1

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re:

ROSA FRIDMAN,

Debtor.

BAP No. CC-22-1242-LSF

Bk. No. 8:21-bk-10513-SC

MEMORANDUM∗

ROSA FRIDMAN,

Appellant,

v.

KARL AVETOOM,

Appellee.

Appeal from the United States Bankruptcy Court

for the Central District of California

Erithe A. Smith,

1 Bankruptcy Judge, Presiding

Before: LAFFERTY, SPRAKER, and FARIS, Bankruptcy Judges.

INTRODUCTION

Debtor Rosa Fridman appeals the bankruptcy court’s dismissal of her 

chapter 72 bankruptcy case with a one-year bar on refiling and the order 

denying modification of the dismissal order.

3 Seeing no error, we AFFIRM.

∗ This disposition is not appropriate for publication. Although it may be cited for

whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential 

value, see 9th Cir. BAP Rule 8024-1.

1 Hon. Hon. Erithe A. Smith decided the dismissal motion. The case was then 

assigned to Hon. Scott C. Clarkson who decided Fridman’s motion to modify order of 

dismissal. 

2 Unless specified otherwise, all chapter and section references are to the

FILED

SEP 14 2023

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
2

FACTS4

A. Overview of the bankruptcy case

Rosa Fridman filed her chapter 7 petition on February 26, 2021.

Appellee Karl Avetoom is a creditor with a state court judgment obtained 

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 denied Fridman’s motion for reconsideration of the 

dismissal order.

B. The motions to dismiss

Avetoom filed three motions to dismiss this chapter 7 case. Only the 

granting of the third motion is on appeal here.

Bankruptcy Code, 11 U.S.C. §§ 101–1532, “Rule” references are to the Federal Rules of

Bankruptcy Procedure, and “Civil Rule” references are to the Federal Rules of Civil 

Procedure.

3 Fridman’s notice of appeal references the order denying her motion to modify 

order of dismissal. However, 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 waived).

4 We exercise our discretion to take judicial notice of documents electronically 

filed in the underlying bankruptcy case. See Atwood v. Chase Manhattan Mortg. Co. (In re 

Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).

5 During the case, the bankruptcy court entered judgment in favor of Avetoom 

specifying that the debt owed to him is not discharged in this case based on § 523(a)(10). 

Fridman appealed that judgment which was affirmed by the district court. CV 22-00142

PA.
3

1. The first motion to dismiss

Avetoom filed his first motion entitled Motion 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 bad 

faith because it was designed allegedly to interfere with a fraudulent 

conveyance action then pending between the parties in the Orange County 

Superior Court. The motion was denied at the hearing for “insufficient 

grounds.” No order was entered.

2. The second motion to dismiss

On September 30, 2021, Avetoom filed his second motion entitled 

Motion For An Order Dismissing Rosa Fridman’s Bankruptcy Case 

Pursuant to 11 U.S.C. § 707, Bar to Refiling 11 U.S.C. § 349 And Vacating 

This Court’s Lien Avoidance Order (the “Second Motion to Dismiss”). This 

motion is not on appeal but it is important for an understanding of the 

basis of the appeal.

The Second Motion to Dismiss alleged that Fridman did not complete

the prepetition credit counseling “personally” as required under 

§ 109(h)(1). The motion attached a partial transcript of the § 341(a) meeting 

where Fridman testified that she completed the counseling while at her 

condo in Huntington Beach, using an LG tablet. She testified that it took 

her four hours to complete the counseling, and that she was assisted by her 

son Val Fridman and a Russian interpreter.
4

Avetoom 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 hours. Avetoom also included 

declarations of Jay Bhatt, the President of Debtorcc, and Bryan Swezea, an 

alleged expert in telecommunication and information technology. Avetoom 

argued that his evidence established the following: 

• The course was taken in Redmond, Oregon using an IP address 

that did not belong to Rosa Fridman’s internet provider

Frontier Communications. 

• The course was taken using an Apple Macintosh computer with

an Intel processor and an Apple OSX 10.15 operating system. 

• The OSX operating system is not available on an LG tablet.

