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1 This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have, FRAP 32.1, it has no precedential value. See 9th Cir. BAP

Rule 8013-1.

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. AZ-11-1504-DJuPa

)

BRENDA KAY NARADA and ) Bk. No. 10-06316-RTBP

TY ESTUS NARADA, )

) Adv. Pro. No. 10-01163-RTBP

Debtors. )

______________________________)

)

BRENDA NARADA, )

)

Appellant, )

)

v. ) MEMORANDUM1

)

UNITED STATES OF AMERICA, )

Social Security )

Administration, )

)

Appellee. )

______________________________)

Argued and Submitted on February 24, 2012

at Phoenix, Arizona

Filed - March 12, 2012

Appeal from the United States Bankruptcy Court

for the District of Arizona

Honorable Redfield T. Baum, Sr., Bankruptcy Judge, Presiding 

Appearances: Ty Narada argued for Appellant Brenda Narada;

William C. Solomon argued for Appellee United

States of America, Social Security Administration 

Before: DUNN, JURY and PAPPAS, Bankruptcy Judges.

FILED

MAR 12 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2

 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure

are referred to as “Civil Rules,” and the Federal Rules of

Evidence are referred to as “FRE.”

-2-

The debtors, Brenda and Ty Narada (the “Naradas”), appeal

the summary judgment order in favor of the United States on

behalf of the Commissioner of Social Security (“SSA”) excepting a

debt of Brenda Narada (“Brenda”) from discharge pursuant to

11 U.S.C. §§ 523(a)(2) and (a)(6) and the bankruptcy court’s

subsequent denial of the Naradas’ motion for relief from

judgment.2 We VACATE and REMAND to the bankruptcy court for

further proceedings.

Factual Background

The Naradas filed a chapter 7 bankruptcy petition on

March 10, 2010, in the District of Arizona.

On June 25, 2010, the SSA timely filed an adversary

proceeding (“Adversary Proceeding”) complaint (“Complaint”)

against Brenda to except a debt from discharge pursuant to

§§ 523(a)(2)(A) and (a)(6). Specifically, the SSA alleged in the

Complaint that through misrepresentations and material omissions,

Brenda had obtained a total of $24,575 in Supplemental Security

Income disability benefits payments for which she was ineligible. 

The SSA’s claims arose from Brenda’s alleged receipt of an

ownership interest in a motel property located in Ash Fork,

Arizona (“Motel Property”) on or about August 1999. The SSA’s

records apparently showed that Brenda had repaid $1,467.30,

leaving a balance owing of $23,107.70 that the SSA sought to
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3 Since Arizona is a community property state, Ty is very

interested in the disposition of this appeal because a portion of

his earnings may be subject to execution to satisfy the debt to

SSA if its claim is excepted from Brenda’s discharge.

-3-

except from Brenda’s discharge.

Ty Narada (“Ty”), who is not an attorney, filed a response

(“Response”) to the Complaint in behalf of Brenda by letter on

July 21, 2010.3 In the Response, Ty denied that Brenda had

acquired any ownership interest in the Motel Property. He also

denied that Brenda had “defrauded the system.” He further

alleged that “Brenda was threatened with imprisonment if she did

not sign the ‘Statement of Claimant or Other Person’ being

submitted by SSA as evidence against her.” (Emphasis in

original.) He further alleged that Brenda was a “special needs

individual incapable of defending herself.”

1. Filing of Summary Judgment Motion and Supporting Documents

On or about December 1, 2010, the SSA filed a motion for

summary judgment (“Summary Judgment Motion”) in the Adversary

Proceeding. The Summary Judgment Motion was supported by a

Statement of Facts that, in turn, relied upon 1) a memorandum and

report of the Office of the Inspector General of the SSA, dated

September 27, 2004 (“Investigation Report”), and 2) Statements of

Claimant or Other Person signed by Brenda and her then husband,

George Bannister (“George”), agreeing to repay overpayments of

supplemental Social Security income benefits, each dated

September 22, 2004. The Investigation Report and the referenced

statements are attached as exhibits to the statement of facts but

are not authenticated by affidavit or declaration.
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In the Investigation Report, the SSA’s Office of the

Inspector General, Office of Investigations (“OI”) reported the

following: In 1992, George and Brenda applied for and

subsequently began receiving Social Security income benefits. 

