In re: MARK J. ESCOTO v. Mark J. Escoto

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARK J. ESCOTO,
Debtor,
______________________________
ROBERT G. HILLSMAN,
Appellant,
v.
MARK J. ESCOTO,
Appellee.
No. 17-60030
BAP No. 16-1211
MEMORANDUM*
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kurtz, Jury, and Lafferty III, Bankruptcy Judges, Presiding
Argued and Submitted February 13, 2018
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and STATON,** District Judge.
FILED
FEB 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.

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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 (1995). Husky International Electronics, Inc. v. Ritz, 136 S. Ct. 1581 (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”).
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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, 596 P.2d 507, 508 (Nev. 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
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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.
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