                                                          FILED
                                                          MAR 12 2012
 1                                                    SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
 2                                                       OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )       BAP No. AZ-11-1504-DJuPa
                                   )
 6   BRENDA KAY NARADA and         )      Bk. No. 10-06316-RTBP
     TY ESTUS NARADA,              )
 7                                 )       Adv. Pro. No. 10-01163-RTBP
                     Debtors.      )
 8   ______________________________)
                                   )
 9   BRENDA NARADA,                )
                                   )
10                   Appellant,    )
                                   )
11   v.                            )       MEMORANDUM1
                                   )
12   UNITED STATES OF AMERICA,     )
     Social Security               )
13   Administration,               )
                                   )
14                   Appellee.     )
     ______________________________)
15
                    Argued and Submitted on February 24, 2012
16                             at Phoenix, Arizona
17                           Filed - March 12, 2012
18             Appeal from the United States Bankruptcy Court
                         for the District of Arizona
19
       Honorable Redfield T. Baum, Sr., Bankruptcy Judge, Presiding
20
21   Appearances:     Ty Narada argued for Appellant Brenda Narada;
                      William C. Solomon argued for Appellee United
22                    States of America, Social Security Administration
23
     Before:   DUNN, JURY and PAPPAS, Bankruptcy Judges.
24
25
26        1
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have, FRAP 32.1, it has no precedential value. See 9th Cir. BAP
28   Rule 8013-1.
 1        The debtors, Brenda and Ty Narada (the “Naradas”), appeal
 2   the summary judgment order in favor of the United States on
 3   behalf of the Commissioner of Social Security (“SSA”) excepting a
 4   debt of Brenda Narada (“Brenda”) from discharge pursuant to
 5   11 U.S.C. §§ 523(a)(2) and (a)(6) and the bankruptcy court’s
 6   subsequent denial of the Naradas’ motion for relief from
 7   judgment.2   We VACATE and REMAND to the bankruptcy court for
 8   further proceedings.
 9                           Factual Background
10        The Naradas filed a chapter 7 bankruptcy petition on
11   March 10, 2010, in the District of Arizona.
12        On June 25, 2010, the SSA timely filed an adversary
13   proceeding (“Adversary Proceeding”) complaint (“Complaint”)
14   against Brenda to except a debt from discharge pursuant to
15   §§ 523(a)(2)(A) and (a)(6).   Specifically, the SSA alleged in the
16   Complaint that through misrepresentations and material omissions,
17   Brenda had obtained a total of $24,575 in Supplemental Security
18   Income disability benefits payments for which she was ineligible.
19   The SSA’s claims arose from Brenda’s alleged receipt of an
20   ownership interest in a motel property located in Ash Fork,
21   Arizona (“Motel Property”) on or about August 1999.   The SSA’s
22   records apparently showed that Brenda had repaid $1,467.30,
23   leaving a balance owing of $23,107.70 that the SSA sought to
24
          2
25          Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   all “Rule” references are to the Federal Rules of Bankruptcy
27   Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure
     are referred to as “Civil Rules,” and the Federal Rules of
28   Evidence are referred to as “FRE.”

                                     -2-
 1   except from Brenda’s discharge.
 2         Ty Narada (“Ty”), who is not an attorney, filed a response
 3   (“Response”) to the Complaint in behalf of Brenda by letter on
 4   July 21, 2010.3   In the Response, Ty denied that Brenda had
 5   acquired any ownership interest in the Motel Property.   He also
 6   denied that Brenda had “defrauded the system.”   He further
 7   alleged that “Brenda was threatened with imprisonment if she did
 8   not sign the ‘Statement of Claimant or Other Person’ being
 9   submitted by SSA as evidence against her.”    (Emphasis in
10   original.)    He further alleged that Brenda was a “special needs
11   individual incapable of defending herself.”
12   1.   Filing of Summary Judgment Motion and Supporting Documents
13         On or about December 1, 2010, the SSA filed a motion for
14   summary judgment (“Summary Judgment Motion”) in the Adversary
15   Proceeding.   The Summary Judgment Motion was supported by a
16   Statement of Facts that, in turn, relied upon 1) a memorandum and
17   report of the Office of the Inspector General of the SSA, dated
18   September 27, 2004 (“Investigation Report”), and 2) Statements of
19   Claimant or Other Person signed by Brenda and her then husband,
20   George Bannister (“George”), agreeing to repay overpayments of
21   supplemental Social Security income benefits, each dated
22   September 22, 2004.   The Investigation Report and the referenced
23   statements are attached as exhibits to the statement of facts but
24   are not authenticated by affidavit or declaration.
25
26         3
            Since Arizona is a community property state, Ty is very
27   interested in the disposition of this appeal because a portion of
     his earnings may be subject to execution to satisfy the debt to
28   SSA if its claim is excepted from Brenda’s discharge.

