In re: Liliana Monica Craciun

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: May 28, 2014
• Docket: CC-13-1552-LaPaKi
• Status: Unpublished

Opinion

FILED 1 NO FO PUBL A IO T R IC T N MAY 28 2014

2 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-13-1552-LaPaKi ) 6 LILIANA MONICA CRACIUN, ) Bk. No. 11-57572-BB ) 7 Debtor. ) Adv. No. 12-01158-BB ______________________________) 8 ) LBS FINANCIAL CU, ) 9 A CALIFORNIA CORPORATION, ) ) 10 Appellant, ) ) 11 v. ) M E M O R A N D U M1 ) 12 LILIANA MONICA CRACIUN, ) ) 13 Appellee. ) ) 14 Argued and Submitted on May 15, 2014 15 at Pasadena, California 16 Filed - May 28, 2014 17 Appeal from the United States Bankruptcy Court for the Central District of California 18 Honorable Sheri Bluebond, Bankruptcy Judge, Presiding 19 20 Appearances: Karel Rocha, Esq. of Prenovost, Normandin, Bergh & Dawe, APC argued for appellant LBS Financial CU; 21 Andre A. Khansari, Esq. of Khansari Law Corp, APC argued for appellee Liliana Monica Craciun. 22 23 Before: LATHAM,2 PAPPAS, and KIRSCHER, Bankruptcy Judges. 24 1 This disposition is not appropriate for publication. 25 Although it may be cited for whatever persuasive value it may 26 have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 27 2 Hon. Christopher B. Latham, U.S. Bankruptcy Judge for the 28 Southern District of California, sitting by designation.

1 1 INTRODUCTION 2 LBS Financial Credit Union ("LBS") filed an adversary 3 proceeding to determine the nondischargeability of its claim 4 against debtor Liliana Monica Craciun ("Debtor") under 5 §§ 523(a)(2)(A) and (a)(6).3 The bankruptcy court struck 6 Debtor's answer and entered her default for failure to appear at 7 a pretrial status conference. LBS then filed a default judgment 8 motion, which the bankruptcy court denied. 9 The bankruptcy court eventually issued an order to show 10 cause why LBS's adversary proceeding "should not be dismissed for 11 failure to prosecute based on [LBS's] failure to come forward 12 with sufficient evidence to support default judgment." LBS later 13 filed a second motion for default judgment. The bankruptcy court 14 again found it insufficient, denied the motion, and dismissed the 15 adversary proceeding on its order to show cause. On November 4, 16 2013, the court entered an order to that effect, which LBS now 17 appeals. 18 We AFFIRM the bankruptcy court. 19 20 FACTS 21 In November 2009, Debtor applied for a loan with LBS to 22 purchase a 2005 BMW 645. LBS approved the loan. Debtor executed 23 a note and security agreement creating a lien on the vehicle in 24 LBS’s favor. Debtor later defaulted on the note. After she 25 3 26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all 27 “Rule” references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037, and all “Civil Rule” references are 28 to the Federal Rules of Civil Procedure, Rules 1-86.

2 1 filed her bankruptcy case, LBS commenced an adversary proceeding 2 to determine the nondischargeability of its claim under 3 §§ 523(a)(2)(A) and (a)(6).4 4 The complaint alleged that: “Plaintiff [sic] falsely 5 represented that the VEHICLE was being purchased for her own 6 personal use.” It also asserted that Debtor “defaulted on [the 7 note] and thereafter, through actual fraud, and with willful and 8 malicious intent to harm LBS and its personal property, absconded 9 with the VEHICLE and/or otherwise disposed of it to the detriment 10 of LBS by giving the VEHICLE to a third party without LBS 11 knowledge or consent.” On March 9, 2012, Debtor answered the 12 complaint. 13 In July, the bankruptcy court held a pretrial status 14 conference at which Debtor failed to appear. The court promptly 15 issued an order to show cause why Debtor’s answer should not be 16 stricken and default judgment entered for this failure. Two 17 months later, the court held a hearing and directed LBS to: 18 (1) submit an order striking Debtor’s answer; and (2) file and 19 serve a default judgment motion by October 15, 2012. 20 On November 20, the court entered the order striking 21 Debtor’s answer and entering default. The following month, LBS 22 moved for default judgment. Debtor opposed the motion, and LBS 23 replied. After two hearings and several supplemental 24 declarations filed at the court’s direction, the bankruptcy court 25 4 Because the record on appeal is incomplete, we exercise our 26 discretion to take judicial notice of documents electronically filed in the underlying adversary proceeding. See O’Rourke v. 27 Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase Manhattan Mortg. Co. 28 (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

