                                                          FILED
                                                          MAR 04 2013
 1                                                     SUSAN M SPRAUL, CLERK
                                                         U.S. BKCY. APP. PANEL
                                                         OF THE NINTH CIRCUIT
 2
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )        BAP No.   12-1330-JuKiD
                                   )
 6   JOHN D. GESSIN,               )        Bk. No.   NV-11-51818
                                   )
 7                   Debtor.       )        Adv. No. NV-11-05078
     ______________________________)
 8                                 )
     JOHN D. GESSIN,               )
 9                                 )
                     Appellant,    )
10                                 )
     v.                            )        M E M O R A N D U M1
11                                 )
     ALLISON TAITANO (MOORE),      )
12                                 )
                     Appellee.     )
13   ______________________________)
14                  Argued and Submitted on January 25, 2013
                              at Las Vegas, Nevada
15
                             Filed - March 4, 2013
16
               Appeal from the United States Bankruptcy Court
17                       for the District of Nevada
18        Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding
                    _____________________________________
19
     Appearances:     Shelly Traleen O’Neill, Esq. of Demetras &
20                    O’Neill, appeared for appellant John D. Gessin;
                      Glade L. Hall, Esq. appeared for appellee Allison
21                    Taitano Moore
                      ____________________________________
22
     Before:   JURY, KIRSCHER and DUNN, Bankruptcy Judges.
23
24
25
26        1
            This disposition is not appropriate for publication.
     Although it may be cited for whatever persuasive value it may
27
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.

                                      -1-
 1            Appellee, Allison Taitano,2 obtained a state court
 2   arbitration award and judgment against appellant, debtor, John
 3   Gessin, based on debtor’s fraudulent misrepresentations,
 4   constructive fraud and conversion of her money.        Afterwards,
 5   debtor filed a chapter 133 bankruptcy petition.        Taitano
 6   commenced an adversary proceeding to have the state court
 7   judgment in the amount of $56,802.15 declared a nondischargeable
 8   debt because it was based on fraud.         Taitano filed a motion for
 9   summary judgment (MSJ), which the bankruptcy court granted,
10   finding the debt nondischargeable under § 523(a)(2) on the basis
11   of issue preclusion.      Debtor appeals from that order.     We
12   AFFIRM.
13                                   I. FACTS4
14            Taitano met debtor on Match.com, an online dating service.
15   Debtor’s profile represented that he (1) was a successful
16   businessman; (2) had a graduate degree; (3) owned and operated
17   two businesses; (4) made $150,000 per year; (5) did extremely
18   well in business; (6) did extremely well in finances; and
19   (7) did extremely well in career stability.        After Taitano and
20
21        2
              Taitano subsequently married and changed her name to
22   Moore.
          3
23          Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
24   “Rule” references are to the Federal Rules of Bankruptcy
     Procedure and “Civil Rule” references are to the Federal Rules of
25   Civil Procedure.
26        4
            The underlying facts are taken mostly from the
27   arbitrator’s findings of fact set forth in the arbitrator’s award
     and the state court’s findings of fact set forth in its Findings
28   of Fact, Conclusions of Law, and Judgment.

                                       -2-
 1   debtor began a dating relationship, debtor represented in person
 2   to her (1) that he was a successful stock market investor;
 3   (2) that he had a stock account with about $90,000 in
 4   securities; (3) that the stock account was in his father’s name
 5   so that he could hide this asset from the mother of his son; and
 6   (4) that he could invest Taitano’s money, which was currently in
 7   a Certificate of Deposit (CD), for a higher rate of return.
 8           Taitano, who was a high school teacher, cashed out her CD
 9   in the amount of $29,949.72, added additional cash, and on
10   January 14, 2009, gave $30,000 to debtor.      Debtor later told
11   Taitano that he had invested the cash in the stock market which
12   was contrary to her express intentions, and that most of the
13   funds had been lost.    Taitano demanded an explanation for the
14   loss of her money and requested the buy-sell tickets and
15   brokerage statements.    None were provided.   Debtor then changed
16   his story and asserted that he had not lost the money in the
17   stock market, but rather had invested in a mobile home which had
18   generated a promissory note in his favor.
19           In late February 2009, debtor delivered to Taitano for
20   security for her $30,000 a mobile home title which was signed
21   off by the owner, Kim E. Kaltenbrun, on April 2, 2007, and by
22   Green Tree Servicing LLC fka Green Tree Acceptance on March 9,
23   2007.    Debtor had sold the mobile home to Gene R. Aquino and
24   Mary Ann D. Kang by a written agreement entered into on
25   August 9, 2008.    The sale was for $49,620.71 with a down payment
26   of $10,000.    Debtor was identified as the seller of the mobile
27   home and was receiving monthly payments from the buyers.
28           On March 10, 2009, Taitano filed a civil complaint against