• The Apple computer used to take the course used a Firefox 68.0 

web browser.

Avetoom argued that this evidence established that Fridman did not 

personally take the credit counseling course and therefore the bankruptcy 

court was required to dismiss the case. He asserted also that the court 

could not and should not grant Fridman any relief from the failure “at this 

late date” for various reasons.

Fridman opposed the motion. She conceded in a declaration filed 

with her opposition that she completed the counseling through a Skype 

screenshare with her other son Alex Theory who remotely displayed the 
5

pre-filing credit counseling website from his Macintosh computer while he 

was in Oregon. She said she accessed the Skype communication app using 

her LG tablet. Her son Alex pulled up the Debtorcc website on his 

computer at his mother’s request, translated the various website pages as

presented on his computer screen to Fridman from English into Russian,

and then input her answers to the various questions from Russian back to 

English.

Fridman further argued that dismissal is not mandatory under 

§ 109(h)(1) and that a bar on refiling is “without legal authority.”

Avetoom replied, largely repeating his arguments and the evidence 

in his motion. The reply offered another declaration of Bryan Swezea who 

disputed Fridman’s new recitation of the facts about how she completed 

the counseling, and attacked her documentation saying, in his opinion, she 

could not have done the counseling course using Skype and her LG Tablet.

Three days before the hearing, Fridman filed lengthy evidentiary 

objections to the various declarations submitted by Avetoom.

At the hearing on October 21, 2021, the bankruptcy court, obviously 

upset with Avetoom, noted at the outset that the case was eight months old

and that Fridman had by that time completed the second required course, 

the financial management course. The court stated, “I choose to exercise 

my discretion -- which I have -- in terms of what would be an appropriate 

remedy if the credit counseling course was not taken” and ordered

Fridman to do the credit counseling again “out of an abundance of 
6

caution.” The bankruptcy court stated at the end of the hearing that 

Avetoom’s argument was “wholly unconvincing.” It overruled Fridman’s 

late-filed evidentiary objections telling Avetoom “[s]o if there is [an] appeal 

of this decision, you can include your evidence[,]” and denied the motion.

The court did not give instructions as to who was to prepare the 

order denying the Second Motion to Dismiss. No order was submitted to 

the court until five months later, March 23, 2022, when Avetoom lodged an 

order which the bankruptcy court entered a few days later (the “Second 

Motion to Dismiss Order”).

3. Avetoom’s appeal of the Second Motion to Dismiss Order

Avetoom appealed the Second Motion to Dismiss Order to the BAP.

Concurrent with the Notice of Appeal, Avetoom filed, simultaneously with 

the bankruptcy court and the BAP, a motion for leave to appeal the order.

He argued in the motion that the Second Motion to Dismiss Order was a 

final order but if it was not, the court should permit the appeal of the 

interlocutory order.

About three weeks after the appeal was filed, Avetoom filed a 

pleading with the BAP entitled Notice of Development in the Bankruptcy 

Case and Motion to Dismiss the Entire 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

court “gave permission [to Avetoom] to file a[nother] motion to dismiss for 

lack of eligibility to be heard on or before August 18, 2022.”
7

Fridman responded to this notice with a motion to the BAP 

requesting dismissal of the appeal arguing that the Notice of Appeal was 

filed too late, specifically, more than 150 days after “the order was entered”

on the bankruptcy court docket. The BAP denied the motion as the 

bankruptcy court docket entry was not an order and the appeal was timely.

However, in the same order, the BAP remanded the appeal “so the 

bankruptcy court can fully consider the motion to dismiss the underlying 

Chapter 7 case.”6 The BAP ultimately dismissed the appeal by order 

entered on January 4, 2023 on the basis that, by then, the bankruptcy court 

had dismissed the chapter 7 case and the appeal was therefore moot.

4. Activities between the hearing on the Second Motion to 

Dismiss and the filing of the third motion to dismiss

On March 25, 2022 and March 28, 2022, Avetoom conducted a 

debtor’s exam in state court at which Fridman testified. During the March 

25th examination, Fridman testified that she did not know what Skype was 

and that she did not sign the declaration included with her opposition to 

the Second Motion to Dismiss. During the March 28th examination,

Fridman asserted her Fifth Amendment right not to incriminate herself “as 

to all questions asked regarding bank accounts, trusts and/or wills, and any 

discussions regarding finances.”

