1 

### NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: ROSA FRIDMAN , Debtor

. BAP No. CC

- 2 2

- 1 242

- LSF

Bk. No. 8 : 21

- bk

- 10513

- SC

MEMOR AN DUM ∗ ROSA FRIDMAN , Ap pell ant , v. KARL AVETOOM , Appellee

. Appe al fro m the United States Bankruptc y Court for the Central District of California Erithe A. Smith , 1 Bankru ptcy Judge, Pres i d i ng

Be fore : LAFFER T Y, SPRAKER, and FARIS , Ban krup tcy Judg es.

I N T R O DUCT ION
Debtor Rosa Fridman appeal s t he bankruptcy court ’s d is missal of h er chapter 7 2 bankruptcy case with a one

- year bar on refiling and the order denying modifica t io n of the dis missal order

. 3 Seeing no error, we AFF IR M.

∗ Th is d i s p o s i t i on is n ot a p p ro p r i a t e f or pu blic ation

. Al t h o u g h i t m a y be ci ted fo r wh a t ever pe r su as i v e val u e it ma y h a ve , se e F e d. R

. A p p

. P. 3 2

. 1, it has n o p recedent ial

v al ue , see 9t h C ir. BA P R u l e 8 0 24

- 1

. 1 Hon. Hon. Erithe A. Smith decided the dismissal motion. The case was then assigned to Hon. Scott C. Clarkson who decided Fridman ’ s m otion to m odify o rder of d ismissal.

2 U nl es s s p ec i fi e d o t her w ise, a ll ch a p te r a n d se c ti on r e f e re nces ar e t o t h e 

# FILED

SEP 14 2023
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT2 FAC T S 4
A. Overview of the bankruptcy case Rosa Fridman filed her chapter 7 petition on February 26, 2021. Appellee Karl Avetoom is a credit or wi th a state court ju d gment ob tain ed
in 2011 against Fridman which exceeds $1 .2 million. 5 The trustee filed his

no
- asset report in September 2021. Ultimately , based on Avetoom ’ s motion
to dismiss , the bankruptcy court dismissed the case on October 31, 2022
with a one

- year bar on refiling a new case under any chapter. The bankruptcy court d en ied Fridman ’ s motion for reconsideration of the
dismissal order

. B. The motions to dismiss
Avetoom filed three motions to dismiss this chapter 7 cas e. Only the granting of the third motion is o n ap peal he re.

B a nk r u p t c y C ode , 1 1 U.S. C. § § 1 0 1

– 1 5 3 2 , “ Rule ” ref ere nce s are t o th e Fed er a l R ules of Ban kru p tcy Pr oc edure , and “ C i vil R ule ” ref e rences are to the Feder al R ul es o f Civil Procedur e

. 3 Fridman ’ s notice of appeal references the order denying her m otion to m odify
o rder of d ismissal . H owever , her appellate briefs make no argument about the issue and therefore it is waived and not discussed further herein

. Maloney v. T3Media, Inc., 853 F.3d 1004, 1019 (9th Cir. 2017) (issue not argued in briefs wa ived).

4 We exer ci se our dis c retion to take judicial notice of docume nts elec tronically filed in the underlying bankruptcy case

. See At wood v. Chase M anhattan Mortg. Co. (In re At wood) , 293 B.R. 227, 23 3 n. 9 (9th Cir. B AP 200 3).

