Can Plaintiff subpoena bank records for cancelled checks?

[2fightback]

Regarding our ongoing case with a JDB, the Plaintiff asked the Judge to order us (defendants) to provide the name of bank we used in 2005 (they are trying to establish that payments were made to original creditor). Judge granted order, but told us that if we didn't know/couldn't remember name of bank or didn't have old bank statements, to file a waiver statement indicating such. Plaintiff then made a comment stating they would subpoena the bank, but Judge kind of ignored their statement.

So, can they subpoena the bank for old statements? I found this in another post back in 2008:

For the checks you can add that under the Federal law known as "Check 21" (12 CFR 229) banks are no longer required to return cancelled checks to the account holder (Except in NY and MA) and they are not required to keep the images of the checks for longer than 30 days under UCC 4-406. The bank, at its discretion, can destroy the original and the image copies after that time has elapsed.

We also read elsewhere that all banks are required to maintain records for seven years as required by the I.R.S. So we're confused.....if they CAN subpoena bank records from several years ago and successfully are able to show that payments were made to the OC, does that hold any merit in itself? We know they have to show the chain of title to prove we owe them, but if the statements with our current address and proof of payment to original OC are enough in the Judge's eyes to show liability, then we're screwed. We just need some concrete case law and arguments for the hearsay defense so that all of their evidence is blown out the window. There is also the possibility of attacking the whole case on violation of the CO UCC code, which says in a nutshell "any assignee must provide the debtor with notice of such assignment within 30 days, etc.,etc." which they never did.

Any advice or comments out there?

[delta1]

If the judge issues the subpoena I am pretty sure you can object to it (in Florida you can) but check your Civil Procedures.

Would the subpoena for the bank records they are requesting/seeking provide

information that violates the privacy rights of non-parties to the matter, i.e. are they suing both you and your spouse and if not was it (or is it) a joint checking account?

Also, if you have denied knowledge of the debt or stated that you were without sufficient information or knowledge and they haven't proved that you made any payments then they are assuming facts not entered into evidence.

Just my 2 cents but someone more knowledgeable may have a better answer.

[2fightback]

Would the subpoena for the bank records they are requesting/seeking provide

information that violates the privacy rights of non-parties to the matter, i.e. are they suing both you and your spouse and if not was it (or is it) a joint checking account?

Thanks for the reply delta 1.

My husband can't remember. Either the account was joint with his ex-wife, or it was a sole-proprietor business account he had at the time (business has since been disolved).

I have a feeling the JDB is just trying to throw out some scare tactics because they have nothing concrete to stand on and they're hoping the Judge will grant a judgment based on them proving payments were made to the OC. It would be great to have a defense all ready in case they do try to subpoena said bank records.

Anyone else been through this type of threat?

[willingtocope]

I'm not a lawyer, but I wouldn't think that evidence you paid the OC means anything.

The JDB needs to establish that the OC sold them the debt and that someone from the OC with knowledge of the account will testify that the amount the JDB is trying to collect is correct.

[Downto0]

willingtocope :I'm not a lawyer, but I wouldn't think that evidence you paid the OC means anything.

If the OC did get a copy of a check, or several checks, in which payments made to the OC matched up with respective checks then this would seem to establish that you did pay on the account.

It doesn't mean anything if the plaintiff doesn't have the right to collect but I would not allow payments to the OC to become fact.

We know they have to show the chain of title to prove we owe them, but if the statements with our current address and proof of payment to original OC are enough in the Judge's eyes to show liability, then we're screwed.

Only if the OC is suing. Even if the JDB established a relationship between you and the OC, the JDB still has to prove its right to collect before the court can issue a final judgment for the claim.

I don't understand why the judge gave an order to disclose your personal financial information to the JDB, and to the public, without this being established first.

The bank, by the way, doesn't do this kind of thing for free. If the court ordered that you produce the financial information then you are the one who must come up with the $100 to $500 per bank for the processing fee.

For appeal purposes, you could object to the order stating that the plaintiff has not established its right to collect thus there is no reason for the JDB, and the public, to be trampling through your personal financial records, and that the cost of this process may exceed the amount of the claim itself.

The same judge may rescind its own order but another presiding judge most likely would not. But, by objecting to the order, even if overruled, you have established grounds for an appeal. Contrarily, if you do not object to the order, then you will be seen as aquiescing to the order.

I would, then, object to the order to preserve my right to appeal on this issue. You might get lucky and the same judge may see its error and rescind the order, but probably not.

Then, upon your objection being overruled, it would be reasonable to state, since you have no knowledge of the account that the plaintiff is claiming, that you cannot possibly know what bank that may have been used to make payments on the alleged account.

[nascar]

I'm not a lawyer, but I wouldn't think that evidence you paid the OC means anything.