The addresses used by George and Brenda were a street address and

post office address, both of which were for the “Copperstate

Motel.” In February 1998, the Yavapai County Police Department

received an anonymous tip that George and Brenda owned and

operated the Copperstate Motel, which triggered the OI

investigation. 

Following a preliminary investigation as to the ownership of

the Copperstate Motel, on March 13, 1998, the OI sent an SSI

Notice of Appointment to George and Brenda advising them that

they were scheduled for a “review” regarding their SSI

eligibility, which would entail a telephone interview(s). On

March 26, 1998, SSA Claims Representative Donna Learned called

the telephone number provided by George, and when George

answered, conducted the interview. George advised that he and

Brenda lived in a house and paid rent to his sister, Vicky Davis. 

He further stated that neither he nor Brenda worked or received

any income other than their SSI benefits. He confirmed that

neither he nor Brenda “had their names on any deeds or mortgages,

nor did they have any interest in any life estates or any unprobated estates.” Based on the interview, there were no

indications that George was ineligible for SSI income benefits. 

Approximately fifteen minutes later, Ms. Learned called the

same telephone number with a follow-up question. Brenda answered

the telephone and said “Copperstate.” The follow-up question was
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-5-

whether their daughter, Tammy Bannister (“Tammy”), contributed to

the household. Brenda responded that Tammy worked but did not

contribute to the household because she was attending school. 

Ms. Learned then inquired of Brenda why she answered the

telephone “Copperstate?” Brenda stated that “it was a motel

where she and George lived, however they did not work there. 

Brenda also said that Vicky Davis owns the Copperstate Motel.”

On March 30, 1998, George and Brenda went to the SSA’s

Prescott, Arizona District Office and provided the following

information to Ms. Learned: Tammy had inherited the Copperstate

Motel from George’s mother, Doris Bannister, when she died in

1994. “Tammy was unable to acquire the property until she was

twenty-one (21) years old, so the [Motel Property] stayed in the

deceased’s name.” There was a mortgage on the Motel Property

that Vicky Davis paid from the Copperstate Motel business account

“(however Brenda stated that Vicky has Brenda sign the check to

the mortgage company). George and Brenda do not read very well,

and they have trouble completing forms and reading or writing

letters. Due to this they rely on Vicky and Ron Davis to assist

them.” George and Brenda apparently stated that they paid rent

of $450 each month to Vicky and Ron Davis, who did the books for

the Copperstate Motel. However, George and Brenda stated that

they received no wages or proceeds from income of the Copperstate

Motel and that they only answered the telephone. George and

Brenda provided Ms. Learned with a copy of Doris Bannister’s

will. Vicky Davis subsequently advised the OI in writing that

she was not the landlord for the residence located on the Motel

Property.
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4

 There is an error in the Investigation Report with respect

to the Motel Property title following probate: On page 5, the

Investigation Report states that under the deed of distribution,

the Motel Property “was equally distributed among George, Doris,

and Tammy Bannister.” In their Further Submissions, the Naradas

included an actual copy of the distribution deed, dated

October 16, 1999, transferring title as 1/3 each tenants in

common to George, Brenda and Tammy.

-6-

Thereafter, OI investigated the Copperstate Motel situation

further, and among other information, located a classified

advertisement on the internet listing the Copperstate Motel for

sale for $200,000 and advising any interested parties to call

George and Brenda for details. Yavapai County Recorder’s Office

records reflect that Doris Bannister died in approximately

May 1994, and following probate, a deed of distribution reflected

that title to the Motel Property was held equally among Brenda,

George and Tammy.4

On September 22, 2004, the OI conducted a further in-person

interview of George and Brenda at the SSA Prescott, Arizona

District Office. After the OI officer disclosed the results of

its investigation to date, George and Brenda provided the

following information, among other things, to the OI officer: 

In approximately August 1999, George, Brenda and Tammy

received equal interest in the [Motel Property]. 

