                                                                   FILED
                                                                    FEB 20 2015
 1                         NOT FOR PUBLICATION
                                                             SUSAN M. SPRAUL, CLERK
                                                                  U.S. BKCY. APP. PANEL
 2                                                                OF THE NINTH CIRCUIT
                    UNITED STATES BANKRUPTCY APPELLATE PANEL
 3
                              OF THE NINTH CIRCUIT
 4
 5   In re:                        )      BAP No.      HI-14-1236-KuJuKi
                                   )
 6   THELLDIEN LINMOE WEGESEND and )      Bk. No.      13-01686
     WARREN ROBERT WEGESEND,       )
 7                                 )      Adv. No.     13-90085
                    Debtors.       )
 8   ______________________________)
                                   )
 9   THELLDIEN LINMOE WEGESEND;    )
     WARREN ROBERT WEGESEND,       )
10                                 )
                    Appellants,    )
11                                 )
     v.                            )      MEMORANDUM*
12                                 )
     ONEWEST BANK, FSB,            )
13                                 )
                    Appellee.      )
14   ______________________________)
15                  Argued and Submitted on January 22, 2015
                             at Pasadena, California
16
                           Filed – February 20, 2015
17
              Appeal from the United States Bankruptcy Court
18                      for the District of Hawaii
19     Honorable Robert J. Faris, Chief Bankruptcy Judge, Presiding
20
     Appearances:     Robert L. Stone of Property Rights Law of Hawaii,
21                    Inc. argued for appellants Thelldien Linmoe
                      Wegesend and Warren Robert Wegesend; Jesse W.
22                    Schiel of Kobayashi Sugita & Goda argued for
                      appellee OneWest Bank, FSB.
23
24   Before: KURTZ, JURY and KIRSCHER, Bankruptcy Judges.
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8024-1.
 1                             INTRODUCTION
 2        Chapter 131 debtors Thelldine Linmoe Wegesend and Warren
 3   Robert Wegesend commenced an adversary proceeding against OneWest
 4   Bank objecting to OneWest’s proof of claim.      The Wegesends
 5   alleged that OneWest had no interest in the $980,000 note and
 6   mortgage that were the asserted grounds for the claim.
 7        OneWest filed a motion to dismiss the Wegesends’ adversary
 8   proceeding, and the bankruptcy court converted the dismissal
 9   motion into a summary judgment motion for the limited purpose of
10   determining whether OneWest had possession of the original note.
11   The court ruled that there was no genuine issue of fact that
12   OneWest was in possession of the original note endorsed in blank.
13   Based on OneWest’s possession of the original note endorsed in
14   blank, the court dismissed the adversary proceeding with
15   prejudice, holding that OneWest was the holder of the note and
16   was entitled to enforce both the note and the mortgage.      The
17   Wegesends appealed.
18        When the bankruptcy court converted OneWest’s dismissal
19   motion into a summary judgment motion, the bankruptcy court did
20   not give the Wegesends any opportunity to discover or present
21   evidence in support of their allegation that the original note
22   was not in OneWest’s possession.       Because the Wegesends did not
23   have a full and fair opportunity to ventilate the issue regarding
24   OneWest’s possession of the original note, we must VACATE AND
25
26
          1
           Unless specified otherwise, all chapter and section
27   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
     all "Rule" references are to the Federal Rules of Bankruptcy
28
     Procedure, Rules 1001-9037.

                                        2
 1   REMAND for further proceedings.
 2                                  FACTS
 3        Unless otherwise indicated, the following facts are not in
 4   dispute.   In December 2007, the Wegesends financed the purchase
 5   of their residence by borrowing $980,000 from IndyMac Bank, FSB.
 6   In July 2008, the Office of Thrift Supervision terminated IndyMac
 7   Bank’s operations, and most of IndyMac Bank’s assets were
 8   transferred to a new entity known as IndyMac Federal Bank.    That
 9   same month, IndyMac Federal sent the Wegesends a letter advising
10   them that it had acquired their loan and that their loan payments
11   should be made to IndyMac Federal.
12        Several years later, after the Wegesends commenced their
13   bankruptcy case in October 2013, OneWest filed a proof of claim
14   for $1.4 million based on the Wegesends’ 2007 loan.   According to
15   OneWest, it is the successor to IndyMac Federal’s rights with
16   respect to the Wegesends’ loan.
17        The Wegesends then commenced their adversary proceeding
18   objecting to OneWest’s claim and seeking a determination
19   regarding OneWest’s claimed lien against the Wegesends’
20   residence.   In their complaint, the Wegesends alleged that
21   IndyMac Bank must have sold its interest in the Wegesend loan to
22   a securitization trust because: (1) that is what IndyMac Bank
23   historically had done with most of the loans in its portfolio;
24   and (2) the copy of the note attached to OneWest’s proof of claim
25   reflected that the Wegesends’ note had been endorsed in blank by
26   IndyMac Bank thereby making the note payable to the bearer of the
27   original note.   The Wegesends posited that there was no reason
28   for IndyMac Bank to have endorsed the note unless it had sold the

