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JBD's motion to order 6 years of bank records


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My info:

 

1. Who is the named plaintiff in the suit? Midland Funding LLC

 

2. What is the name of the law firm handling the suit? Johnson and Mark LLC

 

3. How much are you being sued for? $9xxX.xx charged off; plus accrued interest of $7XX.xx since 4/30 and accruing at 10%; plus $7XX.xx attorney fees

 

4. Who is the original creditor? (if not the Plaintiff) Chase

 

5. How do you know you are being sued? (You were served, right?) Served complaint

 

6. How were you served? (Mail, In person, Notice on door) In Person at home

 

7. Was the service legal as required by your state? Yes

 

Process Service Requirements by State - Summons Complaint

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Don't recall any correspondence, but I rarely look at the collection letters mailed because I cannot settle or do anything now. Since the first summons, Johnson Mark has evidently bought a 2nd credit card debt (Capitol One)of $6XXX.00 and sent me a letter to collect

 

9. What state and county do you live in? UT. Salt Lake county

 

10. When is the last time you paid on this account? 9-20-11

 

11. What is the SOL on the debt? I believe 4 years

 

12. What is the status of your case? Suit served? Motions filed? rec'd summons; sent denials; rec'd request for Admissions / production of docs; replied w/my request for prod of docs; after about 45 days sent my motion to compel; they claimed they didn't get my req for prod prior to my motion to dismiss (not true) & filed for pre-trial convention; pre-trial they talked to my prior to again claim they didn't get my pod request and rescheduled for answers to be given 30 days later; 3-4 days later rec'd Plaintiff's Supplemental Disclosures with a screenprint of some info from the account in question as well as a balance transfer form; also rec'd a request of the court to order to 'properly respond' and that i had failed to provide statements for past 6 years.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

 

14. Did you request debt validation before the suit was filed? No. Didn't know to at that time.

 

15. How long do you have to respond to the suit? 14 days on the latest from 12 above

 

We need to know what the "charges" are. Please post what they are claiming.  That I signed & entered into a contract & defaulted on the obligation

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 

They attached about 12 months worth of statements, a list of "may call" fact witnesses, & of course, no contract was submitted (later amended with a balance transfer app, but no contract)

 

Q: As stated above in #12, the Plaintiff claimed that they did not receive my request for production of documents prior to my motion to dismiss (not true, and I showed my certified mail receipt w/MTD), but I complied with their request at pre-trial to extend 30 days for Plaintiff to answer. Immediately after, they filed for an order (within 14 days) to provide statements for last 6 years as requested in Plaintiff's discovery, and that i had failed to properly respond.  They also sent a supplement to their initial disclosures with a 'screenprint' of some info from the alleged account as well as a 'balance transfer' request application. Still no contract, of course. 

My initial response to their request for the last 6 years of bank statements was that the request was "irrelevant and overly broad, unduly burdonsome, and not reasonably calculated to lead to the discovery of admissible evidence". How should i respond to their request. i haven't seen this come up on the board before and got my answer from templates here. Thanks!

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File an opposition to their motion stating that that the request is irrelevant, overly broad, etc. You will need to find court cases to back up your position but as long as it is reasonable, you should be able to win.

Sounds like they really do not have enough records to win. Especially if they do not have an affidavit to back up their records.

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Any party can ask for anything they want in discovery. Whether they will or can get it is another problem. Most lawyers ask for everything to see what they can get without doing any work. It is up to the other party to tell the first party, no you cannot have it and if the first party insists, tell the judge that they are not entitled to it. Therefore the OP needs to file an opposition to the Plaintiffs motion to compel and state why they should not be required to compel using the facts from previous cases and describe how they apply to this situation.

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You answer to them asking for these records is irrelevant, over burdensome, oppressive, not likely to lead to any discoverable evidence. The plaintiff asks for records that they cannot lawfully obtain prejudgment. the burden or expense of the proposed discovery outweighs its likely benefit.

 

The biggest reason they want your financial records is so they will know where you bank if the get a judgment. They will also be able to determine where you work from direct deposits. They will also be looking to see if they can prove by your bank records that you made any payments to the OC.

 

Your argument in court is several. First the defendants financial status has no bearing on the immediate cause of action, nor does the defendants financial status prove that this debt exists.

