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FILED

FEB 17 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-15-1057-CTaF

)

JUN HO YANG and HO SOON HWANG ) Bk. No. 2:04-bk-19539-RN

YANG, )

) Adv. No. 2:13-ap-01936-RN

Debtors. )

______________________________)

)

JUN HO YANG; HO SOON HWANG )

YANG, )

)

Appellants, )

)

v. ) MEMORANDUM*

)

FUND MANAGEMENT INTERNATIONAL,)

LLC, )

)

Appellee. )

______________________________)

Argued and Submitted on January 21, 2016

at Pasadena, California

Filed – February 17, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Richard M. Neiter, Bankruptcy Judge, Presiding

 

Appearances: Mark Edwards of Heller & Edwards argued for

appellee Fund Management International, LLC

 

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.
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Before: CORBIT**, TAYLOR and FARIS, Bankruptcy Judges.

INTRODUCTION

Chapter 7 debtors Jun Ho Yang and Ho Soon Hwang Yang appeal

the summary judgment of the bankruptcy court determining that a

judgment debt owed by the Yangs to appellee Fund Management

International, LLC (“FMI”) is excepted from discharge under

11 U.S.C. § 523(a)(2)(A).1 While only Jun Ho Yang (“Yang”)

actively managed the companies, the nondischargeability complaint

also named his wife, Ho Soon Hwang Yang, as a defendant. FMI

consistently alleged in both the state court and in the

nondischargeability action that Ms. Yang participated in the

fraud by knowingly accepting the benefits of the FMI funds

diverted by her husband for their personal use. FMI also alleged

that she was "fully aware of the facts of the fraud at the time

it was occurring." Thus, any reference to Yang is with the

understanding that his wife was also found culpable. 

Yang’s arguments, as presented in his appellate materials,

were devoid of merit and generally contravened by the record. 

Additionally, without notice to this court or to opposing

counsel, Yang failed to appear before the Panel as scheduled. 

For the reasons that follow, we hold that the bankruptcy

court did not err in granting FMI’s summary judgment motion. The

** Hon. Frederick P. Corbit, Chief Bankruptcy Judge for the

Eastern District of Washington, sitting by designation.

1 Unless specified otherwise, 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.

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bankruptcy court properly found Yang’s judgment debt was

nondischargeable based on specific facts. The bankruptcy court

did not rely on an unenforceable prepetition waiver contained in

a settlement agreement. Additionally, the bankruptcy court did

not abuse its discretion by declining to conduct an evidentiary

hearing as to Yang’s understanding of the effect of the

Settlement Agreement and Stipulation for Entry of Judgment

because Yang did not properly raise this issue at the trial

court. Accordingly, we AFFIRM.

FACTUAL BACKGROUND

Only a brief recitation of facts is necessary, because the

facts giving rise to the judgment at issue are not in dispute.2

Yang was the president and principal of With Sam Ma, Inc.

(“Samma”). Samma was in the business of loaning money secured by

vehicle titles. In 1998, Samma solicited capital from

individuals by advertising in the Los Angeles Times. FMI

responded to Samma’s advertisement. After meeting with Yang, FMI

“made an initial investment of $170,000 in Samma.”3 FMI made

2 The bankruptcy court found in its Findings of

Uncontroverted Facts and Conclusions of Law that “Yang stipulated

to the facts alleged in [FMI’s] State Court Complaint.” The

bankruptcy court was referring to FMI’s state court complaint

filed in the Superior Court of the State of California against

the Yangs and other defendants (entitled Fund Management

International, LLC v. Jun Ho Yang, et. al. (LASC BC244935)

(“State Court Complaint”)). Yang does not dispute this finding.

3 Initially, the timing of this appeal may appear confusing

given that the state court judgment (found by the bankruptcy

court to be nondischargeable) was entered in 2003 and Yang

received a bankruptcy discharge in 2004. However, the bankruptcy

case was reopened in 2013 to litigate the dischargeability of the

(continued...)

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additional subsequent loans of various amounts to Samma based on

Yang’s continued representations that all “capital was being used

to make loans secured by vehicle titles and that there were no

losses.” In total, FMI loaned Samma approximately $3,930,000.00. 

Each loan was memorialized by a written contract. The terms of

each loan contract included, inter alia, that (1) “FMI would

receive monthly interest payments,” (2) if FMI requested, Samma

would repay FMI’s principal investment amount within one month of

the demand, (3) FMI’s “investment funds would be used to make

loans to qualified parties who would surrender collateral in the

form of clear title to their motor vehicle, and that the maximum

loan would be forty percent of the wholesale value of the

vehicle,” (4) the vehicle “titles would not be used or pledged as

collateral or security for any other transactions,” (5) FMI would

be informed of any circumstances that might negatively affect its

investment, and (6) Samma “would be run in compliance with all

applicable rules, statutes and laws.”