5 During th e ca se, the bankruptcy court ent er ed judg ment in favor of Avetoom specifying that th e debt ow ed to him is not discharged in this case based on § 523 (a) (10). Fridman appealed that judgment w hich w as affirmed by the dist rict court

. CV 2 2

- 00142 PA

.3 1. The f irst m otion to d ismiss
Avet oo m filed his first motion entitled Mo tion to Dismiss Bankruptcy
Case Pursuant to 11 U

. S

. C

. § 707 With 180 Day Bar to Refiling on March 23,
2021

. The motion asserted that the bankruptcy petition was filed in b ad
faith b e cause it was designed alle ge d ly to interfere with a fra udulent
conveyance a ction then pending between the parties in the Orange C o unty Superior Court. The motion was denied at the hear ing for “ insufficient grounds

. ” No order was entered.
2. The s e c ond m otio n to d i smiss On Sep tember 30, 2021, Avetoom filed his second motion entitle d
Motion F or A n O rder D ismissing Rosa Fridman ’ s B ankruptcy Case
Pursuant to 1 1 U

. S

. C

. § 707, Bar to Refiling 11 U.S.C. § 349 And Vacating
This Court ’ s Lien Avoidance Order (the “ Se cond Motion to Dismiss ” )

. T his motion is not on appeal but it is important f or an understanding of the basis of the appeal

. The Second Motion to Dis miss alleg ed th at Fr idman did not complete the prepetition cr edit counseling “ personally ” as require d under § 109(h)(1)

. The motion attached a partial transcript of the § 34 1(a) mee ti ng wher e Fridman testified that she completed the counseling w hile at her
condo in Huntington Be ach , us ing a n LG ta blet. She testified that it took her four hours to comple te the counseling , and that she was assisted by her
son Val Fridma n and a Russian in terpret er

.4 A vetoom attacked that testimony as false. He included a “ chat log ”
that he obtained from Debtorcc, the entity Fridman used to do the prepetition counseling

. The chat log established that the length of the counseling was nine minutes, not four ho urs. Av etoom also included
declaration s of Jay Bhatt, the President of D ebtorcc , and Bryan Swezea , an alleged expert in telecommunication and informat ion techno logy. Avetoo m argued that his evide nce e stablished the following:

• T he c ourse was taken in Redmo nd, Oregon using an IP address
that d id not belong to Rosa Fridman’s internet provider
Frontier C ommunications.

• The c ourse was t aken usin g an Apple Mac i ntosh computer with

an Intel processor and a n Apple OSX 10.15 operating s ystem

.

• The OSX operating s ystem is not availab le on an LG tablet

.

• Th e Apple computer used to take the course used a Firefox 68.0
web browser

. Avetoom argued that this evidence est ablished t hat Fri dman did not
persona lly take the cred it c o unsel ing course and therefore the b ankrup tcy

court was required to dismiss the case

. He asserted also th at the court
could not and should not grant Frid man any relief from the failure “ at this
late date ” f or various re a son s. Fridma n opposed the motion

. S he con ceded in a declara tion filed
wi th her opp osition that she completed the counseling through a Skype

scre enshare with her other son Alex Theory who remotely d isplayed the5 pre
- filing cr edit counseling website from his Macintos h computer wh ile he
was in Or egon. Sh e said she accessed t he Sky p e co mmunication app using
her LG tablet. Her son Alex pul led up the Debtorcc website on his computer at his mother ’ s request , t rans lated the various websit e pages as
presen ted on his computer screen to Fridman from Eng l ish into Russian , and then inpu t her answers to the various questions from Russian back to
E ng lish.
Frid man further argued that dismissal is not mand atory unde r § 109(h)(1) and that a bar on refiling is “ without leg al a uthority

. ” Avetoom replied , largely r ep eating his arguments and th e e viden c e in his motion

. The reply offered another declara tion of Bryan Swezea who disputed Fridm an ’ s new recitation of the facts about how she completed
the cou nseling , and a tta c ke d her do cumenta tion saying , in his o pinion, s he
could not have done the couns eling course using Skype and her LG Tablet

. Three days before the hearing, Fridman filed len gth y e videntiary

o bjections to the various declarations submitted by Avetoom. At the hearing on October 21, 2021 , the bankr uptcy cou rt , obviously upset with Avet oom , not e d at the outset that the case was eight month s o ld
and tha t F ridman had by that time c ompleted the se cond required course , the financial management cou rse . The court stated , “ I choo se to exercise my discretion