                                       -3-
 1        In the Investigation Report, the SSA’s Office of the
 2   Inspector General, Office of Investigations (“OI”) reported the
 3   following: In 1992, George and Brenda applied for and
 4   subsequently began receiving Social Security income benefits.
 5   The addresses used by George and Brenda were a street address and
 6   post office address, both of which were for the “Copperstate
 7   Motel.”   In February 1998, the Yavapai County Police Department
 8   received an anonymous tip that George and Brenda owned and
 9   operated the Copperstate Motel, which triggered the OI
10   investigation.
11        Following a preliminary investigation as to the ownership of
12   the Copperstate Motel, on March 13, 1998, the OI sent an SSI
13   Notice of Appointment to George and Brenda advising them that
14   they were scheduled for a “review” regarding their SSI
15   eligibility, which would entail a telephone interview(s).    On
16   March 26, 1998, SSA Claims Representative Donna Learned called
17   the telephone number provided by George, and when George
18   answered, conducted the interview.    George advised that he and
19   Brenda lived in a house and paid rent to his sister, Vicky Davis.
20   He further stated that neither he nor Brenda worked or received
21   any income other than their SSI benefits.   He confirmed that
22   neither he nor Brenda “had their names on any deeds or mortgages,
23   nor did they have any interest in any life estates or any un-
24   probated estates.”   Based on the interview, there were no
25   indications that George was ineligible for SSI income benefits.
26        Approximately fifteen minutes later, Ms. Learned called the
27   same telephone number with a follow-up question.   Brenda answered
28   the telephone and said “Copperstate.”   The follow-up question was

                                     -4-
 1   whether their daughter, Tammy Bannister (“Tammy”), contributed to
 2   the household.    Brenda responded that Tammy worked but did not
 3   contribute to the household because she was attending school.
 4   Ms. Learned then inquired of Brenda why she answered the
 5   telephone “Copperstate?”    Brenda stated that “it was a motel
 6   where she and George lived, however they did not work there.
 7   Brenda also said that Vicky Davis owns the Copperstate Motel.”
 8           On March 30, 1998, George and Brenda went to the SSA’s
 9   Prescott, Arizona District Office and provided the following
10   information to Ms. Learned: Tammy had inherited the Copperstate
11   Motel from George’s mother, Doris Bannister, when she died in
12   1994.    “Tammy was unable to acquire the property until she was
13   twenty-one (21) years old, so the [Motel Property] stayed in the
14   deceased’s name.”    There was a mortgage on the Motel Property
15   that Vicky Davis paid from the Copperstate Motel business account
16   “(however Brenda stated that Vicky has Brenda sign the check to
17   the mortgage company).    George and Brenda do not read very well,
18   and they have trouble completing forms and reading or writing
19   letters.    Due to this they rely on Vicky and Ron Davis to assist
20   them.”    George and Brenda apparently stated that they paid rent
21   of $450 each month to Vicky and Ron Davis, who did the books for
22   the Copperstate Motel.    However, George and Brenda stated that
23   they received no wages or proceeds from income of the Copperstate
24   Motel and that they only answered the telephone.    George and
25   Brenda provided Ms. Learned with a copy of Doris Bannister’s
26   will.    Vicky Davis subsequently advised the OI in writing that
27   she was not the landlord for the residence located on the Motel
28   Property.