Initially, FMI received regular payments on its investments. 

However, after a couple of years, Samma became delinquent in

making its monthly distributions to FMI. Yang assured FMI that

Samma was doing fine and that the delay in payments was strictly

a function of changes in the vehicle title loan industry. Not

convinced, FMI made repeated requests for a “complete accounting

of Samma’s portfolio of loans.” Yang did not comply. Rather, he

3(...continued)

judgment debt after it found that “[FMI] . . . did not receive

notice of [Yang’s 2004] bankruptcy filing and discharge until

4/8/2013 when [Yang] faxed [FMI] a letter regarding the discharge

of its debt as a result of this 2004 bankruptcy filing.”

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made repeated excuses to delay producing the documents. When

Yang finally provided FMI with accounting documents, the

documents contained numbers that FMI later learned had been

intentionally changed to deliberately overstate assets and

receivables. Additionally, FMI learned that Yang had used some

of the money FMI invested in Samma to “make business loans to

third parties that were outside the scope of Samma’s business”

and to purchase various parcels of real property in Yang’s

individual name.

After discovering that Yang had used FMI’s investment funds

for non-intended and non-approved purposes, FMI “demanded a

return of its capital.” Yang told FMI that “he did not have the

money and could not repay it unless he was given some time.” In 

response, rather than immediately taking legal action, FMI

proposed to work with Yang to help him to repay his debts. 

Although Yang indicated he was in favor of FMI’s proposed plans,

he failed to cooperate. Thus, because of Yang’s (1) continued

refusal to cooperate, (2) admissions to FMI that he had

intentionally misrepresented Samma’s assets, (3) admissions that

he had ordered staff to deliberately mislead FMI as to the health

and compliance of Samma, and (4) liquidation and conversion of

Samma’s assets to his own personal use, FMI initiated legal

proceedings against Yang in an attempt to recoup its capital

investment.

State Court Proceedings

FMI filed its proceedings against Yang in California state

court in 2001. FMI’s State Court Complaint alleged, among other

causes of action, claims for fraud, conversion, breach of

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fiduciary duty and constructive fraud. Almost two years later,

after extensive litigation and discovery, the parties resolved

the case by entering into a settlement agreement (“Settlement

Agreement”). The parties also stipulated to entry of judgment

(“Stipulation for Entry of Judgment”) in FMI’s favor in the

amount of $3,000,000.00. The Settlement Agreement set out a

schedule of payments. Additionally relevant to this appeal, is

the language Yang approved in both the Settlement Agreement and

the Stipulation for Entry of Judgment stipulating and admitting

to the facts as alleged in FMI’s State Court Complaint. 

Specifically, paragraph 12 of the Settlement Agreement provided:

Yang stipulates to the facts supporting the claims made

against him and that said facts and claims allege

liability for, that he is admitting liability for and

that the facts and claims are within the meaning of

11 U.S.C.A. 523 . . . . Yang agrees that this

stipulation can be used in favor of FMI or its

assignees and against Yang in any action in which Yang

or a business entity owned and controlled by Yang is a

party to an action for protection under the Bankruptcy

Code.

(Emphasis added.) Paragraph 3 of the Stipulation for Entry of

Judgment stated: “Yang admits to the facts as alleged in the FMI,

Samma and GWSM complaint in this action and consents to the entry

of a judgment in the amount of $3,000,000 based on these facts.” 

(Emphasis added.)

When Yang subsequently defaulted under the Settlement

Agreement, a judgment (“State Court Judgment”) was entered in the

state court action against Yang for $3,660,090.00 pursuant to the

Stipulation for Entry of Judgment. 

Bankruptcy Court Proceedings

In 2004, after the State Court Judgment was entered, Yang

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filed for bankruptcy and received a discharge. FMI did not learn

about Yang’s bankruptcy until 2013. FMI then promptly filed a

Motion to Reopen the Case for the Purpose of Litigating Complaint

for Non-Dischargeability, that was subsequently granted.