                                      -3-
 1   debtor in the Second Judicial District Court of the State of
 2   Nevada, Case No. CV09-00710, alleging fraud, breach of fiduciary
 3   duty, misuse of her funds and failure to account, conversion,
 4   and obtaining her funds through a false statement in writing in
 5   violation of Nev. Rev. Stat. § 205.375.5
 6            On April 29, 2009, the state district court issued a
 7   prejudgment writ of attachment and garnishment after concluding
 8   that Taitano had a meritorious claim for relief and was likely
 9   to prevail on the merits of her claim.6     The properties to be
10   attached were the title to the mobile home and payments due from
11   Aquino and Kang to any person, other than for taxes and
12   insurance, under the contract of sale for the mobile home and
13   lot lease agreement between Aquino and Kang on the one hand and
14   debtor on the other.     The value of the payments prior to the
15   judgment were estimated to be $8,800.
16            The matter was sent to mandatory arbitration and originally
17   scheduled for hearing on December 7, 2009.     Debtor obtained a
18   continuance, over Taitano’s objection, to January 22, 2010,
19   based on his claim that witnesses critical to his defense were
20   unavailable.
21
22        5
            This statute states that by making a false statement in
23   writing for the purpose of procuring property or credit one is
     guilty of a misdemeanor.
24
          6
            The state district court later found that when the
25   garnishment was served on the garnishees, Aquino and Kang, they
26   falsely swore that they were not making any payments to debtor
     and did not owe any debt to him. The court also found debtor was
27   in violation of the attachment because by filing false
     affidavits, a new title to the mobile home was issued in the
28   names of Bernard Gessin and Kaltenbrun.

                                       -4-
 1            On January 5, 2010, debtor signed a substitution of
 2   counsel, substituting Mr. McKenna for Mr. Egghart.     McKenna
 3   waited until January 15, 2010, to advise Taitano’s counsel and
 4   the arbitrator that he was substituted in as debtor’s attorney.
 5   McKenna then demanded that the arbitrator recuse himself because
 6   the arbitrator and McKenna were representing opposing parties in
 7   other litigation.     Taitano opposed, but the arbitrator recused
 8   himself.     During this time, McKenna made no effort to receive
 9   and hold the garnished mobile home payments.     The record
10   reflects that the payments were being made to debtor despite the
11   garnishment and orders of the arbitrator7 that debtor’s
12   attorneys hold those funds in their trust accounts.
13            A replacement arbitrator was appointed and the hearing
14   scheduled for June 3, 2010, with briefing deadlines set.       No
15   briefs were filed on debtor’s behalf.     Debtor also failed to
16   respond to Taitano’s motion for an expedited hearing.     The
17   arbitrator ordered the filing of a pre-hearing statement.
18   Debtor filed his statement consisting of twenty-three lines with
19   virtually no discussion of the real issues in the case and no
20   citations to any legal authority.8
21            The arbitration hearing took place on June 3, 2010.    In
22   support of her case, Taitano testified.     Debtor testified as an
23   adverse witness.     Stacy Rissone testified after debtor.
24
          7
            The Findings of Fact, Conclusions of Law and Judgment by
25   the state district court reflects that the first arbitrator,
26   Mr. Santos, had ordered Gessin’s attorneys to hold the funds in
     their trust accounts.
27
          8
            The pre-hearing statement is not part of the record on
28   appeal.

                                       -5-
 1   Rissone, also an alleged victim of debtor’s fraud, had delivered
 2   $25,000 to him based upon his representations that he could
 3   generate a profit for her from the purchase and sale of
 4   automobiles.
 5        Debtor presented no testimony or exhibits in his defense
 6   and rested his case after the close of Taitano’s case.    Debtor
 7   also provided no explanation as to why the “key witnesses”,
 8   whose alleged unavailability had caused the matter to be
 9   continued for six months, were not produced as promised.
10        On June 11, 2010, the arbitrator issued a written decision,
11   finding for Taitano on her claims of fraud and conversion.    The
12   arbitrator also noted that debtor filed a verified counterclaim
13   in the case on April 14, 2009, alleging causes of action for
14   abuse of process, negligence, conversion, and attorneys’ fees,
15   but debtor presented no case, gave no evidence, and in fact, did
16   not mention his counterclaim at all in the arbitration.    The
17   arbitrator found that the counterclaim was asserted for the
18   improper purpose of harassing Taitano, causing needless delay,
19   and increasing the cost of litigation to Taitano in violation of
20   Nev. Rule Civ. Proc. 11(b) and debtor should be subject to
21   sanctions under subsection (c) of the rule.   The arbitrator also
22   found that debtor lied under oath when he stated that he did not
23   receive any cash from Ms. Taitano.
24        The arbitrator awarded Taitano $30,000 in general damages,
25   $20,000 in punitive damages, and attorneys’ fees in the amount
26   of $3,000, with interest on the $30,000, and costs.   The award
27   further noted (1) that debtor should be found to be the owner of
28   the mobile home subject to the contract of sale to Aquino and

