FILED
1 NOT FOR PUBLICATION MAY 28 2014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
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