Thomason v. Thomason (In Re Thomason)

FILED
NOT FOR PUBLICATION JAN 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: GREG V. THOMASON and No. 09-60032
DIANA THOMASON,
BAP No. 09-1000-MoDH
Debtors.
MEMORANDUM *
NICHOLAS A. THOMASON; et al.,
Appellants,
v.
GREG V. THOMASON; et al.,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Montali, Dunn, and Hollowell, Bankruptcy Judges, Presiding
Submitted December 19, 2011 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, we grant
Appellants’ motion to submit this case on the briefs.
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Nicholas, Sandra, Byron, and Marilynn Thomason appeal pro se from the
judgment of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy
court’s denial of their Fed. R. Civ. P. 60(b)(6) motion for a new trial in their
adversary proceeding against debtors Greg and Diana Thomason. We have
jurisdiction under 28 U.S.C. § 158(d). We independently review the bankruptcy
court’s decision, Levander v. Prober (In re Levander), 180 F.3d 1114, 1118 (9th
Cir. 1999), and we affirm.
The bankruptcy court did not abuse its discretion by denying Appellants’
Rule 60(b)(6) motion alleging fraud upon the court. See Levander v. Prober (In re
Levander), 180 F.3d 1114, 1119 (9th Cir. 1999) (explaining that non-disclosure of
evidence or perjury does not, by itself, generally constitute fraud upon the court).
Appellants have not shown a basis for recusal of the bankruptcy court judge.
See 28 U.S.C. § 455(b)(2) (explaining the grounds for recusal based on an
association from prior practice).
We decline to consider arguments concerning fraud upon the court that
Appellants raised for the first time on appeal. See United States v. Carlson, 900
F.2d 1346, 1349 (9th Cir. 1990).
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Appellants’ contentions regarding the bankruptcy court’s jurisdiction are
unpersuasive because this appeal only divests the bankruptcy court of jurisdiction
over matters directly involved in the appeal. See Sherman v. SEC (In re Sherman),
491 F.3d 948, 967 (9th Cir. 2007) (“If a party wants to stay all of the proceedings
in bankruptcy court while an appeal is pending, it must file a motion for a stay.”).
AFFIRMED.
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