6 The same order suspended consideration of the pending motion for leave to 

appeal until after the resolution of the new motion to dismiss.
8

In the meantime, a separate skirmish was going on in the bankruptcy 

court over Avetoom’s objection to Fridman’s homestead exemption. A 

hearing took place on that objection on February 24, 20227 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 however able to review the reply 

prior to the April hearing and noted that the reply “raised some really 

serious allegations” about whether Fridman completed the credit 

counseling as she claimed. The reply had focused on Fridman’s alleged 

failure to take the credit counseling course arguing, in part, that that failure 

should result in dismissal of her case (which would render the homestead 

exemption issue moot).

The bankruptcy court ruled at the April 14th hearing that its decision 

on Avetoom’s objection to the homestead exemption would be held in 

abeyance until August 18, 2022 “or until a determination has been made on 

any subsequent motion to dismiss the case filed by Mr. Avetoom, 

whichever occurs first.” Throughout the April 14th hearing, the court noted 

that if Avetoom filed another motion to dismiss, the Rules permitted him to 

propound discovery in connection with that motion.

7 The court’s tentative ruling for the February 24 hearing stated that Avetoom 

could not raise the alleged failure to take the credit 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 again.
9

Avetoom propounded written discovery to Fridman to which she

responded and thereafter took her deposition. At the deposition she

testified that she had used Skype on her LG tablet in the past.

5. The third motion to dismiss

On August 8, 2022, Avetoom filed his third motion to dismiss entitled

Motion for an Order Dismissing Debtor’s Bankruptcy Case Section 109(h), 

Spoiliation [sic], Bar to Refiling for Two Years, and Disgorgement of Fees

(the “Third Motion to Dismiss”). The Third Motion to Dismiss largely

repeated the legal arguments made in the Second Motion to Dismiss, but it 

contained some new evidence. It disputed Fridman’s claims in her

opposition to the Second Motion to Dismiss that she used Skype on her LG 

tablet to facilitate the credit counseling through her son, then in Oregon. It 

offered evidence that she had no username or email that she could have 

used to log into Skype. It offered evidence that Microsoft had no record of 

any calls Fridman made using Skype going back to 2017.

Avetoom also noted that Fridman refused his request that she

turnover the LG tablet so that his expert could examine it. Fridman had 

responded that, by the time of the request, the tablet was broken and 

therefore she had disposed of it. Avetoom argued that this was spoliation 

of evidence.

Avetoom further argued that Fridman’s testimony at the state court 

debtor’s exam, five months after the ruling on the Second Motion to 

Dismiss, established that she lied in her opposition to the Second Motion to 
10

Dismiss about taking the credit counseling course and on that basis her 

bankruptcy case should be dismissed.

Fridman opposed the Third Motion to Dismiss arguing that issue 

preclusion prevented the motion and that “material new facts” were 

required to defeat issue preclusion. She maintained that, at most, Avetoom 

had found more evidence of the same allegations previously made, which 

was insufficient to avoid issue preclusion. Fridman went to great length to 

attack Avetoom’s new facts as being incomplete, misleading, or 

explainable, and therefore not determinative of the issue of whether 

Fridman was eligible for chapter 7.

Avetoom replied that Fridman was adding “new facts” as well which 

was improper because they were “undisclosed and unauthenticated.” He 

argued that issue preclusion did not apply because of the new facts he 

presented.

After a hearing, the court entered its memorandum of decision and 

order on October 31, 2022 granting the Third Motion to Dismiss with a oneyear bar on refiling. The memorandum focused on whether the issue of 

failure to take the credit counseling course was jurisdictional and

concluded that it was not. It did however conclude that dismissal for 

failure to complete the counseling prepetition was mandatory. The 

bankruptcy court summarized the facts in some detail including the 

evidence propounded in the Second Motion to Dismiss as well as evidence 

in the Third Motion to Dismiss. The court made a single comment that 
11

issue preclusion did not apply because “the evidence presented in support 

of the [third] Motion included evidence not available at the time the Second

MTD was filed [and therefore] the doctrine of issue preclusion does not

apply.” The bankruptcy court concluded with a finding that “the filing of 

the credit counseling certificate by Debtor constitutes a serious 

misrepresentation to the Court, warranting dismissal of the case with a one 

(1) year restriction against re-filing.”

