67 F.3d 798 (9th Cir. 1995), 94-55192, In re Nourbakhsh

Docket Nº:94-55192.
Citation:67 F.3d 798
Party Name:Cal. Daily Op. Serv. 7575, 95 Daily Journal D.A.R. 12,971 In re Emil NOURBAKHSH and Marlene Nourbakhsh, Debtors. John M. GAYDEN, Jr., and Miriam M. Gayden, Plaintiffs-Appellees, v. Emil NOURBAKHSH, Defendant-Appellant.
Case Date:September 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 798

67 F.3d 798 (9th Cir. 1995)

Cal. Daily Op. Serv. 7575,

95 Daily Journal D.A.R. 12,971

In re Emil NOURBAKHSH and Marlene Nourbakhsh, Debtors.

John M. GAYDEN, Jr., and Miriam M. Gayden, Plaintiffs-Appellees,

v.

Emil NOURBAKHSH, Defendant-Appellant.

No. 94-55192.

United States Court of Appeals, Ninth Circuit

September 28, 1995

Submitted July 12, 1995.[*]

Page 799

Bernard Edwin Galitz, San Diego, California, for defendant-appellant.

No appearance for plaintiffs-appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel.

Before: FARRIS and O'SCANNLAIN, Circuit Judges, and TASHIMA, District Judge. [**]

PER CURIAM:

This is an appeal from a decision of the Bankruptcy Appellate Panel of the Ninth Circuit ("BAP") affirming the bankruptcy court's grant of summary judgment to Plaintiffs-Appellees John and Miriam Gayden (the "Gaydens") on their claim of nondischargeability. See 11 U.S.C. Sec. 523(a)(2)(A). We have jurisdiction under 28 U.S.C. Sec. 158(d) and affirm.

FACTS

Debtor-Appellant Emil Nourbakhsh ("Nourbakhsh") and his affiliated corporation,

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The Gold Exchange, solicited the Gaydens to invest in precious metals. Between 1986 and 1987, the Gaydens placed five orders with Nourbakhsh. Although they paid Nourbakhsh $54,188.71, they received nothing.

In May 1988, the Gaydens filed suit in Florida state court alleging fraud and several other claims against Nourbakhsh. Nourbakhsh, who claims to have been in dire financial straits, did not defend the action. The Florida state court entered a default judgment against Nourbakhsh in December 1988. The judgment included a specific finding of fraud.

Over eighteen months later, in July 1990, Nourbakhsh filed a Chapter 7 petition in the United States Bankruptcy Court for the Southern District of California. The Gaydens filed an adversary complaint in the bankruptcy case seeking a determination whether the state court judgment was nondischargeable under 11 U.S.C. Sec. 523(a)(2)(A). Section 523 exempts from discharge all debts for money obtained through fraud. The Gaydens moved for summary judgment, arguing that Nourbakhsh was collaterally estopped from relitigating the fraud issue. The bankruptcy court granted the motion and the BAP affirmed.

DISCUSSION

Because this court is in as good a position as the BAP to review the decision of the bankruptcy court, we review the bankruptcy...

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