 

here is a case for reference:

Dickson v. Nat'l Maintenance & Repair of Ky

Although the Ninth Circuit Court of Appeals does not appear to have directly addressed the issue, district courts across the country generally do not allow pre-judgment discovery regarding a defendant's financial condition or ability to satisfy a judgment-aside from those insurance-related disclosures made pursuant to Rule 26(a)(1)(A)(iv), or where punitive damages are available-on the grounds that such discovery is not relevant to the parties' claims or defenses and is not reasonably calculated to lead to the discovery of admissible evidence.

 

DiNapoli v. Int'l Alliance of Theatrical Stage Employees 8, Civ. Action No. 09-5924, 2011 WL 1004576, at *7 (E.D. Pa. Mar. 18, 2011) (unpublished) ("Ordinarily, Rule 26 will not permit the discovery of facts concerning a defendant's financial status, or ability to satisfy a judgment, since such matters are not relevant, and cannot lead to the discovery of admissible evidence."

 

Grosek v. Panther Transp., Inc.,

If the plaintiff does not claim punitive damages, or if punitive damages are unavailable, the court will not allow discovery to determine whether the defendant has the means to satisfy a judgment because a defendant's ability to satisfy a judgment has little to do with the subject matter of the litigation notwithstanding a claim for punitive damages.

 

 

 

Federal 26r para 5 © provides for a protective order if the court allows discovery of your financial records. google it. Most states have laws the mirror this rule.

 

P.W. Berry Co. v. Gen. Elec. Co., 158 F.R.D. 161, 164 (D. Or. 1994)

granting motion for protective order in a breach of contract action, precluding pre-judgment discovery of corporate and individual financial information including tax returns and financial statements, because that information was not relevant within the meaning of Rule 26(B)(1)); accord James Wm. Moore, 6 Moore's Federal Practice § 26.41[8][a] (Matthew Bender 3d ed. 2011) (discussing the increasingly restrictive standards pertaining to discovery of a party's financial condition and stating that "[t]he relevancy requirement is not met when a party wants to know the opposing party's assets prejudgment to determine what assets are available for attachment should that party succeed in obtaining a favorable judgment").

 

I have given you case law from several states that show you why your financial records are not discoverable. A diligent search by you should give you some case law from your state that says the same thing.

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The bank records are relevant to the extent that they may lead to evidence which could tend to prove or disprove that defendant made payments on the subject account. The fact that payments were or were not made is relevant to the issues such as statute of limitations, ownership, promise to pay, etc.

 

The objectionable part may be the time frame related to the sought after records. Six years is a pretty long time. Unless six year old records are relevant (as described above) to any party's claims or defenses, such records may be beyond the scope of litigation and therefore objectionable.

 

In Utah, the statute of limitations for agreements founded upon a writing is six years. Hence, the six year record request. I believe the records are relevant and therefore, discoverable. To the extent that the records contain irrelevant or privileged information, you could probably get away with simply redacting such information.

 

Note that if you don't produce the records of your own accord, plaintiff has the option of subpoenaing them from bank. Bank will not redact anything. Moreover, if you lose, you'll be on the hook for costs incurred by plaintiff in obtaining records.

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Let's say you comply and provide the records, and the JDB finds payments to the OC in the statements.  As you're all familiar with how jargon-ridden and truncated transaction descriptions are on paper statements, wouldn't it be difficult to 1) glean anything other than the defendant paid the OC money, and 2) that the transactions are so vague that they can't be meaningfully connected to the alleged account?  Meaning that, if we assume the plaintiff can't even prove with their own evidence that the OC received payments from the defendant, what good will the bank statements do them other than showing the defendant paid the OC monies that can't be connected to any account, agreement, etc.  Surely the mere fact that payments were made to the OC at some time for some thing isn't a material piece of evidence, right?

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If the year's worth of billing statements show payments, which they probably do,  they don't need your bank records to prove that element of account stated. Other than that, there is no reason for them to sit there and review six years' worth of your financial transactions unless they are fishing for info they can use post judgment. Problem is, they don't have a judgment. I would object to this as an invasion of privacy, as well as unnecessary since they have the proof they need for one element of their cause of action. You want to get this into your response so that they have to explain to a judge what they want these records for. You're throwing them a bone by admitting you made payments, but so what. Everybody makes payments up until a certain point. It's rather irrelevant to your line of defense, what you want to concentrate on is standing. They probably don't have adequate documents to prove ownership.