                                       -5-
 1        Thereafter, OI investigated the Copperstate Motel situation
 2   further, and among other information, located a classified
 3   advertisement on the internet listing the Copperstate Motel for
 4   sale for $200,000 and advising any interested parties to call
 5   George and Brenda for details.    Yavapai County Recorder’s Office
 6   records reflect that Doris Bannister died in approximately
 7   May 1994, and following probate, a deed of distribution reflected
 8   that title to the Motel Property was held equally among Brenda,
 9   George and Tammy.4
10        On September 22, 2004, the OI conducted a further in-person
11   interview of George and Brenda at the SSA Prescott, Arizona
12   District Office.     After the OI officer disclosed the results of
13   its investigation to date, George and Brenda provided the
14   following information, among other things, to the OI officer:
15        In approximately August 1999, George, Brenda and Tammy
          received equal interest in the [Motel Property].
16        George and Brenda failed to report this acquisition to
          the SSA, as they were required. From about August 1999
17        through September 2004, George and Brenda participated
          in activities at the Copperstate Motel which could have
18        been considered work by the SSA. George and Brenda ran
          the [Copperstate Motel] for Tammy, who was attending
19        college in north Phoenix, Arizona. George and Brenda
          also failed to report this activity to the SSA, which
20        they were required. George and Brenda also admitted to
          attempting to sell the Copperstate Motel for
21        approximately $200,000 for gainful purpose. George and
          Brenda understood that they should have reported the
22        aforementioned information to the SSA, and they were
23
          4
            There is an error in the Investigation Report with respect
24
     to the Motel Property title following probate: On page 5, the
25   Investigation Report states that under the deed of distribution,
     the Motel Property “was equally distributed among George, Doris,
26   and Tammy Bannister.” In their Further Submissions, the Naradas
27   included an actual copy of the distribution deed, dated
     October 16, 1999, transferring title as 1/3 each tenants in
28   common to George, Brenda and Tammy.

                                       -6-
 1         willing to pay any money back to the SSA which they
           ineligibly received. George and Brenda provided a
 2         sworn and signed statement regarding the above
           information.
 3
 4   OI concluded that George and Brenda each received an approximate
 5   total of $24,575 in SSI benefits for which they were ineligible.
 6         George and Brenda each signed an SSA Statement of Claimant
 7   or Other Person on September 22, 2004, stating the following:
 8         I agree to repay the overpayment on Supplemental
           Security Income benefit from my on going SSI benefit
 9         amount till it is repaid.
10   2.   Further Filings and Proceedings on the Summary Judgment
          Motion
11
12         The bankruptcy court issued an Order Setting Briefing
13   Schedule (“Scheduling Order”) for the Summary Judgment Motion on
14   December 2, 2010.     Counsel for the SSA prepared and served on the
15   Naradas a Notice of Hearing (“Hearing Notice”), scheduling a
16   hearing on the Summary Judgment Motion for February 18, 2011.
17   The Hearing Notice included a copy of the Scheduling Order.     The
18   Scheduling Order advised the parties that they were subject to
19   the requirements of Rule 9013-1(g)5 of the bankruptcy court’s
20
21         5
               Local Rule 9013-1(g) provides, in relevant part:
22
           (g) Motions for Summary Judgment. In any
23         administrative case, contested matter or adversary
           proceeding, any motion for summary judgment shall set
24
           forth separately from the memorandum of law, and in
25         full, the specific facts on which movant relies in
           support of the motion. The specific facts shall be set
26         forth in serial fashion, not in narrative form. As to
27         each fact, the statement shall refer to a specific
           portion of the record where the fact may be found
28                                                       (continued...)

                                       -7-
 1   local rules (“Local Rule 9013-1(g)”), meaning that each party was
 2   required to file a separate statement of facts and a memorandum
 3   of points and authorities supporting its position “as set forth
 4   in the Rule.”   The Naradas’ responsive memorandum in opposition
 5   to the Summary Judgment Motion was due no later than 30 days
 6   after service of the Summary Judgment Motion.   The Order Setting
 7   Briefing Schedule further advised that, “Failure to timely file a
 8   responsive memorandum shall constitute consent to the granting of
 9   the motion.”    The SSA calculated the deadline for the Naradas’
10   response in opposition to the Summary Judgment Motion under the
11   Scheduling Order as January 3, 2011.
12        The Naradas did not submit any opposition to the Summary
13   Judgment Motion by the deadline in the Scheduling Order.
14   However, on January 28, 2011, Ty filed copies of three letters
15   (collectively, “Letters”) with the bankruptcy court in behalf of
16   Brenda that he served on counsel for the SSA: The first letter,
17   and the only one of the three that reflects a signature by Ty,
18   appears to be a discovery request to the SSA.
19
20
          5
           (...continued)
21        (i.e., affidavit, deposition, etc.). Any party
22        opposing summary judgment must comply with the
          foregoing in setting forth the specific facts,
23        including those facts which establish a genuine issue
          of material fact precluding summary judgment. . . .
24
          Unless otherwise set forth in the Rules, the Local
25        Rules, or in an order of the court, . . . the party
          opposing or responding to a motion for summary judgment
26        shall have thirty days after service within which to
27        serve and file a responsive memorandum; the moving
          party shall have 15 days after service of the
28        responsive memorandum to serve and file a reply.