3 1 denied the motion. It then set another status conference for 2 June 2013, later continued by stipulation to July 2013. 3 Shortly after that status conference, the bankruptcy court 4 issued an order to show cause (“OSC”) why the adversary 5 proceeding “should not be dismissed for failure to prosecute 6 based on [LBS’s] failure to come forward with sufficient evidence 7 to support default judgment.” Apparently in response, LBS filed 8 a second motion for default judgment. Debtor opposed it. 9 On October 22, the court held: (1) a continued status 10 conference; (2) a continued hearing on the OSC; and (3) a hearing 11 on LBS’s second motion for default judgment. At this hearing, 12 the bankruptcy court extensively questioned LBS about the 13 sufficiency of its complaint’s allegations. It repeatedly asked 14 LBS where in the loan application Debtor made the affirmative 15 misrepresentation that she was purchasing the car for her 16 personal use. Yet LBS could not show any such representation. 17 LBS explained that Debtor’s loan application was a standard 18 online form. It then attempted to argue that Debtor fraudulently 19 omitted to disclose that she was not purchasing the car for her 20 personal use. It asserted that a vehicle user’s identity is 21 important because, in case of default, the lender must know from 22 whom to repossess the vehicle. It then argued that Debtor should 23 have disclosed the vehicle user’s identity in the “co-borrower” 24 fields of its online form. 25 The bankruptcy court found LBS’s arguments unpersuasive, and 26 denied its second motion for default judgment. It then dismissed 27 the adversary proceeding under its OSC, and took the status 28 conference off calendar. On November 4, 2013, the bankruptcy

4 1 court entered an order on these rulings. The order did not state 2 whether the court dismissed the adversary proceeding with or 3 without prejudice. LBS timely appealed. 4 5 JURISDICTION 6 The bankruptcy court had jurisdiction under 28 U.S.C. 7 §§ 1334 and 157(b)(2)(I). An order denying default judgment is 8 generally interlocutory, and so outside appellate jurisdiction. 9 See Cashco Servs., Inc. v. McGee (In re McGee), 359 B.R. 764, 770 10 (9th Cir. BAP 2006). But “[o]n appeal of a final judgment, ‘the 11 interlocutory order merges in the final judgment and may be 12 challenged in an appeal from that judgment.’” United States v. 13 Real Property Located at 475 Martin Lane, Beverly Hills, CA, 14 545 F.3d 1134, 1141 (9th Cir. 2008) (quoting Baldwin v. Redwood 15 City, 540 F.2d 1360, 1364 (9th Cir. 1976)). 16 This rule does not apply where the final judgment dismisses 17 the action without prejudice for failure to prosecute. Ash v. 18 Cvetkov, 739 F.2d 493, 497-98 (9th Cir. 1984). However, where a 19 dismissal for failure to prosecute does not specify whether it is 20 with or without prejudice, courts interpret the dismissal as one 21 with prejudice. Korea Exch. Bank v. Hanil Bank, Ltd. 22 (In re Jee), 799 F.2d 532, 534 n.2 (9th Cir. 1986). Here, the 23 bankruptcy court did not state whether it was dismissing with or 24 without prejudice. We therefore interpret the dismissal as one 25 with prejudice, and conclude that jurisdiction is proper under 26 28 U.S.C. § 158. 27 28