FMI then filed its first motion for summary judgment,

seeking a determination that Yang’s liability under the State

Court Judgment was nondischargeable pursuant to §§ 523(a)(2)(A)

and (a)(3)(B). In its summary judgment motion, FMI asserted that

the doctrine of collateral estoppel precluded relitigation of

FMI’s fraud claims. At the hearing on the summary judgment

motion, FMI argued that regardless of whether collateral estoppel

applied, Yang’s stipulation to all of the facts contained in the

State Court Complaint demonstrated that Yang had obtained money

from FMI through fraudulent means and that the judgment debt

should be determined nondischargeable. The bankruptcy court

denied FMI’s summary judgment motion on the basis of collateral

estoppel. However, the court indicated that FMI could file

another summary judgment motion based on the stipulated facts.

Pursuant to the bankruptcy court’s ruling, FMI filed a

second motion for summary judgment asserting that the facts

stipulated to by Yang in the State Court Complaint demonstrated

the nondischargeability of the subject debt. Although the

bankruptcy court again denied FMI’s motion for summary judgment,

the denial was due to procedural deficiencies rather than a

denial on the merits.

FMI corrected the deficiencies and filed its third motion

for summary judgment. FMI again argued that the stipulated facts

should be considered undisputed and that those facts established

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nondischargeability pursuant to §§ 523(a)(2)(A) and (a)(3)(B). 

After allowing additional briefing, the bankruptcy court issued

an order granting FMI’s third motion for summary judgment. The

bankruptcy court entered Findings of Uncontroverted Facts and

Conclusions of Law (primarily based on the stipulated facts) in

support of its judgment.

Yang timely filed his appeal of the bankruptcy court’s grant

of summary judgment.

JURISDICTION

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

§§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUES

1. Whether the bankruptcy court found that Yang waived his

right to pursue discharge of the judgment debt by

signing the Settlement Agreement that included a

prepetition waiver clause.

2. Whether the bankruptcy court erred by relying on the

stipulated facts to find the judgment debt

nondischargeable.

3. Whether the bankruptcy court erred by not conducting an

evidentiary hearing to determine whether Yang was fully

informed as to the effects of signing the Settlement

Agreement and Stipulation for Entry of Judgment.

STANDARD OF REVIEW

We review de novo the bankruptcy court’s grant of summary

judgment. SNTL Corp. v. Ctr. Ins. Co. (In re SNTL Corp.),

571 F.3d 826, 834 (9th Cir. 2009). We also review de novo

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whether a debt is excepted from discharge under § 523(a)(2)(A). 

Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa), 258 B.R.

192, 195 (9th Cir. BAP 2001). We review the bankruptcy court’s

findings of fact for clear error and the court’s conclusions of

law de novo. See Neben & Starrett, Inc. v. Chartwell Fin. Corp.

(In re Park-Helena Corp.), 63 F.3d 877, 880 (9th Cir. 1995). We

review a bankruptcy court’s evidentiary rulings for abuse of

discretion. First Card v. Carolan (In re Carolan), 204 B.R. 980,

984 (9th Cir. BAP 1996). A bankruptcy court abuses its

discretion if it applies the wrong legal rule or if its

“application of the [correct] rule was illogical, implausible, or

without support in the record.” Chun v. Korean Airlines Co.,

Ltd. (In re Korean Air Lines Co. Ltd., Antitrust Litig.),

642 F.3d 685, 698 & n.11 (9th Cir. 2011) (citing United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc)).

DISCUSSION

I. The bankruptcy court did not find Yang waived his right to

seek discharge.

Yang argues that the bankruptcy court treated his

stipulation as “a waiver of discharge, which is unenforceable.”

Yang’s argument is both difficult to follow and contradicted by

the record. The bankruptcy court specifically found that Yang

had not waived his right to obtain a discharge. Rather, the

court found that Yang had stipulated to certain facts and those

facts, when taken together, supported a finding of

nondischargeability.

Yang correctly argues that prepetition bankruptcy waivers

are unenforceable. See Bank of China v. Huang (In re Huang),

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275 F.3d 1173, 1177 (9th Cir. 2002); Hayhoe v. Cole (In re Cole),

226 B.R. 647, 651-54 (9th Cir. BAP 1998). This circuit has

continually reaffirmed that prepetition waivers of bankruptcy

discharge are unenforceable as against public policy. See Cont’l

Ins. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.),

671 F.3d 1011, 1026 (9th Cir. 2012) (reaffirming the holding in

In re Huang, and again citing with approval to In re Cole, the

finding that “it is against public policy for a debtor to waive

the prepetition protection of the Bankruptcy Code.”). Thus, the

bankruptcy court would have erred if it relied on the prepetition

waiver in the Settlement Agreement to find that Yang’s judgment

debt was nondischargeable.