-- which I have

-- in terms of what would be a n appropriate remedy if the credit counseling course was not tak en ” and order e d
Fridman to do the c redit coun seling a gain “ o ut of an abundance of6 caution

. ” The bank ruptcy court stat ed at the end of the hearing that
Ave toom ’ s argument wa s “ wholly u nco nvinc i ng

. ” It o verruled Fridman ’ s late

- filed evidentiary objec tion s telling Avetoom “ [s ] o if there is [an] appeal of this decision, you can include your evidence [ , ] ” and denied th e motion

. The court did not give instru ctions as to w ho w as to pre par e the
order deny i ng the Second Motion to Dism iss. No order was submitted to
the court until five months later , March 23, 2022 , when Avetoom lodged an

o rder which the bankruptcy co urt entered a fe w days later (the “ Second
Moti on to Dismiss Or der ” )

. 3. Avetoom ’ s app eal of the S e cond M otion to D i smis s Order
A vetoom appealed the Second Motion to Dismiss Order to the BAP.
Con c urrent with the No tice of Appe al , Avetoom fil ed , simultaneously with
the bankru ptcy court and th e BAP , a m oti on for leave to appe al the o r der

. He argued in t he m otion that the Second Motio n to Dismiss O r der was a
final order but if it was not, the court sh ould permit th e appeal of the interlocutory order.
Abou t three weeks after the appeal was filed, Ave too m filed a pleading wit h the BAP entitled N otice of De v e lopment in the Bank ruptcy
Case and Motio n to D ismiss the En t i re Bankruptcy Case for Debtor ’s Lack of Eligibility to File Bankruptcy Mooting this Appeal. This notice advised
the BAP of a hearing in the bankruptcy court on April 14, 2022, when the

cour t “g a ve permissio n [to Avetoom] to file a [nother] m otion to dismiss for lack of eligibility to be heard on or before August 18, 2022. ”7 Frid man responded to this notice with a motio n t o th e BA P
requ est ing dismissal of the appeal arguing that t he Noti ce of Appe a l was filed t oo late , specifically, more than 150 days after “ the order was entered ” on the bankruptcy court docket. Th e BAP denied the motion as the bankruptcy court do cket entry wa s not an o rder and the appeal was timely

. H owever , in th e same orde r, the B AP re manded the appeal “ so the bankruptcy co urt can fully consider the motion to dismiss the underlying Chapter 7 case. ” 6 The BAP ultimately di smissed the appeal by or der
entered on January 4, 2023 on the basis that , by then, the bankrup tcy cou rt had dism i ss ed the chapter 7 case and the appeal was t herefore moot.
4. Activities between the hearing on the Second Motion to Dismiss and the filing of the t hird m ot ion to d is mis s On March 2 5, 2022 and March 28, 2022 , Avetoom conducted a
debtor ’ s ex am in sta te court a t which Fridman testified. During the March
2 5 th examination, Fridman testified that she did not know what Sky pe was and that she did not sign the d ecl aration included with her o pposition to
the Second Motion to Dismiss. During the March 2 8 th e x amination , Fridman asserted h er Fifth Amendment right not to incriminate herself “ as to all questions asked regarding bank accounts, trusts and/or wi l ls, and any discussions regarding finan c es. ”

6 T he same o rd er s uspended consideration o f the p ending motion for leave to appeal until after the resolution of the new motion to dismiss.8 In the meantime, a separate skirmish was going o n in the bankruptcy

cou r t over Avetoom ’ s objection to Fridman ’ s homestead exemption. A hearing took place on that objection on February 24, 202 2 7 which was continued to April 14, 2022. Avetoom had filed a reply to Fridman ’ s opposition to his objection to her homestead exemption prior to the February hearing but a copy had not been provided to the bankruptcy court prior to that hearing. The court was ho wever able to review the reply prior to the April hea ring and noted that the reply “ raised some really
serious all e gations ” about whether Frid man complete d the credit
counselin g as she c lai med