                                       3
 1   note to a securitization trust.   As for OneWest’s claimed lien
 2   against their residence, the Wegesends alleged that the lien was
 3   unenforceable because OneWest had no rights in the underlying
 4   note that the lien was supposed to secure.2
 5        In response to the adversary complaint, OneWest filed a
 6   Civil Rule 12(b)(6) motion to dismiss.   The dismissal motion
 7   relied on facts not alleged on the face of the complaint in
 8   several respects.   For instance, OneWest asserted in the
 9   dismissal motion that the Office of Thrift Supervision closed
10   IndyMac Federal Bank in 2009 and, at that time, sold many of the
11   bank’s assets, including the Wegesend loan, to OneWest.     The
12   motion also sets forth facts regarding the Wegesends’ default on
13   their loan obligations, OneWest’s commencement of foreclosure
14   proceedings and the Wegesends’ commencement of an action in
15   Hawaii’s land court seeking to prevent the completion of the
16
          2
           The copy of the note attached to the Wegesends’ complaint
17
     included two allonges. The first allonge was signed by Sandra
18   Schneider as “attorney-in-fact” for the Federal Deposit Insurance
     Corporation as receiver for IndyMac Federal Bank, and the second
19   allonge was signed by Sandra Schneider as a vice president of
     OneWest. The first allonge is endorsed to OneWest, and the
20   second allonge is endorsed in blank. Both sides have claimed
     that the allonges support their various theories and legal
21
     arguments. The Wegesends claim that both allonges are invalid
22   and that their existence somehow supports their claim that their
     loan must have been sold to a securitization trust. Meanwhile,
23   OneWest claims that the allonges support its claim that it is the
     holder of the note. Either way, the allonges do not appear to
24   improve the Wegesends’ chances on appeal. Even if we were to
25   assume that the allonges were invalid for any reason, the
     Wegesends admit that the note contains an endorsement in blank on
26   its face (rendering the note payable to whoever possesses the
     original) and thereby rendering the allonges superfluous. On the
27   other hand, if the allonges are valid, they arguably bolster
     OneWest’s assertion that it possesses the original note and is
28
     entitled to enforce the note.

                                       4
 1   foreclosure proceedings.   OneWest filed a request for judicial
 2   notice in support of its dismissal motion indicating: (1) that it
 3   filed in the land court a summary judgment motion accompanied by
 4   proof that it held the original note, (2) that the Wegesends
 5   never responded to OneWest’s summary judgment motion, and
 6   (3) that the Wegesends commenced their bankruptcy case shortly
 7   before the scheduled hearing on OneWest’s summary judgment
 8   motion.
 9        OneWest also pointed out that both parties agreed that the
10   note had been endorsed in blank, that the note therefore was
11   payable to the bearer, and hence that the party who was in
12   possession of the original note was entitled to enforce it.    In
13   further support of its motion to dismiss, OneWest submitted the
14   declaration of one of its attorneys, a Ms. Thao T. Tran, in which
15   she declared that she had received possession of the original
16   note from OneWest, that she had made the original note available
17   for inspection by the Wegesends’ counsel Robert Stone in
18   September 2013 in conjunction with the land court action and that
19   he, in fact, had inspected it.
20        In their opposition to OneWest’s dismissal motion, the
21   Wegesends reiterated their theory that their loan must have been
22   sold to a securitization trust and that OneWest thus never
23   acquired the loan when the Office of Thrift Supervision sold
24   IndyMac Federal Bank’s assets to OneWest.   The Wegesends further
25   argued that OneWest was improperly attempting to introduce facts
26   – which they disputed – regarding possession of the original
27   note.   The Wegesends’ argument regarding OneWest’s asserted
28   possession of the original note was two-fold: (1) it was