                                      -8-
 1        The second letter, dated January 11, 2011, and addressed to
 2   the bankruptcy court, includes Ty’s statements as to the results
 3   of his investigations with regard to the issues raised in the
 4   Summary Judgment Motion.   With respect to ownership of the Motel
 5   Property, Ty states the following:
 6        Brenda’s name did not appear on any of the original
          transactions, but was added in a corrective deed in
 7        April of 2007. I initially believed that the deed had
          been forged to implicate Brenda, since we had been
 8        married for two years by that time. Brenda’s daughter
          informed me that the corrective deed is legitimate.
 9        (Emphasis added.)
10   He further states that Brenda’s daughter would testify that
11   Brenda received no proceeds from the sale of the Motel Property.
12   In addition, he alleges that in 2004, Brenda “was threatened with
13   imprisonment if she did not sign a promissory note that [SSA was]
14   using as evidence against her.”     Ty admits that he was not
15   present at the time, but “Brenda called me to describe what
16   happened: An armed officer was going to take her to prison if she
17   didn’t ‘sign a paper.’”
18        The third letter, which is signed neither by Ty nor Brenda
19   and is addressed to “Whom it may concern,” although it appears in
20   context to be addressed to SSA’s counsel, includes further
21   factual statements relating to the legitimacy of Brenda’s claim
22   for Social Security benefits and her alleged lack of any interest
23   in the Motel Property.
24        On or about February 11, 2011, within the 15-day period for
25   filing replies to responses opposing motions for summary judgment
26   under Local Rule 9013-1(g), SSA filed a Motion for Summary
27   Disposition (“Disposition Motion”), requesting that the Summary
28   Judgment Motion be granted based on Brenda’s failure to respond

                                       -9-
 1   to the motion by the deadline required in the Scheduling Order
 2   and her resulting consent to the granting of the Summary Judgment
 3   Motion, as provided in the Scheduling Order.   In the Disposition
 4   Motion, the SSA noted the late filing of the Letters on
 5   January 28, 2011, but argued that none of the Letters sufficed as
 6   a response in opposition to the Summary Judgment Motion, as they
 7   set forth nothing more than unsupported statements of Ty, who was
 8   not married to Brenda during the period in question.    However,
 9   the SSA noted that the January 11, 2011 letter to the bankruptcy
10   court stated that a deed listing Brenda as an owner of the Motel
11   Property was “legitimate” according to her daughter.
12         Thereafter, for reasons that we cannot fathom, counsel for
13   the SSA submitted an order, purportedly based on the Disposition
14   Motion, providing that the Adversary Proceeding “is hereby
15   dismissed with prejudice, with each party to bear its own costs
16   and attorneys’ fees,” which the bankruptcy court promptly entered
17   on February 16, 2011.
18         However, recognizing their fatal error, on February 17,
19   2011, counsel for the SSA filed a motion to vacate the erroneous
20   order previously submitted and submitted a new form of order
21   granting the Summary Judgment Motion in its entirety.   On
22   February 17, 2011, the bankruptcy court entered orders vacating
23   the previously entered dismissal order and granting the Summary
24   Judgment Motion.   Accordingly, the hearing scheduled for
25   February 18, 2011, was taken off the calendar.
26   3.   The Naradas’ Motion for Relief from the Summary Judgment
          Order
27
28         On March 3, 2011, the Naradas filed a Motion to Review (Rule