. The reply had fo cused on Fridman ’ s alle ged
failur e to take the credit counselin g course arguing , in part, that th at failure
sho uld result in dismissal of her case (which would r ende r the homes tead

exe mpt ion iss ue moot )

. T he bankruptcy court ruled at the April 1 4th hearing that its deci sion

on Avetoom ’ s objection to the hom estead exemption would be held in abeyance unti l August 18, 2 0 22 “ or until a determination has been made on

a ny subseq uent mot io n t o dism iss the case filed by Mr. Avetoom,
whichever occurs first. ” Throughout the Apr il 1 4th hearing, the court noted

t hat if Avetoom filed another motion to dismiss , the Ru les permitted hi m to propound discovery in connection with that mo tion

.

7 The court’s tentative ruling for the February 24 hearing state d th at Avetoom could no t ra ise the alleged fail ure to take the cre dit counseling again because the Second Motion to Dismiss Order (which unbeknownst to the court had not yet been entered) was final and issue preclusion prevented him from raising it agai n.9 Avetoom p ropounded w ri tten discovery to Fridman to which she responded and t hereafter took her deposition

. At the deposition she testified that she had used Skype on her LG tablet in t he past.
5. The t hird m otion to d ismiss On August 8 , 2022, Avetoom filed his third m otion to dismiss entitled
M otion for an Order Dismissing Debtor’s Bankruptcy Case Section 109(h), Spoiliation [sic], Bar to Refiling for Two Yea rs, and Di sgo rgement of Fees (t h e “ Third Motion to Dismiss ” )

. The Third Motion to Dismiss large ly repeat ed the l egal arg uments made in the Second Motion to Dismiss , but it
contain ed some new evidence. It disputed F ri dman ’ s cla ims in her
op position to the Second Motion to Di smiss that sh e used Skype on her LG
tablet to facilitate the c redit counseling through h er son , then in Oregon

. It
offered evidence that she had no username or e mail that she could have used to log into Skype. It offered evidence that Micr osoft had no reco rd of
any c al ls F ridman made using Skype going back to 2017.
Avetoom a lso noted that Fridman r efused his request that she

turnover the LG tablet so that his expert could examine it. Fridman had responded that, by the time of th e request, the tablet was b r oke n and
the re fore she had disposed of it . Avetoom argued that this was s po l iation
of eviden ce

. Avetoom furthe r a rgued that Fridman ’ s t estimony at the state court debtor ’ s exam , five months after th e ruling on the Second Motion to Dismiss, established that she lied in h er opposi tion to the Second Motion to10 D ismis s ab out taking the cr e dit counsel in g course a nd on t hat basis her bankruptcy case should be dismissed.
Fridman opposed the Third Motion to Dismiss arg uing that issue preclusion prevent ed the motion and that “ mate ria l new facts ” were required to defeat issu e pr eclusion . She maintained that, at mo st, Avetoom
had found more evidence of the same allegations previously made , which

was insufficient to avoid issue prec lusion

. Fridman we nt to great length to
attack Avetoo m ’ s new facts as being incomplete , misleading , or explainable , an d theref or e n o t determinat ive of the issue of whether
Frid man was eligible for chapter 7

. Avetoo m replied that F ri dman was adding “ new facts ” as well which was improper because they were “ und is closed and unauthenticated. ” He argued that issue preclusion did not apply b ecause of the new facts he present ed.
A fter a hearing, the court entered its memorandum of decision and
order on October 31 , 2022 gran ting the Third Motio n t o Dismi ss with a one

year bar on refiling

. The memorandum focused on whether the issue of
failure to take the cr edi t counseling course was jurisdictional and
concluded that it was not

. It d id however conclude that dismi ssa l for
failu re t o complete th e coun seling prepetition wa s mandatory