                                      5
 1   inappropriate for the court to decide this disputed factual issue
 2   in ruling on a Civil Rule 12(b)(6) motion to dismiss; and (2) it
 3   was inappropriate for the court to decide this disputed factual
 4   issue before the Wegesends were given an opportunity to conduct
 5   discovery and present evidence in support of the position that
 6   OneWest did not possess the original note.
 7        In their reply brief in support of their dismissal motion,
 8   OneWest argued that the bankruptcy court properly could consider
 9   all of the materials OneWest had submitted in support of its
10   dismissal motion.   According to OneWest, most of the essential
11   documents were attached to and referenced in the Wegesends’
12   adversary complaint or were properly the subject of judicial
13   notice.   As for its possession of the original note, OneWest
14   argued that the Wegesends’ failure to defend against their
15   summary judgment motion in the land court action and/or their
16   failure to dispute therein OneWest’s possession of the original
17   note constituted a judicial admission.   In the alternative,
18   OneWest argued that, to the extent any of the materials it had
19   submitted in support of its dismissal motion could not properly
20   be considered in ruling on its dismissal motion, the bankruptcy
21   court should convert the motion to a summary judgment motion and
22   grant OneWest summary judgment.
23        At the hearing, OneWest’s counsel represented to the court
24   that he had brought the original note with him so that the court
25   and opposing counsel could inspect it if they so desired.    On the
26   other hand, the Wegesends’ counsel represented that his co-
27   counsel, Robert Stone, previously had inspected the note and had
28   concluded that the note presented for inspection was not the

                                       6
 1   original but instead was a copy.
 2        There is nothing in the record to indicate that the
 3   bankruptcy court, before ruling, inspected the version of the
 4   note OneWest offered to present at the hearing.    Rather, the
 5   court apparently based its ruling at the hearing on the materials
 6   the parties submitted in advance of the hearing.    These included
 7   the parties’ legal briefs on the dismissal motion, the Wegesends’
 8   adversary complaint and OneWest’s request for judicial notice.
 9   The bankruptcy court held that it was proper to convert the
10   dismissal motion to a summary judgment motion for the limited
11   purpose of deciding whether OneWest possessed the original note.
12   The bankruptcy court further held that there was no genuine issue
13   of fact that OneWest possessed the original note.    According to
14   the bankruptcy court, how OneWest obtained possession of the
15   original note was irrelevant in light of Article 3 of the Uniform
16   Commercial Code, which generally provides that a party in
17   possession of the original note endorsed in blank is a holder of
18   the note and is entitled to enforce the note.   As for OneWest’s
19   right to enforce the lien against the Wegesends’ residence, the
20   bankruptcy court explained that, under Hawaii law, the mortgage
21   automatically followed the note in terms of who could enforce the
22   mortgage.
23        The bankruptcy court entered an order dismissing the
24   Wegesends’ adversary proceeding with prejudice, and the Wegesends
25   timely filed a notice of appeal.
26                             JURISDICTION
27        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
28   §§ 1334 and 157(b)(2)(B), (K) and (O).   We have jurisdiction

                                        7
 1   under 28 U.S.C. § 158.
 2                                   ISSUE
 3        Did the bankruptcy court commit reversible error when it
 4   converted OneWest’s dismissal motion into a summary judgment
 5   motion for the purpose of determining whether OneWest held the
 6   original promissory note?
 7                            STANDARDS OF REVIEW
 8        We review de novo the bankruptcy court’s interpretation of
 9   the Federal Rules of Civil Procedure.     Legal Voice v. Stormans
10   Inc., 738 F.3d 1178, 1184 (9th Cir. 2013).     We also review de
11   novo the bankruptcy court’s construction and application of state
12   statutes.   Med. Protective Co. v. Pang, 740 F.3d 1279, 1282 (9th
13   Cir. 2013); United States v. Valerio, 441 F.3d 837, 839 (9th Cir.
14   2006).
15                                DISCUSSION
16        In order to have standing to file a proof of claim based on
17   a negotiable promissory note governed by Article 3 of the Uniform
18   Commercial Code (“U.C.C.”), the claimant must be a “person
19   entitled to enforce the note” or must be an agent of such person.
20   Allen v. U.S. Bank, N.A. (In re Allen), 472 B.R. 559, 565 (9th
21   Cir. BAP 2012); Veal v. Am. Home Mortg. Serv., Inc. (In re Veal),
22   450 B.R. 897, 910, 919 (9th Cir. BAP 2011).3    One way to become a
23
24        3
           The parties and the bankruptcy court all assumed that the
25   Wegesends’ promissory note was a negotiable instrument subject to
     the provisions of U.C.C. Article 3. Because the Wegesends have
26   not argued in the bankruptcy court or on appeal that their
     promissory note was governed by something other than U.C.C.
27
     Article 3, we may consider this issue forfeited. See Golden v.
28   Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613 (9th Cir.
     BAP 2002).