                                     -10-
 1   59) and Motion for Relief (Rule 60) (“Relief Motion”), requesting
 2   the bankruptcy court to grant them relief from the order granting
 3   the Summary Judgment Motion, arguing that they did present an
 4   opposition to the Summary Judgment Motion in the Letters and that
 5   Brenda did not obtain Social Security benefits by fraud, and she
 6   never had an ownership interest in the Motel Property.   The SSA
 7   filed a response to the Relief Motion, arguing that, in fact,
 8   Brenda did not file a timely response to the Summary Judgment
 9   Motion, but in any event, the Letters did not raise a genuine
10   issue of material fact sufficient to justify vacating the summary
11   judgment order.
12        On April 27, 2011, the bankruptcy court held a hearing
13   (“Initial Hearing”) on the Relief Motion at which counsel for the
14   SSA and both of the Naradas were present.   At the Initial
15   Hearing, Brenda was not put under oath, but she stated that
16   although she cleaned rooms and did some paperwork with respect to
17   the Motel Property, she “never really was in charge of it.”    Tr.
18   of April 27, 2011 hr’g, 3:1-3.    In response to the bankruptcy
19   court’s questions regarding her signing the Statement of Claimant
20   or Other Person, Brenda stated that, “the officer was there at
21   the social security place, told me I had to agree everything what
22   they said and I had to sign the papers that he filled [sic].      If
23   I didn’t, I would go to jail.”    She denied that the Statement of
24   Claimant or Other Person that she signed was true and correct.
25   In further response to the bankruptcy court’s questions, Brenda
26   stated that she did not have a lawyer and was not getting legal
27   advice from anybody.
28        After hearing Brenda’s statements, the bankruptcy court

                                      -11-
 1   strongly urged the Naradas to obtain legal advice and if possible
 2   have a lawyer representing them at a continued hearing on the
 3   Relief Motion.   The bankruptcy court then continued the hearing
 4   to July 22, 2011.
 5        On July 13, 2011, the bankruptcy court received further
 6   written submissions (the “Further Submissions”) from Ty in behalf
 7   of Brenda.   In his cover letter enclosing the Further
 8   Submissions, Ty reiterated the allegations stated in the Response
 9   that Brenda is a special needs person, whose “speech and learning
10   disability renders her incapable of adequately defending
11   herself.”    As noted earlier, the Further Submissions included a
12   copy of a deed of distribution from Doris Bannister’s probate,
13   dated October 16, 1999, vesting title to the Motel Property in
14   George, Brenda and Tammy as 1/3 tenants in common.
15        The continued hearing (“Final Hearing”) on the Relief Motion
16   was held on July 22, 2011, as scheduled, with the Naradas and
17   counsel for the SSA in attendance.      At the Final Hearing, Ty
18   advised the bankruptcy court that the Naradas had been unable to
19   obtain counsel and that they had submitted all of their evidence
20   to the bankruptcy court for consideration.     In response, counsel
21   for the SSA argued that nothing submitted by the Naradas raised
22   any genuine issue of material fact that would justify vacating
23   the order granting the Summary Judgment Motion.     Counsel for the
24   SSA consequently urged that the Relief Motion be denied.     The
25   bankruptcy court then took the matter under advisement.
26        On August 30, 2011, the bankruptcy court entered a Minute
27   Entry/Order ruling that based on the parties’ arguments and
28   submissions with respect to the Relief Motion, “the court is not

                                      -12-
 1   convinced that the judgment that has been entered was erroneously
 2   entered by the court or that other reasons were presented that
 3   warrant the vacating of that judgment.”   On September 12, 2011,
 4   the bankruptcy court entered an order denying the Relief Motion.
 5   The Naradas timely appealed.
 6                             Jurisdiction
 7        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
 8   §§ 1334 and 157(b)(2)(I), and we have jurisdiction under 28
 9   U.S.C. § 158.6
10                                  Issue
11        Did the bankruptcy court err in entering a summary judgment
12   order excepting Brenda’s debt to the SSA from her discharge in
13   chapter 7?7
14
15        6
            We note that although the bankruptcy court docket reflects
16   that a “Judgment” was signed on February 17, 2011 (Docket No.
     20), the parties’ excerpts of record include only the order
17   granting the Summary Judgment Motion on that date and no separate
     judgment. Under Civil Rule 56, generally a separate document
18   embodying a final judgment that is distinct from the order
19   granting a motion for summary judgment should be entered. See
     Rule 9021. However, if in fact a separate judgment in favor of
20   the SSA has not been entered in the Adversary Proceeding, the
     parties here have waived that requirement by treating the order
21
     granting the Summary Judgment Motion as a final judgment. See
22   Casey v. Albertson’s Inc., 362 F.3d 1254, 1256-59 (9th Cir.
     2004), cert. denied, 543 U.S. 870 (2004).
23
          7
            The Naradas actually list four issues for consideration in
24
     the “Statement of Issues” in Appellants’ Brief, the first of
25   which is covered by the question stated above. The second issue,
     we assume raised by Ty, is the unfairness of the impact of
26   Arizona’s community property laws on Ty and his children in the
27   event that Brenda’s debt to the SSA is excepted from her
     discharge. This issue was not raised before the bankruptcy court
28                                                      (continued...)