. The bankruptc y court summarized the facts in some detail includi ng the
evidenc e prop ou nded in the Secon d Motion to Dismi ss as well as evidence
in the Th ird Motion to Dismiss. The court mad e a single comment t hat11 iss ue prec lus i on did not appl y because “ the evidenc e presented in support of the [third] Motion i ncluded evidence no t available at the ti me the Second
MTD was filed [and there fore] the doctrine of issue prec lusion does not apply. ” T he bankruptcy court concluded with a findi ng that “ the filing of the credit counseling cert ificate by Debtor constitutes a serious misrepresentation to the Court, warranting dismissal of t he case wit h a one (1) year restriction aga inst re

- filing

. ”
Fridman timely a ppealed. J U RIS D ICTI ON
T he ba nkru p t cy co urt h a d ju r is dict i o n un de r 2 8 U.S.C. § § 13 3 4 a nd
15 7 (b )( 1) and (b)(2)(A)

. W e h a ve j u r is d i c tio n u nder 28 U .S

. C

. § 15 8

. I S SUE
D id the bank ruptc y cour t er r in granting the Third Motion to
Dismiss ?
S T A N DARD S OF R E V IE W
We review for abuse of discretion the bankruptcy c ourt's dec ision to dismiss a chapter 7 case for “cause

. ” Sherman v. SEC (In re Sherman) , 491
F.3 d 948 , 969 (9 th Cir. 2 007 )

. We rev ie w de novo the bankruptcy court’s determination t hat issue preclusion is a vailable. Af

– Cap Inc. v. Chevron Ove rseas (Congo) Ltd. , 475 F.3d 1080, 1086 (9th Cir. 2007) (citation omitted)

. If w e determine that issue preclusion is available, we then review the court ’ s d ecision to apply it fo r12 an abuse of discretion

. Robi v. Five Platters, Inc., 838 F.2d 318, 32 1 (9th Cir. 1988)

.

“ De novo review req uires that we consider a ma tter a new , as if no decision had been made previously. ” Francis v. Wallace (In re Franci s) , 5 05
B.R. 914, 917 (9th Cir. BAP 2014) (citations omi t ted ). Whe n w e review a matter de novo, we give no deference to the bankruptcy court’ s decision

. Id.
To determine whet her the bankrup tcy court has abused its discretion,
we conduct a two

- s tep inquiry: (1) we review de novo whether the bankruptcy court “identif ied the correct legal rule to apply t o the relief
reques ted” an d (2) if it did, w e consider whether the bankruptcy court's application of the legal standard was illogical, implausible, or without support in inferences that may be drawn from the facts in th e record.
United States v. Hinkson , 5 85 F.3d 1247, 1262

- 63 & n. 21 (9th Cir. 2009) (en banc)

. We may affirm on any basis suppor ted by the record. Black v. Bonnie Springs Family Ltd. P'ship (In re B lack) , 487 B.R. 202, 21 1 (9th Cir. BAP 2013).

D ISC USS I O N

Fri dman ’ s open ing brief makes two arguments: first, that is sue
pre clusion bars the g ranting of the Third Motion t o Di smiss b as ed on the bankruptcy court ’ s denial of the Second Motion to Dismiss ; and se cond,
that claim preclusion bars the d ismi ssal for the sam e r eason. Fridman does13 not dispute the bankruptcy court ’ s ru lin g that dismissal w as mandato ry ,

n or does she argue that its factua l findings wer e clear l y erroneous

. She

states , [t ] he question in t his appeal is not whether the court below got it right. Rather, t he question is when the bankruptcy court got it right, sin ce neither party can def end each of the rulings on the § 109(h) issue no r each of the bankruptcy court ’ s legal de terminations regard ing whether dismissal is mandatory. Opening Br

. , p. 9. No r do es she argue that the bankruptcy court should not
have entered a one
- year bar on refi ling the case. We t herefore limit our
discu ss ion t o preclusion and relat ed issue s. A. The bankruptcy court did no t er r i n rulin g t hat issue preclusion did not ap ply on these facts