                                       8
 1   person entitled to enforce the note is to be a “holder” of the
 2   note within the meaning of U.C.C. Article 3.       See Haw.Rev.Stat.
 3   § 490:3-301;4 In re Veal, 450 B.R. at 910-11.      In turn, one way
 4   to become a holder of the note is to have possession of the
 5   original note endorsed in blank.       See Haw.Rev.Stat.
 6   §§ 490:1–201(b), 490:3-205(b); In re Allen, 472 B.R. at 567;
 7   In re Veal, 450 B.R. at 911.
 8        The bankruptcy court held that there was no genuine issue of
 9   fact that OneWest possessed the original note endorsed in blank.
10   OneWest presented to the bankruptcy court declaration testimony
11   supporting its asserted possession of the original note, and
12   OneWest’s counsel represented in open court that he had brought
13   the original note to the hearing for inspection if the court or
14   the Wegesends desired to inspect it.       Furthermore, the Wegesends
15   presented no contraverting evidence - evidence demonstrating that
16   OneWest was mistaken or lying regarding its possession of the
17   original note.   A number of courts have held on similar evidence
18   that the creditor was entitled to summary judgment regarding its
19   asserted possession of the original note and that there is no
20   summary judgment prerequisite for the creditor to present the
21   original note when the obligor under the note has not presented
22   any controverting evidence.    See, e.g., F.D.I.C. v. Cashion,
23   720 F.3d 169, 175 (4th Cir. 2013); Krakauer v. IndyMac Mortg.
24
          4
           The Wegesends’ bankruptcy court filings indicate that, at
25   all relevant times, they have been Hawaii residents and that they
26   signed the note and mortgage in favor of IndyMac Bank in Hawaii.
     Given these undisputed facts, and the fact that the forum state
27   is Hawaii, Haw.Rev.Stat. § 490:1-301(b) applies and provides that
     Hawaii’s version of the U.C.C. governs this matter. See
28   In re Veal, 450 B.R. at 920 n.41.

                                        9
 1   Servs., 2010 WL 5174380, *9 (D. Haw. 2010); Wells Fargo Bank v.
 2   Stratton Jensen, LLC, 273 P.3d 383, (Utah App. 2012); Zarges v.
 3   Bevan, 652 S.W.2d 368, 369 (Tex. 1983).
 4        Moreover, these decisions are consistent with the general
 5   principle that, on summary judgment, if the moving party has
 6   presented certain facts as undisputed and has presented evidence
 7   in support of those facts, the nonmoving party must specifically
 8   challenge those facts as disputed and present contraverting
 9   evidence demonstrating the dispute.   Otherwise, the nonmoving
10   party may be deemed to have admitted those facts for summary
11   judgment purposes.   Beard v. Banks, 548 U.S. 521, 572 (2006); see
12   also 10A Charles A. Wright, Arthur R. Miller, et al., Fed. Prac.
13   & Proc. Civ. § 2727 (3d ed. 2014) (“If the movant presents
14   credible evidence that, if not controverted at trial, would
15   entitle him to a Rule 50 judgment as a matter of law that
16   evidence must be accepted as true on a summary-judgment
17   motion.”).
18        Put another way, an issue of fact is not an impediment to
19   summary judgment unless it is genuine, and a factual issue is not
20   genuine if, on the evidence presented, the trier of fact only
21   could reasonably decide the issue one way.   Far Out Prods., Inc.
22   v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson v.
23   Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986)).   Here, on the
24   record available to the court at the time it heard and determined
25   OneWest’s motion, the Wegesends had not presented any evidence
26   that would have permitted the bankruptcy court to reasonably find
27   that OneWest did not possess the original note.
28        Even so, we do not need to decide here whether there was a

