In Re: Michael T Carey and Leone R. Carey

Filing 14

ORDER AFFIRMING BANKRUPTCY COURT'S DENIAL OF APPELLANTS' MOTION TO VACATE ORDER LIFTING AUTOMATIC STAY signed by Judge Garland E. Burrell, Jr. on 09/01/11 ORDERING that the Bankruptcy Court's ruling is AFFIRMED. CASE CLOSED (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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In Re:

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MICHAEL T. CAREY and LEONE R.
CAREY,

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Debtors.
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MICHAEL T. CAREY and LEONE R.
CAREY,

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Appellants,
v.

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UNITED STATES INTERNAL REVENUE
SERVICE,

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Appellee.
________________________________

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No. 2:10-cv-03146-GEB
Bankruptcy Court Case No. 0429060-B-7
ORDER AFFIRMING BANKRUPTCY
COURT’S DENIAL OF APPELLANTS’
MOTION TO VACATE ORDER
LIFTING AUTOMATIC STAY

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Appellants Michael T. Carey and Leone R. Carey (“Appellants”)

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appeal pro se the bankruptcy court’s denial of their Federal Rule of

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Civil Procedure (“Rule”) 60(b)(4) motion. Appellants sought in that

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motion an order vacating a previous order which granted the United

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States Internal Revenue Service relief from the bankruptcy automatic

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stay. The bankruptcy court’s denial of Appellants’ Rule 60(b)(4) motion

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is reviewed de novo. Retail Clerks Union Joint Pension Trust v. Freedom

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Food Ctr., Inc., 938 F.2d 136, 137 (9th Cir. 1991).

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Appellants argue the bankruptcy court committed the following

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errors: 1) It issued a tentative ruling that “failed to address the
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substance of” Appellants’ Rule 60(b)(4) motion; 2) “refused to consider

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the evidence presented” at a hearing on Appellants’ motion; and 3)

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“refus[ed] . . . to either vacate [the order lifting the automatic stay]

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or

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(Appellants Informal Opening Br. 4-5.)

.

.

.

state

the

foundation

that

makes

[the

order]

valid[.]”

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The bankruptcy court’s tentative ruling about which Appellants

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complain adequately explained why the bankruptcy court intended to deny

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Appellants’ Rule 60(b)(4) motion, (Appellee’s Excerpt of Record 16), and

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the bankruptcy court stated during the hearing on Appellants’ Rule

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60(b)(4)

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(Appellants’ Excerpt of Record 9:6.) Further, Appellants have not

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identified

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refused

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supported this basis of their appeal.

motion:

what

to

“The

tentative

specific

consider

[ruling]

evidence

during

the

the

is

the

bankruptcy

hearing

and,

[final]

court

therefore,

ruling.”

improperly
have

not

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For the stated reasons, Appellants have not shown that the

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bankruptcy court erred in denying their Rule 60(b)(4) motion, and the

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bankruptcy court’s ruling is affirmed.

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Dated:

September 1, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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