                                     -13-
 1                           Standards of Review
 2        We review de novo the bankruptcy court’s ruling granting a
 3   motion for summary judgment.   Ghomeshi v. Sabban (In re Sabban),
 4   600 F.3d 1219, 1221 (9th Cir. 2010).
 5        The bankruptcy court’s interpretation and application of a
 6   local rule are reviewed for abuse of discretion.   Price v.
 7   Lehtinen (In re Lehtinen), 564 F.3d 1052, 1058 (9th Cir. 2009).
 8   Likewise, we review a bankruptcy court’s denial of a motion to
 9   alter or amend a judgment or for reconsideration for abuse of
10   discretion.   Ta Chong Bank Ltd. v. Hitachi High Tech. Am., Inc.,
11   610 F.3d 1063, 1066 (9th Cir. 2010); Triad Commercial Captive Co.
12   v. Carmel (In re GTI Capital Holdings, LLC), BAP No. AZ-09-1053-
13   JuMkD (Memorandum, p. 12, August 20, 2009).
14        We apply a two-part test in determining whether the
15   bankruptcy court abused its discretion.   United States v.
16
          7
17         (...continued)
     either in the Complaint or the Response or in the Letters filed
18   in opposition to the Summary Judgment Motion. It makes its first
19   appearance in the Further Submissions filed by the Naradas in
     support of the Relief Motion. Accordingly, it is not an issue
20   appropriate for our determination in this appeal.
          The third issue raises a complaint as to the Naradas’
21   inability to obtain a copy of the “letter that granted SSI to
22   Brenda” from the SSA. Ty argues that such letter would “prove”
     that Brenda is incapable of defrauding the SSA. In light of our
23   disposition of this appeal, discovery questions can be addressed
     in further proceedings before the bankruptcy court.
24
          Finally, the Naradas point out that the Adversary Proceeding
25   was at one point dismissed with prejudice. As discussed in the
     Factual Background above, the submission by SSA’s counsel of the
26   dismissal order that was signed by the bankruptcy court was a
27   mistake that was corrected the day after it was signed. That
     order was vacated and does not present a viable issue in this
28   appeal.

                                     -14-
 1   Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).
 2   First, we consider de novo whether the bankruptcy court applied
 3   the correct legal standard to the relief requested.        Id.   Then,
 4   we review the bankruptcy court’s fact findings for clear error.
 5   Id. at 1262 & n.20.   We must affirm the bankruptcy court’s
 6   findings unless we conclude that they are “(1) ‘illogical,’
 7   (2) ‘implausible,’ or (3) without ‘support in inferences that may
 8   be drawn from the facts in the record.’” Id.
 9                                 Discussion
10   1.   Summary Judgment Standards
11         Granting a motion for summary judgment is appropriate only
12   if there is no genuine dispute as to any material fact, and the
13   moving party is entitled to judgment as a matter of law.         Civil
14   Rule 56(a); Rule 7056; State Farm Mut. Auto Ins. Co. v. Davis,
15   7 F.3d 180, 182 (9th Cir. 1993).         “Material facts” are such facts
16   as may affect the outcome of a case under governing law.
17   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).         A
18   dispute concerning a material fact is “genuine” only if there is
19   sufficient evidence to justify a finding in favor of the non-
20   moving party.   Id.   However, all justifiable inferences from the
21   evidence presented are to be considered in favor of the non-
22   moving party.   Id. at 255.
23   2.   The Evidence before the Bankruptcy Court
24         Section 523(a)(2)(A) excepts from a debtor’s discharge any
25   debt for money obtained by false pretenses, a false
26   representation, or actual fraud.         In order to meet its burden to
27   except a debt from discharge under § 523(a)(2)(A), a creditor
28   must establish each of five elements by a preponderance of the

