Pang v. Fong

36 F. App'x 260

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2002
• Docket: No. 01-55974; BAP No. CC-00-01265-PBMa
• Status: Published

Opinion

MEMORANDUM

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Clifford L.K. Pang (“Pang”) appeals the Bankruptcy Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s finding that the debt Peter Sui-Lun Fong (“Fong”) owed to Pang was dischargeable under 11 U.S.C. § 528(a)(2)(A), and that Fong breached no fiduciary duty toward Pang within the meaning of 11 U.S.C. § 528(a)(4).

This Court reviews decisions of the BAP de novo. Pioneer Liquidating Corp. v. U.S. Tr. (In re Consol. Pioneer Mortgage Entities), 264 F.3d 808, 806 (9th Cir.2001). In appeals from the BAP’s decisions, we independently review the bankruptcy court’s rulings. Ardmor Vending Co. v. Kim (In re Kim), 130 F.3d 863, 865 (9th Cir.1997). This Court reviews the bankruptcy court’s conclusions of law de novo, and its factual findings for clear error. Id. If there “are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Rifino v. United States (In re Rifino), 245 F.3d 1083, 1086 (9th Cir.2001). This Court reviews de novo the bankruptcy court’s application of the legal standard in determining whether a debt is dischargeable. Id. at 1087. This Court reviews the bankrupt cy court’s finding of no fiduciary duty within the meaning of § 523(a)(4) de novo. In re Kim, 130 F.3d at 865.

Dischargeability

Pang failed to establish, by a preponderance of the evidence, the elements of nondischargeability under § 523(a)(2)(A). Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1246 (9th Cir.2001). Accordingly, the bankruptcy court did not err in determining that the debt was dischargeable.

Fiduciary Duty

A fiduciary duty arises only if an “expressed or technical trust exists.” Banks v. Gill Distribution Centers (In re Banks), 263 F.3d 862, 871 (9th Cir.2001). Pang failed to establish the existence of an expressed or technical trust. As a result, no fiduciary duty arose. Id.

Additionally, the relationship between Fong and Pang did not rise to the level of a fiduciary relationship under § 523(a)(4). See Woodworking Enters., v. Baird (In re Baird), 114 B.R. 198, 202 (9th Cir.BAP 1990).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.