Sanjesh Sharma v. Carmen Salcido , 607 F. App'x 713 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SANJESH PRASAD SHARMA and No. 13-60075
ARACELY COLOMBINA SHARMA,
BAP No. 12-1302
Debtors,
MEMORANDUM*
SANJESH PRASAD SHARMA,
Appellant,
v.
CARMEN SALCIDO,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Montali, Markell, and Taylor, Bankruptcy Judges, Presiding
Submitted June 3, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,***
Senior District Judge.
Sanjesh Sharma appeals the decision of the Bankruptcy Appellate Panel
(“BAP”) affirming a bankruptcy court’s entry of default judgment against him on
Carmen Salcido’s claim that the debt owed to Salcido was nondischargeable under
11 U.S.C. § 523(a)(2)(A) because it was obtained through fraud. We have
jurisdiction pursuant to 28 U.S.C. § 158(d)1 and we affirm. We review the entry of
default judgment for abuse of discretion. Alan Neuman Prods., Inc. v. Albright,
862 F.2d 1388, 1391 (9th Cir. 1988).
Sharma argues that the default judgment was erroneous because (1) the
evidence submitted in support of Salcido’s motion for default judgment was
insufficient, (2) the bankruptcy court did not consider Sharma’s opposition to the
motion and his evidentiary objections, and (3) the court did not hold an evidentiary
hearing.
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
1
Appellee asserts that this Court lacks jurisdiction to hear this appeal
because Appellant failed to move for relief under Federal Rules of Civil Procedure
55(c) or 60(b). However, the BAP correctly noted that this Court has often
considered appeals in such circumstances on the merits. See, e.g., Dreith v. Nu
Image, Inc., 648 F.3d 779, 789 (9th Cir. 2011); Madsen v. Bumb, 419 F.2d 4, 6
(9th Cir. 1969).
2
However, the BAP properly determined that the bankruptcy court is not
required to hold a hearing or rely on a motion for default judgment or evidentiary
declarations in entering a default judgment. See Televideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917 (9th Cir. 1987).
“In reviewing a default judgment, this court must take the well-pleaded
factual allegations of [the complaint] as true.” Cripps v. Life Ins. Co. of N. Am.,
980 F.2d 1261, 1267 (9th Cir. 1992). Here, the well-pleaded factual allegations of
appellee’s complaint show that the bankruptcy court did not abuse its discretion in
entering default judgment. Five elements must be proven in making a claim under
11 U.S.C. § 523(a)(2)(A): (1) that the debtor made representations; (2) that at the
time he knew they were false; (3) that he made them with the intention and purpose
of deceiving the creditor; (4) that the creditor relied on such representations; and
(5) that the creditor sustained the alleged loss and damage as the proximate result
of the misrepresentations having been made. In re Sabban, 600 F.3d 1219, 1222
(9th Cir. 2010). An examination of the record demonstrates that the allegations
contained in the complaint satisfy this standard.
AFFIRMED.
3