1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

SANDRA SCOTT TABB,

Plaintiff, No. 3:16-cv-00446-MO

v. OPINION AND ORDER 

U.S. BANK NATIONAL ASSOCIATION, 

as Trustee, MORTGAGE ELECTRONIC 

REGISTRATION SYSTEM, and REGIONAL 

TRUSTEE SERVICES, Oregon,

Defendants.

MOSMAN, J., 

 Defendant U.S. Bank brings a Motion to Dismiss for Lack of Jurisdiction and Failure to 

State a Claim [24]. For the following reasons, I GRANT Defendant’s Motion to Dismiss as to 

all claims against all defendants. 

I. Background 

Plaintiff Sandra Scott Tabb and Roger Tabb took out a loan in July 2006 for $404,000.00. 

They defaulted on the loan and a foreclosure action was filed on January 3, 2013, as Multnomah 

County Circuit Court of Oregon, Case No. 1301-00034. Ms. Tabb appeared and thoroughly 

litigated the issues in that state law proceeding. The state court found Ms. Tabb had defaulted 

and granted summary judgment in favor of U.S. Bank. Ms. Tabb now brings a federal court 

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2 – OPINION AND ORDER 

action with three claims alleging 1) the Defendants did not have standing to foreclose on the 

note; 2) Defendant MERS had no authority to assign the note; and 3) Defendants committed 

forgery. 

II. Discussion 

U.S. Bank moves to dismiss asserting this Court lacks jurisdiction under the RookerFeldman doctrine among other grounds. 

“The basic premise of Rooker–Feldman is that ‘a federal district court does not have 

subject matter jurisdiction to hear a direct appeal from the final judgment of a state court.’” 

Maldonado v. Harris, 370 F.3d 945, 950 (9th Cir. 2004) (quoting Noel v. Hall, 341 F.3d 1148, 

1154 (9th Cir. 2003). Congress “has determined that the United States Supreme Court is the only 

federal court with jurisdiction to hear appeals from state courts.” Id.; see 28 U.S.C. § 1257. 

However, in applying Rooker-Feldman the Ninth Circuit has distinguished between a legal 

wrong by the state court and a legal wrong committed by an adverse party. If Ms. Tabb “asserts 

as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state 

court judgment based on that decision, Rooker–Feldman bars subject matter jurisdiction in 

federal district court.” Noel, 341 F.3d at 1164. However, if Ms. Tabb “asserts as a legal wrong 

an allegedly illegal act or omission by an adverse party, Rooker–Feldman does not bar 

jurisdiction.” Id. 

In Claim 1, Plaintiff alleges Defendants “in cause number 1301000034 [the state court 

case] failed to prove standing to foreclose on [Ms. Tabb’s] property by failing to produce 

evidence to prove that they were the holder of the alleged Note or were entitled to foreclosures.” 

(Pl.’s Am. Compl. 3.) This claim directly invokes the state court decision, “cause number 

1301000034,” and asks me to set aside the state court’s judgment—the very action RookerCase 3:16-cv-00446-MO Document 34 Filed 08/25/16 Page 2 of 4
3 – OPINION AND ORDER 

Feldman forbids. As such, I GRANT the Defendants’ Motion to Dismiss for lack of subject 

matter jurisdiction as to Claim 1. 

In Claim 2, Plaintiff alleges MERS “had no authority to assign anything because MERS 

judicially admits that it NEVER has any interest in the promissory note or any pecuniary interest 

in the alleged mortgage indebtedness.” (Pl.’s Am. Compl. 3.) And “therefore the defendants 

lacked authority to record the assignment in the country records.” Id. This claim implicitly asks 

that I undermine the state court’s finding that the “lien of [U.S. Bank] is superior to any interest, 

lien, or claim” of Ms. Tabb’s. (Req. for Jud. Not. Ex 3 at 4.) The Rooker-Feldman doctrine 

serves as a bar to this claim and I therefore GRANT the Defendants’ Motion to Dismiss for lack 

of subject matter jurisdiction as to claim 2. 

In Claim 3, Ms. Tabb invokes ORS § 165.013(1) and alleges “Defendants were complicit 

in forgery when MERS assigned [Ms. Tabb’s] mortgage to Defendants when MERS had no 

authority to do so and then recorded such assignment in the public record.” While Ms. Tabb’s 

third claim may also have been necessarily decided by the state court and thus subject to the 

Rooker-Feldman doctrine, the general judgment from Multnomah Circuit Court, of which I take 

judicial notice, does not address the question of forgery. Therefore, I am unable to determine if 

the forgery allegations relate to an alleged legal wrong by the court, and are thus barred by 

Rooker-Feldman, or instead refer to allegedly illegal acts by the Defendants, to which RookerFeldman would be inapplicable. However, Ms. Tabb’s claim is fatally defective for another 

reason. “Statutes that provide for punishment by fine or imprisonment do not create privately 

enforceable rights or give rise to civil liability.” Keyter v. McCain, 207 F. App'x 801, 802 (9th 

Cir. 2006). I therefore GRANT Defendant’s Motion to Dismiss as to Ms. Tabb’s third and final 

claim. 

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4 – OPINION AND ORDER 

III. Conclusion 

For the foregoing reasons, I GRANT Defendant’s Motion to Dismiss as to all claims 

against all defendants. 

DATED this 25th day of August, 2016. 

/s/ Michael W. Mosman 

MICHAEL W. MOSMAN 

Chief United States District Judge 

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