5 1 ISSUE 2 Did the bankruptcy court err in denying LBS’s motion for 3 default judgment on its complaint seeking nondischargeability 4 under §§ 523(a)(2) and (6)? 5 6 STANDARD OF REVIEW 7 We review the denial of a motion for default judgment for 8 abuse of discretion. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 9 852 (9th Cir. 2007). Additionally, we may affirm on any ground 10 supported by the record. Crowley v. Bannister, 734 F.3d 967, 976 11 (9th Cir. 2013) (citing O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 12 1056, 1059 (9th Cir. 2007)). 13 14 DISCUSSION 15 Default judgments are governed by Federal Rule of Civil Procedure 55, which is made applicable to bankruptcy 16 proceedings by Rule 7055. To obtain a default judgment of nondischargeability of a loan debt, a two-step 17 process is required: (1) entry of the party’s default (normally by the clerk), and (2) entry of a default 18 judgment. Fed R. Civ. P. 55(a) and (b); Brooks v. United States, 29 F.Supp.2d 613, 618 (N.D. Cal. 1998), 19 aff’d mem., 162 F.3d 1167 (9th Cir. 1998). See generally 10A Charles Alan Wright, Arthur R. Miller & 20 Mary Kay Kane, FED. PRAC. & PROC. CIV. 3D § 2682 (Thomson/West 2006). 21 22 In re McGee, 359 B.R. at 770. The issue presented in this appeal 23 concerns step two: whether the bankruptcy court properly denied 24 entry of default judgment. 25 A. The bankruptcy court had broad authority to review the 26 motion for default judgment and allow opposition. 27 As a threshold matter, LBS argues that once the court 28 entered Debtor’s default, it could not: (1) allow Debtor to

6 1 oppose its motion for default judgment; or (2) review the default 2 judgment motion for anything other than a determination of 3 damages. These arguments are unpersuasive. 4 1. The bankruptcy court did not err in allowing Debtor to 5 oppose LBS’s default judgment motion. 6 LBS’s assertion that the court cannot allow a defendant in 7 default to file an opposition is without merit. To support its 8 argument, LBS relies on Clifton v. Tomb, 21 F.2d 893, 897 (4th 9 Cir. 1927). At least one court has noted, however, that this 10 “Fourth Circuit decision from 1927 . . . stands for nothing more 11 than the uncontroversial proposition that a defendant may not 12 file an answer, that is, a pleading, after entry of default - an 13 issue which is wholly distinct from presenting [an opposition to 14 default judgment].” J & J Sports Prods., Inc. v. Vazquez, 2012 15 WL 3025916, at *3 (N.D. Cal. July 24, 2012). 16 Further, Civil Rule 55(b)(2) provides that “[i]f the party 17 against whom a default judgment is sought has appeared personally 18 or by a representative, that party or its representative must be 19 served with written notice of the application [for default 20 judgment] at least 7 days before the hearing.” “The purpose of 21 the notice requirement in [Civil] Rule 55(b)(2) is to permit a 22 party to show cause for its failure to timely appear.” Sea-Land 23 Serv., Inc. v. Ceramica Europa II, Inc., 160 F.3d 849, 852 (1st 24 Cir. 1998). Indeed, Civil Rule 55(b)(2)’s notice requirement 25 would be pointless if the defaulting defendant could not file 26 papers or be heard in opposition. 27 Finally, LBS’s position stands in tension with the remainder 28 of Civil Rule 55(b)(2), which provides that “[t]he court may

7 1 conduct hearings . . . when, to enter or effectuate judgment, it 2 needs to: (A) conduct an accounting; (B) determine the amount of 3 damages; (C) establish the truth of any allegation by evidence; 4 or (D) investigate any other matter.” Civil Rule 55 does not 5 limit who may appear or present argument for these hearings. See 6 J & J Sports Prods., 2012 WL 3025916, at *3. Accordingly, the 7 bankruptcy court did not err in allowing Debtor’s opposition to 8 LBS’s motion for default judgment.5 9 2. The bankruptcy court did not err in reviewing the 10 default judgment motion for something other than a 11 determination of damages. 12 LBS’s assertion that the bankruptcy court could not review 13 the default judgment motion for anything other than a 14 determination of damages likewise fails. “Entry of default does 15 not entitle the non-defaulting party to a default judgment as a 16 matter of right.” Valley Oak Credit Union v. Villegas 17 (In re Villegas), 132 B.R. 742, 746 (9th Cir. BAP 1991) (citing 18 Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990)). “The 19 general rule of law is that upon default the factual allegations 20 of the complaint, except those relating to the amount of damages, 21 will be taken as true.” Geddes v. United Fin. Grp., 559 F.2d 22 557, 560 (9th Cir. 1977). But, 23 facts which are not established by the pleadings of the prevailing party, or claims which are not well-pleaded, 24 are not binding and cannot support the judgment. Nishimatsu Construction Co. v. Houston National Bank, 25 515 F.2d 1200 (5th Cir. 1975). 26 5 27 We also note that there is no indication that the bankruptcy court relied on Debtor’s opposition. Nor did LBS move 28 to strike it.