                                   -6-
 1   Kang entered into August 9, 2008; (2) that debtor should be
 2   found to have delivered to Taitano the title to the mobile home
 3   as security for the $30,000; and (3) that the prejudgment writ
 4   of attachment and garnishment presently in effect should be
 5   continued in effect pending judgment and execution and
 6   resolution of how payments are to be made by Aquino and Kang.
 7           On June 22, 2010, debtor filed a request for a trial de
 8   novo.    Taitano filed a “Motion for Order to Strike Defendant’s
 9   Request for Trial De Novo Pursuant to Nev. Arbitration Rule 22”9
10   on the grounds that debtor failed to defend his case during the
11   arbitration proceeding in good faith and had engaged in conduct
12   designed to obstruct, delay or otherwise adversely affect the
13   arbitration proceeding.    Debtor’s affidavit in response, which
14   he apparently filed pro se, essentially blamed McKenna, his
15   attorney, for debtor’s failure to produce witnesses, testify or
16   produce documents.
17           On October 12, 2010, the state district court held a
18   hearing on the matter and took the matter under submission.       On
19   October 27, 2010, the state court entered detailed Findings of
20
21       9
             This rule, entitled “Sanctions” provides:
22
         (A) The failure of a party or an attorney to either
23       prosecute or defend a case in good faith during the
         arbitration proceedings shall constitute a waiver of
24       the right to a trial de novo.
25       (B) If, during the proceedings in the trial de novo,
26       the district court determines that a party or attorney
         engaged in conduct designed to obstruct, delay or
27       otherwise adversely affect the arbitration proceedings,
         it may impose, in its discretion, any sanction
28       authorized by N.R.C.P. 11 or N.R.C.P. 37.

                                      -7-
 1   Fact, Conclusions of Law, and Judgment.   The state court
 2   incorporated the arbitrator’s findings into its own.    In its
 3   conclusions of law, the state court found, among other things,
 4   that debtor failed to defend the case in good faith during the
 5   arbitration proceedings and therefore his failure to do so
 6   constituted a waiver of his right to a trial de novo.
 7   Accordingly, the state court struck debtor’s request for a trial
 8   de novo and entered judgment in favor of Taitano.
 9                       The Bankruptcy Proceedings
10         On June 2, 2011, debtor filed his chapter 13 petition,
11   which was later converted to one under chapter 7.10
12         On August 2, 2011, Taitano filed an adversary complaint
13   seeking to have the state court judgment declared a
14   nondischargeable debt based on fraud.
15         On February 21, 2012, Taitano filed her MSJ based on the
16   state court judgment, the arbitrator’s findings of fraud and the
17   doctrine of issue preclusion.
18
19        10
            Debtor’s chapter 13 case became subject to dismissal due
20   to the fact that he did not appear at the continued § 341a
     meetings. Debtor advised the chapter 13 trustee that he would
21   consent to dismissal of his case. The trustee filed a motion to
     dismiss based on unreasonable and prejudicial delay. The trustee
22
     later supplemented his dismissal motion, suggesting that debtor’s
23   case be converted rather than dismissed on the ground that
     debtor’s case was simply a continuation of his efforts to delay
24   and/or completely avoid collection action related to the results
     of the state court litigation with Taitano and Rissone. The
25   trustee pointed out that debtor’s schedules showed no regular
26   income other than contributions from family members that
     coincidentally facilitated a budget just sufficient to repay
27   debtor’s administrative expenses and scheduled priority tax
     debts. The bankruptcy court converted debtor’s case to chapter 7
28   on October 25, 2011.