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In any objection you need to argue your objection on dozens of different grounds, raising all kinds of different objections to give the judge multiple reason to deny them access. Start out arguing that this is an improper intimidation tactic against a Pro Se Defendant. Next move on to arguing SOL, by this I mean that credit cards have a 4 year SOL in Utah. By asking for records that greatly predate the SOL it is obvious that Plaintiff is engaging in misconduct to intimidate defendant. Then move on to some of the other grounds cited above. You are going to want to point out how much irrelevant personal information is included in such records and make arguments about their usability.

 

Finally request the court that if the Plaintiff's motion is granted, that the court issue a protective order permitting only outside counsel has access to those records and that they be completely destroyed at the conclusion of the litigation.

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I would go with the burdensome, and irrelevant and that they are not within your custody or control and are not responsive to the case they are outside the scope of the litigation. further the court must first determine that the plaintiff has standing prior to any prejudgment disclosure of information because they have not established a prima facie showing of the right to proceed.

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BIG mistake not ever opening a debt letter from an OC or JDB. Just because you close your eyes to them does not make them go away. In fact, it just leads to bigger problems as I am sure your now finding out. That said. I would immediately try and file for arbitration with JAMS. Read Linda7's thread on it and get moving. You don't have much time. This might run them off.

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I agree that the osterich defense never works, however I believe that the OP has waived arbitration by participating in the case to far. The reasons to oppose are varied but the gist is it violates your privacy rights, it is burdensome as far as your bank will charge you for them, it is a fishing expedition, and they have no standing to request them.

 

Those are issues in opposition.

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Courts have continuously ruled the that a defendant's financial status is not discoverable prejudgment. I can find case law and any state that agrees with this.

In an instant action were no punitive damages are sought the plaintiff has no right to review a defendant's financial status to determine if he in fact can pay a judgment before the judgment is rendered against the defendant.

The main reason the court will allow the parties financial status to be discovered when punitive damages are sought is for the court or the jury to decide how much that person or corporation is worth in order to to determine an appropriate punitive damage assessment. The word punitive stands for punishment more person is worth the more punishment he can afford to pay.

And for this reason that is what courts will not allow a defendant's financial status to be discovered a judgment is rendered against the defendant. Persons financial status has no bearing on a case whatsoever when punitive damages are not sought.

Federal rule 26 even states what I have just said. Most state laws reflect the federal rule 26. Do a Google search for "a defendant's financial status is not discoverable prejudgment."

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Courts have continuously ruled the that a defendant's financial status is not discoverable prejudgment. I can find case law and any state that agrees with this.

In an instant action were no punitive damages are sought the plaintiff has no right to review a defendant's financial status to determine if he in fact can pay a judgment before the judgment is rendered against the defendant.

The main reason the court will allow the parties financial status to be discovered when punitive damages are sought is for the court or the jury to decide how much that person or corporation is worth in order to to determine an appropriate punitive damage assessment. The word punitive stands for punishment more person is worth the more punishment he can afford to pay.

And for this reason that is what courts will not allow a defendant's financial status to be discovered a judgment is rendered against the defendant. Persons financial status has no bearing on a case whatsoever when punitive damages are not sought.

Federal rule 26 even states what I have just said. Most state laws reflect the federal rule 26. Do a Google search for "a defendant's financial status is not discoverable prejudgment."

 

This has nothing to do with the financial status of the defendant.

 

In Ainsworth v. Cach, the defendant was sanctioned for not providing requested bank statements to Cach.   This was not post-judgment.  Cach sued for  a cc debt, and the defendant denied the account.  Cach requested the records to show that payments had been made from the defendant's bank account and that those payments matched the payments showing on the cc statements.

 

The court ruled in Cach's favor.  The defendant appealed and the appeals affirmed the lower court's ruling.

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This has nothing to do with the financial status of the defendant.

 

In Ainsworth v. Cach, the defendant was sanctioned for not providing requested bank statements to Cach.   This was not post-judgment.  Cach sued for  a cc debt, and the defendant denied the account.  Cach requested the records to show that payments had been made from the defendant's bank account and that those payments matched the payments showing on the cc statements.

 

The court ruled in Cach's favor.  The defendant appealed and the appeals affirmed the lower court's ruling.

that case was meant to show why they ask for your bank statements, and what happens if you do not object correctly. Guess I should have stated that. I need to slow down.

 

Any good attorney should not need the defendants bank account info to prove their case.