                                     10
 1   genuine issue of fact regarding OneWest’s possession of the
 2   original note.   The controlling issue in this appeal is whether
 3   the bankruptcy court correctly converted OneWest’s dismissal
 4   motion into a summary judgment motion for purposes of determining
 5   whether OneWest held the original note.
 6        Civil Rule 12(d), which is made applicable in adversary
 7   proceedings by Rule 7012, provides that:
 8        If, on a motion under Rule 12(b)(6) or 12(c), matters
          outside the pleadings are presented to and not excluded
 9        by the court, the motion must be treated as one for
          summary judgment under Rule 56. All parties must be
10        given a reasonable opportunity to present all the
          material that is pertinent to the motion.
11
12   Civil Rule 12(d) (emphasis added).
13        While Civil Rule 12(d) specifically requires the court to
14   give the nonmoving party a “reasonable opportunity” to present
15   evidence to counter the moving party’s entitlement to summary
16   judgment, formal notice generally is not required.   San Pedro
17   Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th
18   Cir. 1998).   It will suffice if the nonmovant “is ‘fairly
19   apprised’ before the hearing that the court will look beyond the
20   pleadings.”   Cunningham v. Rothery (In re Rothery), 143 F.3d 546,
21   549 (9th Cir. 1998) (citing Mayer v. Wedgewood Neighborhood
22   Coal., 707 F.2d 1020, 1021 (9th Cir. 1983)).   In other words,
23   the court “need only apprise the parties that it will look beyond
24   the pleadings to extrinsic evidence and give them an opportunity
25   to supplement the record.”   San Pedro Hotel, 159 F.3d 470, 477
26   (emphasis added).
27        Additionally, a bankruptcy court may grant summary judgment
28   without any advance notice “if the losing party has had a ‘full

                                     11
 1   and fair opportunity to ventilate the issues involved in the
 2   motion.’”   In re Rothery, 143 F.3d at 549 (citing Maitland v.
 3   Mitchell (In re Harris Pine Mills), 44 F.3d 1431, 1439 (9th Cir.
 4   1995)).   A litigant is deemed to have had “a full and fair
 5   opportunity to ventilate the issues” if that litigant submits to
 6   the court matters outside the pleadings and invites their
 7   consideration.   In re Rothery, 143 F.3d at 549.
 8        Here, the Wegesends were not fairly apprised that the court
 9   might dispose of their adversary proceeding by summary judgment,
10   nor did they have a full and fair opportunity to ventilate the
11   controlling issue regarding OneWest’s possession of the original
12   note.   In response to OneWest’s dismissal motion, the Wegesends
13   did not offer any materials beyond the scope of their complaint,
14   and they explicitly objected when OneWest attempted to do so.
15   Moreover, the record reflects that the Wegesends were not given
16   any chance to conduct discovery or present evidence supporting
17   their allegation that OneWest did not possess the original note.
18        We acknowledge that the Wegesends may have had some
19   opportunity in the land court action to challenge OneWest’s
20   asserted possession of the note.     However, we know of no reason,
21   factual or legal, why that opportunity there should count against
22   the Wegesends in their adversary proceeding, when the only
23   actions taken by the parties in the adversary proceeding were the
24   Wegesends’ filing of their complaint and OneWest’s filing of its
25   motion to dismiss.
26        OneWest contends that the Wegesends’ failure to avail
27   themselves of various opportunities in the land court action
28   should count against them – that the Wegesends, in effect,

