E. Bors, III V. ( 2016 )

FILED
NOT FOR PUBLICATION DEC 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: E. DANIEL BORS, III, No. 13-60018
Debtor, BAP No. 12-1214
______________________________
SIMONA TANASESCU, MEMORANDUM*
Appellant,
v.
E. DANIEL BORS, III,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher and Dunn, Bankruptcy Judges, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
*
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).
Appellant Simona Tanasescu appeals pro se from the Bankruptcy Appellate
Panel’s (“BAP”) order affirming the bankruptcy court’s dismissal of Tanasescu’s
adversary proceeding. We have jurisdiction under 28 U.S.C. § 158(d)(1). We
independently review the bankruptcy court’s decision without deference to the
BAP. Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman), 234
F.3d 1081, 1085 (9th Cir. 2000). We affirm.
The bankruptcy court properly dismissed Tanasescu’s adversary proceeding
for failure to state a claim for relief under 11 U.S.C. 727(d)(1) because Tanasescu
failed to allege facts sufficient to show that, but for Bors’ alleged fraud in his
bankruptcy filings, Bors’ would have been denied his discharge. See Jones v. U.S.
Tr., Eugene, 736 F.3d 897, 899-900 (9th Cir. 2013) (to revoke a debtor’s discharge
based upon false oaths in connection with his petition for discharge, the fraud must
be material, or, sufficient to cause denial of the discharge if known at the time of
discharge).
The bankruptcy court did not abuse its discretion in denying Tanasescu leave
to amend to state a claim of nondischargeability under 11 U.S.C. § 523 where the
court dismissed the adversary proceeding without prejudice to Tanasescu filing
such a claim.
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We reject as without merit Tanasescu’s contentions that the bankruptcy
court and the BAP were biased or unfairly prejudiced her, or that she qualified for
relief under Federal Rule of Civil Procedure 60(b).
AFFIRMED.
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