 

I still hold firm that defendants financial condition cannot be discovered pre trial before a judgment is obtained against the defendant.
 
PA case
Ranney-Brown Distributors, Inc. v. E.T. Barwick Industries, Inc., 75 F.R.D. 3 (S.D. Ohio 1977). In Ranney-Brown, the court addressed the discover ability of financial information under Fed. R. Civ. P. 26 and found that "[o]rdinarily, Rule 26 will not permit the discovery of facts concerning a defendant's financial status, or ability to satisfy a judgment, since such matters are not relevant, and cannot lead to the discovery of admissible evidence." Id. at 5.
 
Illinois case
“founded on the basic premise that the objective of discovery is the ‘expeditious and final determination of controversies in accordance with the substantive rights of the parties.’  [Monier v. Chamberlain, 35 Ill.2d 351, 357, 221 N.E.2d 410, 415 (1966) ].   Thus, discovery should only be utilized to ‘illuminate the actual issues in the case.’  [sarver v. Barrett Ace Hardware, 63 Ill.2d 454, 460, 349 N.E.2d 28, 30, (1976) ].”  Owen v. Mann, 105 Ill.2d 525, 530, 86 Ill.Dec. 507, 475 N.E.2d 886, 890 (1985).
 
A trial court does not have discretion to order discovery of information that does not meet the threshold requirement of relevance to matters actually at issue in the case.   For purposes of discovery, relevance includes not only that which is admissible at trial, but also that which leads to admissible evidence.  TTX Co. v. Whitley, 295 Ill.App.3d 548, 557, 229 Ill.Dec. 801, 692 N.E.2d 790, 797 (1998).
 
Discovery should be denied where insufficient evidence suggests the requested discovery is relevant.  TTX Co., 295 Ill.App.3d at 557, 229 Ill.Dec. 801, 692 N.E.2d at 797.
 
This case shows that unless punitive damages are sought financial records are not discoverble
The information sought by plaintiff in this case was clearly not admissible at trial as the wealth and financial standing of the parties are irrelevant and prejudicial in personal injury actions, where the only damages recoverable or sought are compensatory in nature.  Lorenz v. Siano, 248 Ill.App.3d 946, 953, 188 Ill.Dec. 96, 618 N.E.2d 666, 671 (1993).
 
the purpose of discovery is to enable an attorney to better prepare and evaluate his case, and his ability to prepare and evaluate the strengths and weaknesses of his case in terms of liability, not to the future collectability of a judgment. And we all know this is the main reason they want our financial records. Even though they hide behind other purported reasons.
 
 
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the purpose of discovery is to enable an attorney to better prepare and evaluate his case, and his ability to prepare and evaluate the strengths and weaknesses of his case in terms of liability, not to the future collectability of a judgment. And we all know this is the main reason they want our financial records. Even though they hide behind other purported reasons.
 
 

 

 

I think you might realize the weakness in your argument against the production of bank records (i.e., for purposes of collection) when you take into consideration that the money in someone's bank account six, five, or even one year ago, has no relation to the amount of money currently in the account. Moreover, all that is needed is the most recent statement to discover the type of information needed in order to effect post-judgment execution.

 

Clearly, the objective reason behind seeking the production of years-old records is to show a prior history of payments, and to rebut one or more of defendant's defenses.

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Just to be clear on all options for OP. OP has not waived private arbitration in Utah. Plaintiff has not produced a contract therefore defendant can not know about those rights.

 

I am not necessarily advocating arbitration, however if OP wants to go that route there are some things to do in this case. Include within the opposition that the court should stay a decision on the discovery request pending the outcome of a determination on arbitration. File at the same time a motion to compel production of the contract and a motion to compel arbitration. Under the Utah Arbitration Act the court has ZERO discretion about private arbitration, if the court finds there is an arbitration clause, the court MUST order private arbitration. Any decision concerning whether the arbitration provisions of the contract applies to the specific fact sets are left to the arbitrator, not the court.

 

In a motion for private arbitration and the motion to compel production OP would state that defendant is informed and believes there is an arbitration clause in the contract. That plaintiff is improperly withholding the contract to deny defendant of all applicable rights under the contract while attempting to possibly assert rights plaintiff does not have under the contract.

 

All the above said, $9K is big and I would not want to venture a prediction as to whether plaintiff will pursue or not.