. The bankruptcy court did not discuss the specific requi rement s f or the applica b ility of issue preclusion in its memorandum of de cision , other

t han to note that it did not apply to prevent the co urt from g ran ting the
Third Motion to Dismiss

. W e see no erro r in th e court ’ s conclusion. Issue preclusion refers to “ the preclusive effect of a judgment in foreclosing relitigation o f issues that have been actually and necessarily
decided in earlier litigation. ” Frankfort Digit

. Serv s
. v. Kistler (In re Reynoso),
477 F.3d 1117 , 1122 (9th Cir. 2007) ( quoting Frank v. Uni ted Airlines, Inc., 216
F.3d 845, 850 n. 4 (9th Cir. 2000) )

. Application of the doctrine generall y
requ ires that: (1) the re be the same issue; (2) which is actua lly litigated and determined; (3) resulting in a valid and final jud gment; (4) wh ere the
determ in ation is essential to the jud gment . See Paine v. Griffin (In re Paine) ,14 283 B.R. 33 , 39 ( 9th Cir. BAP 2002) ( citing Re s tatement (Seco nd) of Judgments § 27; Robi , 838 F.2d at 322 )

. See also D elannoy v. Woodlawn Colonial, L.P. (In re Delannoy) , 615 B.R. 57 2 , 58 2 ( 9t h Cir. B AP 2020) ( “ R easonable doubt as t o what was decid ed in the first suit will weigh against applying issue preclu sion. ” ) (cit ation omitted ) , aff ’ d 8 5 2 F . App ’ x 279 (9th Cir. 2021)

. There is no dispute that factors one and fo ur apply here

. Fa ctor two requires not only that the matter be actua lly litigated and
determined but there must be a full and fair opportunity t o liti gate the claim in the pr evious action. See R obi , 838 F.2d a t 322 ( holding that “ [t] he
issue must have been ‘ actua lly deci d e d ’ after a ‘ full and fair opportunity ’ for litigat ion ” ). On this recor d, given these unique facts, we cannot conclude that Avetoom h ad a fair opportunity to contest Fr idman ’ s
op position to the Second Motion to Dismiss given that she retract ed he r prior s w o r n testimony after the motion was filed and repla c ed it with a
d ubious recita tion of new facts

. As to the third factor, fi nality, a bankruptcy court ’ s or der is fina l for purposes of i mmediate appeal under 28 U.S.C. § 158(a)(1) if: (1) it full y and
final l y determin e d the discrete issue or i ssues it presented; and (2) the
resol ution of di screte iss ues seriously affected substan tive right s. Linton v. Colpo Talpa, LLC ( In re Linto n) , 631 B.R. 882 , 8 91 (9th Cir. BAP 2021) aff’d,
Case No. 21

- 60053, 2 0 2 2 WL 170 77498 (9th Cir. Nov. 18, 2022)

. “ [ T] he Supreme Co urt ’ s Bullard

- Ri t zen decisi ons confirmed the c onti nued vitality15 of the Nin th Circuit ’ s ‘ pragmatic ’ or ‘ flexible ’ approach to finality in
bank ru ptcy

. ” I d. (citation omitted).
I t is a close c all whet h er the S econd Motion to Dismiss Or der is a final
orde r , 8 but in any event, as we discuss below, where there is evidence of
fraud on the court and Civil Rule 60(b) relief is appr opriate , the bankruptcy

court ’ s ruling that issue preclusion did not apply , does n ot l e ave us with
the definite and firm convi ction that there was a cle a r error of judgment,
and therefore there is no abuse of discretion

. 9

8 Generally, an orde r de nying a motion to dismi ss is interlocu tory , Hickman v. Hana (In re Hic kman), 384 B.R. 832, 836 (9th Cir. BAP 2008) since de nial of a motion to dismiss a chapter 7 case usually neither finally resolves a discreet iss ue nor serious ly
a ffects the parties’ sub stantive rights

