 and to purchase various parcels of real property in Yang’s 9 individual name. 10 After discovering that Yang had used FMI’s investment funds 11 for non-intended and non-approved purposes, FMI “demanded a 12 return of its capital.” Yang told FMI that “he did not have the 13 money and could not repay it unless he was given some time.” In 14 response, rather than immediately taking legal action, FMI 15 proposed to work with Yang to help him to repay his debts. 16 Although Yang indicated he was in favor of FMI’s proposed plans, 17 he failed to cooperate. Thus, because of Yang’s (1) continued 18 refusal to cooperate, (2) admissions to FMI that he had 19 intentionally misrepresented Samma’s assets, (3) admissions that 20 he had ordered staff to deliberately mislead FMI as to the health 21 and compliance of Samma, and (4) liquidation and conversion of 22 Samma’s assets to his own personal use, FMI initiated legal 23 proceedings against Yang in an attempt to recoup its capital 24 investment. 25 State Court Proceedings 26 FMI filed its proceedings against Yang in California state 27 court in 2001. FMI’s State Court Complaint alleged, among other 28 causes of action, claims for fraud, conversion, breach of

5 1 fiduciary duty and constructive fraud. Almost two years later, 2 after extensive litigation and discovery, the parties resolved 3 the case by entering into a settlement agreement (“Settlement 4 Agreement”). The parties also stipulated to entry of judgment 5 (“Stipulation for Entry of Judgment”) in FMI’s favor in the 6 amount of $3,000,000.00. The Settlement Agreement set out a 7 schedule of payments. Additionally relevant to this appeal, is 8 the language Yang approved in both the Settlement Agreement and 9 the Stipulation for Entry of Judgment stipulating and admitting 10 to the facts as alleged in FMI’s State Court Complaint. 11 Specifically, paragraph 12 of the Settlement Agreement provided: 12 Yang stipulates to the facts supporting the claims made against him and that said facts and claims allege 13 liability for, that he is admitting liability for and that the facts and claims are within the meaning of 14 11 U.S.C.A. 523 . . . . Yang agrees that this stipulation can be used in favor of FMI or its 15 assignees and against Yang in any action in which Yang or a business entity owned and controlled by Yang is a 16 party to an action for protection under the Bankruptcy Code. 17 18 (Emphasis added.) Paragraph 3 of the Stipulation for Entry of 19 Judgment stated: “Yang admits to the facts as alleged in the FMI, 20 Samma and GWSM complaint in this action and consents to the entry 21 of a judgment in the amount of $3,000,000 based on these facts.” 22 (Emphasis added.) 23 When Yang subsequently defaulted under the Settlement 24 Agreement, a judgment (“State Court Judgment”) was entered in the 25 state court action against Yang for $3,660,090.00 pursuant to the 26 Stipulation for Entry of Judgment. 27 Bankruptcy Court Proceedings 28 In 2004, after the State Court Judgment was entered, Yang

6 1 filed for bankruptcy and received a discharge. FMI did not learn 2 about Yang’s bankruptcy until 2013. FMI then promptly filed a 3 Motion to Reopen the Case for the Purpose of Litigating Complaint 4 for Non-Dischargeability, that was subsequently granted. 5 FMI then filed its first motion for summary judgment, 6 seeking a determination that Yang’s liability under the State 7 Court Judgment was nondischargeable pursuant to §§ 523(a)(2)(A) 8 and (a)(3)(B). In its summary judgment motion, FMI asserted that 9 the doctrine of collateral estoppel precluded relitigation of 10 FMI’s fraud claims. At the hearing on the summary judgment 11 motion, FMI argued that regardless of whether collateral estoppel 12 applied, Yang’s stipulation to all of the facts contained in the 13 State Court Complaint demonstrated that Yang had obtained money 14 from FMI through fraudulent means and that the judgment debt 15 should be determined nondischargeable. The bankruptcy court 16 denied FMI’s summary judgment motion on the basis of collateral 17 estoppel. However, the court indicated that FMI could file 18 another summary judgment motion based on the stipulated facts. 19 Pursuant to the bankruptcy court’s ruling, FMI filed a 20 second motion for summary judgment asserting that the facts 21 stipulated to by Yang in the State Court Complaint demonstrated 22 the nondischargeability of the subject debt. Although the 23 bankruptcy court again denied FMI’s motion for summary judgment, 24 the denial was due to procedural deficiencies rather than a 25 denial on the merits. 26 FMI corrected the deficiencies and filed its third motion 27 for summary judgment. FMI again argued that the stipulated facts 28 should be considered undisputed and that those facts established