George and Brenda failed to report this acquisition to

the SSA, as they were required. From about August 1999

through September 2004, George and Brenda participated

in activities at the Copperstate Motel which could have

been considered work by the SSA. George and Brenda ran

the [Copperstate Motel] for Tammy, who was attending

college in north Phoenix, Arizona. George and Brenda

also failed to report this activity to the SSA, which

they were required. George and Brenda also admitted to

attempting to sell the Copperstate Motel for

approximately $200,000 for gainful purpose. George and

Brenda understood that they should have reported the

aforementioned information to the SSA, and they were
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5 Local Rule 9013-1(g) provides, in relevant part:

(g) Motions for Summary Judgment. In any

administrative case, contested matter or adversary

proceeding, any motion for summary judgment shall set

forth separately from the memorandum of law, and in

full, the specific facts on which movant relies in

support of the motion. The specific facts shall be set

forth in serial fashion, not in narrative form. As to

each fact, the statement shall refer to a specific

portion of the record where the fact may be found

(continued...)

-7-

willing to pay any money back to the SSA which they

ineligibly received. George and Brenda provided a

sworn and signed statement regarding the above

information.

OI concluded that George and Brenda each received an approximate

total of $24,575 in SSI benefits for which they were ineligible. 

George and Brenda each signed an SSA Statement of Claimant

or Other Person on September 22, 2004, stating the following:

I agree to repay the overpayment on Supplemental

Security Income benefit from my on going SSI benefit

amount till it is repaid.

2. Further Filings and Proceedings on the Summary Judgment

 Motion

The bankruptcy court issued an Order Setting Briefing

Schedule (“Scheduling Order”) for the Summary Judgment Motion on

December 2, 2010. Counsel for the SSA prepared and served on the

Naradas a Notice of Hearing (“Hearing Notice”), scheduling a

hearing on the Summary Judgment Motion for February 18, 2011. 

The Hearing Notice included a copy of the Scheduling Order. The

Scheduling Order advised the parties that they were subject to

the requirements of Rule 9013-1(g)5 of the bankruptcy court’s
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5(...continued)

(i.e., affidavit, deposition, etc.). Any party

opposing summary judgment must comply with the

foregoing in setting forth the specific facts,

including those facts which establish a genuine issue

of material fact precluding summary judgment. . . .

Unless otherwise set forth in the Rules, the Local

Rules, or in an order of the court, . . . the party

opposing or responding to a motion for summary judgment

shall have thirty days after service within which to

serve and file a responsive memorandum; the moving

party shall have 15 days after service of the

responsive memorandum to serve and file a reply.

-8-

local rules (“Local Rule 9013-1(g)”), meaning that each party was

required to file a separate statement of facts and a memorandum

of points and authorities supporting its position “as set forth

in the Rule.” The Naradas’ responsive memorandum in opposition

to the Summary Judgment Motion was due no later than 30 days

after service of the Summary Judgment Motion. The Order Setting

Briefing Schedule further advised that, “Failure to timely file a

responsive memorandum shall constitute consent to the granting of

the motion.” The SSA calculated the deadline for the Naradas’

response in opposition to the Summary Judgment Motion under the

Scheduling Order as January 3, 2011.

The Naradas did not submit any opposition to the Summary

Judgment Motion by the deadline in the Scheduling Order. 

However, on January 28, 2011, Ty filed copies of three letters

(collectively, “Letters”) with the bankruptcy court in behalf of

Brenda that he served on counsel for the SSA: The first letter,

and the only one of the three that reflects a signature by Ty,

appears to be a discovery request to the SSA.
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The second letter, dated January 11, 2011, and addressed to

the bankruptcy court, includes Ty’s statements as to the results

of his investigations with regard to the issues raised in the

Summary Judgment Motion. With respect to ownership of the Motel

Property, Ty states the following:

Brenda’s name did not appear on any of the original

transactions, but was added in a corrective deed in

April of 2007. I initially believed that the deed had

been forged to implicate Brenda, since we had been

married for two years by that time. Brenda’s daughter

informed me that the corrective deed is legitimate. (Emphasis added.)

He further states that Brenda’s daughter would testify that

Brenda received no proceeds from the sale of the Motel Property. 

In addition, he alleges that in 2004, Brenda “was threatened with

imprisonment if she did not sign a promissory note that [SSA was]

using as evidence against her.” Ty admits that he was not

present at the time, but “Brenda called me to describe what

happened: An armed officer was going to take her to prison if she

didn’t ‘sign a paper.’”

The third letter, which is signed neither by Ty nor Brenda

and is addressed to “Whom it may concern,” although it appears in

context to be addressed to SSA’s counsel, includes further

factual statements relating to the legitimacy of Brenda’s claim

for Social Security benefits and her alleged lack of any interest

in the Motel Property.

