Chunchai Yu v. Nautilus, Inc. ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CHUNCHAI YU, No. 16-60067
Debtor, BAP No. 16-1045
------------------------------
MEMORANDUM*
CHUNCHAI YU, AKA Kathine Yu,
Appellant,
v.
NAUTILUS, INC.,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kurtz, Faris, and Dunn, Bankruptcy Judges, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Chapter 7 debtor Chunchai Yu appeals pro se from the Bankruptcy
*
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).
Appellate Panel’s (“BAP”) decision affirming the bankruptcy court’s summary
judgment concluding that Yu’s debt to Nautilus, Inc. is excepted from discharge
under 11 U.S.C. § 523(a)(6). We have jurisdiction under 28 U.S.C. § 158(d). We
review de novo decisions of the BAP, and the bankruptcy court’s ruling on
summary judgment. Arrow Elecs., Inc. v. Justus (In re Kaypro), 218 F.3d 1070,
1073 (9th Cir. 2000). We review de novo a bankruptcy court’s determination that
issue preclusion is available, and for an abuse of discretion the decision to apply
issue preclusion. Dias v. Elique, 436 F.3d 1125, 1128 (9th Cir. 2006). We affirm.
The bankruptcy court properly granted summary judgment on the issue of
whether Nautilus’s default judgment against Yu is nondischargeable because Yu
failed to raise a genuine dispute of material fact as to whether the injury to Nautilus
was not willful and malicious. See 11 U.S.C. § 523(a)(6) (providing for exceptions
to discharge “for willful and malicious injury by the debtor to another entity or to
the property of another entity”); Barboza v. New Form, Inc. (In re Barboza), 545
F.3d 702, 706 (9th Cir. 2008) (discussing willful and malicious injury requirements
under § 523(a)(6)).
The bankruptcy court did not err by giving preclusive effect to the district
court’s findings that resulted in Nautilus’s default judgment against Yu. See
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Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991) (issue preclusion applies in
discharge exception proceedings under § 523(a)); Hydranautics v. FilmTec Corp.,
204 F.3d 880, 885 (9th Cir. 2000) (listing requirements for issue preclusion under
federal law); Fed. Deposit Ins. Corp. v. Daily (In re Daily), 47 F.3d 365, 368 (9th
Cir. 1995) (federal law determines the application of issue preclusion to a prior
federal judgment); see also United States v. Gottheiner (In re Gottheiner), 703
F.2d 1136, 1140 (9th Cir. 1983) (giving preclusive effect to a federal default
judgment where the defendant actively engaged in litigation for over a year).
To the extent Yu challenges the judgment and findings of the federal district
court that entered default judgment in favor of Nautilus, we do not consider Yu’s
contentions because such review is outside the scope of the instant appeal.
We reject as meritless Yu’s contention that the bankruptcy’s court decision
should be overturned due to ineffective assistance of counsel. See Hedges v.
Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (there is no
constitutional right to counsel in civil proceedings).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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