                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 21 2014

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



                             FOR THE NINTH CIRCUIT


KARMEL ROE,                                       No. 12-56425

               Plaintiff - Appellant,             D.C. No. 5:11-cv-01991-TJH-DTB

  v.
                                                  MEMORANDUM*
BANK OF AMERICA NA, FKA
Countrywide Home Loans, and successor
by merger to BAC Home Loans Servicing,
L.P.; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Terry J. Hatter, Jr., District Judge, Presiding

                            Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Karmel Roe appeals pro se from the district court’s order dismissing her

action alleging various federal and state law claims arising from foreclosure


          *
             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).
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion the district court’s application of judicial estoppel. Ah Quin v.

Cnty. of Kauai Dep’t of Transp., 733 F.3d 267, 270 (9th Cir. 2013). We vacate and

remand.

      After the district court dismissed Roe’s action, we decided Ah Quin v.

County of Kauai Department of Transportation, which remanded a dismissal on

the basis of judicial estoppel where the plaintiff-debtor argued that she had omitted

her claims from her bankruptcy schedules due to inadvertence or mistake. See id.

at 279. Because the district court did not have the benefit of Ah Quin when it

issued its order of dismissal, we remand to allow the district court to reconsider its

application of judicial estoppel, including whether the bankruptcy court accepted

Roe’s nondisclosure and whether she would derive an unfair advantage if not

estopped. See id. at 271 (noting that both factors are met where the debtor obtains

a discharge or plan confirmation).

      We deny as unnecessary Bank of America’s request for judicial notice, filed

on March 7, 2013, and Roe’s request for judicial notice, filed on May 7, 2013.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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