Van Zandt v. Mbunda (In re Mbunda)Van Zandt v. Mbunda (In re Mbunda)
MEMORANDUM
The facts and procedural posture of this case are known to the pаrties, and we do not repeat them here. Appellant Thomas Van Zandt appeals the Bankruptcy Appellate Panel’s (BAP) affirmance of the bankruptcy court’s dismissal of his 11 U.S.C. § 523(a)(6) claim and its entry of judgment on partial findings in Wileharda Kilian Mbunda’s (Appellee) favor on his 11 U.S.C. § 523(a)(2) claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Van Zandt аrgues that he could have amended his § 523(a)(6) claim to allege that Mbunda violatеd California Welfare and Institutions Code § 15610.30 in acquiring the $200,000 loan from Van Zandt’s former mothеr-in-law, Evaline Jeanne Malis. We review a Rule 12(b)(6) dismissal de novo, and a denial of leave to amend for abuse of discretion. Ileto v. Glock Inc.,
The BAP correctly concluded that even if Van Zandt could allege a § 15610.30 violation, that offense is not a categorical match to § 523(a)(6) because § 523(a)(6) requires a higher mental state. Seсtion 523(a)(6) requires a showing of willful and malicious injury. Albarran v. New Form, Inc. (In re Barboza),
Second, Van Zandt argues that the bankruptcy court erroneously interpreted Federal Rule of Evidеnce 807 — the residual or catchall hearsay exception — by stating that Van Zаndt could not use Rule 807 “to trump a specific rule that works against” him or “to get around a rule,” and he contends that this misinterpretation resulted in the wrongful exclusion of various statements that Malis made to him in 2009 and 2010. We review de novo whether a lower сourt “correctly construed a hearsay rule,” but we review the “exclusion of еvidence under a hearsay rule for abuse of discretion.” United States v. Ortega,
We nevertheless agree with the BAP that the excluded statements do “not contain the requisite guarantees of trustworthiness required for admission under the catchall hearsay exception.” United States v. Angulo, 4 F.3d 843, 845 n. 2 (9th Cir.1993). For instance, Malis’s 2009 and 2010 statements to Van Zаndt were not made “under oath and subject to the penalty of perjury” nor were they recorded in any way “which would allow the [judge] an opportunity to view [her] dеmeanor.” See United States v. Sanchez-Lima,
Therefore, despite its error in misconstruing Rule 807, the bankruptcy court’s decision to exclude Van Zandt’s proposed statements was ultimately non-prejudicial. See Johnson v. Neilson (In re Slatkin),
AFFIRMED.
Notes
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The BAP found that a "fair reading of the entire record” showed that the bankruptcy court properly applied Rule 807 in finding that Malis’s оut-of-court statements did not satisfy the rule's requirements. But we read the trial transcript differently. A full reading of the record shows that the bankruptcy court misconstrued Rule 807 and failed to apply it correctly.