Duane Varbel v. Mortgage Electronic Registration Systems Incorporated; Cwabs Incorporated

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE VARBEL,
Plaintiff - Appellant,
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS
INCORPORATED; CWABS
INCORPORATED,
Defendants - Appellees.
No. 12-16389
D.C. No. 2:12-cv-00662-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted February 11, 2013**
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
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-16389 2
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.

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