Jump to content

Subpoena for production of records


fabi
 Share

Recommended Posts

Hi Everybody,

This is my first posting since I'm a new member.

I received a "subpoena for production of records" in the mail today! It is from an attorney claiming to represent a CA.

I was able to discover that he has filed against me last year, and it looks like he got a default judgment. Now, the interesting thing is that I was never served by any summons, nor notified on any entry of judgment!

It could be because of my address change and also as a friend told me, they might have tried to serve me at my mailing address, which was a "Mail Box Etc" store. This friend says, in California a summons can't be served to a mail box and most likely this attorney had a fake notice of service filed, with the court, to obtain a default judgment against me.

Does anybody know, if this is correct? If so, what are my legal options?

In addition, in this subpoena, he is requesting my records from the credit card companies that I recently opened! Does he have such a legall right? What happened to the privacy rights?

All sugestions are appreciated.

Link to comment
Share on other sites

Original post by: fabi

It could be because of my address change and also as a friend told me, they might have tried to serve me at my mailing address, which was a "Mail Box Etc" store. This friend says, in California a summons can't be served to a mail box and most likely this attorney had a fake notice of service filed, with the court, to obtain a default judgment against me.

You have to be personally served with a summons before any default judgment can be given. Check your Courts On Line to see what they have in your file. Or go directly to the clerk's office.

In my state, the sheriff generally serves the summons. They do not get a signature from the Defendant. The sheriff himself could later testify in any action that the Defendant had been served. Is it possible that there was some sort of mistakened identity? Just a guess.

Link to comment
Share on other sites

Lecasbas, thanks for your posting.

I have no clue. I am planning to go to the clerk's office next week and get a copy of the file. The info on the court house's web site is very limited.

I am almost sure that they claim to have served at the mail box etc address! So they can't even claim that it was a case of mistaken identity.

Does any body know, if in California , the service of the summons to a Mail Box etc. store is considered legal ? If it is illegal, then can I request to vacate the judgment and go after the attorney for illegal practice or any violations ?

Thanks.

Link to comment
Share on other sites

Get a copy of the file formthe court, then file a motion to vacate the default, and also file a motion to quash the subpoena.... its based on an unlawful default and a violation of your due process rights. Grounds for vacate being improper service.

Not sure what the abilities are for them to legally obtain some other credit card info. Most be privacy protections, I can't see how they could just willy nilly ask for such a thing.... was it signed by a judge? Anyone can mail you a subpoena, doesn't make it legal. You need to learn your local court rules on what makes a subpoena something you HAVE to answer.... judge signed, clerk signed, what?

But still, he'd have to show the court RELEVENCE, they aren't allowed to go on a fishing expedition into your personal business. It would have to be specific and relevent to THIER claims in thier case. I can't see that happening very easily.

Link to comment
Share on other sites

But still, he'd have to show the court RELEVENCE, they aren't allowed to go on a fishing expedition into your personal business. It would have to be specific and relevent to THIER claims in thier case. I can't see that happening very easily.

Actually, it's very easy.

This is typical of any judgment creditor going through the motions to get their money. There is nothing unusual going on here.

Link to comment
Share on other sites

Original post by: fabi

You have to be personally served with a summons before any default judgment can be given. Check your Courts On Line to see what they have in your file. Or go directly to the clerk's office.

Yes, this is not correct. There is "service by publication"--did you ever notice those notices of lawsuits in the classified section of your local newspaper? Those are notices of service by publication.

Get a case number, and call the court and get a copy of the file--you aren't going to get anywhere until you figure out what happened. If they served you by publication, you might be able to get the judgment vacated.

Link to comment
Share on other sites

Here is a brief update:

I went to the court and requested a copy of the file. Since it was more than 10 pages, I was told to pay for them and come back in a couple days!

This is what I was able to verify:

- The attorney sued in superior court.

- They have served someone in the "Mail box Etc" store, and actually on the proof of service it says: Person authorized to receive service! As far As I know, I never gave such an authorization to anybody!

- They have filed tons of documents even before the appearance day, requesting all kinds of motions, I need to read them.

- Something didn't sound right, checked under their name in court records. These guys have tons of cases, all around southern California. %95 percent of their cases are won by Default Judgment! They always use the same pattern, such as:

-Almost always using alternate service!

