Jacqueline Melcher v. John Richardson , 699 F. App'x 746 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JACQUELINE C. MELCHER, No. 16-15817
Debtor. D.C. No. 5:14-cv-05586-RMW
______________________________
JACQUELINE C. MELCHER, MEMORANDUM*
Debtor-Appellant,
v.
JOHN W. RICHARDSON,
Trustee-Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Chapter 7 debtor Jacqueline C. Melcher appeals pro se from the district
court’s order affirming the bankruptcy court’s order denying Melcher’s motion to
*
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).
void orders of the bankruptcy court permitting the trustee to sell certain real
property. We have jurisdiction under 28 U.S.C. § 158(d). We review
independently the bankruptcy court’s decision without deference to the district
court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857 (9th
Cir. 2004). We review de novo an order denying a Fed. R. Civ. P. 60(b)(4) motion
to set aside a judgment as void. Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1469
(9th Cir. 1995). We affirm.
The bankruptcy court properly denied Melcher’s Rule 60(b)(4) motion
because Melcher failed to establish that the bankruptcy court “lacked jurisdiction,
either as to the subject matter of the dispute or over the parties to be bound, or
acted in a manner inconsistent with due process of law.” United States v. Berke,
170 F.3d 882, 883 (9th Cir. 1999); see also Fed. R. Bankr. P. 9024 (applying
Rule 60 to bankruptcy proceedings with limited exceptions); United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (“Rule 60(b)(4) applies only in
the rare instance where a judgment is premised either on a certain type of
jurisdictional error or on a violation of due process that deprives a party of notice
or the opportunity to be heard.”). Contrary to Melcher’s contentions, the
proceedings at issue did not violate her due process rights because the record
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shows that she received adequate notice of the hearing on the trustee’s motion
under 11 U.S.C. § 363(f)(4), and an opportunity to be heard.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Melcher’s motion to correct the record (Docket Entry No. 18) is denied.
AFFIRMED.
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