                                     -8-
 1         On March 19, 2012, attorney Zach Coughlin, filed a late
 2   opposition11 on debtor’s behalf.    The opposition, of which we
 3   have taken judicial notice, covered a number of grounds.    First,
 4   it addressed the role of Coughlin, who apparently was listed as
 5   the attorney of record in the adversary, but who was actually
 6   ghost writing debtor’s pleadings.    Coughlin sought to withdraw.
 7   Next, the opposition contained “points and authorities” under
 8   which numerous cases addressing breach of fiduciary duty under
 9   § 523(a)(4) were cited with little analysis or discussion.
10   Third, debtor requested the bankruptcy court vacate the state
11   court judgment based on his counsel’s failure to “zealously
12   advocate” debtor’s position during the arbitration hearing,
13   contending this was excusable neglect under Civil Rule 60(b)
14   (incorporated by Rule 9024).   Fourth, debtor asserted that the
15   arbitrator had exceeded his jurisdiction because he ruled on
16   real property matters.   Fifth and last, debtor requested the
17   judgment be vacated because of newly discovered evidence.12
18
          11
19          The actual title of the document was “Motion for
     Extension of Time to File Opposition to Motion for Summary
20   Judgment for Dischargeability; or, Plead in the Alternative,
     Opposition to Motion for Summary Judgment and Motion to Withdraw
21   as Counsel.” We take judicial notice of debtor’s opposition to
22   Taitano’s summary judgment and his supplement with attached
     exhibits which were docketed and imaged by the Bankruptcy Court
23   in this case. Atwood v. Chase Manhattan Mortg. Co.
     (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
24
          12
            This evidence consisted of numerous affidavits of
25   individuals who worked with Christina Ho, debtor’s ex-girlfriend
26   and the mother of his son. Ho’s co-workers declared that Ho had
     entered into a conspiracy with Taitano and Rissone to defraud
27   debtor and ruin him financially. It does not appear that these
     affidavits were filed in the arbitration proceeding nor is there
28                                                      (continued...)

                                    -9-
 1        On May 4, 2012, the bankruptcy court heard the MSJ, but the
 2   transcript reflects that no substantive arguments were made with
 3   respect to the motion.     The bankruptcy court stated on the
 4   record that it would grant the MSJ based on the preclusive
 5   effect of the state court judgment.         The court requested
 6   Taitano’s counsel to file certified copies of the state court
 7   judgment and record and took the matter under submission.
 8        On June 8, 2012, the bankruptcy court entered an order
 9   granting Taitano’s MSJ on the grounds that the state court
10   arbitrator’s award established every element under § 523(a)(2)
11   and thus the doctrine of issue preclusion prevented debtor from
12   relitigating those elements in the bankruptcy court.        Debtor
13   timely appealed.
14                              II.    JURISDICTION
15        The bankruptcy court had jurisdiction over this proceeding
16   under 28 U.S.C. §§ 1334 and 157(b)(2)(I).        We have jurisdiction
17   under 28 U.S.C. § 158.
18                                    III.   ISSUE
19        Whether the bankruptcy court erred in deciding that the
20   state court judgment was nondischargeable under § 523(a)(2)
21   based on the doctrine of issue preclusion.
22                        IV.    STANDARD OF REVIEW
23        Since this case arises on summary judgment, the standard of
24   review is de novo.   Halverson v. Skagit Cty., 42 F.3d 1257, 1259
25   (9th Cir. 1994); Kelly v. Okoye (In re Kelly), 182 B.R. 255, 257
26
          12
27          (...continued)
     any indication that debtor moved to vacate the judgment in the
28   state court with this newly discovered evidence.

                                         -10-
 1   (9th Cir. BAP 1995), aff’d, 100 F.3d 110 (9th Cir. 1996).
 2        We also conduct a de novo review of the bankruptcy court’s
 3   determination that issue preclusion is available.   Lopez v.
 4   Emerg. Serv. Restoration, Inc. (In re Lopez), 367 B.R. 99, 103
 5   (9th Cir. BAP 2007).    Once we determine that issue preclusion is
 6   available, we review whether applying it was an abuse of
 7   discretion.   Id.   A bankruptcy court abuses its discretion when
 8   it applies the incorrect legal rule or its application of the
 9   correct legal rule is “(1) illogical, (2) implausible, or
10   (3) without support in inferences that may be drawn from the
11   facts in the record.”   United States v. Loew, 593 F.3d 1136,
12   1139 (9th Cir. 2010) (quoting United States v. Hinkson, 585 F.3d
13   1247, 1261–62 (9th Cir. 2009)(en banc))(internal quotation marks
14   omitted).
15        The question whether a claim is dischargeable presents
16   mixed issues of law and fact, which we also review de novo.
17   Peklar v. Ikerd (In re Peklar), 260 F.3d 1035, 1037 (9th Cir.
18   2001).
19                              V.   DISCUSSION
20        “[S]ummary judgment is proper ‘if the pleadings,
21   depositions, answers to interrogatories and admissions on file,
22   together with the affidavits, if any, show that there is no
23   genuine issue as to any material fact and that the moving party
24   is entitled to a judgment as a matter of law.’”   Celotex Corp.
25   v. Catrett, 477 U.S. 317, 322 (1986).    In making this
26   determination, conflicts are resolved by viewing all facts and
27   reasonable inferences in the light most favorable to the
28   non-moving party.   United States v. Diebold, Inc., 369 U.S. 654,