7 1 nondischargeability pursuant to §§ 523(a)(2)(A) and (a)(3)(B). 2 After allowing additional briefing, the bankruptcy court issued 3 an order granting FMI’s third motion for summary judgment. The 4 bankruptcy court entered Findings of Uncontroverted Facts and 5 Conclusions of Law (primarily based on the stipulated facts) in 6 support of its judgment. 7 Yang timely filed his appeal of the bankruptcy court’s grant 8 of summary judgment. 9 JURISDICTION 10 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 11 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. 12 § 158. 13 ISSUES 14 1. Whether the bankruptcy court found that Yang waived his 15 right to pursue discharge of the judgment debt by 16 signing the Settlement Agreement that included a 17 prepetition waiver clause. 18 2. Whether the bankruptcy court erred by relying on the 19 stipulated facts to find the judgment debt 20 nondischargeable. 21 3. Whether the bankruptcy court erred by not conducting an 22 evidentiary hearing to determine whether Yang was fully 23 informed as to the effects of signing the Settlement 24 Agreement and Stipulation for Entry of Judgment. 25 STANDARD OF REVIEW 26 We review de novo the bankruptcy court’s grant of summary 27 judgment. SNTL Corp. v. Ctr. Ins. Co. (In re SNTL Corp.), 28 571 F.3d 826, 834 (9th Cir. 2009). We also review de novo

8 1 whether a debt is excepted from discharge under § 523(a)(2)(A). 2 Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 258 B.R. 3 192, 195 (9th Cir. BAP 2001). We review the bankruptcy court’s 4 findings of fact for clear error and the court’s conclusions of 5 law de novo. See Neben & Starrett, Inc. v. Chartwell Fin. Corp. 6 (In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir. 1995). We 7 review a bankruptcy court’s evidentiary rulings for abuse of 8 discretion. First Card v. Carolan (In re Carolan), 204 B.R. 980, 9 984 (9th Cir. BAP 1996). A bankruptcy court abuses its 10 discretion if it applies the wrong legal rule or if its 11 “application of the [correct] rule was illogical, implausible, or 12 without support in the record.” Chun v. Korean Airlines Co., 13 Ltd. (In re Korean Air Lines Co. Ltd., Antitrust Litig.), 14 642 F.3d 685, 698 & n.11 (9th Cir. 2011) (citing United States v. 15 Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc)). 16 DISCUSSION 17 I. The bankruptcy court did not find Yang waived his right to seek discharge. 18 19 Yang argues that the bankruptcy court treated his 20 stipulation as “a waiver of discharge, which is unenforceable.” 21 Yang’s argument is both difficult to follow and contradicted by 22 the record. The bankruptcy court specifically found that Yang 23 had not waived his right to obtain a discharge. Rather, the 24 court found that Yang had stipulated to certain facts and those 25 facts, when taken together, supported a finding of 26 nondischargeability. 27 Yang correctly argues that prepetition bankruptcy waivers 28 are unenforceable. See Bank of China v. Huang (In re Huang),

9 1 275 F.3d 1173, 1177 (9th Cir. 2002); Hayhoe v. Cole (In re Cole), 2 226 B.R. 647, 651-54 (9th Cir. BAP 1998). This circuit has 3 continually reaffirmed that prepetition waivers of bankruptcy 4 discharge are unenforceable as against public policy. See Cont’l 5 Ins. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 6 671 F.3d 1011, 1026 (9th Cir. 2012) (reaffirming the holding in 7 In re Huang, and again citing with approval to In re Cole, the 8 finding that “it is against public policy for a debtor to waive 9 the prepetition protection of the Bankruptcy Code.”). Thus, the 10 bankruptcy court would have erred if it relied on the prepetition 11 waiver in the Settlement Agreement to find that Yang’s judgment 12 debt was nondischargeable. 13 However, the court (contrary to Yang’s argument) did not 14 rely on the Settlement Agreement to find waiver or that the debt 15 was nondischargeable. Rather, the court looked behind the 16 Settlement Agreement to the facts.4 After analyzing the facts, 17 the court found that the debt was for money obtained by fraud, 18 within the terms of the nondischargeability statute. Indeed, in 19 its ruling denying FMI’s first motion for summary judgment, the 20 court expressly stated that it would not find the Settlement 21 4 The bankruptcy court relied on the Settlement Agreement 22 and the Stipulation for Entry of Judgment to find that Yang had 23 admitted to the facts as alleged in the State Court Complaint. However, there is no evidence that the bankruptcy court’s 24 reliance on the stipulated facts was error. Indeed, dicta in In re Cole supports the bankruptcy court’s reliance on Yang’s 25 stipulation as to the underlying facts. In In re Cole, this 26 court acknowledged that while prepetition waivers are unenforceable, ”if the parties [had] stipulated to the underlying 27 facts that support a finding of nondischargeability, the Stipulated Judgment would then be entitled to collateral estoppel 28 application.” In re Cole, 226 B.R. at 655.