However, the court (contrary to Yang’s argument) did not

rely on the Settlement Agreement to find waiver or that the debt

was nondischargeable. Rather, the court looked behind the

Settlement Agreement to the facts.4 After analyzing the facts,

the court found that the debt was for money obtained by fraud,

within the terms of the nondischargeability statute. Indeed, in

its ruling denying FMI’s first motion for summary judgment, the

court expressly stated that it would not find the Settlement

4 The bankruptcy court relied on the Settlement Agreement

and the Stipulation for Entry of Judgment to find that Yang had

admitted to the facts as alleged in the State Court Complaint. 

However, there is no evidence that the bankruptcy court’s

reliance on the stipulated facts was error. Indeed, dicta in

In re Cole supports the bankruptcy court’s reliance on Yang’s

stipulation as to the underlying facts. In In re Cole, this

court acknowledged that while prepetition waivers are

unenforceable, ”if the parties [had] stipulated to the underlying

facts that support a finding of nondischargeability, the

Stipulated Judgment would then be entitled to collateral estoppel

application.” In re Cole, 226 B.R. at 655.

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Agreement collaterally estopped Yang from seeking discharge of

the debt simply because it contained a prepetition bankruptcy

waiver clause. Rather, the court explained that it would look to

the facts to determine the nature of a debt. The appropriateness

of a bankruptcy court’s examination of the facts to determine the

nature of a debt, despite the existence of an unenforceable

prepetition waiver clause, has been expressly affirmed by the

Supreme Court. See Archer v. Warner, 538 U.S. 314, 319-20 (2003)

(explaining that “the mere fact that a conscientious creditor has

previously reduced his claim to judgment should not bar further

inquiry into the true nature of the debt” and that a bankruptcy

court retains the power to determine if the settlement agreement

represents a debt for money obtained by fraud). Ultimately, the

bankruptcy court found that the facts, not the Settlement

Agreement, demonstrated that the debt was for money obtained by

fraud and, therefore, nondischargeable.

Although Yang attempts to challenge the bankruptcy court’s

grant of summary judgment on the basis that the bankruptcy court

used the Settlement Agreement as a waiver of his right to seek

discharge of the debt, Yang fails to identify anything in the

record to support his argument. Yang’s arguments are based on

conclusory statements, without factual support or case law

authority, and have failed to convince this Panel that the

bankruptcy court erred. See Hartman v. Gilead Scis., Inc.

(In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir.

2008) (noting that reviewing court need not accept as true

“allegations that are merely conclusory, unwarranted deductions

of fact, or unreasonable inferences”). In this case, the record

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clearly refutes Yang’s assertions. As discussed above, the

bankruptcy court did not find that Yang stipulated to waive his

right to discharge. Rather, the bankruptcy court correctly

looked behind the Settlement Agreement to the specific facts to

which Yang stipulated to determine whether the judgment debt was

a debt for money obtained by fraud and therefore,

nondischargeable pursuant to § 523(a)(2)(A).5 Thus, Yang has

failed to demonstrate that the bankruptcy court improperly found

that he waived his right to seek discharge of the judgment debt.

II. The bankruptcy court did not err in finding the facts as

alleged in the State Court Complaint clear, precise, and

sufficient to make a determination of nondischargeability.

Yang also argues that the bankruptcy court committed error

because the stipulated facts on which it relied were too vague to

support a finding of nondischargeability. Importantly, Yang does

not argue (1) that the bankruptcy court applied the wrong law,

(2) that his stipulation was involuntary, (3) that he did not

actually stipulate to the facts as alleged by FMI in its State

Court Complaint, or (4) that the Settlement Agreement or the

Stipulation for Entry of Judgment are invalid. Rather, the only

argument Yang makes is that the stipulated facts were too vague

for the bankruptcy court to find nondischargeability. In order

for Yang to succeed on such an argument, Yang must establish that

the bankruptcy court’s findings were clearly erroneous, or in

5 Even if the prepetition waiver clause contained in the

Settlement Agreement precluded our reliance on its contents, the

Stipulation for Entry of Judgment also clearly stated that Yang

admitted to the facts as alleged in FMI’s State Court Complaint. 

The Stipulation does not contain any similar prepetition waiver

language and thus forms an adequate basis for the determination

that Yang stipulated to facts establishing nondischargeability.

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other words, “illogical, . . . implausible, . . . or without

support in inferences that may be drawn from the record.” See

Hinkson, 585 F.3d at 1262. Yang fails to satisfy this burden.

First, the record demonstrates that the bankruptcy court

properly found Yang stipulated to the facts contained in FMI’s

State Court Complaint. Both the Supreme Court and the Ninth

Circuit have repeatedly affirmed that “stipulations serve both

judicial economy and the convenience of the parties, [and] courts

will enforce them absent indications of involuntary or uninformed

consent.” CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir.