                                      -11-
 1   655 (1962).   “Issue preclusion is a proper basis for granting
 2   summary judgment.”   Bower v. Harrah’s Laughlin, Inc., 215 P.3d
 3   709, 720 (Nev. 2009).
 4        The doctrine of issue preclusion applies to bankruptcy
 5   dischargeability proceedings.    Grogan v. Garner, 498 U.S. 279,
 6   284 (1991).   Taitano had the burden of proving that the elements
 7   for issue preclusion were met.    In re Kelly, 182 B.R. at 258.
 8   To sustain this burden, Taitano must have introduced “a record
 9   sufficient to reveal the controlling facts and pinpoint the
10   exact issues litigated in the prior action.   Any reasonable
11   doubt as to what was decided by a prior judgment should be
12   resolved against allowing the [issue preclusion] effect.”       Id.
13        Whether the state court arbitration award, which was
14   incorporated into the state court judgment, has preclusive
15   effect is determined under Nevada law.   See Gayden v. Nourbakhsh
16   (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995).     The
17   Nevada Supreme Court has held that the doctrine of issue
18   preclusion applies to arbitration awards.   Int’l Assn. of
19   Firefighters, Local 1285 v. City of Las Vegas, 823 P.2d 877, 880
20   (Nev. 1991); see also Khaligh v. Hadaegh (In re Khaligh),
21   338 B.R. 817, 823 (9th Cir. BAP 2006) (“Since the confirmation
22   of a private arbitration award by a state court has the status
23   of a judgment, federal courts must, as a matter of full faith
24   and credit, afford the confirmation the same preclusive
25   consequences as would occur in state court.”), aff’d, 506 F.3d
26   956 (9th Cir. 2007).
27        In Nevada, the elements necessary for application of issue
28   preclusion are:   (1) the issues must be identical; (2) the

                                      -12-
 1   initial ruling must be final and on the merits; (3) the party
 2   against whom the judgment is asserted must be a party or be in
 3   privity with a party in the prior case; and (4) the issue must
 4   have been actually and necessarily litigated.    Howard v.
 5   Sandoval (In re Sandoval), 232 P.3d 422, 423 (Nev. 2010) (citing
 6   Five Star Capital v. Ruby, 194 P.3d 709, 713 (Nev. 2008)).
 7         At the outset, we observe that the record shows the second
 8   and third elements of issue preclusion have been met:    the state
 9   court judgment is final and was on the merits, and the parties
10   are the same.   Debtor does not challenge these requirements on
11   appeal.13
12   A.    Issue Preclusion:   The Actually Litigated Requirement
13         Debtor contends first that the outcome of this case depends
14   upon whether his alleged fraudulent conduct was “actually and
15   necessarily litigated” in the prior state court action.       Debtor
16   argues that the issues regarding his fraud do not meet the
17   actually litigated requirement because he had incompetent
18   counsel and thus relevant evidence was not considered; i.e., he
19   presented no testimony,14 documents or other evidence, in spite
20   of his willingness and preparations to do so.    Due to the
21   incompetence of his attorney, debtor argues, he did not present
22   a defense in the state court arbitration.    He thus maintains
23   that the judgment obtained by Taitano was akin to a default
24   judgment and, generally, default judgments are not entitled to
25
          13
26          These arguments have been waived.    Smith v. Marsh,
     194 F.3d 1045, 1052 (9th Cir. 1999).
27
          14
            This assertion is not accurate. The record reflects that
28   he was called as an adverse witness and testified.