On or about February 11, 2011, within the 15-day period for

filing replies to responses opposing motions for summary judgment

under Local Rule 9013-1(g), SSA filed a Motion for Summary

Disposition (“Disposition Motion”), requesting that the Summary

Judgment Motion be granted based on Brenda’s failure to respond
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to the motion by the deadline required in the Scheduling Order

and her resulting consent to the granting of the Summary Judgment

Motion, as provided in the Scheduling Order. In the Disposition

Motion, the SSA noted the late filing of the Letters on

January 28, 2011, but argued that none of the Letters sufficed as

a response in opposition to the Summary Judgment Motion, as they

set forth nothing more than unsupported statements of Ty, who was

not married to Brenda during the period in question. However,

the SSA noted that the January 11, 2011 letter to the bankruptcy

court stated that a deed listing Brenda as an owner of the Motel

Property was “legitimate” according to her daughter.

Thereafter, for reasons that we cannot fathom, counsel for

the SSA submitted an order, purportedly based on the Disposition

Motion, providing that the Adversary Proceeding “is hereby

dismissed with prejudice, with each party to bear its own costs

and attorneys’ fees,” which the bankruptcy court promptly entered

on February 16, 2011.

However, recognizing their fatal error, on February 17,

2011, counsel for the SSA filed a motion to vacate the erroneous

order previously submitted and submitted a new form of order

granting the Summary Judgment Motion in its entirety. On

February 17, 2011, the bankruptcy court entered orders vacating

the previously entered dismissal order and granting the Summary

Judgment Motion. Accordingly, the hearing scheduled for

February 18, 2011, was taken off the calendar. 

3. The Naradas’ Motion for Relief from the Summary Judgment

 Order

On March 3, 2011, the Naradas filed a Motion to Review (Rule
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59) and Motion for Relief (Rule 60) (“Relief Motion”), requesting

the bankruptcy court to grant them relief from the order granting

the Summary Judgment Motion, arguing that they did present an

opposition to the Summary Judgment Motion in the Letters and that

Brenda did not obtain Social Security benefits by fraud, and she

never had an ownership interest in the Motel Property. The SSA

filed a response to the Relief Motion, arguing that, in fact,

Brenda did not file a timely response to the Summary Judgment

Motion, but in any event, the Letters did not raise a genuine

issue of material fact sufficient to justify vacating the summary

judgment order.

On April 27, 2011, the bankruptcy court held a hearing

(“Initial Hearing”) on the Relief Motion at which counsel for the

SSA and both of the Naradas were present. At the Initial

Hearing, Brenda was not put under oath, but she stated that

although she cleaned rooms and did some paperwork with respect to

the Motel Property, she “never really was in charge of it.” Tr.

of April 27, 2011 hr’g, 3:1-3. In response to the bankruptcy

court’s questions regarding her signing the Statement of Claimant

or Other Person, Brenda stated that, “the officer was there at

the social security place, told me I had to agree everything what

they said and I had to sign the papers that he filled [sic]. If

I didn’t, I would go to jail.” She denied that the Statement of

Claimant or Other Person that she signed was true and correct. 

In further response to the bankruptcy court’s questions, Brenda

stated that she did not have a lawyer and was not getting legal

advice from anybody. 

After hearing Brenda’s statements, the bankruptcy court
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strongly urged the Naradas to obtain legal advice and if possible

have a lawyer representing them at a continued hearing on the

Relief Motion. The bankruptcy court then continued the hearing

to July 22, 2011. 

On July 13, 2011, the bankruptcy court received further

written submissions (the “Further Submissions”) from Ty in behalf

of Brenda. In his cover letter enclosing the Further

Submissions, Ty reiterated the allegations stated in the Response

that Brenda is a special needs person, whose “speech and learning

disability renders her incapable of adequately defending

herself.” As noted earlier, the Further Submissions included a

copy of a deed of distribution from Doris Bannister’s probate,

dated October 16, 1999, vesting title to the Motel Property in

George, Brenda and Tammy as 1/3 tenants in common.

