NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: STERLING G. HIGASHI,

Debtor,

______________________________ HALE TAKAZAWA,

Plaintiff

- Appellee,

v. STERLING G. HIGASHI,

Defendant

- Appellant. No. 17

- 16844
D.C. No. 1:16

- cv - 00368

- LEK

MEMORANDUM *

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi , District Judge, Presiding
Submitted February 14 , 2019 ** Honolulu , Hawaii
Before: TALLMAN, BYBEE , and N. RANDY SMITH, Circuit Judges

.

* 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). 

# FILED

FEB 19 2019
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Chapter 7 debtor Sterling Higashi appeals the bankruptcy court’ s
determination after trial in an adversary proceeding that Hale Takazawa’s claim against Higashi arising out of a promissory note (and the eventual state court judgment) was not dischargeable under section 523(a)(2) of the Bankruptcy Code

. The district court affirmed the judgment. We also affirm.
We review de novo the bankruptcy court’s conclusions of law and for clear
error its fi ndings of fact. Jones v. U.S. Trustee , 736 F.3d 897, 899 (9th Cir. 2013). Whether a claim is not dischargeable under s ection 523(a) is a mixed question of
law and fact reviewed de novo. In re Hamada , 291 F.3d 645, 649 (9th Cir. 2002)

. But an individual “f

inding of whether a requisite element of [ a section ] 523(a)(2)(A) claim is present is a factual determination reviewed for clear

error. ” In re Anastas , 94 F.3d 1280, 1283 , 1286

– 87 (9th Cir. 1996)

. We review the bankruptcy court’s decision independentl y, without d eference to the district

court

. Jones , 736 F.3d at 899.
T he bankruptcy court did not err in finding that Takazawa and his predecessor

- in

- interest , Active Sportswear, Inc. , justifiably relied on Higashi’s misrepresentation that his wife signed the promissory note

. The evidence clearly supports that conclusion. N othing in the promissory n ote revea led any misrepresentation

— there was no duty to investigate the veracity of the signature
here. See Field v. Mans , 516 U.S. 59 , 70

– 71 , 77 (1995 ) (holding a creditor had no3

duty to investigate under the justifiable reliance standard). The promissory note
did not need to be recorded or secured to be enforceable. See IndyMac Bank v. Miguel , 184 P.3d 821, 835 ( Haw. Ct. App. 2008), as corrected (July 17, 2008) ( citing Bank of Honolulu, N.A. v. Anderson , 654 P.2d 1370, 1375 ( Haw. Ct. App. 1982) ) (providing the elements to enforce commercial paper ). The bankruptcy court also did not err i n finding that the misrepresentation proximately caused damages

. The damages caused by the forgery stem from what would have happened if Higashi’s wife had signed the promissory note as Higashi represented. Had she signed it, Takazawa could have sued her , received a judgment, and collected on any assets she has. Because she did not sign it , Takazawa was unable to enforce the judgment against her and was thereby damaged. The parties’ state

- court settlement agreement neither (1) created issue or claim pre clusion in any relevant way in the adversary proceeding , nor (2) somehow precludes a hypothetical lawsuit against Higashi’s wife to eliminate damages here

. See Archer v. Warner , 538 U.S. 314, 323 (2003) (settlement agreement does not
bar a creditor from a non - dischargeability finding under s ection 523(a)(2) where the settlement debt was incurred by false representation). To the extent Higashi argues anything else on either issue , we reject those
arguments as meritless.
AFFIRMED.