                                     -13-
 1   preclusive effect.     Debtor further asserts that application of
 2   issue preclusion under these circumstances would be unfair.
 3          Debtor’s arguments that the state court proceeding was akin
 4   to a default proceeding are neither supported by the record nor
 5   does the state court judgment resemble the type of default
 6   judgment which is not entitled to issue preclusion under Nevada
 7   law.   In Nevada, default judgments are generally not given
 8   preclusion effect.     In re Sandoval, 232 P.3d 422.   There, a
 9   default judgment was entered against Sandoval based on his
10   failure to answer.     The Nevada Supreme Court found that there
11   was no evidence that Sandoval had knowledge of the case before
12   the default judgment against him was entered, he entered no
13   appearance and did not participate in any manner in the prior
14   case, and the judgment did not make any specific findings of
15   fact that were established through evidence.    Under these
16   circumstances, the court held that the issues were not actually
17   and necessarily litigated and thus issue preclusion did not
18   apply.   Id. at 425.
19          The facts in this case are not even close to those in
20   Sandoval.    Here, debtor substantially participated in the state
21   court lawsuit and arbitration proceeding by filing a
22   counterclaim, requesting continuances of the arbitration hearing
23   and filing a pre-hearing statement.     Debtor was deposed.   He
24   also appeared at the arbitration hearing with his counsel, who
25   cross-examined Taitano and her witnesses and objected to
26   evidence.   After the arbitrator’s award was issued, debtor moved
27   for a trial de novo, filed an affidavit regarding his attorney’s
28   alleged incompetence, and his attorney appeared at the hearing

                                      -14-
 1   when the state court denied his motion.    The state court’s
 2   ruling on the trial de novo indicated that it denied debtor’s
 3   motion because debtor failed to defend his case in good faith
 4   during the arbitration proceedings.    On these facts, the state
 5   court judgment is not akin to a default judgment.    Therefore,
 6   unless debtor gains some traction from his attorney malpractice
 7   assertions, the actually and necessarily litigated prong is met.
 8        The Nevada Supreme Court has not directly addressed the
 9   issue of whether the inadequate presentation of evidence or
10   attorney malpractice during the first case prevents the judgment
11   from being given preclusive effect in the second case.     Absent a
12   controlling state court decision, we predict how the highest
13   state court would decide the issue.    Sec. Pac. Nat’l Bank v.
14   Kirkland (In re Kirkland), 915 F.2d 1236, 1239 (9th Cir. 1990).
15   Addressing an argument similar to the one debtor makes here, the
16   Third Circuit held that a plaintiff was precluded from raising
17   an issue in a second action where the plaintiff alleged that his
18   attorney’s failure to discover and present readily available
19   evidence had caused his defeat on that issue in the first
20   action.   Laganella v. Braen (In re Braen), 900 F.2d 621 (3rd
21   Cir. 1990), cert. denied, 498 U.S. 1066 (1991), abrogated on
22   other grounds by Graham v. I.R.S. (In re Graham), 973 F.2d 1089,
23   1099–1101 (3rd Cir. 1992).
24        In Braen, the plaintiff argued that his attorney acted
25   negligently by failing to examine important documents and to
26   make potentially helpful arguments at trial, thus causing him to
27   lose on the issue of whether he had acted with malice in
28   prosecuting a criminal complaint.     900 F.2d at 628.   Noting “the

                                    -15-
 1   general rule . . . that ‘ignorance or carelessness of an
 2   attorney’ does not provide a basis for relief from the effects
 3   of an adverse civil judgment []”, the court held that the fact
 4   that the attorney did not “put forward all there was to tender”
 5   did not defeat issue preclusion.   Id. at 629.
 6        The court further observed:   “The only cases we have found
 7   in which a lawyer’s defalcation has been held to warrant relief
 8   from the consequences of a judgment are cases in which the
 9   client was deprived of his day in court because his lawyer
10   failed altogether to respond to a motion for default judgment or
11   a motion for summary judgment . . . .   Braen clearly had a full
12   and fair opportunity to litigate his case.   The trial lasted for
13   two weeks, and his attorney mounted a substantial defense.”    Id.
14        Using similar reasoning, numerous other courts are in
15   accord.   See Ballard Condo. Owners Ass’n v. Gen. Sec. Indem. Co.
16   of AZ, 2010 WL 4683721 (W.D. Wash. 2010) (finding that “[t]he
17   concept of injustice does not apply simply because plaintiff
18   would like to reargue the issue in a case where counsel’s
19   procedural error resulted in an adverse ruling. . . . Plaintiff
20   had a full and fair opportunity to litigate the issue . . . and
21   counsel’s procedural errors do not work to create an
22   injustice.”); In re Williams, 282 B.R. 267, 277 (Bankr. N.D. Ga.
23   2002) (attorney’s malpractice is not a per se denial of a full
24   and fair opportunity to litigate; inquiry is whether party had
25   adequate notice of the issue and was afforded the opportunity to
26   participate in its determination); In the Matter of Victor
27   Distrib. Co., 11 B.R. 242, 246 n.3 (Bankr. E.D. Va. 1981) (“It
28   is sufficient that the status of the suit is such that the

