CHERYL FEALY V. WELLS FARGO BANK, No. 14-16972 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 23 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT CHERYL M. FEALY, U.S. COURT OF APPEALS No. 14-16972 Plaintiff-Appellant, D.C. No. 2:13-cv-02340-APGPAL v. WELLS FARGO BANK, NA, MEMORANDUM* Defendant-Appellee. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Submitted November 16, 2016** Before: LEAVY, BERZON, and MURGUIA, Circuit Judges. Cheryl M. Fealy appeals pro se from the district court’s summary judgment in her action alleging federal and state law claims arising from Wells Fargo’s turnover of money from Fealy’s bank account to the Internal Revenue Service (“IRS”) pursuant to a notice of levy. We have jurisdiction under 28 U.S.C. § 1291. * 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). We review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Wells Fargo’s compliance with the IRS notice of levy immunized it from suit. See 26 U.S.C. § 6332(a), (e); see also Stead v. United States, 419 F.3d 944, 947 (9th Cir. 2005) (stating that a third party has only two defenses for not turning over levied funds to the IRS). Contrary to Fealy’s contention, the district court did not err in granting summary judgment for Wells Fargo notwithstanding Wells Fargo’s failure to file a separate motion for summary judgment. See Fed. R. Civ. P. 56(f). The district court did not abuse its discretion by setting aside the entry of default against Wells Fargo. See O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (setting forth standard of review). We do not consider arguments that were not presented to the district court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). AFFIRMED. 2 14-16972

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