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In re Quini

filed*fn*: July 29, 1991.

IN RE: ROMEO A. QUINI, DEBTOR; ROMEO A. QUINI, APPELLANT,
v.
YEE-PING CHENHWANG; SPRING FOUNTAIN GROUP, APPELLEES



Appeal from the Ninth Circuit Bankruptcy Appellate Panel; Perris, Russell, Ashland, Judges, Presiding; BAP No. SC-88-1452-AsRP.

Brunetti, Fernandez, and T. G. Nelson, Circuit Judges.

MEMORANDUM

Defendant Romeo A. Quini ("Quini") appeals from a memorandum opinion of the Bankruptcy Appeals Panel affirming the judgment of the bankruptcy court that Quini's indebtedness to Yee-Ping Chenhwang ("Chenhwang") and the Spring Fountain Group (collectively "Appellees") was not dischargeable in bankruptcy.

We affirm.

On July 10, 1980, Chenhwang*fn1 loaned Quini $25,000 for the purpose of purchasing machinery for Kristek of San Diego, a company in which Quini was financially involved. On September 8, 1983, Quini filed a chapter 11 bankruptcy proceeding, which was later converted to a chapter 7 proceeding. On December 2, 1983, Appellees filed a complaint objecting to the dischargeability of the indebtedness of Quini to Appellees. The Bankruptcy Court found that Quini had defrauded Appellees into loaning him $25,000, and that such a fraudulently induced indebtedness was not dischargeable in bankruptcy under the provisions of 11 U.S.C. § 523(a)(2)(A).*fn2

On appeal, Quini argues for the first time that § 523(a)(2)(B) governs the determination of nondischargeability in this case because any misrepresentations made to Chenhwang were statements concerning the financial condition of Kristek. Because the statements were not in writing, Quini claims that Appellees failed to make out their claim.

As a general rule, this court will not consider issues that are raised for the first time on appeal. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). We have, however, recognized three exceptions to this rule.

We have held that we 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.

Id. (citing United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.), cert. denied, 484 U.S. 832 (1987)). This rule also applies in bankruptcy proceedings. In re Lansford, 822 F.2d 902, 905 (9th Cir. 1987).

None of these exceptions applies to the case at hand. Quini has failed to put forward any fact or circumstance that prevented him from raising the issue of the applicability of § 523(a)(2)(B) in the bankruptcy court. Further, any determination by this court as to the applicability of § 523(a)(2)(B) would require a factual finding as to the type of statement made by Quini, and therefore the issue is not purely one of law.*fn3

AFFIRME ...


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