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 1   parties might have had their suit disposed of on the merits if
 2   they had presented all their evidence, and the court had
 3   properly understood the facts, and correctly applied the law to
 4   the facts.”).
 5         On the basis of the foregoing authority, we predict that
 6   the Nevada Supreme Court would follow the reasoning in Braen and
 7   find that debtor’s claim of attorney incompetence would not
 8   defeat issue preclusion under the facts of this case.15
 9   Moreover, debtor never sought any relief in the state court
10   based on his claim of attorney incompetence if the record there
11   would have established incompetence, as opposed to considered
12   strategy.   See Pellegrini v. State, 34 P.3d 519, 534 (Nev. 2001)
13   (proper procedure when attempting to claim ineffective
14   assistance of counsel is by post-trial motions in the underlying
15   case).    Therefore, we conclude that the actually and necessarily
16   litigated requirement was met.
17   B.    Justifiable Reliance and § 523(a)(2)(A)
18         The arbitrator found that all the elements for fraud under
19
          15
20          In any event, we have only debtor’s conclusory allegation
     that his attorney was incompetent before us. There is nothing in
21   the record that shows debtor’s counsel’s representation fell
     below an objective standard of reasonableness. Indeed, after
22
     noting that debtor lied under oath when he stated he did not
23   receive any cash from Taitano, the arbitrator found:

24        [T]his finding is not intended to suggest that
          Mr. Gessin’s present counsel had aided or abetted or
25        assisted Mr. Gessin’s lying under oath; Mr. Gessin’s
26        present counsel did a very competent and professional
          job with a very skillful job of cross-examination of
27        witnesses, general conduct of the case he had to work
          with, appropriate objections, and skilled argument
28        . . . .

                                      -17-
 1   Nevada law had been met, including that Taitano had “justifiably
 2   relied upon Mr. Gessin’s false representation of material
 3   facts.”   Debtor argues that there is no basis for the
 4   arbitrator’s factual finding regarding Taitano’s justifiable
 5   reliance upon debtor’s representations and thus the finding is
 6   clearly erroneous.
 7        According to debtor, the underlying facts do not show
 8   justifiable reliance.   He contends that within one week of
 9   meeting him, a total stranger on a dating website, Taitano
10   cashed out her CD in the amount of approximately $30,000 and
11   gave it to him in cash, in a shoe box.    Debtor points out that
12   Taitano is an educated adult, not young, and a teacher with
13   access to information and technologies.   Given these facts,
14   debtor argues, “[h]er reliance on statements made by a man on a
15   dating website without garnering additional information before
16   entrusting significant funds to a stranger, is absurd.”    Debtor
17   also contends that since justifiable reliance is a factual
18   issue, it cannot be subject to summary judgment.
19        This latter argument is misplaced.    The bankruptcy court’s
20   decision on summary judgment was based on the doctrine of issue
21   preclusion.   Under element one of that doctrine, the question is
22   whether the identical issue was decided in the previous action,
23   not whether there was a factual dispute erroneously decided.
24   The erroneously decided issue is one for appeal in the state
25   court.    Here, we conclude that the identical issue of
26   justifiable reliance was decided in the arbitration proceeding.
27   Justifiable reliance is an element of fraud under Nevada law and
28   for purposes of nondischargeability based on fraud under

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 1   § 523(a)(2)(A).   See Lubbe v. Barba, 540 P.2d 115, 117 (Nev.
 2   1975) (stating that plaintiff has burden of proving five
 3   elements for fraud, including justifiable reliance upon the
 4   misrepresentation); Apte v. Japra, M.D., F.A.C.C., Inc. (In re
 5   Apte), 96 F.3d 1319, 1332 (9th Cir. 1996) (noting that although
 6   the statute does not state what degree of reliance is necessary
 7   for application of § 523(a)(2)(A), the creditor’s reliance need
 8   be only justifiable, not reasonable).16
 9        Under Nevada law, the justifiable reliance requirement does
10   not impose on a party any duty to investigate absent facts that
11   should alert him that his reliance is unreasonable.    Collins v.
12   Burns, 741 P.2d 819, 821 (Nev. 1987).     “The test is whether the
13   recipient has information which would serve as a danger signal
14   and a red light to any normal person of his intelligence and
15   experience.”   Id.   The Nevada Supreme Court further noted:
16        [A] person guilty of fraud should not be permitted to
          use the law as his shield, ‘when the choice is between
17        the two - fraud and negligence - negligence is less
          objectionable than fraud. Though one should not be
18        inattentive to one’s business affairs, the law should
          not permit an inattentive person to suffer loss at the
19        hands of a misrepresenter. Id.
20   Likewise, for purposes of § 523(a)(2)(A):
21        [A] person is justified in relying on a representation
          of fact ‘although he might have ascertained the
22        falsity of the representation had he made an
          investigation.’ Although one cannot close his eyes
23        and blindly rely, mere negligence in failing to
          discover an intentional misrepresentation is no
24        defense to fraud.
25   In re Apte, 96 F.3d at 1322.
26
27
         16
            Debtor does not challenge the other elements for fraud
28   which are the same under Nevada law and § 523(a)(2)(A).

