Artem Koshkalda v. Seiko Epson Corporation ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ARTEM KOSHKALDA, No. 20-60027
Debtor, BAP No. 19-1235
------------------------------
MEMORANDUM*
ARTEM KOSHKALDA,
Appellant,
v.
SEIKO EPSON CORPORATION; EPSON
AMERICA, INC.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brand, Taylor, and Faris, Bankruptcy Judges, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Chapter 7 debtor Artem Koshkalda 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”) judgment affirming the bankruptcy court’s order in
Seiko Epson Corporation’s (“Epson”) adversary proceeding seeking to prevent
Koshkalda from discharging a judgment Epson received against him. We have
jurisdiction under 28 U.S.C. § 158(d). We review de novo BAP decisions and
apply the same standard of review that the BAP applied to the bankruptcy court’s
ruling. Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th
Cir. 2009). We affirm.
In his opening brief, Koshkalda fails to address the BAP’s affirmance of
Epson’s claim under 11 U.S.C. § 727(a)(7), and he has therefore waived his
challenge to the BAP’s order on this claim. See Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims
that were not actually argued in appellant’s opening brief.”); Acosta-Huerta v.
Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues not supported by argument in pro se
appellant’s opening brief are deemed abandoned).
The bankruptcy court properly granted summary judgment for Epson on its
claim under 11 U.S.C. § 727(a)(2) and (3) seeking to prevent Koshkalda from
discharging a judgment Epson received against him. Koshkalda failed to raise a
genuine dispute of material fact as to whether he did not engage in transfers of
property meant to hinder Epson’s ability to collect its judgment. See Retz v.
Samson (In re Retz), 606 F.3d 1189, 1196-1205 (9th Cir. 2010) (discussing
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standard of proof applicable to party objecting to discharge and setting forth
elements of claim for hindering acquisition of creditor property). Koshkalda also
failed to raise a genuine dispute of material fact as to whether he kept adequate
business records such that Epson could ascertain his financial position. See
Caneva v. Sun Communities Operating Ltd. P’ship (In re Caneva), 550 F.3d 755,
761 (9th Cir. 2008) (setting forth elements of a claim for failing to keep and
preserve business records).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief or 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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