                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 19 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DUANE VARBEL,                                    No. 12-16389

               Plaintiff - Appellant,            D.C. No. 2:12-cv-00662-NVW

  v.
                                                 MEMORANDUM *
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS
INCORPORATED; CWABS
INCORPORATED,

               Defendants - Appellees.



                    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

          *
             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).
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.




                                           2                                       12-16389
