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NOT FOR PUBLICATION AUG 21 2014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.
2 12-56425