Fridman timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 

157(b)(1) and (b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Did the bankruptcy court err in granting the Third Motion to

Dismiss?

STANDARDS OF REVIEW

We review for abuse of discretion the bankruptcy court's decision to 

dismiss a chapter 7 case for “cause.” Sherman v. SEC (In re Sherman), 491 

F.3d 948, 969 (9th Cir. 2007).

We review de novo the bankruptcy court’s determination that issue 

preclusion is available. Af–Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 

F.3d 1080, 1086 (9th Cir. 2007) (citation omitted). If we determine that issue 

preclusion is available, we then review the court’s decision to apply it for 
12

an abuse of discretion. Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir.

1988).

“De novo review requires that we consider a matter anew, as if no 

decision had been made previously.” Francis v. Wallace (In re Francis), 505 

B.R. 914, 917 (9th Cir. BAP 2014) (citations omitted). When we review a 

matter de novo, we give no deference to the bankruptcy court’s decision. 

Id.

To determine whether the bankruptcy court has abused its discretion, 

we conduct a two-step inquiry: (1) we review de novo whether the 

bankruptcy court “identified the correct legal rule to apply to the relief 

requested” and (2) if it did, we 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 the record. 

United States v. Hinkson, 585 F.3d 1247, 1262-63 & n.21 (9th Cir. 2009) (en 

banc).

We may affirm on any basis supported by the record. Black v. Bonnie 

Springs Family Ltd. P'ship (In re Black), 487 B.R. 202, 211 (9th Cir. BAP 2013).

DISCUSSION

Fridman’s opening brief makes two arguments: first, that issue 

preclusion bars the granting of the Third Motion to Dismiss based on the 

bankruptcy court’s denial of the Second Motion to Dismiss; and second, 

that claim preclusion bars the dismissal for the same reason. Fridman does 
13

not dispute the bankruptcy court’s ruling that dismissal was mandatory,

nor does she argue that its factual findings were clearly erroneous. She 

states, 

[t]he question in this appeal is not whether the court below got 

it right. Rather, the question is when the bankruptcy court got it 

right, since neither party can defend each of the rulings on the 

§ 109(h) issue nor each of the bankruptcy court’s legal 

determinations regarding whether dismissal is mandatory.

Opening Br., p. 9. Nor does she argue that the bankruptcy court should not 

have entered a one-year bar on refiling the case. We therefore limit our 

discussion to preclusion and related issues.

A. The bankruptcy court did not err in ruling that issue preclusion did 

not apply on these facts.

The bankruptcy court did not discuss the specific requirements for 

the applicability of issue preclusion in its memorandum of decision, other 

than to note that it did not apply to prevent the court from granting the 

Third Motion to Dismiss. We see no error in the court’s conclusion.

Issue preclusion refers to “the preclusive effect of a judgment in 

foreclosing relitigation of issues that have been actually and necessarily 

decided in earlier litigation.” Frankfort Digit. Servs. v. Kistler (In re Reynoso),

477 F.3d 1117, 1122 (9th Cir. 2007) (quoting Frank v. United Airlines, Inc., 216 

F.3d 845, 850 n. 4 (9th Cir. 2000)). Application of the doctrine generally 

requires that: (1) there be the same issue; (2) which is actually litigated and

determined; (3) resulting in a valid and final judgment; (4) where the 

determination is essential to the judgment. See Paine v. Griffin (In re Paine), 
14

283 B.R. 33, 39 (9th Cir. BAP 2002) (citing Restatement (Second) of 

Judgments § 27; Robi, 838 F.2d at 322). See also Delannoy v. Woodlawn 

Colonial, L.P. (In re Delannoy), 615 B.R. 572, 582 (9th Cir. BAP 2020)

(“Reasonable doubt as to what was decided in the first suit will weigh 

against applying issue preclusion.”) (citation omitted), aff’d 852 F. App’x

279 (9th Cir. 2021). There is no dispute that factors one and four apply here. 

