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How to answer a JDB request to contact 3rd parties in a complaint it filed


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so the last paragraph in the boilerplate complaint the JDB filed contains this.

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The Court should authorize Plaintiff and its attorneys to contact third persons and entities for the purpose of collecting its judgement entered in this court. The Court should also authorize Plaintiff and its attorneys to reveal the existence of Defendants debt to such third persons and entities.

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Is this common in a complaint?

How the heck do you answer this?

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The Court should authorize Plaintiff and its attorneys to contact third persons and entities for the purpose of collecting its judgement entered in this court. The Court should also authorize Plaintiff and its attorneys to reveal the existence of Defendants debt to such third persons and entities.

Objection: Violates provisions set forth in federal laws contained within the Federal Debt Collection Practices Act.

This stipulation would leave the door wide open for the Plaintiff to contact and harass any one they feel may be remotely connected to the Defendant. It would violate the Defendants right to privacy and the privacy of those the Plaintiff would feel a necessity to contact. If the Plaintiff were granted this stipulation, by the language contained in the stipulation its self, it would give the Plaintiff freedom to run a muck in the Defendants private affairs. The Plaintiffs request is moot and no court of law should grant such an inappropriate, nonsensical request. The request would give the Plaintiff, just by the sheer wording of the request, the freedom to do what ever the Plaintiff would feel like doing. The request would give the Plaintiff the right to invade the Defendants life and privileges set forth in the Constitution of the United States and the State in which this suit is filed.

Edited by BTO429
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I'd also throw in that is what debtor exams and post judgment interrogatories are for. In addition, real estate, vehicles, land deeds, and other information that would disclose assets to pay the judgment are public record.

If they want to find assets, they only need to look themselves, not ask a third party.

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I'm guessing this wouldn't fly, but it would be funny:

"Objection: Plaintiff is asking this court to rule that Plaintiff may violate federal law at will without the consent of Defendant. If this court so rules, defendant will sue Plaintiff under the FDCPA and cite the supremacy clause and Jarmaine v Carlisle in the event that it acts on said ruling."

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Unfortunately I think the OP might actually have legit shot at losing this. Also looks like there would not even have to be a court order to effectuate (why can't they just say carry out) the judgement. However, I bet they are going for the express permission of the court to avoid a claim of if their attempts were reasonable.

I'd still use the argument their request is way too broad and over reaching.

Chalk one up to the bad guys.

FDCPA 15 USC 1692b

COMMUNICATION WITH THIRD PARTIES

Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency

:shock::shock::shock::shock::shock::shock:

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Unfortunately I think the OP might actually have legit shot at losing this. Also looks like there would not even have to be a court order to effectuate (why can't they just say carry out) the judgement. However, I bet they are going for the express permission of the court to avoid a claim of if their attempts were reasonable.

I'd still use the argument their request is way too broad and over reaching.

Chalk one up to the bad guys.

FDCPA 15 USC 1692b

COMMUNICATION WITH THIRD PARTIES

Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency

:shock::shock::shock::shock::shock::shock:

Well, that sucks hard. I would still argue that their request for a blanket approval is opening the door for severe harassment not necessary for collecting the debt. I would respond that they should have to specify who they are going to contact and for what purposes before the court grants any such request as to do otherwise would be contrary to the purposes of the FDCPA.

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The Court should authorize Plaintiff and its attorneys to contact third persons and entities for the purpose of collecting its judgement entered in this court. The Court should also authorize Plaintiff and its attorneys to reveal the existence of Defendants debt to such third persons and entities.

I think the "dream team" had a little too much of that green beer. You don't object to a complaint, you file a motion to strike the offending part of the pleading. Look at the red part. This is entirely improper, they are literally asking the court to write new law from the bench and authorize JDBs to contact unnamed individuals in connection with an unadjudicated case in which they (speculatively) expect to get a judgment. It is also completely unnecessary, as every state already has post judgment procedure spelled out in the court rules. Want to contact somebody? Go get a subpoena like everybody else. They also want to tell those third parties about the debt? No judge in his right mind would do this. What gall. I see absolutely no reason to contact anybody other than the debtor unless you have a writ of garnishment or are pursuing a fraudulent transfer.

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In California the disclosure of contact information relating to third parties and witnesses fits firmly in the broad scope of discovery and it is only under unusual circumstances that the courts restrict discovery of non-party witnesses. Crab Addison, Inc. v. Superior Court (2008)169 Cal.App.4th 958, at 967.

The interplay between an individual's privacy rights and discovery was examined by the California Supreme Court in Pioneer Electronics Inc. v. Superior Court, where it applied a three part test to determine if a recognized privacy right has been asserted:

1. Party asserting the privacy claim must have a legally protected privacy interest

2. Party whose privacy rights are at issue must have a reasonable expectation of privacy

3. The invasion of privacy complained of must be serious in nature, scope and actual or potential impact to constitute an "egregious" breach of social norms,since minor invasions provide no cause of action.

Thus, if a claimant meets the three part test, then the privacy interest has to be weighed against competing interests using a balancing test. When there is no serious invasion of privacy, it isn't necessary for a court to engage in a balancing test. See Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 CaJ. 4th 360.

A way to protect sensitive information from discovery is to enter into a protective order. When third parties are involved it can be effectuated by sending an "op-in" or "opt-out" letter that can be discussed during a meet and confer.

For states other than California, you will need to consult with the scope of privacy afforded under your state laws and determine when protective orders are used to keep sensitive information from discovery. Federal privacy law is lacking in many areas and is not commensurate with what is afforded under states like California, where privacy is a constitututional safeguard.

Edited by CalParalegal
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