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BV80 made a good point, posters should be aware of this technique. Denying that any account is or ever was yours when you know otherwise is a rather idiotic thing to do. It just opens you up to more expense, more motions, and makes you look bad to the court. Let's face facts, it isn't that hard to prove you had a credit card with bank X. They usually have enough to establish that basic fact. Sudden memory loss doesn't work. A better tactic is to make them prove that the amount they want is legitemate.

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that case was meant to show why they ask for your bank statements, and what happens if you do not object correctly

 

Yes, it showed why they asked for bank statements.  As to whether or not the defendant objected to producing the bank statements, we don't know. 

 

 

Any good attorney should not need the defendants bank account info to prove their case.

 

Yes, a good attorney could need the bank account info when the defendant has denied knowledge of the account and has denied making the payments.  That was the purpose of requesting the bank statements.  Cach needed to show that the payments on the credit card statements came from the defendant's bank account.

 

 

 

PA case
Ranney-Brown Distributors, Inc. v. E.T. Barwick Industries, Inc., 75 F.R.D. 3 (S.D. Ohio 1977). In Ranney-Brown, the court addressed the discover ability of financial information under Fed. R. Civ. P. 26 and found that "[o]rdinarily, Rule 26 will not permit the discovery of facts concerning a defendant's financial status, or ability to satisfy a judgment, since such matters are not relevant, and cannot lead to the discovery of admissible evidence." Id. at 5.

 

 

 

The above does not apply to this case.  This case has nothing to do with financial status or satisfying a judgment.

 

 

 

Thus, discovery should only be utilized to ‘illuminate the actual issues in the case.’  [sarver v. Barrett Ace Hardware, 63 Ill.2d 454, 460, 349 N.E.2d 28, 30, (1976) ].”  Owen v. Mann, 105 Ill.2d 525, 530, 86 Ill.Dec. 507, 475 N.E.2d 886, 890 (1985).

 

 

The above does apply to a credit card collection case if the defendant has denied knowledge of the account or has denied making payments.  Those are the actual issues.  Therefore, just as in the Ainsworth case, bank statements could be needed to prove those issues.

 

 

 

A trial court does not have discretion to order discovery of information that does not meet the threshold requirement of relevance to matters actually at issue in the case.   For purposes of discovery, relevance includes not only that which is admissible at trial, but also that which leads to admissible evidence.  TTX Co. v. Whitley, 295 Ill.App.3d 548, 557, 229 Ill.Dec. 801, 692 N.E.2d 790, 797 (1998).

 

 If the defendant denied making payments, his  bank statements can "lead to admissible evidence" that shows the defendant did, in fact, make payments.

 

You keep bringing up financial status.  As Nascar stated, the request for bank statements from previous years has nothing to do with how much money a defendant has in his account.   Again, this is not about financial status.  I don't see why that's so difficult to understand.

 

If it were me, I'd object to their motion to compel, but not for the reasons you stated because your reasons don't apply.  And even if my objection was "proper", the judge could still grant their motion if I had denied making payments, and he felt my bank statements were needed to see if I made payments or not.

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"Once the production of documents is demanded, a party is obliged to produce them, unless he objects or moves for a protective order."  Amica v. Schettler, (Utah Crt. of App. 1999), citing Utah Civ. P. 37

 

Just a note:  While requesting an order of protection would delay the requested production,  just like any other motion or order, that protective order would have to be granted by the judge. 

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Just a note:  While requesting an order of protection would delay the requested production,  just like any other motion or order, that protective order would have to be granted by the judge. 

Yea , but if they are hell bent on discovering your financial records and the judge agrees you need to ask for a protective order to keep them from disclosing your financial records to anyone else also.

 

So a protective order can work in two ways.

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It seems that Utah allows and favors broad discovery:

 

1.  "A party seeking a protective order has the burden of showing good cause exists for issuance of that order."  "Christiansen v. Farmers," (Utah, 2005).

 

2. "Utah courts contrue statutes and rules concerning discovery liberally in favor of permitting discovery." " Cannon v. Salt Lake Re'l Med. Ctr. (Utah App. Crt. 2005)

 

3.  Utah Rules of Civ. P. No. 26 permits parties to "obtain discovery regarding any matter ,not privileged, which is relevant to the subject matteri involved in the pending action."

 

4.  "The ultimate objective of any lawsuit is a determination of the dispute between the partiers and whatever helps obtain that objective is relevant to the lawsuit." (Utah, 1967).

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