-Saying:We don't have the original paperwork,to show the defendant's signature, but here is a copy of what it's supposed to be! Amazingly, the judge approves!

-They also file a bill of sale from the OC , past on to someone else and then resold to them.

Almost always, when the defendant has showed up, the case has been dropped or dismissed.

I'll post more info, as soon as I could get the copies.

Link to comment
Share on other sites

Hello everybody, here is the latest update.

-The case was filed in August 06.

- Proof of service of summons, is a declaration by the process server as " by substitute service". It states, that they have tried in different occasions, times and dates, location is described as 'business", and they have listed the "box number" as "Apt". (It is a "mail box etc."). The person served has been indicated as: person in charge!

- They have filed documents, stating that the original contract with my signature is lost, requesting the judge to accept copy of a generic contract and asked for the entry of the default judgment.

- The attorney states that since he can not sue me in the small claims court, he has filed in the superior court.

- Exhibit "A", is a copy of a general contract.

_ Exhibit "B", is a computer generated "Charge-off statement" from CA #2.

- Exhibit "C", is a bill of sale from OC to the CA#1. It comes with an Appendix"A", for the assignment from the Ca#1 to the actual CA#2/Attorney.

- The default judgment has been entered at the beginning of Dec. 06, where the judge is accepting the copy of the original contract/application and therefore judgment entered.

- There is a copy of a request for "Case management Statement", from the attorney, where a mid Dec. meeting is scheduled, but somehow he has been able to take a shortcut and have a judgment entered before that hearing!

Any suggestions on how to handle this, IN CALIFORNIA?

Thanks.

P.S. The subpoena, mentioned in my initial posting, is not filed in the court, it's just a letter sent by the attorney. Can they just mail it? Aren't they supposed to serve me?

Link to comment
Share on other sites

First thing, I would follow youwhackme's advice and file a motion to vacate. The worst that can happen is that the court determines you were properly served and the motion is denied. As for the supeana. If the plaintiff was awarded judgement, yes, they can ask for all kinds of documents including bank account information, asset holdings, ect. This is to enforce the judgement, but there are laws on what they can and can't take.

It sounds like the attorney had every thing he needed to win the judgement by defalt. If you had actually answered the summons, after of course being properly seved, you could have made them jump through all the hoops. And they would have made you do the same. As far as not having a signed CC agreement. He does't need one. He would have just asked you to produce bank records which he would have used to matched payments to the account in question. Sounds like he had the other two things he needed, account history and chain of custody.

It really sucks when you don't get a chance to fight in theses things.

Anyway, good luck with this. Let us know how it turns out.

Link to comment
Share on other sites

California has a provision for this, in in Cal. Civil Code 473.5:

473.5. (a) When service of a summons has not resulted in actual

notice to a party in time to defend the action and a default or

default judgment has been entered against him or her in the action,

he or she may serve and file a notice of motion to set aside the

default or default judgment and for leave to defend the action.

-get a lawyer

-act quickly

Link to comment
Share on other sites

oh, and the timeline for that (but talk to your lawyer) it says is:

"The

notice of motion shall be served and filed within a reasonable time,

but in no event exceeding the earlier of: (i) two years after entry

of a default judgment against him or her; or (ii) 180 days after

service on him or her of a written notice that the default or default

judgment has been entered."

--see, you have notice now of the judgment, so the timeline has started to run.

Link to comment
Share on other sites

First of all, thanks for all your comments, I think now I'm doing the right thing.

Contacted an attorney, he is very confidant that he could get the judgment dismissed, since there are a few irregularities.

I'll keep you posted.

Thanks again all.

Link to comment
Share on other sites

  • 2 months later...

Hi Everybody,

I got an attorney, have him file a motion to set aside the judgment. We had a hearing today. I was not asked to go to the court. My attorney sent a local attorney and the judge denied the motion to set aside the judgment!

He said, people all the time use the private mail boxes to have their mail delivered and he doesn't believe that I did not recieve the summons!!

I can't believe this..... so how about all these collectors and their process servers committing all kind of violations??

The attorney says, since it is not a large judgment, we can try to negociate now or may be a year down the line with them! He says, it is not the case to file an appeal !?!

I'm lost, can't believe it! So anybody could file, have a fake proof of service and get a default judgment!

Does anybody knows of a case law or a similar case?

Thanks.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.