8 1 Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388 (9th Cir. 2 1988). 3 “[Civil] Rule 55 gives the court considerable leeway as to 4 what it may require as a prerequisite to the entry of a default 5 judgment.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 6 (9th Cir. 1987). And again, Civil Rule 55(b)(2) allows the court 7 to conduct hearings on default judgment motions for a variety of 8 reasons. “This provides the trial court with discretion to 9 require, at a hearing under [Civil] Rule 55(b)(2), some proof of 10 the facts that are necessary to a valid cause of action or to 11 determine liability.” In re Villegas, 132 B.R. at 746 (citing 12 Peerless Indus., Inc. v. Herrin Ill. Cafe, Inc., 593 F. Supp. 13 1339, 1341 (E.D. Mo. 1984), aff’d without opinion 774 F.2d 1172 14 (8th Cir. 1985)). 15 In reviewing a motion for default judgment, the court may 16 consider the following factors: 17 (1) the possibility of prejudice to the plaintiff; 18 (2) the merits of plaintiff’s substantive claim; 19 (3) the sufficiency of the complaint; 20 (4) the sum of money at stake in the action; 21 (5) the possibility of a dispute concerning material 22 facts; 23 (6) whether the default was due to excusable neglect; 24 and 25 (7) the strong policy underlying the Federal Rules of 26 Civil Procedure favoring decisions on the merits. 27 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Given 28 the complaint’s vague assertion that Debtor made a fraudulent

9 1 misrepresentation, the court was well within its discretion to 2 require a hearing to establish the truth of LBS’s allegations by 3 evidence. From the hearing’s transcript, it is apparent that the 4 bankruptcy court properly reviewed the default judgment motion 5 and based its denial on the second and third Eitel factors. 6 B. The bankruptcy court did not err in denying default judgment 7 on LBS’s § 523(a)(2)(A) claim. 8 LBS’s complaint relied on, in part, § 523(a)(2)(A), which 9 provides that debts are nondischargeable if debtors obtain them 10 by: “false pretenses, a false representation, or actual fraud 11 . . . .” Section 523(a)(2)(A) refers to the general common law 12 of torts, which the Restatement (Second) of Torts describes. 13 Field v. Mans, 516 U.S. 59, 70 (1995); Citibank (S.D.), N.A. v. 14 Eashai (In re Eashai), 87 F.3d 1082, 1087 (9th Cir. 1996). For 15 the following reasons, the bankruptcy court did not err in 16 denying default judgment of LBS’s § 523(a)(2)(A) claim. 17 1. LBS’s § 523(a)(2)(A) allegations are insufficient under 18 Civil Rule 9(b). 19 Rule 9(b) of the Federal Rules of Civil Procedure, 20 applicable in bankruptcy cases as Rule 7009, mandates that, “[i]n 21 alleging fraud . . . a party must state with particularity the 22 circumstances constituting fraud . . . .” The court may 23 disregard any fraud allegations that do not satisfy Civil 24 Rule 9(b)’s particularity requirement. Sanford v. MemberWorks, 25 Inc., 625 F.3d 550, 558 (9th Cir. 2010). “To meet this standard, 26 [LBS’s] complaint must ‘identify the who, what, when, where, and 27 how of the misconduct charged . . . .’” Salameh v. Tarsadia 28 Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (quoting Cafasso, U.S.