. But at least one case has suggested otherwise

. S ee As pen Skiing Co. v. Cherrett (In re Cherrett) , 873 F.3d 1060, 1065 (9th Cir. 2017) . In Cherrett , the Ninth Circuit determined that denial of the credi tor’s motio n to dismiss was a f inal
or der because th e “order conclusively de term ined the discrete issue whet her the Cherretts' debt was primarily non

- consumer an d therefore subject to discharge under Chapter 7. ” Id. Here, the order appears to have conclusively determined Fridman’s eligibili ty to file the chapte r 7 p etition she fil ed.

9 Neither party argued the effect of law of the case on the bankruptcy court’s ruling, but we note that w hile the bankruptcy court’s iss ue preclusion ruling is well supported by the record, the law of the case doct rine applies even more aptly than issu e pr eclusion to affirm the court’s decision to grant the Third Motion to Dismiss. It is true that a court is generally precluded from rec onsidering a ruling or factual finding that it has made in the past, but the stan dard is lower when the court determine s th at its own prior order was clearly erroneous and its enforcement of the order would work manifest injustice. See Arizona v. California, 460 U.S. 605, 618 n.8 (1983), decision supplemented, 466 U.S. 144 (1984) . In A rizona, the Supreme Court stated, “[u] nder law of the case doctrine, as now mos t commonly understood, it is not improper fo r a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.” Id. And a s t he BAP recently stated, the “law of th e ca se test is less stringent than issue preclusi on,” Ebuehi v. U.S. Tr., BAP No. CC

- 21

- 1199

- FLT, 2022 WL 703911 at *7 n.3 (9th Cir BAP Mar. 8, 2022) (citing Arizona , 460 U.S. at 618).16 B. E ven if issu e preclusion di d apply , t he Third Motion to Dismiss may be p rop erly tr e ated a s a Civil Rule 60(b) motion to vaca te the Sec ond Motion to Dismiss Order based on Fridman ’ s misrepresentation s to the bankruptcy cou rt

. Civil Rul e 60 (b) , made applicable to thi s matter by Rule 9024, permits

a court to “ relieve a party . . . from a f inal judgment, order or procee ding
f or [ among other reasons]

. . . 3) fraud

. . . , misreprese nta tion , or misconduc t by an opposi ng party

. . . or ; 6) an y other re ason that jus tifies
relief. ”

“ Decisions on ‘ [m]otions for relief from judgment under Rul e 60(b)

a re reviewed for abuse of discreti on

. ’ ” Fl ores v. Rosen, 984 F.3d 720, 731 (9th Cir. 2020) ( clean ed up )

. F raud or misr epresen tat ion is a specified basi s for relieving a party from a judgment or order induced there by

. A s the Ni nth Circuit stated in
U ni ted S tates v. Sierra Pacific Ind us t ries , 862 F .3d 1157, 1167

- 68 (9 th Cir. 2017) , “ [i] n determining whethe r fraud con stitut es fraud on the c ourt, the
relevant inquiry is not whether fraudulent conduct ‘prejudiced the opposing party,’ but whether it ‘harmed the int egrity of t he judicial process.’ ” ( C ita tions omitted)

. Fraud on t he court must be an “intentional,
materia l m isrepr esentation.” Id. at 1168 ( citation omitted)

. Th e fraud “must involve an unconscionable plan or scheme whi ch is designed to improperly
infl uence the court in its decision.” I d. (cit ation omitted). “ [ T ] he newly
disco vered misrepresentations must ‘ significan t l y change the picture
alr eady drawn by prev iously available evidence. ’ ” Id. (citation omitted).17 Avetoom based his Seco nd Motion to D i smiss primarily on Fridman ’ s previous st atement s at the mee ting of creditors abou t the
circumstances under which she comp le ted the credit counseling