10 1 Agreement collaterally estopped Yang from seeking discharge of 2 the debt simply because it contained a prepetition bankruptcy 3 waiver clause. Rather, the court explained that it would look to 4 the facts to determine the nature of a debt. The appropriateness 5 of a bankruptcy court’s examination of the facts to determine the 6 nature of a debt, despite the existence of an unenforceable 7 prepetition waiver clause, has been expressly affirmed by the 8 Supreme Court. See Archer v. Warner, 538 U.S. 314, 319-20 (2003) 9 (explaining that “the mere fact that a conscientious creditor has 10 previously reduced his claim to judgment should not bar further 11 inquiry into the true nature of the debt” and that a bankruptcy 12 court retains the power to determine if the settlement agreement 13 represents a debt for money obtained by fraud). Ultimately, the 14 bankruptcy court found that the facts, not the Settlement 15 Agreement, demonstrated that the debt was for money obtained by 16 fraud and, therefore, nondischargeable. 17 Although Yang attempts to challenge the bankruptcy court’s 18 grant of summary judgment on the basis that the bankruptcy court 19 used the Settlement Agreement as a waiver of his right to seek 20 discharge of the debt, Yang fails to identify anything in the 21 record to support his argument. Yang’s arguments are based on 22 conclusory statements, without factual support or case law 23 authority, and have failed to convince this Panel that the 24 bankruptcy court erred. See Hartman v. Gilead Scis., Inc. 25 (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 26 2008) (noting that reviewing court need not accept as true 27 “allegations that are merely conclusory, unwarranted deductions 28 of fact, or unreasonable inferences”). In this case, the record

11 1 clearly refutes Yang’s assertions. As discussed above, the 2 bankruptcy court did not find that Yang stipulated to waive his 3 right to discharge. Rather, the bankruptcy court correctly 4 looked behind the Settlement Agreement to the specific facts to 5 which Yang stipulated to determine whether the judgment debt was 6 a debt for money obtained by fraud and therefore, 7 nondischargeable pursuant to § 523(a)(2)(A).5 Thus, Yang has 8 failed to demonstrate that the bankruptcy court improperly found 9 that he waived his right to seek discharge of the judgment debt. 10 II. The bankruptcy court did not err in finding the facts as alleged in the State Court Complaint clear, precise, and 11 sufficient to make a determination of nondischargeability. 12 Yang also argues that the bankruptcy court committed error 13 because the stipulated facts on which it relied were too vague to 14 support a finding of nondischargeability. Importantly, Yang does 15 not argue (1) that the bankruptcy court applied the wrong law, 16 (2) that his stipulation was involuntary, (3) that he did not 17 actually stipulate to the facts as alleged by FMI in its State 18 Court Complaint, or (4) that the Settlement Agreement or the 19 Stipulation for Entry of Judgment are invalid. Rather, the only 20 argument Yang makes is that the stipulated facts were too vague 21 for the bankruptcy court to find nondischargeability. In order 22 for Yang to succeed on such an argument, Yang must establish that 23 the bankruptcy court’s findings were clearly erroneous, or in 24 5 Even if the prepetition waiver clause contained in the 25 Settlement Agreement precluded our reliance on its contents, the 26 Stipulation for Entry of Judgment also clearly stated that Yang admitted to the facts as alleged in FMI’s State Court Complaint. 27 The Stipulation does not contain any similar prepetition waiver language and thus forms an adequate basis for the determination 28 that Yang stipulated to facts establishing nondischargeability.

