Teena Colebrook v. Cit Bank , 698 F. App'x 529 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: LESLIE A. PASCASCIO, No. 16-56445
Debtor. D.C. No. 2:15-cv-07837-AB
______________________________
TEENA COLEBROOK, MEMORANDUM*
Appellant,
v.
CIT BANK,
Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Teena Colebrook appeals from the district court’s order affirming the
bankruptcy court’s order denying her motion to vacate under Fed. R. Civ. P. 60(b)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
its order granting CIT Bank’s motion for relief from the automatic stay in an
unrelated bankruptcy case. We have jurisdiction under 28 U.S.C. § 158(d). We
review de novo the district court’s decision on appeal from the bankruptcy court
and apply the same standards of review applied by the district court. In re Thorpe
Insulation Co., 677 F.3d 869, 879 (9th Cir. 2012). We affirm.
The bankruptcy court did not err in finding that Colebrook was properly
served with the motion for relief from the automatic stay, and Colebrook failed to
rebut the presumption of receipt. See Fed. R. Bankr. P. 9014(b) (a motion “shall
be served in the manner provided for service of a summons and complaint by Rule
7004”); Fed. R. Bankr. P. 7004(b)(1) (service may be made within the United
States by first class mail postage prepaid to the individual’s dwelling house or
usual place of abode); In re Bucknum, 951 F.2d 204, 207 (9th Cir. 1991) (proof of
mailing creates a rebuttable presumption of its receipt, which “can only be
overcome by clear and convincing evidence that the mailing was not, in fact,
accomplished.”). Thus, the bankruptcy court did not abuse its discretion by
denying Colebrook’s motion to vacate the order granting CIT relief from the
automatic stay because Colebrook was served with CIT’s motion for relief from
the automatic stay and failed to object. See Wilson v. City of San Jose, 111 F.3d
688, 691 (9th Cir. 1997) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
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in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Colebrook’s motions to take judicial notice (Docket Entry Nos. 18 and 33)
are denied as unnecessary.
AFFIRMED.
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