Tabb v. U.S. Bank National Association et al
Filing
34
OPINION AND ORDER: I GRANT Defendant's Motion to Dismiss as to all claimsagainst all defendants. Signed on 8/25/16 by Judge Michael W. Mosman. (dls)
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
1 – 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 Rooker-
Feldman 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 Rooker-
2 – 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.
3 – 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
4 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?