. Fridman
testifie d at that time that she completed the credit counsel ing on
- line from
he r home , o ver a four

- hour period , wit h the help of her son. But in her opposition to the Second Motio n to Dismiss, she e ssen ti ally conced ed tha t
her statements at the m eeting of creditor s w ere false

. She recit ed a new set of facts , i.e., that she use d Skype with her LG tablet to c onnect , not to the
credit counselor ’ s w ebs ite , but to a different son , who th en conne cted to the
web site. T he court ac cepted the new facts a nd d enied the Second M otion to
Dismiss on that basis

. In his Third Motion to Dismiss , filed after fu r ther testi mony of
Fridman in state court, and afte r appro priate dis covery, Avetoom off ered

new e vidence which led to t he court ’ s find ing that Fridman ’ s new

rec it ation of the fac ts offered in opposition to t he Second Motion to D ismiss

was a n intentional , material mis repre sentation

. The bankruptcy court

con cluded that Fridman ’ s certificate falsely certifying that she had personally comple ted the counseling was a s erious misrepr ese n tation
which warranted not only dismissal of the case, but the extraor dinary remedy of a bar o n future filings of any bankruptcy case fo r one yea r. In effect, the bankruptcy court appropriately v ac ated its prior order denying the motion to dismiss and gr anted the subsequent motion to
dismiss

. It is apparent that the bank ruptcy court believed , when making18 the ruling on the Second Mot ion to Dismiss, that Fridman had made a good faith attempt to comply with the cred it counseling requirement prior to
fi ling h er case. We reach that concl usion from the court ’ s co mment at the
he aring on the Second Mo tion to Dismis s that it had discretion as to th e remedy in the event the counseling had not been comple ted and intended

to use that discretion to fa shion a reme dy sho rt of dismissing the c ase. The

court ’ s change of heart resulted from Avetoom ’ s well

- docume nted critique
of the facts in the third m otion

. Not only had she not comple ted the counseling hers elf in the way she descri bed on two separate occas ions , but
it is also appare nt to this P anel that her steadfast refusal to admit that in the
face of the evide nce establishing the mis representa tion f urther supported
the conclusion that reconsideration of the Second Moti on to Dismiss Order

wa s warranted

. Fridman ’ s fals e and inconsiste nt statements harmed the integrity of
the judicial process , and Rule 60(b)(3) permitt ed the court to reconsider its
prev ious ru ling and reach a different result

. Th e court ’ s ruling und er these
circumstances w as not illogical, impla usible, or without support in
inferen ces t hat may be drawn from t he facts in the record.
C. Fridman di d not arg u e c laim preclusion before the bankru ptcy
co u rt and waived that argument

. Generally, “ [a] litigant may waive an issue by failing to raise it in a bankruptcy court. ” Mano

– Y & M, Ltd. v. Field (I n re Mortg. Store, Inc.) , 773
F.3d 990 , 9 98 (9th Cir. 2014) (c itations omitted )

. See also H a s s e v
. R a i n s d o n ( I n19 r e P r i n g l e ) , 4 9 5 B

. R

. 4 4 7 , 4 5 3 n

. 2 ( 9 t h C i r

. B A P 2 013) (declining to address an
issue when the a rgument was raised for the first time on appeal )

. Fridman argu es in her opening brief to this Panel and a gain in her reply brief tha t claim preclusi on a pplies to preve nt the bankr uptcy court
f rom mak in g it s r uling on the Th ird Motion to Dismiss

. B ut she made n o such argument in her opposition to that motion before th e bankruptcy

court. Thus , we will not consi der this new argument.
Eve n if claim precl usi o n did ap ply, our analysis of the availability o f
Rule 60 (b) would apply equally to claim preclusion as it does to issue preclusion , and theref ore t here is no error.
C O N C L US ION
For these rea sons set fort h above, w e AF FIRM

.