The JDB needs to establish that the OC sold them the debt and that someone from the OC with knowledge of the account will testify that the amount the JDB is trying to collect is correct.

I agree. I don't give a rat's behind if a JDB knows I made a payment to the OC (unless SOL is an issue). Just because I paid the OC doesn't mean I owe some bottom-feeding JDB a dime.

[Downto0]

The problem here is that the judge has already given the order to produce the documents even though the JDB has not established its right to collect.

The op must respond to this order. Besides not giving a "rat's behind", what would you advise?

[ALVA]

Seems to me the judge gave an out

Judge granted order, but told us that if we didn't know/couldn't remember name of bank or didn't have old bank statements, to file a waiver statement indicating such.

If the defendent had business accounts, plus a joint account with an ex wife, all dissolved, couldn't he just use the waiver statement "I have no records from that time period as the businesses and marriage have been dissolved and there were multiple bank accounts?"

[nascar]

The problem here is that the judge has already given the order to produce the documents even though the JDB has not established its right to collect.

The op must respond to this order. Besides not giving a "rat's behind", what would you advise?

Produce the documents, that's what. Like I said before, it doesn't matter if the JDB can't establish its right to collect. What this sounds like is a case where someone's "deny, deny, deny" defense is about to blow up.

[Downto0]

Yes. I already said this in my first response although not exactly as you stated:

Then, upon your objection being overruled, it would be reasonable to state, since you have no knowledge of the account that the plaintiff is claiming, that you cannot possibly know what bank that may have been used to make payments on the alleged account.

The current judge has either sidestepped the assignment issue or decided that the plaintiff has submitted prima facie evidence to establish assignment. The court wouldn't, or shouldn't, have ordered the production of personal financial documents if it did not think that the plaintiff had the right to collect the alleged debt.

I think that the op should first object to the order without filing the waiver until the objection is overruled then file a waiver as a last recourse.

I feel that if the op does not object to the order specifically stating that the plaintiff has not produced proper assignment that proper assignment may be admitted to by the op since it did not object to the order (which assumes that assignment has been established).

[Downto0]

Nascar:

Produce the documents, that's what. Like I said before, it doesn't matter if the JDB can't establish its right to collect. What this sounds like is a case where someone's "deny, deny, deny" defense is about to blow up.

As I said in a previous post (which I was still writing when you answered), the judge, by giving the order to produce, is assuming that the plaintiff has assignment. Producing records showing payments on the account along with the judge believing that the plaintiff has assignment would be a death blow to the op's case.

I agree that something went wrong at the op's trial/hearing for the judge to issue the order. If the op had persuraded the judge that the plaintiff did not submit proper assignment then the judge should have given an order for the plaintiff to provide proper assignment, not for the op to give up its financial records.

By objecting to the order the op can again bring the issue of assignment up and the judge will need to explain why it thinks that the assignment is valid.

Of course, the judge can just overrule the objection without explanation but this will create grounds for an appeal.

[2fightback]

The context of this posting seems to have changed a bit from our first post Not sure where things got mixed up, but even we got caught up in the presumption that the Judge ordered "production of bank statements", yet he has not.

Regarding our ongoing case with a JDB, the Plaintiff asked the Judge to order us (defendants) to provide the name of bank we used in 2005 (they are trying to establish that payments were made to original creditor). Judge granted order, but told us that if we didn't know/couldn't remember name of bank or didn't have old bank statements, to file a waiver statement indicating such. Plaintiff then made a comment stating they would subpoena the bank, but Judge kind of ignored their statement.

So, can they subpoena the bank for old statements?

As far as the Plaintiff's request that we be ordered to provide the "name of the bank ", we have not received an official "order" indicating such from the Court, or from the Plaintiff for that matter. Are we wrong to assume that absent an official copy of said order, the Plaintiff will need to send us some sort of request for that information, or should we go ahead and just file the "waiver" that the Judge was talking about? If so, how does one format such a waiver? As a pleading with a heading like "Defendant's Waiver for the Production of Banking Information", or just a simple statement stating the name of bank is unavailable accompanied by a certification statement? Not sure where to go next with this.

We are going to file a Motion to Strike Affidavit of Indebtedness on the grounds of hearsay tomorrow or Friday. Should we wait to act on the whole bank issue until we see how the Judge rules on our MTS? Afterall, if the motion is granted, then the bank name/statements becomes a moot point since the case will be completely groundless (or at least we hope!).

Thanks everyone for helping out.

[delta1]

I believe the simple answer would be yes. They can request a subpoena for your bank statments under Rule 45 ( of the Colorado Rules of Civil Procedure; however, as stated in the Rules, and if you choose, you can object to the subpoena. If that is your strategy than no harm in getting prepared now by researching some case law and working on the motion. Better to have and not need than to need and not have!

Rule 45. Subpoena

(a)

For Attendance of Witnesses; Form; Issue.

