IN RE: Mark J. ESCOTO (2018)

MEMORANDUM **

Robert Hillsman appeals the decision of the Bankruptcy Appellate Panel (BAP) affirming the denial of his exception to discharge claim under 11 U.S.C. § 523(a)(2)(A). Applying the standard set forth in Siriani v. Northwestern National Insurance Co., of Milwaukee, Wisconsin ( In re Siriani ), 967 F.2d 302 (9th Cir. 1992), the bankruptcy court and the BAP each concluded that Hillsman failed to establish any losses proximately caused by Mark Escoto’s fraud. For the reasons that follow, we affirm.

1. We decline to revisit the standard in Siriani. Although Hillsman cites differing precedent from other circuits, this court’s holding in Siriani is consistent with the United States Supreme Court’s decision in Field v. Mans, 516 U.S. 59, 68-70, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). Husky International Electronics, Inc. v. Ritz, ––– U.S. ––––, 136 S.Ct. 1581, 194 L.Ed.2d 655 (2016), does not alter this analysis. Id. at 1589-90.

2. The proximate cause standard set forth in Siriani applies to this case. This court’s decision in Apte v. Japra ( In re Apte ), 96 F.3d 1319 (9th Cir. 1996), does not change the analysis for cases involving fraudulent concealment. Apte notes that, in a fraudulent concealment case, reliance on the misrepresentation is presumed. Id. at 1323. However, the presumption of reliance does not obviate the need to prove loss proximately caused by the fraud. See id. at 1322 (requiring the creditor prove “damage as the proximate result of the representation”).

3. Hillsman did not meet his burden of proving the amount of loss caused by Escoto’s fraud. The bankruptcy court rejected Hillsman’s measure of loss when he merely alleged and produced evidence to show the entire value of the loan, interest, and attorney fees as the amount of loss proximately caused by the fraud. On appeal, Hillsman fails to challenge this independent basis for the bankruptcy court’s decision. We cannot make arguments for Hillsman, so he has failed to meet his burden of persuasion on appeal. E.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant․”).

4. The record also demonstrates that Hillsman did not prove the value of any available collection remedies:

A. Alleged remedies as a secured creditor. Hillsman did not prove valuable collection remedies as a secured creditor. The text of the note unambiguously did not grant Hillsman a security interest in the settlement proceeds. Under Nevada law, a stipulation cannot override the unambiguous language of a contract. See, e.g., Watson v. Watson, 95 Nev. 495, 596 P.2d 507, 508 (1979) (“Courts are bound by language which is clear and free from ambiguity and cannot, using the guise of interpretation, distort the plain meaning of an agreement.”).

B. Alleged remedies as an unsecured creditor. The bankruptcy court correctly held that Hillsman failed to establish valuable collection remedies as an unsecured creditor, because he did not introduce adequate evidence as to Escoto’s assets and liabilities (and the priority of Hillsman’s claim vis-à-vis other creditors).

AFFIRMED.