Macinnes

*550 MEMORANDUM **

U.S. Financial, L.P. appeals the district court’s order setting aside a state law foreclosure sale. The district court held that (1) Washington Mutual Bank, which initiated the foreclosure sale, had no interest in the property at the time of the sale because its interest had been terminated by earlier civil and criminal forfeiture proceedings and, in addition, (2) the foreclosure sale violated 21 U.S.C. § 853 (k), which bars actions against the United States to determine third party interests in property subject to criminal forfeiture. On appeal, U.S. Financial contends (1) that the United States had not provided constitutionally adequate notice to Washington Mutual so that the civil forfeiture judgment is void and (2) that the foreclosure sale did not constitute “an action at law or equity against the United States” and that there was no violation of 21 U.S.C. § 853 (k). For the reasons that follow, we affirm the district court’s Order Granting the Government’s Motion to Set Aside Foreclosure Sale, Enforce Forfeiture Orders, and Restrain Further Action.

BACKGROUND

Frazer Charles and Maureen Maclnnes (the “Maelnneses”), who are not parties to this action,…

concurring:

I concur in the result, but for different reasons than my colleagues. Most fundamentally, the case is moot for the simple reason that we are incapable of granting the only relief U.S. Financial seeks. Before us is the Government’s Motion to Set Aside Foreclosure Sale, Enforce Forfeiture Orders, and Restrain Further Action, which the district court granted. U.S. Financial, however, did not obtain a stay of this order pending appeal. The government, acting under the authority of the district court’s order (which vested title to the property in the United States), has sold the property to a third-party purchaser. Even if we were to reverse the district court, we cannot unring this bell and reinstate the foreclosure sale, putting U.S. Financial back as the owner of the property. We therefore lack the ability to grant U.S. Financial any effective relief and should dismiss the appeal as moot. Cf. In re Baker & Drake, Inc. v. Public Service Commission of Nevada, 35 F.3d 1348, 1351 (9th Cir.1994).

Even if the case were not moot, I would approach the merits differently. The state foreclosure sale was not an action “concerning the validity” of Washington Mutual’s interest in…