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rsa.esq
rsa.esq, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 73
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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1. I filed a motion to dismiss based on lack of subject

Customer Question

1. I filed a motion to dismiss based on lack of subject matter jurisdiction. Plaintiff did not file an opposition motion. Judge ruled that my motion would be "heard" before the trial started. Before the trial started that day, Plaintiff reminded the judge about my motion which the judge immediately denied. There was no hearing. Don't the FRCP and the judge's earlier ruling give me the right to be heard?
2. I was a class action member who successfully argued that Plaintiff violated consumer protection laws. Via a Consent Order, the CFPB ordered Plaintiff to pay us about $17k each. In Plaintiff has not paid but has instead sued me in federal court b/c I refused to pay it $1000 for its defective goods. During my trial, Federal court judge refused to even look at the consent order tho' consent order barred Plaintiff from suing class members. Also, judge would not allow me to talk about the order. Per FRE, did judge abuse his discretion by ignoring Plaintiff's obligations under the order and preventing me from talking about the order?
3. Incredibly, without ANY evidence, the judge during trial made factual statements/conclusions about these products that the CFPB specifically found were untrue. Actually, CFPB has banned Plaintiff from selling anymore of these products. Are there any FRCP or FRE that lable the judge's conduct as abusuve?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  rsa.esq replied 1 year ago.

Attorneys cannot always deliver the news hoped for.
1. Subject matter jurisdiction: Subject matter jurisdiction is an issue for the judge to decide. I believe under FRCP, hearings on preliminary motions such as this are at the discretion of the judge, who can decide to conduct a pretrial hearing, conduct no hearing and merely rule on the motion, or wait to rule at trial before the case in chief commences.
If you correctly made the motion to dismiss for lack of subject matter jurisdiction initially so that it was not waived; consequently, it can raised at any time during the trial and can even be raised on appeal.

2. CFPB Consent Order: A federal judge is a superior authority, and again has discretion. It does seem reasonable to expect that a federal judge would consider and respect such an order from a federal administrative agency, but I do not believe there is a requirement for them to do so. So, no, no abuse of discretion here.

When you received notice of this suit by Plaintiff, you should have asked the CFPB to enforce the consent order on your behalf; you could have also requested a federal court enjoin the Plaintiff from proceeding while you pursued enforcement of the consent order.

At this point, you can also complain to the CFPB and request they sanction the Plaintiff for violating the consent order -- and, as part of that, ask the CFBP to order Plantiff to pay your subsequent legal fees!).

3. Evidence: under the FRCP (and state law), judges are given wide latitude on issues of evidence, though rulings to include or exclude specific evidence may be appealed if an objection was timely made.

Customer: replied 1 year ago.
Your answers were not responsive to my questions.
1. Judge said that dismissal motion would be HEARD before trial but no HEARING was held. Wasn't there supposed to be a HEARING? Start your answer with either Yes or No.
2. Is a Federal judge required to comply with the CFPB's consent orders if the consent order specifically relates to the parties before him? Start your answer with either Yes or No.
3. Is a Federal judge allowed to make up "factual evidence" and then base his decision on this non-existent evidence? Start your answer with either Yes or No.
Expert:  rsa.esq replied 1 year ago.

I'm sorry you think my answer was not responsive to your issues -- let me try again.

1. No, the judge does not have to conduct a hearing on a pre-trial motion, even if he initially said he would. And yes, of course you have the right to be heard -- but only if a hearing on the matter is actually conducted. The judge is acting withing the scope of his authority to decide a pre-trial motion from the record alone, without a hearing. Could it be the judge simply forgot, and then when he was reminded of it on the day trial commenced, summarily dismissed it? Human error and human nature are part of the system, too, but that kind of error -- forgetting a motion -- is rare.

2. I do not think there was any abuse of discretion in the judge not considering the CFPB order.

3. I do not think there was any any abuse of discretion when judge issued his own findings of fact and conclusions of law. The judge is not bound by the CFPB findings or order.

I hope you find this answer more succinct and responsive -- thanks for opportunity.

Customer: replied 1 year ago.
Let's try this one last time:2. According to the CFPB Consent Order, plaintiff stipulated to the truthfulness of all of the CFPB's "findings of facts and legal conclusions" and that it would not dispute those findings. And, Plaintiff stipulated that it would pay me $17K without any further or take any adverse action against me because it stipulated that the Consent Order was the FINAL adjudication action on these issues.Per the FRCP and FRE, isn't the Federal Court required to ensure that the Plaintiff adheres to the Consent Order? In my case, the Plaintiff disputed the Consent Order's factual findings and sued me in Federal Court, which it stipulated that it would not do. Please start your answer with either Yes or No, and not with "I do not think".3. The Federal Court "made up facts" without any evidence. For example, Federal Court "found" that Plaintiff only owed me $500, and not $17K. Not only was there is NO EVIDENCE in the record ANYWHERE to support this "FACT", but this NON-EXISTENT FACT conflicts with the CFPB's findings.Per the FRCP and FRE, is the Federal Court allowed to "MAKE UP FACTS" without having any evidence or that conflicts with a Consent Order? Please start your answer with either Yes or No, and not with "I do not think".Thank you!
Expert:  rsa.esq replied 1 year ago.

I'm sorry that I am unable to tell you what you want to hear.

Thank you for the opportunity to try and for taking the time to review my responses: You will be happier with another service provider.

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