1999); see also Brawders v. Cty. of Ventura (In re Brawders),

503 F.3d 856, 863 (9th Cir. 2007) (stating that “basic contract

principles apply in interpreting stipulations”). Additionally,

the Supreme Court has emphasized that parties will be bound by

facts to which they stipulate. 

Factual stipulations are binding and conclusive, and

the facts stated are not subject to subsequent

variation. So, the parties will not be permitted to

deny the truth of the facts stated, or to maintain a

contention contrary to the agreed statement, or to

suggest, on appeal, that the facts were other than

as stipulated or that any material fact was omitted.

Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll.

of the Law v. Martinez, 561 U.S. 661, 677 (2010) (internal

citations and alterations omitted). Thus, a “defendant who has

stipulated to the admission of evidence cannot later complain

about its admissibility” unless he can show that the stipulation

was involuntary. United States v. Technic Servs., Inc., 314 F.3d

1031, 1045 (9th Cir. 2002), overruled on other grounds by United

States v. Contreras, 593 F.3d 1135 (9th Cir. 2010); see contra

Wank v. Gordon (In re Wank), 505 B.R. 878, 889-90 (9th Cir. BAP

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2014) (finding sufficient evidence to indicate statements in a

declaration were given involuntarily and therefore, not

reliable).

Because Yang “admit[ted] to the facts as alleged in the FMI

. . . complaint,” he was bound by them. Indeed, Yang’s “factual

stipulations [were] formal concessions that [had] the effect of

withdrawing [those] fact[s] from issue and dispensing wholly with

the need for proof of the fact.” Christian Legal Soc., 561 U.S.

at 677-78 (internal citations and alterations omitted). Although

Yang does not agree with the bankruptcy court’s conclusion based

on those facts, Yang provides no support demonstrating that the

bankruptcy court erred in relying on the facts alleged in FMI’s

State Court Complaint.

Additionally, Yang’s conclusory statement that the

stipulated facts were vague and unclear is unsupported and

contradicted by the clear and precise facts laid out in FMI’s

forty-one page State Court Complaint and subsequently restated in

the bankruptcy court’s Findings of Uncontroverted Facts and

Conclusions of Law. Contrary to Yang’s argument, the bankruptcy

court thoughtfully and carefully laid out very specific and clear

facts relevant to each of the elements of § 523(a)(2)(A). Yang

fails to plead facts or provide evidence demonstrating that the

bankruptcy court’s findings were illogical, implausible, or

without support.

III. The bankruptcy court did not abuse its discretion by failing

to hold an evidentiary hearing.

Finally, Yang argues that the bankruptcy court abused its

discretion by failing to conduct an evidentiary hearing in order

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to determine if he reasonably foresaw the effect of signing the

Settlement Agreement and Stipulation for Entry of Judgement. We

decline to consider this issue on appeal, as it was not properly

raised before the bankruptcy court in the first instance.

Ordinarily, federal appellate courts will not

consider issues not properly raised in the trial

courts. An issue only is properly raised if it is

raised sufficiently to permit the trial court to rule

upon it.

Notwithstanding this general rule, [a] reviewing

court may consider an issue raised for the first time

on appeal if (1) there are exceptional circumstances

why the issue was not raised in the trial court,

(2) the new issue arises while the appeal is pending

because of a change in the law, or (3) the issue

presented is purely one of law and the opposing party

will suffer no prejudice as a result of the failure to

raise the issue in the trial court.

Ezra v. Seror (In re Ezra), 537 B.R. 924, 932-33 (9th Cir. BAP

2015) (internal citations and quotation marks omitted). In this

case, Yang did not request an evidentiary hearing as to his

understanding of the Settlement Agreement until his Motion for

Rehearing on the court’s grant of FMI’s motion for summary

judgment. Thus, Yang failed to adequately and timely raise this

argument in the bankruptcy court. Additionally, Yang fails to

establish that the issue falls within any of the exceptions that

would make the issue appropriate for the Panel to consider. 

Indeed, Yang cites no extraordinary circumstances. In fact, Yang

provides no reason whatsoever as to why he failed to argue this

issue at the trial court. Nor has Yang argued or presented

evidence demonstrating that he did not have a full and fair

opportunity to timely bring this issue before the bankruptcy

court. Finally, this issue is not purely an issue of law. 

Rather, Yang’s understanding of a document would be an entirely

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factual issue.

CONCLUSION

For the reasons set forth above, the bankruptcy court is

AFFIRMED.

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