Further, nothing in § 523(a)(2) requires that " an extension of credit be joined by an advance of further funds in order for a creditor to have a claim for relief." Cho Hung Bank v. Kim (In re Kim), 163 B.R. 157, 159 (9th Cir. BAP 1994) aff'd, 62 F.3d 1511 (9th Cir. 1995). 9.
Siriani v. Nw. Nat'l Ins. Co. of Milwaukee, Wis. (In re Siriani), 967 F.2d 302, 306 (9th Cir. 1992). See also Cho Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd, 62 F.3d 1511 (9th Cir. 1995). To comply with Siriani and demonstrate that the extension proximately caused his loss, Hillsman needed to show: (1) that he possessed valuable collection remedies at the time the loan term was extended (here, at the time of settlement(s)); and (2) a depreciation in the value of those remedies during the extended repayment period.
However, in order to prevail on a § 523(a)(2)(A) claim based on the creditor's forbearance, the creditor must prove, among other things, that at the time of the forbearance, “it had valuable collection remedies.” Cho–Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd and adopted, 62 F.3d 1511 (9th Cir.1995) ; see alsoSiriani, 967 F.2d at 305 (same holding in the context of § 523(a)(2)(B) ). The creditor also must prove that “those remedies lost value” during the time of forbearance.
In re Siriani, 967 F.2d at 306. See also Cho Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd, 62 F.3d 1511 (9th Cir. 1995). The debtors in Siriani borrowed $1.2 million to purchase an apartment building in connection with their involvement in a limited partnership.
In re Siriani, 967 F.2d at 306. See also Cho Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd, 62 F.3d 1511 (9th Cir. 1995). The debtors in Siriani borrowed $1.2 million to purchase an apartment building in connection with their involvement in a limited partnership.
The same requirement applies where a forbearance is obtained through misrepresentation and fraud encompassed by Section 523(a)(2)(A). See Cho–Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 ( 9th Cir. BAP 1994), aff'd and adopted, 62 F.3d 1511 (9th Cir.1995).See, e.g.,Locke v. Milner (In re Locke), 205 B.R. 592, 598 (9th Cir. BAP 1996) (creditor lost valuable collection right where landlord did not call first letter of credit and debtor had fraudulently induced creditor to issue second letter of credit in favor of the landlord); Antioch Community Federal Credit Union v. Pagnini (In re Pagnini), 2012 WL 5489032 at *5–6 (9th Cir. BAP 2012) (creditor lost no valuable collection remedies when it failed to demonstrate that repossession and sale of collateral would have resulted in greater proceeds than if it had not refinanced the loan based on false information provided by the debtor); California Bank & Trust v. Kahn (In re Kahn), 2013 WL 5881618 at *14 (Bankr.S.D.Cal.2013) (creditor failed to present evidence that right to foreclose on collateral and sue for deficiency had lost value during fraudulently obtained extensions); Husain v. Chopra (In re Chopra), 2013 WL 1681773 (Bankr.N.D.Cal.2013)
In order to prevail on a § 523(a)(2)(A) claim based on the creditor's forbearance, the creditor must prove, among other things, that at the time of the forbearance, " it had valuable collection remedies." Cho-Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd and adopted, 62 F.3d 1511 (9th Cir. 1995); see also Stevens v. Nw. Nat'l Ins. Co. (In re Siriani), 967 F.2d 302, 305 (9th Cir. 1992)(same holding in the context of § 523(a)(2)(B)). The creditor also must prove that " those remedies lost value" during the time of forebearance.
In order to prevail on a § 523(a)(2)(A) claim based on the creditor's forbearance, the creditor must prove, among other things, that at the time of the forbearance, "it had valuable collection remedies." Cho-Hung Bank v. Kim (In re Kim), 163 B.R. 157, 161 (9th Cir. BAP 1994), aff'd and adopted, 62 F.3d 1511 (9th Cir. 1995); see also Stevens v. Nw. Nat'l Ins. Co. (In re Siriani), 967 F.2d 302, 305 (9th Cir. 1992)(same holding in the context of § 523(a)(2)(B)). The creditor also must prove that "those remedies lost value" during the time of forebearance.
For example, in Cho-Hung Bank v. Kim (In re Kim), 62 F.3d 1511 (9th Cir. 1995), the Ninth Circuit adopted the opinion of the BAP in Cho-Hung Bank v. Kim (In re Kim), 163 B.R. 157 (9th Cir. BAP 1994) (" Kim I"). In Kim I, Mrs. Kim received a loan of $150,000 from Cho-Hung Bank to purchase a property and executed a promissory note for that amount to be repaid in 180 days.
We agree. The opinion of the Bankruptcy Appellate Panel in In re Kim, 163 B.R. 157 (9th Cir. BAP 1994) is hereby adopted as the opinion of this Court. AFFIRMED.