The continued hearing (“Final Hearing”) on the Relief Motion 

was held on July 22, 2011, as scheduled, with the Naradas and

counsel for the SSA in attendance. At the Final Hearing, Ty

advised the bankruptcy court that the Naradas had been unable to

obtain counsel and that they had submitted all of their evidence

to the bankruptcy court for consideration. In response, counsel

for the SSA argued that nothing submitted by the Naradas raised

any genuine issue of material fact that would justify vacating

the order granting the Summary Judgment Motion. Counsel for the

SSA consequently urged that the Relief Motion be denied. The

bankruptcy court then took the matter under advisement. 

On August 30, 2011, the bankruptcy court entered a Minute

Entry/Order ruling that based on the parties’ arguments and

submissions with respect to the Relief Motion, “the court is not
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6

 We note that although the bankruptcy court docket reflects

that a “Judgment” was signed on February 17, 2011 (Docket No.

20), the parties’ excerpts of record include only the order

granting the Summary Judgment Motion on that date and no separate

judgment. Under Civil Rule 56, generally a separate document

embodying a final judgment that is distinct from the order

granting a motion for summary judgment should be entered. See

Rule 9021. However, if in fact a separate judgment in favor of

the SSA has not been entered in the Adversary Proceeding, the

parties here have waived that requirement by treating the order

granting the Summary Judgment Motion as a final judgment. See

Casey v. Albertson’s Inc., 362 F.3d 1254, 1256-59 (9th Cir.

2004), cert. denied, 543 U.S. 870 (2004).

7

 The Naradas actually list four issues for consideration in

the “Statement of Issues” in Appellants’ Brief, the first of

which is covered by the question stated above. The second issue,

we assume raised by Ty, is the unfairness of the impact of

Arizona’s community property laws on Ty and his children in the

event that Brenda’s debt to the SSA is excepted from her

discharge. This issue was not raised before the bankruptcy court

(continued...)

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convinced that the judgment that has been entered was erroneously

entered by the court or that other reasons were presented that

warrant the vacating of that judgment.” On September 12, 2011,

the bankruptcy court entered an order denying the Relief Motion. 

The Naradas timely appealed. 

Jurisdiction

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(I), and we have jurisdiction under 28

U.S.C. § 158.6

Issue

Did the bankruptcy court err in entering a summary judgment

order excepting Brenda’s debt to the SSA from her discharge in

chapter 7?7
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7(...continued)

either in the Complaint or the Response or in the Letters filed

in opposition to the Summary Judgment Motion. It makes its first

appearance in the Further Submissions filed by the Naradas in

support of the Relief Motion. Accordingly, it is not an issue

appropriate for our determination in this appeal. 

The third issue raises a complaint as to the Naradas’

inability to obtain a copy of the “letter that granted SSI to

Brenda” from the SSA. Ty argues that such letter would “prove”

that Brenda is incapable of defrauding the SSA. In light of our

disposition of this appeal, discovery questions can be addressed

in further proceedings before the bankruptcy court.

Finally, the Naradas point out that the Adversary Proceeding

was at one point dismissed with prejudice. As discussed in the

Factual Background above, the submission by SSA’s counsel of the

dismissal order that was signed by the bankruptcy court was a

mistake that was corrected the day after it was signed. That

order was vacated and does not present a viable issue in this

appeal.

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Standards of Review

We review de novo the bankruptcy court’s ruling granting a

motion for summary judgment. Ghomeshi v. Sabban (In re Sabban),

600 F.3d 1219, 1221 (9th Cir. 2010). 

The bankruptcy court’s interpretation and application of a

local rule are reviewed for abuse of discretion. Price v.

Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009). 

Likewise, we review a bankruptcy court’s denial of a motion to

alter or amend a judgment or for reconsideration for abuse of

discretion. Ta Chong Bank Ltd. v. Hitachi High Tech. Am., Inc.,

610 F.3d 1063, 1066 (9th Cir. 2010); Triad Commercial Captive Co.

v. Carmel (In re GTI Capital Holdings, LLC), BAP No. AZ-09-1053-

JuMkD (Memorandum, p. 12, August 20, 2009).

We apply a two-part test in determining whether the

bankruptcy court abused its discretion. United States v.
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Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). 

First, we consider de novo whether the bankruptcy court applied

the correct legal standard to the relief requested. Id. Then,

we review the bankruptcy court’s fact findings for clear error. 

Id. at 1262 & n.20. We must affirm the bankruptcy court’s

findings unless we conclude that they are “(1) ‘illogical,’

(2) ‘implausible,’ or (3) without ‘support in inferences that may

be drawn from the facts in the record.’” Id.

