                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          JAN 27 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

STEPHANIE TASHIRO-TOWNLEY;                       No. 11-35819
SCOTT C. TOWNLEY,
                                                 D.C. No. 2:10-cv-01720-JCC
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BANK OF NEW YORK MELLON, as
Trustee for the Certificateholders CWL,
Inc. Asset Backed Certificates, Series
2005-10, FKA Bank of New York; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                            Submitted January 21, 2014**

Before:        CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Stephanie Tashiro-Townley and Scott C. Townley appeal pro se from the

district court’s judgment dismissing their action challenging the foreclosure sale of

          *
             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).
their residence. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm in part,

vacate in part, and remand.

      The district court properly dismissed plaintiffs’ post-sale claims for

injunctive and declaratory relief because plaintiffs waived those claims by failing

to bring an action to enjoin the foreclosure sale. See Plein v. Lackey, 67 P.3d 1061,

1067 (Wash. 2003) (“[W]aiver of any postsale contest occurs where a party

(1) received notice of the right to enjoin the sale, (2) had actual or constructive

knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an

action to obtain a court order enjoining the sale.”).

      However, Washington law provides an exception to the waiver doctrine for

claims for damages alleging violations of the Washington Consumer Protection

Act (“CPA”). See Wash. Rev. Code § 61.24.127(1)(b). After the district court

dismissed plaintiffs’ CPA claim, the Washington Supreme Court decided Bain v.

Metropolitan Mortgage Group, Inc., 285 P.3d 34, 51 (Wash. 2012), which held

that a plaintiff may meet the public interest element of a CPA claim by alleging

that Mortgage Electronic Registration System Inc. was unfairly or deceptively

characterized as the beneficiary of a deed of trust. See id. at 49 (elements of a CPA

claim). Because the district court did not have the benefit of Bain when it issued


                                           2                                     11-35819
its order of dismissal, we remand to allow the court to reconsider plaintiffs’ CPA

claim.

         Defendants’ request to strike portions of plaintiffs’ excerpts of record, set

forth in their answering brief, is denied. Defendants’ request to strike plaintiffs’

citations of supplemental authority, filed on November 8, 2013, is denied.

         Each party shall bear its own costs on appeal.

         AFFIRMED in part, VACATED in part, and REMANDED.




                                             3                                     11-35819