Subpoenas may be issued under Rule 45 only to compel attendance of witnesses, with or without documentary evidence, at a deposition, hearing or trial. Every subpoena shall state the name of the court, and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.

(

For Production of Documentary Evidence.

A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) Quash or modify the subpoena if it is unreasonable and oppressive; or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

©

Service.

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to such person the fees for one day's attendance and the mileage allowed by law. Service is also valid if the person named in the subpoena has signed a written admission or waiver of personal service. When the subpoena is issued on behalf of the state of Colorado, or an officer or agency thereof, fees and mileage need not be tendered. Proof of service shall be made as in Rule 4(h). Unless otherwise ordered by the court for good cause shown, such subpoena shall be served no later than forty-eight hours before the time for appearance set out in said subpoena. The party issuing or causing the issuance of the subpoena pursuant to this rule, except in post-judgment proceedings, shall serve a copy of the subpoena (including a complete list of documents and things requested to be provided pursuant to the subpoena) upon all parties of record, including pro se parties, in the manner prescribed by C.R.C.P. 5 (

. Service on the other parties shall be made promptly after the service of the subpoena upon the person named therein. Original subpoenas and returns of service of such subpoenas need not be filed with the court

[2fightback]

Thanks Delta1.....NOW everything is making more sense. The Plaintiff will have to make a motion to subpoena the bank records. For some reason, it seemed like they could just automatically get the alleged reocrds at this point.

Downto0....your arguments will certainly be of great asssistance in objecting to the Plaintiff's motion for the subpoena. It is very clear now that the Judge cannot just assume things (like that the assignment is valid) and that it's very important to keep it that way.

We will definitely be ready to fight their motion for the subpoena. And like Nascar and willingtocope pointed out, if in the end they are successful in obtaining proof of the alleged payments to the OC, than so be it. It doesn't necessarily mean the end of the world. It sounds like we should be more concerned with our "deny, deny, deny" defense that is about to blow up".

Does anyone know what to do with the waiver issue? Wait for a letter requesting the name of the bank from the Plaintiff, or just file the waiver now with the court? Maybe the Plaintiff won't even act on it, so by us taking the first step, we may be encouraging them to do so.

[admin]

The other thing about those checks....

So what if you made payments on the account? What happened afterwards? Can they prove you didn't pay the entire balance off?

[Downto0]

2fightback

The context of this posting seems to have changed a bit from our first post Not sure where things got mixed up, but even we got caught up in the presumption that the Judge ordered "production of bank statements", yet he has not.

Originally Posted by 2fightback

Regarding our ongoing case with a JDB, the Plaintiff asked the Judge to order us (defendants) to provide the name of bank we used in 2005 (they are trying to establish that payments were made to original creditor). Judge granted order, but told us that if we didn't know/couldn't remember name of bank or didn't have old bank statements, to file a waiver statement indicating such. Plaintiff then made a comment stating they would subpoena the bank, but Judge kind of ignored their statement.

By the judge ordering you to produce the name of the bank, the plaintiff can get a subpoena from the clerk's office and go to the bank and get whatever is available as long as the plaintiff pays the bank's fees.

The bank could refuse to obey the subpoena but would involve itself in a legal battle defending its refusal. This would not be a good business decision for the bank. If the plaintiff pays the fees then the bank will most likely produce the records requested. The subpoena legally covers the bank's actions. It would be the plaintiff in the hot seat if something was wrong with the subpoena.

I was involved in a conservatorship in which, as an interested party, I submitted a subpoena to a bank for statements for an account. I delivered the subpoena myself and received the information upon waiting a couple of days and paying the fees.

It is quire clear to me that once the plaintiff, in your case, receives the name of your bank it will do exactly as I did and your bank will comply - as long as the fees are paid. Your bank will probably notify you once they have complied and you will not have a chance to object to the bank until the dirty deed is done.

You should check your courts online for the order. If you have not received a copy of the order then you could also call the clerk's office. I would personally go to the clerk's office and ask for the file. In simple collection cases like yours, the judge ususally submits the order on the same day. It should be in the file. The clerk must be a little behind. If the judge said it, then it should be coming.

I would not file a waiver until I read the order. Then, as I said earlier, I would object to the order. In this objection I would point out that the plaintiff has not provided proper assignment which would give it the right to collect the alleged debt.

The judge may or may not rescind its order. Regardless, you have made the objection and have preserved your right to appeal on these grounds.

I don't understand the judge issuing the order to produce the name of your bank if the plaintiff has not established its right to collect. Did you not bring this issue up?

And...as others have said, proving that you made payments to the OC does not establish the plaintiff's right to collect. You should turn this thing around. If the plaintiff has not established its right to collect then you could file a summary judgment or a motion to dismiss. Since the plaintiff does not have the right to collect then there are no genuine issues to debate.