Factor two requires not only that the matter be actually litigated and

determined but there must be a full and fair opportunity to litigate the 

claim in the previous action. See Robi, 838 F.2d at 322 (holding that “[t]he 

issue must have been ‘actually decided’ after a ‘full and fair opportunity’

for litigation”). On this record, given these unique facts, we cannot 

conclude that Avetoom had a fair opportunity to contest Fridman’s 

opposition to the Second Motion to Dismiss given that she retracted her 

prior sworn testimony after the motion was filed and replaced it with a 

dubious recitation of new facts.

As to the third factor, finality, a bankruptcy court’s order is final for 

purposes of immediate appeal under 28 U.S.C. § 158(a)(1) if: (1) it fully and 

finally determined the discrete issue or issues it presented; and (2) the 

resolution of discrete issues seriously affected substantive rights. Linton v. 

Colpo Talpa, LLC (In re Linton), 631 B.R. 882, 891 (9th Cir. BAP 2021) aff’d,

Case No. 21-60053, 2022 WL 17077498 (9th Cir. Nov. 18, 2022). “[T]he 

Supreme Court’s Bullard-Ritzen decisions confirmed the continued vitality 
15

of the Ninth Circuit’s ‘pragmatic’ or ‘flexible’ approach to finality in

bankruptcy.” Id. (citation omitted).

It is a close call whether the Second Motion to Dismiss Order is a final 

order,

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 appropriate, the bankruptcy 

court’s ruling that issue preclusion did not apply, does not leave us with 

the definite and firm conviction that there was a clear error of judgment, 

and therefore there is no abuse of discretion.

9 

8 Generally, an order denying a motion to dismiss is interlocutory, Hickman v. 

Hana (In re Hickman), 384 B.R. 832, 836 (9th Cir. BAP 2008) since denial of a motion to 

dismiss a chapter 7 case usually neither finally resolves a discreet issue nor seriously 

affects the parties’ substantive rights. But at least one case has suggested otherwise. See

Aspen 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 creditor’s motion to dismiss was a final 

order because the “order conclusively determined the discrete issue whether the 

Cherretts' debt was primarily non-consumer and therefore subject to discharge under 

Chapter 7.” Id. Here, the order appears to have conclusively determined Fridman’s 

eligibility to file the chapter 7 petition she filed.

9 Neither party argued the effect of law of the case on the bankruptcy court’s 

ruling, but we note that while the bankruptcy court’s issue preclusion ruling is well 

supported by the record, the law of the case doctrine applies even more aptly than issue 

preclusion to affirm the court’s decision to grant the Third Motion to Dismiss. It is true 

that a court is generally precluded from reconsidering a ruling or factual finding that it 

has made in the past, but the standard is lower when the court determines that 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 Arizona, the Supreme Court stated, “[u]nder law of 

the case doctrine, as now most commonly understood, it is not improper for a court to 

depart from a prior holding if convinced that it is clearly erroneous and would work a 

manifest injustice.” Id. And as the BAP recently stated, the “law of the case test is less 

stringent than issue preclusion,” 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. Even if issue preclusion did apply, the Third Motion to Dismiss

may be properly treated as a Civil Rule 60(b) motion to vacate the

Second Motion to Dismiss Order based on Fridman’s

misrepresentations to the bankruptcy court.

Civil Rule 60(b), made applicable to this matter by Rule 9024, permits 

a court to “relieve a party . . . from a final judgment, order or proceeding

for [among other reasons] . . . 3) fraud . . ., misrepresentation, or 

misconduct by an opposing party . . . or; 6) any other reason that justifies 

relief.”

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

are reviewed for abuse of discretion.’” Flores v. Rosen, 984 F.3d 720, 731 (9th 

Cir. 2020) (cleaned up).

