FILED
NOT FOR PUBLICATION JUN 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WOL HEE OH, an individual and JEE No. 11-55348
YEON JANG, an individual,
D.C. No. 2:10-cv-09849-ODW-
Plaintiffs - Appellants, JCG
v.
MEMORANDUM*
WELLS FARGO BANK, NA, business
entity unknown and CAL-WESTERN
RECONVEYANCE CORPORATION,
business entity unknown,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted June 5, 2012
Pasadena, California
Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.
Plaintiffs Wol Hee Oh and Jee Yeon Yang brought suit in California
Superior Court, alleging that Defendant Wells Fargo Bank, N.A., impermissibly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
instituted non-judicial foreclosure proceedings without complying with the
requirements of California Civil Code § 2923.5 and, derivatively, § 2924. Wells
Fargo removed the case to the District Court for the Central District of California.
The district court subsequently granted Wells Fargo’s motion to dismiss, finding
that Plaintiffs’ claims were preempted by federal law.
Plaintiffs timely appealed to this court, but failed to request a stay of the
foreclosure sale pending appeal. As a result, the foreclosure sale was completed on
May 11, 2012.1 Under California law, “the remedy for noncompliance [with
section 2923.5] is a simple postponement of the foreclosure sale, nothing more.”
Mabry v. Superior Court, 110 Cal. Rptr. 3d 201, 204 (Ct. App. 2010). If a
foreclosure sale has already occurred, section 2923.5 has no effect on the finality
of that sale. Id. at 221. Because the foreclosure sale has been completed, Plaintiffs
no longer have any potential remedy. We therefore dismiss Plaintiffs’ 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.” (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403,
406 (9th Cir.1993) (internal quotation marks omitted)).
1
Wells Fargo’s motion to take judicial notice of the foreclosure sale is
granted.
2
The district court’s order granting Wells Fargo’s motion to dismiss, District
Court Docket Item No. 20, is vacated. See ACLU of Nev. v. Masto, 670 F.3d 1046,
1065 (9th Cir. 2012).
The court expresses no opinion as to the merits of the jurisdiction or
preemption issues raised in this appeal.
The appeal is DISMISSED and the order below is VACATED.
3