                                    -19-
 1        During the course of the arbitration, the elements to
 2   establish fraud, including that of justifiable reliance, were
 3   squarely before the arbitrator.    From the beginning, the
 4   arbitrator cautioned the parties that his impression from the
 5   file, including their pre-hearing statements, was that witness
 6   credibility might be an important factor in the case.     The
 7   arbitrator, after hearing testimony, found Taitano’s testimony
 8   to be credible and ultimately concluded that the justifiable
 9   reliance requirement had been met.      The arbitrator was fully
10   aware of how the parties met, Taitano’s education, her age and
11   her occupation.   In contrast, the arbitrator found debtor lied
12   under oath and that he was a “remarkably skilled prevaricator”.
13   We conclude that issue preclusion is especially appropriate in
14   this case on the factual issue of justifiable reliance — the
15   dispute essentially boiled down to a battle of credibility.
16        Further, the arbitrator found Taitano proved the elements
17   of fraud, including justifiable reliance, by clear and
18   convincing evidence.   See Albert H. Wohlers & Co. v. Bartgis,
19   969 P.2d 949, 957 (Nev. 1998).    As explained in Grogan v.
20   Garner, the clear and convincing standard is a higher standard
21   of proof than the preponderance of the evidence standard, and
22   where the issues were subject to an equal or greater standard of
23   proof in the prior litigation, those issues are eligible for
24   issue preclusion in the subsequent litigation if the other
25   elements for issue preclusion are met.     498 U.S. 279, 284-85
26   (1991).
27        In sum, because the factual issue of justifiable reliance
28   was decided by the arbitrator, there were no issues of material

                                      -20-
 1   fact remaining to be tried in the adversary proceeding on this
 2   issue.    Therefore, Taitano was entitled to judgment as a matter
 3   of law.
 4   C.   Discretion
 5        Having concluded that issue preclusion was available
 6   because all of the doctrine’s requirements were met, we
 7   consider next whether the bankruptcy court properly exercised
 8   its discretion to apply it.   “The discretionary aspect of issue
 9   preclusion is settled as a matter of federal law.”      In re Lopez,
10   367 B.R. at 107-08.   Nevada law is in accord, holding that once
11   it is determined that issue preclusion is available, the actual
12   decision to apply it is left to the discretion of the “tribunal
13   in which it is invoked.”   Redrock Valley Ranch v. Washoe Cnty.,
14   254 P.3d 641, 646-47 (Nev. 2011).      The doctrine of issue
15   preclusion is grounded in considerations of basic fairness to
16   the litigants.    In re Sandoval, 232 P.3d at 424-25.
17        The bankruptcy court observed in its findings of fact that
18   the state court judgment found debtor guilty of “specific and
19   detailed procedural abuse and fraud on the court in delaying and
20   burdening the process and in avoiding the court’s prejudgment
21   attachment.   It characterizes Mr. Gessin as a ‘remarkably
22   skilled prevaricator,’ and finds he committed perjury during his
23   testimony in the arbitration hearing.”
24        The bankruptcy court’s findings belie any suggestion that
25   debtor was a victim of the arbitration procedures themselves or
26   of his allegedly incompetent attorney.     There are no militating
27   factors in the record that we could find which would cut in
28   favor of not applying the doctrine of issue preclusion under

                                     -21-
 1   these circumstances.   In fact, the record suggests that denying
 2   preclusive effect to the state court judgment would permit
 3   debtor to further delay the proceedings and perhaps ultimately
 4   avoid payment of the debt by deliberate abuse of the judicial
 5   process.   As a result, the policies behind the application of
 6   issue preclusion — “conserving judicial resources, []
 7   maintaining consistency, and [] avoiding oppression or
 8   harassment of the adverse party” — remain compelling.
 9   In re Sandoval, 232 P.3d at 425.   Accordingly, we discern no
10   abuse of discretion in the bankruptcy court’s application of
11   issue preclusion to the state court judgment.
12                            VI.   CONCLUSION
13        For the reasons stated, we AFFIRM.
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