Discussion

1. Summary Judgment Standards

Granting a motion for summary judgment is appropriate only

if there is no genuine dispute as to any material fact, and the

moving party is entitled to judgment as a matter of law. Civil

Rule 56(a); Rule 7056; State Farm Mut. Auto Ins. Co. v. Davis,

7 F.3d 180, 182 (9th Cir. 1993). “Material facts” are such facts

as may affect the outcome of a case under governing law. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute concerning a material fact is “genuine” only if there is

sufficient evidence to justify a finding in favor of the nonmoving party. Id. However, all justifiable inferences from the

evidence presented are to be considered in favor of the nonmoving party. Id. at 255. 

2. The Evidence before the Bankruptcy Court

Section 523(a)(2)(A) excepts from a debtor’s discharge any

debt for money obtained by false pretenses, a false

representation, or actual fraud. In order to meet its burden to

except a debt from discharge under § 523(a)(2)(A), a creditor

must establish each of five elements by a preponderance of the
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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.

Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman),

234 F.3d 1081, 1085 (9th Cir. 2000). However, recognizing the

reality that few debtor defendants are likely to admit to

defrauding their creditors, “fraudulent intent may be established

by circumstantial evidence, or by inferences drawn from a course

of conduct.” Devers v. Bank of Sheridan, Mont. (In re Devers),

759 F.2d 751, 753-54 (9th Cir. 1985). See also First Beverly

Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir. 1986).

In the Complaint, the SSA alleged that Brenda had obtained

$24,575 in Supplemental Security Income disability benefits

payments for which she was ineligible as a result of material

omissions and misrepresentations with respect to an ownership

interest in the Motel Property and George and Brenda’s use of the

Motel Property for “substantial gainful activity” from

approximately September 1999 to September 2004. The only

evidence submitted by the SSA in support of the Summary Judgment

Motion was the Investigation Report and the Statements of

Claimant or Other Person signed by George and Brenda on

September 22, 2004. However, neither the Investigation Report

nor the statements were authenticated or identified by affidavit

or declaration, which is a condition precedent to their

admissibility as evidence under FRE 901(a). 

In deciding a motion for summary judgment, a bankruptcy
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8

 Under FRE 801(c), “hearsay” is defined as “a statement,

other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the

matter asserted.”

9 The exception for “public records and reports” under FRE

803(8) may apply with respect to the Investigation Report, but

that is a matter we leave to the bankruptcy court for

consideration following remand.

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court only can consider admissible evidence. 

A trial court can only consider admissible evidence in

ruling on a motion for summary judgment. See [Civil

Rule] 56(e); Beyene v. Coleman Sec. Servs., Inc., 854

F.2d 1179, 1181 (9th Cir. 1988). Authentication is a

“condition precedent to admissibility,” and this

condition is satisfied by “evidence sufficient to

support a finding that the matter in question is what

its proponent claims.” [FRE] 901(a). We have

repeatedly held that unauthenticated documents cannot

be considered in a motion for summary judgment. See

Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir.

1994); Hal Roach Studios, Inc. v. Richard Feiner & Co.,

Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene, 854 F.2d at 1182; Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone

Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976). 

Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.

2002) (emphasis added).

In addition, the Investigation Report is hearsay,8 and there

is nothing in the record to establish that it would be admissible

in evidence under an exception to the general rule that hearsay

evidence is not admissible.9 See FRE 802.

Consequently, no admissible evidence was submitted in

support of the Summary Judgment Motion, and on that basis, it was

error for the bankruptcy court to grant the motion in spite of

the Naradas’ ineffective response, in light of the requirements
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10 At oral argument, counsel for the SSA admitted that even

considering the content of the Investigation Report, there was

insufficient evidence to meet the burden of proof on each element

to support a judgment in favor of the SSA on its § 523(a)(6)

claim.

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of the Scheduling Order and Local Rule 9013-1(g).10 We conclude

in these circumstances that the order granting the Summary

Judgment Motion should be vacated, and the Adversary Proceeding

should be remanded to the bankruptcy court for further

proceedings. Accordingly, any issues with respect to the Relief

Motion are moot.

Conclusion

For the foregoing reasons, we VACATE the summary judgment

order and REMAND to the bankruptcy court for further appropriate

proceedings.