12 1 other words, “illogical, . . . implausible, . . . or without 2 support in inferences that may be drawn from the record.” See 3 Hinkson, 585 F.3d at 1262. Yang fails to satisfy this burden. 4 First, the record demonstrates that the bankruptcy court 5 properly found Yang stipulated to the facts contained in FMI’s 6 State Court Complaint. Both the Supreme Court and the Ninth 7 Circuit have repeatedly affirmed that “stipulations serve both 8 judicial economy and the convenience of the parties, [and] courts 9 will enforce them absent indications of involuntary or uninformed 10 consent.” CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir. 11 1999); see also Brawders v. Cty. of Ventura (In re Brawders), 12 503 F.3d 856, 863 (9th Cir. 2007) (stating that “basic contract 13 principles apply in interpreting stipulations”). Additionally, 14 the Supreme Court has emphasized that parties will be bound by 15 facts to which they stipulate. 16 Factual stipulations are binding and conclusive, and the facts stated are not subject to subsequent 17 variation. So, the parties will not be permitted to deny the truth of the facts stated, or to maintain a 18 contention contrary to the agreed statement, or to suggest, on appeal, that the facts were other than 19 as stipulated or that any material fact was omitted. 20 Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. 21 of the Law v. Martinez, 561 U.S. 661, 677 (2010) (internal 22 citations and alterations omitted). Thus, a “defendant who has 23 stipulated to the admission of evidence cannot later complain 24 about its admissibility” unless he can show that the stipulation 25 was involuntary. United States v. Technic Servs., Inc., 314 F.3d 26 1031, 1045 (9th Cir. 2002), overruled on other grounds by United 27 States v. Contreras, 593 F.3d 1135 (9th Cir. 2010); see contra 28 Wank v. Gordon (In re Wank), 505 B.R. 878, 889-90 (9th Cir. BAP

13 1 2014) (finding sufficient evidence to indicate statements in a 2 declaration were given involuntarily and therefore, not 3 reliable). 4 Because Yang “admit[ted] to the facts as alleged in the FMI 5 . . . complaint,” he was bound by them. Indeed, Yang’s “factual 6 stipulations [were] formal concessions that [had] the effect of 7 withdrawing [those] fact[s] from issue and dispensing wholly with 8 the need for proof of the fact.” Christian Legal Soc., 561 U.S. 9 at 677-78 (internal citations and alterations omitted). Although 10 Yang does not agree with the bankruptcy court’s conclusion based 11 on those facts, Yang provides no support demonstrating that the 12 bankruptcy court erred in relying on the facts alleged in FMI’s 13 State Court Complaint. 14 Additionally, Yang’s conclusory statement that the 15 stipulated facts were vague and unclear is unsupported and 16 contradicted by the clear and precise facts laid out in FMI’s 17 forty-one page State Court Complaint and subsequently restated in 18 the bankruptcy court’s Findings of Uncontroverted Facts and 19 Conclusions of Law. Contrary to Yang’s argument, the bankruptcy 20 court thoughtfully and carefully laid out very specific and clear 21 facts relevant to each of the elements of § 523(a)(2)(A). Yang 22 fails to plead facts or provide evidence demonstrating that the 23 bankruptcy court’s findings were illogical, implausible, or 24 without support. 25 III. The bankruptcy court did not abuse its discretion by failing to hold an evidentiary hearing. 26 27 Finally, Yang argues that the bankruptcy court abused its 28 discretion by failing to conduct an evidentiary hearing in order

14 1 to determine if he reasonably foresaw the effect of signing the 2 Settlement Agreement and Stipulation for Entry of Judgement. We 3 decline to consider this issue on appeal, as it was not properly 4 raised before the bankruptcy court in the first instance. 5 Ordinarily, federal appellate courts will not consider issues not properly raised in the trial 6 courts. An issue only is properly raised if it is raised sufficiently to permit the trial court to rule 7 upon it. 8 Notwithstanding this general rule, [a] reviewing court may consider an issue raised for the first time 9 on appeal if (1) there are exceptional circumstances why the issue was not raised in the trial court, 10 (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue 11 presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to 12 raise the issue in the trial court. 13 Ezra v. Seror (In re Ezra), 537 B.R. 924, 932-33 (9th Cir. BAP 14 2015) (internal citations and quotation marks omitted). In this 15 case, Yang did not request an evidentiary hearing as to his 16 understanding of the Settlement Agreement until his Motion for 17 Rehearing on the court’s grant of FMI’s motion for summary 18 judgment. Thus, Yang failed to adequately and timely raise this 19 argument in the bankruptcy court. Additionally, Yang fails to 20 establish that the issue falls within any of the exceptions that 21 would make the issue appropriate for the Panel to consider. 22 Indeed, Yang cites no extraordinary circumstances. In fact, Yang 23 provides no reason whatsoever as to why he failed to argue this 24 issue at the trial court. Nor has Yang argued or presented 25 evidence demonstrating that he did not have a full and fair 26 opportunity to timely bring this issue before the bankruptcy 27 court. Finally, this issue is not purely an issue of law. 28 Rather, Yang’s understanding of a document would be an entirely

15 1 factual issue. 2 CONCLUSION 3 For the reasons set forth above, the bankruptcy court is 4 AFFIRMED. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28