Summary
granting request for judicial notice of "Deed Upon Sale" to determine date on which sale occurred
Summary of this case from Clancy v. MancusoOpinion
No. 12-16389 D.C. No. 2:12-cv-00662-NVW
02-19-2013
DUANE VARBEL, Plaintiff - Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INCORPORATED; CWABS INCORPORATED, Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Duane Varbel appeals pro se from the district court's judgment dismissing his diversity action arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. Appellees have filed a motion to dismiss this appeal as moot because the trustee has now sold the property to a third party. We grant the motion and dismiss the appeal.
Varbel failed to obtain injunctive relief before the trustee's sale of the property. Under Arizona statutes governing the trustee's sale, Varbel has now waived his defenses and objections to the sale. See Ariz. Rev. Stat. § 33-811(C) (defenses and objections to a trustee's sale are waived if they are not raised in an action resulting in injunctive relief before the sale); BT Capital, LLC v. TD Serv. Co. of Ariz., 275 P.3d 598, 600 (Ariz. 2012) (en banc) ("Where . . . a trustee's sale is completed, a person subject to § 33-811(C) cannot later challenge the sale based on pre-sale defenses or objections."). Because the foreclosure sale has been completed, Varbel no longer has any effective remedy. We therefore dismiss Varbel's appeal as moot. See Am. Cas. Co. of Reading, Pa. v. Baker, 22 F.3d 880, 896 (9th Cir. 1994) (a case is moot when there is no longer a present controversy as to which effective relief can be granted).
Appellees' request for judicial notice of the Deed Upon Sale is granted.
The district court's order granting defendants' motion to dismiss, District Court Docket Item No. 17, is vacated. See ACLU of Nev. v. Masto, 670 F.3d 1046, 1065 (9th Cir. 2012).
DISMISSED.