NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 10 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: VICTOR HUEZO, No. 20-60038

Debtor, BAP No. 19-1260

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MEMORANDUM*

VICTOR HUEZO,

Appellant,

v.

JOEY BALL,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Lafferty III, Taylor, and Faris, Bankruptcy Judges, Presiding

Submitted August 6, 2021** Pasadena, California

Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.

Chapter 7 debtor Victor Huezo appeals the decision of 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 (“BAP”) affirming the bankruptcy court’s judgment declaring a

debt owed by Huezo to appellee Joey Ball to be nondischargeable under 11 U.S.C.

§ 523(a)(2) and (a)(6), and remanding for a recalculation of the judgment amount.

We have jurisdiction under 28 U.S.C. § 158(d)(1). “Because we are in as good a

position as the BAP to review bankruptcy court rulings, we independently examine

the bankruptcy court’s decision, reviewing the bankruptcy court’s interpretation of

the Bankruptcy Code de novo and its factual findings for clear error.” In re

Hatton, 220 F.3d 1057, 1059 (9th Cir. 2000). We affirm.

1. Huezo first argues that Ball’s reliance on Huezo’s misrepresentations

was not justifiable and therefore that the bankruptcy court erred in finding that the

debt at issue was nondischargeable under 11 U.S.C. § 523(a)(2). In relevant part,

§ 523(a)(2) excepts from discharge any monetary debt obtained by “false

pretenses, a false representation, or actual fraud, other than a statement respecting

the debtor’s or an insider’s financial condition.” 11 U.S.C. § 523(a)(2)(A). To

prevail, a creditor must establish the following five elements by a preponderance of

the evidence:

(1) misrepresentation, fraudulent omission or deceptive conduct by the debtor; (2) knowledge of the falsity or deceptiveness of his statement or conduct; (3) an intent to deceive; (4) justifiable reliance by the creditor on the debtor’s statement or conduct; and (5) damage to the creditor proximately caused by its reliance on the debtor’s statement or conduct. In re Slyman, 234 F.3d 1081, 1085 (9th Cir. 2000). On appeal, Huezo challenges

2 only the bankruptcy court’s factual finding that Ball satisfied the fourth element.

Huezo failed to show that the bankruptcy court clearly erred in finding

Ball’s reliance on Huezo’s misrepresentations justified. The bankruptcy court’s

lengthy amended memorandum decision, issued after a four-day bench trial, cites

evidence adequately supporting its factual findings on this point. For example, the

court cited evidence demonstrating: that Ball received inaccurate informational

materials from Fremont Investment Holdings, Inc. (Huezo’s company), which

stated that Fremont’s loans to third parties were secured by collateral; that Huezo

sent lending activity reports to Ball, which supposedly identified the specific loans

Ball’s money was funding, and further represented that these loans were secured;

that Fremont had a California finance lender’s license; and that Ball and Huezo had

a longtime mutual friend who vouched for Huezo. While Huezo argues that Ball

was a sophisticated investor who should have seen through Huezo’s

misrepresentations, we agree with the BAP that the bankruptcy court did not

clearly err in finding that Ball’s reliance on these statements was justifiable.

2. Huezo next argues that the bankruptcy court clearly erred in finding

the debt independently nondischargeable under 11 U.S.C. § 523(a)(6). Section

523(a)(6) excepts from discharge any debt “for willful and malicious injury by the

debtor to another entity or to the property of another entity.” “[T]he willful injury

requirement of § 523(a)(6) is met when it is shown either that the debtor had a

3 subjective motive to inflict the injury or that the debtor believed that injury was

substantially certain to occur as a result of his conduct.” In re Jercich, 238 F.3d

1202, 1208 (9th Cir. 2001). “A ‘malicious’ injury involves ‘(1) a wrongful act, (2)

done intentionally, (3) which necessarily causes injury, and (4) is done without just

cause or excuse.’” Id. at 1209 (quoting In re Bammer, 131 F.3d 788, 791 (9th Cir.

1997) (en banc)).

Huezo contends that the bankruptcy court clearly erred in finding that Huezo

intentionally failed to repay Ball, or that Huezo was substantially certain that Ball

would be injured by Huezo’s conduct. We disagree. Substantial evidence

supported the court’s finding that Huezo willfully attempted to injure Ball,

including (but not limited to) the fact that Huezo repeatedly concealed from Ball

how Huezo was using Ball’s money, and that Huezo paid himself extravagant and

undisclosed commissions using Ball’s money.

3. Huezo further argues that his filing of a premature notice of appeal

before the bankruptcy court had entered a final judgment deprived the bankruptcy

court of jurisdiction to vacate and amend its post-trial memorandum decision. But

a premature notice of appeal from an interlocutory order does not automatically

transfer jurisdiction to an appellate court. In re Rains, 428 F.3d 893, 903–04 (9th

Cir. 2005).

4. Finally, while this appeal was pending, Huezo twice requested that we

4 issue a limited remand under Federal Rule of Appellate Procedure 12.1 to allow

the bankruptcy court to correct the error in the judgment amount identified by the

BAP. (ECF Nos. 5 & 8.) We denied both motions for failure to follow the

procedures required by Rule 12.1. (ECF Nos. 6 & 11.) Notwithstanding the denial

of these motions, the parties appear to have subsequently requested that the

bankruptcy court enter an amended final judgment, and the bankruptcy court did so

on November 16, 2020. (Am. Final J., Adv. Pro. No. 2:11-ap-02825 (C.D. Cal.

Nov. 16, 2020), ECF No. 307.) Because the bankruptcy court lacked jurisdiction

to enter an amended final order during the pendency of this appeal without leave of

this court, on remand the bankruptcy court is directed to enter a judgment

consistent with the instructions from the BAP.

The decision of the BAP is AFFIRMED.

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