NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL FARAH,

Plaintiff-Appellant,

 v.

WELLS FARGO HOME MORTGAGE, 

INC.; U.S. BANK N.A., as trustee for Bear 

Stearns Arm Trust, Mortgage Pass-through 

Certificates Series 2005-10,

Defendants-Appellees.

No. 14-15357

D.C. No. 5:13-cv-01127-PSG

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Paul S. Grewal, Magistrate Judge, Presiding**

Submitted November 16, 2016***

Before: LEAVY, BERZON, and MURGUIA, Circuit Judges. 

Paul Farah appeals pro se from the district court’s judgment in his diversity 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 

U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

NOV 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 14-15357 

action alleging state law claims related to the foreclosure of his home. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s 

dismissal for failure to state a claim under Federal Rules of Civil Procedure 9(b) 

and 12(b)(6). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). 

We affirm in part, vacate in part, and remand.

The district court properly dismissed Farah’s “unlawful transfer of title and 

possession of property” claim, which we treat as a wrongful foreclosure claim,

because Farah did not allege facts sufficient to show that he tendered or could have 

tendered the full amount of the debt, or any facts entitling him to an exception to 

the tender rule. See Lona v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 640-42 (Ct. 

App. 2011) (setting forth the tender requirement and its four exceptions).

The district court dismissed Farah’s fraud claim under Federal Rule of Civil 

Procedure 9(b). However, the district court overlooked Farah’s allegations that on 

May 31, 2012, three specific Wells Fargo employees, Jessica, Alton, and Ajay, 

mislead him by stating that his short sale offer and request to postpone the 

foreclosure sale were “in process,” without also disclosing that the foreclosure sale 

was set to proceed on the following day, in order to prevent Farah from filing for 

bankruptcy to avert the sale. Farah further alleged that Wells Fargo employees, 
 3 14-15357 

including his home preservation specialist Barbara Gaiter, had exclusive 

knowledge of, but failed to disclose, the rejection of his short sale offer in May 

2012. In light of these additional allegations regarding nondisclosure of material 

information, we conclude that the district court erred in dismissing Farah’s fraud 

claim against Wells Fargo Home Mortgage. See LiMandri v. Judkins, 60 Cal. 

Rptr. 2d 539, 543 (Ct. App. 1997) (setting forth circumstances, including exclusive 

knowledge or partial suppression of material facts, in which nondisclosure 

constitutes actionable fraud); see also Neubronner v. Milken, 6 F.3d 666, 671-72 

(9th Cir. 1993) (“A pleading is sufficient under Rule 9(b) if it identifies the 

circumstances constituting fraud so that the defendant can prepare an adequate 

answer from the allegations.” (citation and internal quotation marks omitted)). 

Accordingly, we vacate the judgment as to Farah’s fraud claim against Wells Fargo 

Home Mortgage and remand for further consideration consistent with this 

disposition.

Farah’s amended motion for an extension of time to file the opening brief,

filed on December 2, 2014, is denied as moot.

Each party shall bear its own costs.

AFFIRMED in part, VACATED in part, and REMANDED.