Fraud or misrepresentation is a specified basis for relieving a party 

from a judgment or order induced thereby. As the Ninth Circuit stated in 

United States v. Sierra Pacific Industries, 862 F.3d 1157, 1167-68 (9th Cir. 

2017), “[i]n determining whether fraud constitutes fraud on the court, the 

relevant inquiry is not whether fraudulent conduct ‘prejudiced the 

opposing party,’ but whether it ‘harmed the integrity of the judicial 

process.’” (Citations omitted). Fraud on the court must be an “intentional, 

material misrepresentation.” Id. at 1168 (citation omitted). The fraud “must 

involve an unconscionable plan or scheme which is designed to improperly

influence the court in its decision.” Id. (citation omitted). “[T]he newly 

discovered misrepresentations must ‘significantly change the picture 

already drawn by previously available evidence.’” Id. (citation omitted).
17

Avetoom based his Second Motion to Dismiss primarily on 

Fridman’s previous statements at the meeting of creditors about the 

circumstances under which she completed the credit counseling. Fridman 

testified at that time that she completed the credit counseling on-line from 

her home, over a four-hour period, with the help of her son. But in her 

opposition to the Second Motion to Dismiss, she essentially conceded that 

her statements at the meeting of creditors were false. She recited a new set 

of facts, i.e., that she used Skype with her LG tablet to connect, not to the 

credit counselor’s website, but to a different son, who then connected to the 

website. The court accepted the new facts and denied the Second Motion to 

Dismiss on that basis.

In his Third Motion to Dismiss, filed after further testimony of 

Fridman in state court, and after appropriate discovery, Avetoom offered 

new evidence which led to the court’s finding that Fridman’s new

recitation of the facts offered in opposition to the Second Motion to Dismiss 

was an intentional, material misrepresentation. The bankruptcy court

concluded that Fridman’s certificate falsely certifying that she had 

personally completed the counseling was a serious misrepresentation

which warranted not only dismissal of the case, but the extraordinary

remedy of a bar on future filings of any bankruptcy case for one year.

In effect, the bankruptcy court appropriately vacated its prior order 

denying the motion to dismiss and granted the subsequent motion to 

dismiss. It is apparent that the bankruptcy court believed, when making 
18

the ruling on the Second Motion to Dismiss, that Fridman had made a good 

faith attempt to comply with the credit counseling requirement prior to 

filing her case. We reach that conclusion from the court’s comment at the 

hearing on the Second Motion to Dismiss that it had discretion as to the 

remedy in the event the counseling had not been completed and intended 

to use that discretion to fashion a remedy short of dismissing the case. The

court’s change of heart resulted from Avetoom’s well-documented critique

of the facts in the third motion. Not only had she not completed the 

counseling herself in the way she described on two separate occasions, but 

it is also apparent to this Panel that her steadfast refusal to admit that in the 

face of the evidence establishing the misrepresentation further supported 

the conclusion that reconsideration of the Second Motion to Dismiss Order 

was warranted.

Fridman’s false and inconsistent statements harmed the integrity of 

the judicial process, and Rule 60(b)(3) permitted the court to reconsider its 

previous ruling and reach a different result. The court’s ruling under these 

circumstances was not illogical, implausible, or without support in 

inferences that may be drawn from the facts in the record.

C. Fridman did not argue claim preclusion before the bankruptcy 

court 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 (In re Mortg. Store, Inc.), 773 

F.3d 990, 998 (9th Cir. 2014) (citations omitted). See also Hasse v. Rainsdon (In
19

re Pringle), 495 B.R. 447, 453 n.2 (9th Cir. BAP 2013) (declining to address an 

issue when the argument was raised for the first time on appeal).

Fridman argues in her opening brief to this Panel and again in her 

reply brief that claim preclusion applies to prevent the bankruptcy court 

from making its ruling on the Third Motion to Dismiss. But she made no 

such argument in her opposition to that motion before the bankruptcy 

court. Thus, we will not consider this new argument. 

Even if claim preclusion did apply, our analysis of the availability of 

Rule 60(b) would apply equally to claim preclusion as it does to issue 

preclusion, and therefore there is no error.

CONCLUSION

For these reasons set forth above, we AFFIRM.