10 1 ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th 2 Cir. 2011)). 3 LBS’s complaint states, “Plaintiff [sic] falsely represented 4 that the VEHICLE was being purchased for her own personal use.” 5 It also asserts that Debtor defaulted on her obligation to LBS 6 “and thereafter, through actual fraud . . . absconded with the 7 VEHICLE and/or otherwise disposed of it to the detriment of LBS 8 by giving the VEHICLE to a third party without LBS knowledge or 9 consent.” These allegations of fraud are bare and conclusory. 10 They fail to state when, where or how Debtor: (1) fraudulently 11 misrepresented that she was the car’s user; or (2) fraudulently 12 disposed of or “absconded” with a car that she held title to. 13 The bankruptcy court gave LBS the opportunity to 14 substantiate its fraud allegations through the default judgment 15 hearings, but it failed to do so. At the hearing, the court 16 questioned LBS extensively about the fraudulent 17 misrepresentation.6 But LBS could not show that Debtor made any 18 affirmative representation – false or otherwise – about the car’s 19 intended user. Instead, LBS tried another tack: it argued that 20 Debtor’s failure to disclose that she was not purchasing the 21 vehicle for her own personal use was a fraudulent omission for 22 6 23 At the hearing, neither the court nor LBS addressed how giving a third party possession of the vehicle constituted actual 24 fraud. LBS’s briefs likewise fail to address this. We therefore decline to consider the question. Padgett v. Wright, 587 F.3d 25 983, 985 n.2 (9th Cir. 2009) (“This court ‘will not ordinarily 26 consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.’” 27 (quoting Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 28 (9th Cir. 1985))).

11 1 purposes of § 523(a)(2)(A). That argument is likewise 2 unavailing. 3 2. LBS’s § 523(a)(2)(A) allegations fail to state a claim 4 for relief based on fraudulent omission. 5 Under the Restatement, “[a] debtor’s failure to disclose 6 material facts constitutes a fraudulent omission . . . if the 7 debtor was under a duty to disclose and the debtor’s omission was 8 motivated by an intent to deceive.” Harmon v. Kobrin 9 (In re Harmon), 250 F.3d 1240, 1246 n.4 (9th Cir. 2001) (citing 10 In re Eashai, 87 F.3d at 1890-90). 11 [A] party to a business transaction is under a duty to exercise reasonable care to disclose to the other 12 before the transaction is consummated . . . (e) facts basic to the transaction, if he knows that the other is 13 about to enter into it under a mistake as to them, and that the other, because of the relationship between 14 them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of 15 those facts. 16 RESTATEMENT (SECOND) OF TORTS § 551 (2014). Further, 17 A basic fact is a fact that is assumed by the parties as a basis for the transaction itself. It is a fact 18 that goes to the basis, or essence, of the transaction, and is an important part of the substance of what is 19 bargained for or dealt with. Other facts may serve as important and persuasive inducements to enter into the 20 transaction, but not go to its essence. These facts may be material, but they are not basic. If the 21 parties expressly or impliedly place the risk as to the existence of a fact on one party or if the law places 22 it there by custom or otherwise the other party has no duty of disclosure. 23 24 Id. at cmt. j. 25 At the hearing, LBS argued that the vehicle user’s identity 26 is important to the transaction because, in the event of default, 27 repossessing the vehicle will be more difficult if an unknown 28 party has possession. Taking this statement as true, LBS implies

12 1 that the vehicle user’s identity was a fact basic to its 2 transaction with Debtor. LBS did not, however, raise this 3 argument in its opening brief. Even if it had, the argument is 4 without merit. LBS’s transaction contemplated the exchange of: 5 (1) funds to purchase a car; and (2) an interest-bearing note 6 secured by a lien on that car. The identity of the car’s user 7 is, at best, material to the transaction; it is not basic. To 8 hold otherwise would make a fraudster out of every person who 9 borrows money to purchase a vehicle without disclosing that it is 10 intended for a family member’s use. 11 In addition, LBS admitted that the loan application it 12 provided to Debtor was a standard form used widely throughout the 13 auto loan industry. The form could have requested the vehicle 14 user’s identity, but it did not. LBS’s argument that Debtor 15 should have disclosed the user’s identity anyway – in the form’s 16 “co-borrower” fields – is not convincing. LBS fails to explain 17 how, once it receives the form, it would know the difference 18 between a co-borrower and a vehicle user. The two are not 19 synonymous. A vehicle user drives a vehicle; a co-borrower is 20 liable for the debt. Yet, following LBS’s argument, loan 21 applicants should somehow infer that they must disclose the 22 user’s identity in the co-borrower fields. Under these 23 circumstances, we find no reason why LBS could reasonably have 24 expected Debtor to identify other intended users in the loan 25 application. Debtor consequently had no independent duty to 26 disclose to LBS that the car would be used by another person. 27 For the foregoing reasons, LBS’s complaint was insufficient 28 under Civil Rule 9(b) and did not otherwise state a fraudulent