                                       -15-
 1   evidence.
 2        (1) misrepresentation, fraudulent omission or deceptive
          conduct by the debtor; (2) knowledge of the falsity or
 3        deceptiveness of his statement or conduct; (3) an
          intent to deceive; (4) justifiable reliance by the
 4        creditor on the debtor’s statement or conduct; and
          (5) damage to the creditor proximately caused by its
 5        reliance on the debtor’s statement or conduct.
 6   Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman),
 7   234 F.3d 1081, 1085 (9th Cir. 2000).    However, recognizing the
 8   reality that few debtor defendants are likely to admit to
 9   defrauding their creditors, “fraudulent intent may be established
10   by circumstantial evidence, or by inferences drawn from a course
11   of conduct.”   Devers v. Bank of Sheridan, Mont. (In re Devers),
12   759 F.2d 751, 753-54 (9th Cir. 1985).   See also First Beverly
13   Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir. 1986).
14        In the Complaint, the SSA alleged that Brenda had obtained
15   $24,575 in Supplemental Security Income disability benefits
16   payments for which she was ineligible as a result of material
17   omissions and misrepresentations with respect to an ownership
18   interest in the Motel Property and George and Brenda’s use of the
19   Motel Property for “substantial gainful activity” from
20   approximately September 1999 to September 2004.   The only
21   evidence submitted by the SSA in support of the Summary Judgment
22   Motion was the Investigation Report and the Statements of
23   Claimant or Other Person signed by George and Brenda on
24   September 22, 2004.   However, neither the Investigation Report
25   nor the statements were authenticated or identified by affidavit
26   or declaration, which is a condition precedent to their
27   admissibility as evidence under FRE 901(a).
28        In deciding a motion for summary judgment, a bankruptcy

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 1   court only can consider admissible evidence.
 2        A trial court can only consider admissible evidence in
          ruling on a motion for summary judgment. See [Civil
 3        Rule] 56(e); Beyene v. Coleman Sec. Servs., Inc., 854
          F.2d 1179, 1181 (9th Cir. 1988). Authentication is a
 4        “condition precedent to admissibility,” and this
          condition is satisfied by “evidence sufficient to
 5        support a finding that the matter in question is what
          its proponent claims.” [FRE] 901(a). We have
 6        repeatedly held that unauthenticated documents cannot
          be considered in a motion for summary judgment. See
 7        Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir.
          1994); Hal Roach Studios, Inc. v. Richard Feiner & Co.,
 8        Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene,
          854 F.2d at 1182; Canada v. Blain’s Helicopters, Inc.,
 9        831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone
          Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976).
10
11   Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.
12   2002) (emphasis added).
13        In addition, the Investigation Report is hearsay,8 and there
14   is nothing in the record to establish that it would be admissible
15   in evidence under an exception to the general rule that hearsay
16   evidence is not admissible.9   See FRE 802.
17        Consequently, no admissible evidence was submitted in
18   support of the Summary Judgment Motion, and on that basis, it was
19   error for the bankruptcy court to grant the motion in spite of
20   the Naradas’ ineffective response, in light of the requirements
21
22
23        8
            Under FRE 801(c), “hearsay” is defined as “a statement,
24   other than one made by the declarant while testifying at the
     trial or hearing, offered in evidence to prove the truth of the
25   matter asserted.”
26        9
            The exception for “public records and reports” under FRE
27   803(8) may apply with respect to the Investigation Report, but
     that is a matter we leave to the bankruptcy court for
28   consideration following remand.

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 1   of the Scheduling Order and Local Rule 9013-1(g).10   We conclude
 2   in these circumstances that the order granting the Summary
 3   Judgment Motion should be vacated, and the Adversary Proceeding
 4   should be remanded to the bankruptcy court for further
 5   proceedings.   Accordingly, any issues with respect to the Relief
 6   Motion are moot.
 7                               Conclusion
 8        For the foregoing reasons, we VACATE the summary judgment
 9   order and REMAND to the bankruptcy court for further appropriate
10   proceedings.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
          10
            At oral argument, counsel for the SSA admitted that even
26   considering the content of the Investigation Report, there was
27   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)
28   claim.

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