                                     12
 1   “judicially admitted” that OneWest possessed the original note by
 2   not opposing its summary judgment motion in the land court action
 3   and by not offering evidence in the land court action
 4   specifically controverting OneWest’s evidence in support of its
 5   possession of the original note.     OneWest’s judicial admission
 6   argument overreaches.   It may be true that, in the land court
 7   action, when the Wegesends did not challenge the facts OneWest
 8   asserted in support of its summary judgment motion, the land
 9   court may have been permitted to deem all such facts undisputed
10   for purposes of ruling on OneWest’s summary judgment motion.     But
11   this does not mean that the Wegesends’ activity (or inactivity)
12   in the land court action properly has any bearing in the
13   subsequent proceedings taking place in the bankruptcy court.
14         At bottom, in presenting its judicial admission argument,
15   OneWest is seeking to confer issue preclusive effect on its
16   factual assertion – its possession of the original note – that
17   never was fully and finally resolved in the land court action.
18   The record reflects that the land court never ruled on OneWest’s
19   summary judgment motion and, in fact, that the parties stipulated
20   to the voluntary dismissal of the land court action.     Under these
21   circumstances, Hawaii courts would not give any preclusive effect
22   to anything that transpired in the land court action, nor shall
23   we.   See generally Exotics Hawaii-Kona, Inc. v. E.I. Dupont De
24   Nemours & Co., 90 P.3d 250, 257 (Haw. 2004) (stating that issue
25   preclusion elements require a final judgment on the merits and a
26   decision on the issue in question that was necessary to the
27   judgment).
28         Alternately, OneWest argues that we could uphold the

                                     13
 1   bankruptcy court’s dismissal of the Wegesends’ adversary
 2   proceeding under Civil Rule 12(b)(6).    According to OneWest, all
 3   of the documents it submitted in support of its summary judgment
 4   motion either were properly the subject of judicial notice or
 5   were attached to and referenced in the Wegesends’ complaint.    We
 6   disagree.   The evidence OneWest submitted in support of its
 7   assertion that it holds the original note included the
 8   declaration of its attorney, Ms. Thao T. Tran, as well as certain
 9   documents filed in the land court action.    While the bankruptcy
10   court could take judicial notice of the fact that certain
11   documents were filed in the land court action, that does not mean
12   that the bankruptcy court could assume the truth of the “facts”
13   asserted by OneWest in those documents.    See Roth v. Jennings,
14   489 F.3d 499, 509 (2d Cir. 2007); Liberty Mut. Ins. Co. v.
15   Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992).
16        The bankruptcy court also could consider the existence and
17   content of documents attached to and referenced in the Wegesends’
18   complaint as exhibits.    Lee v. City of Los Angeles, 250 F.3d 668,
19   688 (9th Cir. 2001); Durning v. First Boston Corp., 815 F.2d
20   1265, 1267 (9th Cir. 1987).    Even though the Wegesends attached
21   to their complaint a copy of the note, they never admitted that
22   OneWest possessed the original note, which is the the controlling
23   issue in this matter.    Under these circumstances, OneWest’s
24   submission of evidence in support of its asserted possession of
25   the original note constituted “matters outside the pleadings”
26   thereby subjecting its dismissal motion to Civil Rule 12(d) and
27   requiring the bankruptcy court, once it chose to consider those
28   matters, to afford the Wegesends some opportunity to marshal and

                                      14
 1   present evidence regarding OneWest’s asserted possession of the
 2   original note.5
 3                              CONCLUSION
 4        For the reasons set forth above, we VACATE the bankruptcy
 5   court’s summary judgment dismissing the Wegesends’ adversary
 6   proceeding, and we REMAND for further proceedings.
 7
 8
 9
10
11
12
13
14
15
          5
16         We have received and considered OneWest’s motion to dismiss
     this appeal as moot, and the Wegesends’ opposition thereto.
17   OneWest claims that this appeal is moot because the principles of
     res judicata now dictate that the Wegesends cannot prevail in
18   their adversary proceeding. We hereby DENY OneWest’s motion.
19   The only question before this Panel is whether the bankruptcy
     court erred when it dismissed the Wegesends’ adversary
20   proceeding. We have answered that question in the affirmative,
     and we can afford the Wegesends complete relief by vacating the
21   dismissal order and remanding for further proceedings. On
     remand, OneWest is free to raise any preclusion doctrines it
22
     desires to raise, but those preclusion doctrines do not establish
23   that the Wegesends cannot prevail unless and until it is
     judicially determined that one of the doctrines should be applied
24   against the Wegesends. Because this determination requires the
     examination of evidence not previously presented and the
25   application of that evidence to the governing legal standards,
26   this determination should be made, in the first instance, by the
     bankruptcy court and not by this Panel. See generally Scovis v.
27   Henrichsen (In re Scovis), 249 F.3d 975, 984 (9th Cir. 2001)
     (stating that court will not consider issue raised for the first
28   time on appeal absent exceptional circumstances).

                                    15