13 1 omission claim under § 523(a)(2)(A). The bankruptcy court’s 2 denial of judgment on that claim was therefore not erroneous. 3 C. The bankruptcy court did not err in denying default judgment 4 on LBS’s § 523(a)(6) claim. 5 LBS’s complaint also relied in part on § 523(a)(6). 6 Section 523(a)(6) excepts from discharge any debt “for willful 7 and malicious injury by the debtor to another entity or to the 8 property of another entity.” “‘A malicious injury involves (1) a 9 wrongful act, (2) done intentionally, (3) which necessarily 10 causes injury, and (4) is done without just cause or excuse.’” 11 Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 12 1199, 1207 (9th Cir. 2010) (quoting Petralia v. Jercich 13 (In re Jercich), 238 F.3d 1202, 1209 (9th Cir. 2001)). 14 The word “willful” in (a)(6) modifies the word “injury,” indicating that nondischargeability takes a 15 deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. 16 . . . [T]he (a)(6) formulation triggers in the lawyer’s mind the category ‘intentional torts,’ as 17 distinguished from negligent or reckless torts. 18 Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). 19 For § 523(a)(6) purposes, conduct is “only tortious if it 20 constitutes a tort under state law.” Lockerby v. Sierra, 21 535 F.3d 1038, 1041-42 (9th Cir. 2008) (citing In re Jercich, 22 238 F.3d at 1206)). And “[t]he elements of fraud under 23 Section 523(a)(2)(A) . . . match those for actual fraud under 24 California law . . . .” Shahverdi v. William Hablinski 25 Architecture (In re Shahverdi), 2013 WL 2466862, at *12 (9th Cir. 26 BAP June 7, 2013) (citing Tobin v. Sans Souci Ltd. P’ship 27 (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(internal 28 quotations omitted)).

14 1 For the same reasons that LBS’s attempted claim under 2 § 523(a)(2)(A) is untenable, its § 523(a)(6) claim necessarily 3 fails to assert the intentional tort of fraud under California 4 law. Moreover, LBS’s opening brief presents no argument that 5 Debtor committed any other intentional tort - let alone one 6 arising from willful and malicious conduct - under California 7 law.7 Thus, neither LBS’s § 523(a)(2)(A) nor its § 523(a)(6) 8 allegations met Civil Rule 9(b)’s particularity requirement or 9 otherwise stated a claim for relief. 10 Under these circumstances, we conclude that the bankruptcy 11 court did not abuse its discretion in denying LBS’s motion for 12 default judgment. Further, LBS’s opening brief focuses solely on 13 this denial of default judgment. It does not argue that the 14 bankruptcy court improperly dismissed its complaint under the 15 pending order to show cause, or for any other reason. We 16 therefore decline to consider the issue. Padgett v. Wright, 17 587 F.3d 983, 986 n.2 (9th Cir. 2009); see also In re McGee, 18 359 B.R. at 770; Quarré v. Saylor (In re Saylor), 178 B.R. 209, 19 215 (9th Cir. BAP 1995). 20 21 CONCLUSION 22 Based on the foregoing, we AFFIRM the bankruptcy court’s 23 order denying LBS’s motion for default judgment and dismissing 24 7 The complaint alleges that when Debtor gave the vehicle to 25 a third party, she somehow worked a conversion of it under state 26 law. But at the hearing, neither the bankruptcy court nor LBS discussed how this act amounted to conversion or any other 27 intentional tort under California law. Nor does LBS’s brief address the issue. We therefore decline to consider it. 28 Padgett, 587 F.3d at 986 n.2.

15 1 its adversary proceeding. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28